[Redacted], Kandi M., 1 Complainant,v.Craig T. Brown, Acting Director, Selective Service System, Agency.

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021002424 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kandi M.,1 Complainant, v. Craig T. Brown, Acting Director, Selective Service System, Agency. Appeal No. 2021002424 Hearing No. 570-2020-00186X Agency No. SSS19FEB06002 DECISION On March 13, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 18, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Human Resources Specialist, GS-0201-12, at the Agency’s National Headquarters in Arlington, Virginia. On April 17, 2019, Complainant filed a formal complaint alleging the Agency subjected her to discrimination and harassment as follows: 1. Complainant was harassed and discriminated against based on race (African-American), color (Black), sex (female), age (YOB: 1967), and in reprisal for engaging in protected EEO activity by the Human Resources (HR) Officer, also Complainant’s first line supervisor, as reflected in the incidents which follow: 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. 2021002424 2 a. On November 27, 2018, S1 gave Complainant a Letter of Warning; b. On or about November 28, 2018, while coordinating with a member of Logistics to obtain access to an office, S1 stated “you have to get the keys from her and to leave her office now;” c. On December 3, 2018, S1 stated that Complainant is a legacy employee, knows the functions of the HR office, and would not be moved to another department; d. Between December 17-21, 2018, S1 directed the contract employees not to ask Complainant any questions or talk to her; e. On or about February 5, 2019, S1 stopped assigning work and stopped including Complainant in department meetings; f. On February 5, 2019, S1 counseled Complainant in the presence of a contract employee, did not follow the guidance outlined in the Selective Service System Personnel Policies Procedure Manual (PPPM) and wrote Complainant up for being 15-minutes late; g. On or about between March 4-17, 2019, S1 went through Complainant’s desk without permission, took personal and work-related documents, training certificates, and broke a souvenir in Complainant’s work area; and h. On or about March 17, 2019, S1 removed Complainant’s authority to access a work-related databases without notification. 2. Complainant was harassed and discriminated against based on race, color, sex, age, reprisal by the Chief Financial Officer/Associate Director, Support Services, also Complainant’s second line supervisor (“S2”) in the following actions: a. On November 27, 2018, he supported S1 with issuing Complainant a Letter of Warning; b. On December 3, 2018, S2 told Complainant that the Letter of Warning was a very serious action and could lead to a 14-day suspension or removal; c. On February 20, 2019, he changed Complainant’s administrative leave to sick leave without notifying her; d. On or about between March 4-17, 2019, he authorized permission for S1 to go through Complainant’s desk without permission, to take personal and work- related documents and training certificates; 2021002424 3 e. On or about March 17, 2019, he authorized S1 to remove authority to access all work-related databases without notification; and f. On or about March 29, 2019, he presented Complainant with a proposal to terminate. 3. Complainant was harassed and discriminated against by the Deputy Director, when on an undisclosed date, Complainant made him aware that S1 was targeting her, asked for assistance, and he failed to address her behavior. 4. Complainant was harassed and discriminated by the Chief of Staff, also Complainant’s third level supervisor (“S3”), when on or about November 28, 2018, Complainant made him aware that S1 was targeting her, asked for assistance, and he failed to address her behavior. 5. Complainant was discriminated against when on May 8, 2019, she was terminated from her position by the Deputy Director. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. On November 4, 2020, the AJ issued a Notice of Proposed Summary Judgment. The AJ subsequently issued a decision by summary judgment finding no discrimination in favor of the Agency. The Agency issued its final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2021002424 4 To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. To prove her harassment/hostile work environment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, sex, age or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1, S1 (African American, Black, female, YOB 1973) explained that she issued Complainant a Letter of Warning for her conduct and work behavior. Specifically, she stated that Complainant inserted herself in a work matter and failed to follow instructions. Further, S1 stated that she and S2 tried to have a discussion with Complainant to solve the issue but she would not talk to them. S1 stated that on November 28, 2018, she had a discussion with the Agency’s logistics department about obtaining keys to several offices, and thereafter received all the keys to the doors, so that S1 would have no need to continually bother the logistics employees. She advised her staff members that when they need to get into the offices, to come to see her. Furthermore, S1 stated that the employees were not going to go to logistics. S1 indicated to logistics that she could not understand why Complainant kept coming to them, given S1’s directive discussed above, and that it was Complainant’s failure to follow instructions that caused Complainant to do so. Complainant next asserted that on December 3, 2018, S1 commented that Complainant is a legacy employee, knows the functions of the HR office and would not be moved to another department. S1 explained that Complainant went to the front office and asked to be reassigned to the public affairs office. However, S1 stated that Complainant did not have the skills necessary for such a reassignment. In addition, S1 demoed instructing any employees not to talk to Complainant. She did inform the contractors to follow their supervisory chain of command. S1 found out later on when she gave the contractors assignments Complainant went “behind her back” and told them not to do the assignments. 