[Redacted], Katherina A., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Aug 8, 2022

Appeal No. 2021002390 (E.E.O.C. Aug. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katherina A.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2021002390 Agency No. DOE-19-0015-HQ-El DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 11, 2021, finding no discrimination concerning her 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. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Industrial Economist, GS-12, at the Agency’s Office of Energy Consumption and Efficiency Analysis (OECEA), Energy Information Administration (EIA) in Washington, D.C. On December 14, 2018, Complainant filed her complaint, which was amended, alleging discrimination and harassment based on race (Asian), color (pale yellow), sex (female), religion (Islam), national origin (Middle Eastern), and in reprisal for prior EEO activity when: 1. From January 2018, through April 2018, her first level supervisor (S1), Supervisory Industry Economist, GS-15, interfered with her efforts to meet with multiple EIA team 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. 2021002390 2 leads, including Supervisory Operations Research Analyst, Supervisory Economist, and Director, EIA Office of Energy Markets and Financial Analysis, to explore options for a reassignment of her to another team. 2. On October 11, 2018, and November 3, 2018, she requested that S1 nominate her for the Office of Energy Analysis Innovation Award, but S1 did not nominate her for the award. 3. In a meeting on November 8, 2018, S1 harassed her verbally. 4. On November 8, 2018, S1 informed her that S1 would not give her a rating of Meets Expectations and that S1 might place her on a Performance Improvement Plan (PIP) on her writing element, which she asserts was based on S1’s subjective biases. 5. On unspecified dates, S1 held back her Fiscal Year (FY) 2018 performance ratings, and on November 8, 2018, S1 informed her that S1 would extend out her ratings for another 90 days. Complainant further noted that as of the time of filing the instant formal complaint, S1 had not provided her with FY 2018 performance appraisal. 6. On November 29, 2018, EIA Assistant Administrator (A1) and Complainant’s second level supervisor (S2), Director, OECEA, SES, denied her transfer request even though her coworker (C1), Industry Economist, EIA OECEA, GS-13, who is allegedly the only other staff member on her team, has been allowed to work under a different supervisor instead of working under S1. 7. Beginning in February 2018 and continuing until the filing of the instant formal complaint, S1 bullied her and denied her career opportunities, including skills training. 8. On December 3, 2018, S1 placed her on a 90-day PIP. 9. On March 7, 2019, S1 raised her voice with Complainant during a face-to-face meeting and accused her of having a concerning behavior during an email checking class on February 28, 2019. More specifically, Complainant asserts that S1 stated that she had a frown on her face and sat isolated in the February 28, 2019 class and that she gave the instructor a low rating in two areas. She further asserts that at the end of the meeting, S1 stood over her, ordered her to leave S1’s office while S1 pointed towards the door, and told her to “Get out.” 10. On January 9 and 31, 2019, February 12 and 28, 2019, March 7 and 11 through 15, 2019, S1 has denied her professional training classes and technical skills development opportunities. 11. On April 24, 2019, S2 issued a 90-day PIP to her. By way of background, Complainant asserted that she requested that S2 reschedule the PIP meeting he had 2021002390 3 scheduled for that afternoon because a union representative was not available to attend, but S2 disregarded her request and issued her the PIP via email that afternoon. 12. On May 1, 2019, S2 informed her by email that she had forfeited her eligibility to participate in alternative work schedule (AWS) and telework programs as a result of her performance failing to meet expectations for critical element 3 of her performance plan. 13. On June 12, 2019, Supervisory Operations Research Analyst, Office of Petroleum Natural Gas and Biofuel Analysis, EIA, GS-15, who was her new Industrial Team Lead, informed her during a meeting that she would be the only member of the five- person Industrial Team to report to S2 for a long time. On April 12, 2019, the Agency dismissed claim 1, regarding a reassignment, as a discrete incident due to untimely EEO Counselor contact but considered it under the theory of harassment. On November 29, 2019, the Agency also dismissed claims 4, 5, and 8, regarding not issuing her FY 2018 performance evaluation in November 2018, and placing her on a PIP, because Complainant elected to file a grievance regarding the same matters on December 7, 2018, under Section 11.03(A) of the National Treasury Employees Union’s Collective Bargaining Agreement, prior to filing the instant complaint on December 14, 2018. