U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene W.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Office of Surface Mining Reclamation & Enforcement), Agency. Appeal No. 2022000344 Agency No. DOI-OSM-20-0354 DECISION On October 25, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 29, 2021, final decision (FAD) concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq.2 For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a Grants Management Specialist for the Agency’s Appalachian Region Grants in Greentree, Pennsylvania. Complainant began work in her position with the Agency on June 10, 2019. Record of Investigation (ROI) at 234. Complainant stated that Senior Grants Specialist (Team Lead) was tasked with training her. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The Commission notes that the Agency’s FAD was issued on March 29, 2021, and Complainant did not file her appeal to the Commission until October 25, 2021. Complainant’s attorney submitted a letter attesting that he did not receive the FAD until October 25, 2021. As such, pursuant to 29 C.F.R. § 1614.402(b), the appeal was timely filed with the Commission. 2022000344 2 Complainant received a cash award for her rating on her performance review performed after approximately three months in the position. ROI at 176. Division Chief stated that, at the time of Complainant’s cash award, the Agency had changed its policy to allow someone rated as “fully successful” to receive an award. ROI at 177. Division Chief stated that because she had been in the job only three months and was still learning the job, any rating of less than “fully successful” would not be appropriate. ROI at 176. Complainant was rated “fully successful” on her performance evaluation; no element was rated above or below “fully successful.” ROI at 234. Division Chief asserted that Complainant’s performance was not consistent with the needs of the position. ROI at 164. Team Lead specified that Complainant’s Grants Management position had a performance expectation document broken down into three, six, nine, and twelve-month milestones. ROI at 558. Team Leader stated that Complainant never passed the three-month expectations. ROI at 185. Division Chief said that Complainant made errors on multiple occasions. ROI at 164. Division Chief went on to report that Complainant’s processing time, even with these mistakes, was very long; what would take a typical employee one to two days to complete took Complainant 30 days to complete. ROI at 164. Co-Worker 1 (CW1), a member of Complainant’s work team, proffered that Complainant had difficulty remembering information relevant to the position. For example, CW1 asserted that Complainant had difficulty managing multiple types of grant awards simultaneously. Specifically, CW1 stated that Complainant would get confused when switching from one type of grant to another. ROI at 86. CW1 said that Team Lead tried to train Complainant, and Supervisory Environmental Protection Specialist (Supervisor) was present for one of the training sessions, but Complainant could not “quite get” the required job responsibilities. ROI at 88, 563. CW1 stated that Complainant would call her for questions on her day off, instead of calling Team Lead. ROI at 92. But, said CW1, there were times that she and Complainant would discuss something and, when CW1 returned to work a few days later, Complainant had “mixed up” everything that they had discussed. ROI at 95. Supervisor eventually instructed CW1 not to answer Complainant’s questions. ROI at 88, 92. CW1 thought that, in the time that Complainant was with the Agency, she would have learned more. ROI at 86, 88. Supervisor said that, upon noticing CW1 and Team Lead were correcting Complainant’s entries every week, he went to Team Lead and requested the entry data for all of the grants’ employees. ROI at 137-38. Supervisor stated that Team Lead and CW1 were spending approximately 30% of their time correcting Complainant’s mistakes. ROI at 145. Supervisor stated that he wanted to observe her performance, himself, to rule out personality conflicts as a reason for her performance. As such, Supervisor relayed he did not take immediate action. ROI at 145. The record contains evidence of numerous email communications between July 2019 and January 2020, where Team Lead pointed to errors in Complainant’s work product and expressed the desire to assist Complainant in learning. ROI at 258, 260, 281, 285, 293, 296, 304-16, 331- 336. Team Lead specifically expressed that Complainant’s difficulty with performance negatively impacted the rest of the team. 2022000344 3 Team Lead was required to lighten Complainant’s workload more than it already was, which brought on even more tension because CW1 believed Complainant wasn’t contributing. ROI at 261, 267-68. On January 7, 2020, a meeting was memorialized in which Complainant met with leadership to discuss her performance and how to improve it. ROI at 265-66, 618. Supervisor stated that Complainant told Division Chief that she had not been properly trained, so Supervisor and Division Chief decided that Complainant should be retrained. ROI at 145-46. The decision was made for Complainant to be trained with one-on-one training. ROI at 265-66, 618. Complainant alleged that she was not trained until February 2020. ROI at 79. Supervisor asserted that, on January 28, 2020, Complainant was retrained in an individual session with Team Lead. ROI at 145, 191, 618. Supervisor’s opinion was that Team Lead went out of her way to make sure Complainant understood what to do; Team Lead reported that Complainant received more training than most people occupying that position. ROI at 146, 191, 197. Supervisor stated that, after each segment, he would have Complainant do the entry that they had just completed, that Complainant assured Team Lead that Complainant knew how to do, but Complainant could not successfully complete the steps. ROI at 146, 191. At this point, Supervisor stated that he discussed options regarding Complainant’s employment with the Agency with personnel and Division Chief. ROI at 147. Division Chief and Team Lead found that her performance, even with very simple tasks, did not improve even after training. ROI at 168, 187, 263, 621. On