2021002424 5 S1 stated that on February 5 - 7, 2019, she gave Complainant work assignments. However, S1 stated that beginning February 8, 2019, Complainant was placed under S2 because Complainant claimed that S1 was harassing her. S1 notified the Chief of Staff and an investigation was conducted. S1 stated that she stopped all communications and provided Complainant’s assignments through S2. She asserted that Complainant was included in the department meetings but was not included in division/branch meetings because she was under S2. S1 stated that the results of the investigation did not reflect that Complainant was subject to harassment. On February 5, 2019, S1 stated that a discussion was initiated to inform Complainant that new work procedures and processes were to take place which Complainant had previously been unaware of, because she had been on leave. At that time, S1 had a contractor in the room to repair her computer and when Complainant informed her that she felt uncomfortable, S1 asked the contract employee to leave the room and then apologized to Complainant. S1 stated that she did not write up Complainant for tardiness. Complainant claimed that on or about between March 4-17, 2019, S1 went through her desk without permission, took personal and work-related documents, training certificates and broke a souvenir in Complainant’s work area. S1 stated that she was looking for Position Descriptions for IT employees, but Complainant was not in her office. S1 stated that she need the Position Descriptions to process and move employees, and that the logistics department obtained the keys to Complainants desk so that s1 could retrieve the files. S1 stated she when she lifted a desk drawer, it slipped at broke, also breaking a magnet. Moreover, S1 stated that S2 authorized her to go through Complainant’s desk. S1 stated that on or about March 17, 2019, S1 removed Complainant’s authority to gain access to a work-related databases without notification. S1 explained the circumstances for this action. Specifically, S1 found her own appraisal and SF50 from a previous assignment at a different agency when S1 was looking for the Position Descriptions, as discussed above. S1 determined upon making this discovery, that Complainant violated the system rules and regulations. S1 also noted that there were items she had in her desk that she was not working on and “that [Complainant] was not permitted to have possession of. I spoke to S2 about it and he agreed to restrict access.” Regarding claim 2, S2 (African American, Black, male, YOB 1962) was aware that S1 issued a Letter of Warning to Complainant but he does not remember the reason for its issuance. He stated that he was aware that Complainant had received a Letter of Warning from a previous HR Officer who would have been her first line supervisor at that time, and it had to do with inappropriate emails she sent to an employee and “blind copied” to the Director. Complainant claimed that on December 3, 2018, S2 told Complainant that the Letter of Warning was a very serious action and could lead to a 14-day suspension or removal. S2 agreed that he had made this statement and that his intention was to convey to Complainant that the table of penalties allowed for a much harsher penalty that was being given to her. 2021002424 6 S2 stated that he was aware of the November 28, 2018 incident. For instance, he stated that there was an exchange of words between S1 and Complainant. As a result, he conducted an investigation and interviewed key staff members and “my investigation determined the claim of harassment was unsubstantiated.” Complainant claimed that on or about between March 4-17, 2019, S2 authorized permission for S1 to go through Complainant’s desk without permission, to take personal and work-related documents and training certificates, he explained that S1 was looking for a specific document. At that time, Complainant was out of the office and S1 had a witness to come with her to reflect that actions were done correctly. As she was looking for the document, she came across several other documents that should have been centrally filed. Furthermore, S1 stated that as a result of collecting those files that S1 felt was not authorized to be in Complainant’s possession, “she came across files that belonged to her.,,S1 wanted to remove [Complainant’s] access from eOPF until the matter was resolved. I agreed. I spoke to [Complainant] to let her know why her access was being removed.” S1 stated that informed Complainant did not agree with her access from eOPF until the matter was resolved but he felt it was appropriate to suspend her access. Regarding claim 3, and 4, The Deputy Director (Caucasian, white, male, YOB 1963), stated that Complainant never came into his office with the claims referenced above. The Chief of Staff (Middle Eastern/Caucasian, white, male, YOB 1986) stated that Complainant came into his office in November 2018, emotionally distraught, and requesting a transfer because she did not like her boss. The Chief of Staff stated that a mediation was held. The Chief of Staff also stated that a formal investigation was conducted of Complainant’s various allegations, and that the conclusion of the investigation reflected “no findings of harassment whatsoever.” Regarding claim 5, Complainant claimed that on May 8, 2019, she was terminated from her position by the Deputy Director. The Deputy Director reviewed all matters contained in the proposed action and it was established that Complainant went back into S1’s employment background records and found a negative appraisal and SF-50 and disclosed this information to S2. The Deputy Director stated that that there was no business-related need for Complainant to share such information. The Deputy Director stated that the protection of Personal Identifiable Information is taken seriously, and that Complainant used this information for her personal benefit. Finally, the Deputy Director stated that Complainant had gone through the backgrounds of various Agency employees, including his own. The record contains a copy of Complainant’s May 8, 2019 removal. Therein, the Deputy Director placed Complainant on notice that she was being removed from Agency employment effective May 9, 2019 for violating the Privacy Act, violating the Rules of Conduct of Maintenance of Personnel Records. unauthorized use of non-public information, intentional failure to observe any written regulation or order prescribed by competent authority, and violating the Rules of Behavior. 2021002424 7 The record reflects that there were 198 identified specifications. The Deputy Director stated after a review of the evidence development including Complainant’s written response. She chose not to submit an oral response. He determined that Complainant had repeatedly violated the trust, accountability, and responsibilities expected of an HR Specialist. The Deputy Director concluded that given the magnitude of the misconduct, Complainant’s actions destroyed his trust in Complainant’s ability to perform any Agency duties with integrity and professionalism. The image which emerges from considering the totality of the record is that there were conflicts and tensions in the workplace that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, the preponderance of the evidence does not establish that any of the disputed actions were motivated in any way by discriminatory or retaliatory animus. Complainant’s claim of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION After careful consideration of the record and the arguments presented on appeal, we AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation. 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. 2021002424 8 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). 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. 2021002424 9 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 April 18, 2022 Date