March 16, 2020, Complainant was terminated within her probationary period. She asserted that Team Lead’s attitude toward her ultimately resulted in her termination. ROI at 81. Supervisor contested this claim and asserted that Complainant’s employment was terminated because she was found deficient in every aspect of her job responsibilities. ROI at 135. Complainant stated that she was given the option to quit or be fired on the date of her termination. ROI at 78. She stated that other, similarly situated employees, CW1 and Co-Worker 2 (CW2), who were outside of Complainant’s protected class were afforded opportunities to remove themselves from the influence of Senior Grant Specialist rather than be terminated. ROI at 79-80. Complainant asserted that CW1, a Caucasian female with the same chain of command and position as Complainant, was afforded a compressed work schedule (four, ten-hour workdays per week) to minimize time with Team Lead. ROI at 79, 84, 86. CW1 confirmed she worked a compressed work schedule but did not confirm that this was due to conflict with Team Lead. ROI at 89. Complainant alleged that CW2 filed a claim of harassment against Team Lead and was encouraged to apply for another job, after which CW2 was promoted. ROI at 79. CW2 denied that she filed a claim against Team Lead. ROI at 106. With regard to her claim of harassment, Complainant asserted that she mentioned to Supervisor that she had a grandfather from West Virginia, and Supervisor turned to her and stated, “Well, that can’t be good.” ROI at 79. Supervisor disputes that this conversation took place, noting he is from West Virginia and is a fan of Mountaineers. ROI at 150. 2022000344 4 In another example, Complainant stated that Team Lead, when asked questions, would make faces, scream at her, be demeaning, and be exceptionally harsh; she stated that, on one occasion, Team Lead cursed at her. ROI at 79. Another situation recounted by Complainant involved Team Lead emailing CW1, welcoming CW1 back from vacation because Team Lead “could not get anything done without her.” ROI at 79. Complainant stated that she communicated her concerns regarding this behavior numerous times to Supervisor, but he said that it is just Team Lead’s personality. Complainant alleged that Division Chief stated that this was not the first time that someone had complained about Team Lead. ROI at 80. When asked about Team Lead’s communication, CW1 stated that Team Lead answered questions thoroughly and quickly. ROI at 93. CW1 confirmed that Team Lead was strictly professional, that Team Lead is not “warm and fuzzy” at work. ROI at 94. CW1 stated that Team Lead treated Complainant in the same manner that she treated CW1 during CW1’s first year with the Agency. That Team Lead sent numerous emails with corrections; CW1 recounted that she saved those emails to learn from them. ROI at 90. CW1 asserted that she showed Complainant the emails that she received from Team Lead in her first year. ROI at 90. CW1 also stated that Complainant had disputes with Team Lead and that Complainant would get very angry. CW1 stated that during the final disagreement, Complainant got very loud and aggressive with Team Lead. ROI at 85, 91. CW1 recalled that Complainant told Team Lead that Complainant didn’t appreciate Team Lead’s feedback and comments. ROI at 91. CW1 stated that Team Lead tried to calm Complainant down, and it culminated in Team Lead recommending that the two of them take the issue to Supervisor. ROI at 85, 91. Co-Worker 3 (CW3), also present at the time of the referenced argument, countered that. From her vantage, CW3 saw that Team Lead was yelling at Complainant, in direct contradiction to CW1. ROI at 121. Another employee present at the time, CW4, stated that he thought that both individuals had elevated voices. ROI at 205. Team Lead’s account is consistent with CW1; she conceded, however, that she received a memo in her permanent record concerning the incident. ROI at 188, 196. CW2, the other individual named by Complainant, did not work with Team Lead. She affirmed she worked with the same Supervisor and Division Chief. ROI at 102. CW2 said that Team Lead had a tendency to be condescending and short-tempered. ROI at 103-4. While CW2 denied filing a harassment claim against Team Lead, she affirmed that she spoke to Division Chief, who recommended that CW2 take a class to learn to interact with Team Lead. ROI at 106. CW2 offered that notice of Team Lead’s “attitude” was not limited to people in Team Lead’s direct group; rather, Team Lead had a tendency to not be nice to people, in general. ROI at 106-7. CW2 specified that people who had been in Complainant’s position before Complainant had had difficulty working with Team Lead, including a white male and a white female. ROI at 108. On July 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 2022000344 5 1. On March 16, 2020, Supervisor, terminated her employment while in her probationary period; and 2. Complainant was subjected to harassment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Subsequent to the Agency’s issuance of the FAD, Complainant’s attorney filed a request for a hearing with an AJ before the Commission. The Commission, however, notes that Complainant requested a FAD from the Agency. Complaint File at 4. Therefore, the Commission will proceed with a decision based upon the FAD in this case. CONTENTIONS ON APPEAL Complainant contends that she was treated differently than similarly situated white employees who worked under Team Lead. Complainant also argues that she was denied sufficient training to adequately perform the duties of her position. Complainant further argues that any deficiencies in her performance was due to the disparity of accommodations that she had received regarding Team Lead, as opposed to other employees who had also worked under Team Lead and had difficulty with her. Finally, Complainant asserts that she did not receive procedure-mandated six- month and nine-month evaluations. The Agency did not provide a brief in support of its position regarding this appeal. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2022000344 6 Disparate Treatment-Claim 1 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Tex. Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant meets the prima facie case for race and retaliatory discrimination, we now turn to the Agency to articulate a legitimate, non-discriminatory reason for its actions. We find that it has done so here. Specifically, the Agency avers that Complainant did not meet the required performance standards for the position that she was hired for. As such, the Agency terminated Complainant’s employment with the Agency. We now turn to Complainant to establish that the Agency’s reason constituted pretext for discrimination. Upon review, we find that Complainant has not demonstrated evidence that the Agency terminated her due to her race or in reprisal for his prior EEO activity. Though Complainant identified CW1 and CW2 as individuals who were afforded opportunities to minimize contact with Team Lead and, as such, were afforded opportunities to improve that she was not, the Commission cannot find that these are valid comparators. CW1 had no evidence of performance counseling or coaching, nor was there evidence that anyone in her chain of command found her performance to be sub-par in any way. To the contrary, Supervisor asserted that CW1 was spending up to 30% of her time correcting Complainant’s work. CW2 does not, and has not, occupied the same job as Complainant, nor was Team Lead in her supervisory chain. To demonstrate that another employee is a similarly situated comparator, Complainant must show that all relevant aspects of the comparator's work situation were nearly identical to her own. Brittney B. v. U.S. Postal Serv., EEOC Appeal No. 0120182349 (May 22, 2019) (holding that comparators who engaged in dissimilar conduct were properly excluded from analysis of disparate treatment). As there was no evidence that CW1 was ever found to be below fully successful in any manner, and CW2 had a different position, neither is a valid comparator. While the evidence demonstrates that Complainant was rated as “fully successful” after approximately three months in her position, Division Chief clarified that, due to the training and relatively short time in the position, she did not find that rating Complainant lower would be appropriate. There is ample evidence that there was communication between Team Lead, Supervisor, Division Chief, and Complainant that Complainant was not meeting expectations and determining ways to assist Complainant in meeting these objectives. Team Lead shifted job responsibilities to other members of the team to lighten Complainant’s workload. 2022000344 7 Finally, Team Lead provided one-on-one refresher training to Complainant, with Supervisor present. Complainant’s performance still did not improve. Complainant has not provided evidence that similarly situated employment received more training than she did. To the contrary, Team Lead asserted that she had received more training than others in her same position, and Complainant has offered no evidence to the contrary. To the extent that Complainant’s representative argues that she did not receive adequate training, she has not provided evidence that this was due to her race or protected EEO activity, as opposed to a mistake or oversight on the part of the Agency. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). The Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. As Complainant has not provided evidence that would convince the finder of fact that the Agency acted in a pretextual manner regarding her termination, the Commission cannot find that the Agency discriminated against Complainant regarding her termination of employment. For this reason, we AFFIRM the Agency’s finding that there was no discrimination regarding claim 1. Harassment-Claim 2 Complainant also alleges that she was subject to harassment by the Agency, specifically Team Leader and Supervisor. In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is “sufficiently severe or pervasive to alter the conditions of [a complainant's] employment and create a hostile or abusive working environment.” The Court explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment had the purpose or effect of unreasonably interfering with the work 2022000344 8 environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. With respect to element (5), an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). To prevail on a claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). In this case, Complainant alleges that she was subject to harassment by the Agency, specifically Team Lead and Supervisor. With regard to Supervisor, Complainant stated that, when she mentioned to Supervisor that she had a grandfather from West Virginia, Supervisor turned to her and stated, “Well, that can’t be good.” Supervisor, however, denies making any such statement, asserting that he is from the state. Complainant has offered no witnesses or corroborating evidence supporting her claim. As we have no evidence to weigh the credibility of one of these individuals over the other, we are left with the evidence in equipoise. As such, we find that complainant failed to meet her burden of proof by a preponderance of the evidence that she was subjected to unwelcome verbal or physical conduct. Rojas v. Dep’t of the Navy, EEOC Appeal No. 0120063514 (June 25, 2007) (affirming that when the evidence is in equipoise, Complainant did not meet their burden of proof by a preponderance of the evidence). Complainant has not provided evidence that any alleged verbal conduct by Team Lead was due to her race and/or prior protected activity. Complainant alleged without proof that CW1, a white woman, was required to change to a compressed work schedule due to her interactions with Team Lead. CW2 concurred that Team Lead was a difficult person to work with, but she stated that Team Lead had difficult interactions with people regardless of race. As Complainant has not provided evidence that any alleged events occurred based upon the protected classes, the Commission cannot find that Complainant has met the elements of harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision that there was no discriminatory conduct on the part of the Agency. 2022000344 9 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2022000344 10 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 15, 2022 Date