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. The record indicates that Complainant began working for the Agency in January 2017. S1 was her first level supervisor from January 2017, until March 14, 2019. Regarding claim 1, S1 indicated that she did not restrict any management official from meeting with Complainant. The Supervisory Economist, identified by Complainant, stated that he met with Complainant regarding her transfer inquiry and provided his advice. Regarding claim 2, S1 indicated that Complainant asked S1 to nominate her for the innovation award only on October 11, 2018, not on November 3, 2018. S1 stated that although Complainant provided her justification for the nomination, it did not support the innovation award. S1 indicated that Complainant merely provided her completing benchmark or staying in contact with professionals from all other directorates. S1 stated that no one else asked her to nominate anyone for the innovation award and she did not nominate anyone in the time frame at issue. Regarding claims 3, 4, 5, and 8, S1 indicated that S1 held a weekly Thursday meeting with Complainant to discuss her progress on assignments and answer questions regarding her work. During one of those meetings on November 8, 2018, S1 told Complainant that her performance was not meeting expectations and she might be placed on a PIP. 2021002390 4 On November 29, 2018, S1 informed Complainant that S1 would be issuing a 90-day PIP to her due to her Fails to Meet Expectations for Critical Element 3 (writing articles, reports, and documentation) for the FY 2018 performance cycle. The record reveals that Complainant’s FY 2018 summary performance rating would be Fails to Meet Expectations if at least one of four Critical Elements was a Fails to Meet Expectations rating. On December 3, 2018, S1 issued Complainant a PIP informing her that her performance for Critical Element 3 Fails to Meet Expectations for the FY 2018 performance cycle. Therein, S1 informed Complainant that S1 was extending her FY 2018 rating cycle for 90 calendar days to provide her an opportunity, in the form of a PIP, to improve her performance to at least the Needs Improvement level. S1 also stated that at the end of this period, Complainant’s performance would be evaluated, and a summary rating would be issued for the FY 2018 performance cycle. Therein, S1 also indicated that during the period between Complainant’s second progress review issued on June 28, 2018, and September 30, 2018, she failed to submit a satisfactory ten-page paper on Irrigation in California as assigned in her performance plan. Specifically, S1 stated that Complainant’s first draft submitted on June 22, 2018, had many deficiencies, including pasted-in verbatim from the internet. S1 further stated that Complainant’s second draft submitted on September 21, 2018, was insufficient, sources not fully attributed, at least two verbatim paste-ins, incorrect attribution of sources in the bibliography, unattributed paraphrasing of other sources, and material in the conclusion that was not discussed in the body of the paper. S1 noted that neither draft was written according to the EIA Style Guide criteria as required. S1 further noted that Complainant’s final draft, which was submitted on January 2, 2019, was still deficient despite extensive guidance from S1. The record reveals that on January 24, 2019, Complainant was issued her FY 2018 performance evaluation with Fails to Meet Expectations summary rating. This is not at issue. Regarding claim 6, S2 indicated that Complainant requested a transfer on November 13, 2018. S2 did not deny the request since he did not have authority to transfer employees. S2 stated that he discussed the matter with A1. A1 acknowledged that on November 29, 2018, Complainant requested a transfer, but he could not grant the request since there was no adequate business reason and she had performance related issues and was placed on a PIP. A1 indicated that Complainant was incorrect about C1, GS-13, in that he denied C1’s transfer request and C1 still worked for S1. Regarding claims 7 and 10, S1 indicated that she did not bully Complainant. S1 stated that she was disappointed with and criticized Complainant’s deficient work when S1 discovered that one of her papers was entirely pasted-in from sources on the internet including the conclusion. S1 asked Complainant to rewrite the subject paper, including her own conclusion. S1 noted that Complainant’s work was not correct; it took her a while to complete her assignment; and she missed several deadlines. 2021002390 5 Regarding training, S1 indicated that in February 2018, she denied Complainant’s leadership training request because due to her performance for Critical Element 3 Fails to Meet Expectations rating for FY 2018 on December 3, 2018, S1 did not think it was appropriate for her to attend the subject training. S1 also indicated that Complainant was allowed to attend Beginning Excel training but not Intermediate/Advanced Excel training in January 2019, because she did not master and was not able to perform the basic Excel functions of which she was trained at Beginning Excel class. S1 stated that Complainant was denied Office of Personnel Management leadership training on August 13, 2018, because it was not relevant to the technical aspects of her job. Regarding the February 28, 2019 seminar, S1 indicated that it was not training; rather anyone could attend that seminar. S1 stated that Complainant could not, however, attend the seminar because it was at the same time when they had their Thursday meeting to discuss about projects which were due, and it could not be rescheduled. S1 noted that she did not have any record of the March 7 - 15, 2019 training classes. S1 noted that she approved, and Complainant attended, several trainings relevant to her job. Regarding claim 9, S1 stated that Complainant was scheduled to attend a writing class offered by the Office of Communication in February 2019. S1 was later notified by the Office of Communication training staff that Complainant arrived 20 minutes late (missing 1/3 of the class) for the class and had a frown on her face. Further, Complainant’s rating of the instructor, who had received excellent ratings, was an outlier in not giving the instructor an objective course evaluation. S1, thus, met with Complainant to discuss the foregoing concerns. S1 stated that Complainant told S1 that she was late because she did not know how to get to the location even though she had been working there for two years. S1 stated that when the meeting was over, she told (did not yell) Complainant to get out. In her affidavit, Complainant explained that during the meeting with S1, she tried to ask questions and explain S1’s misunderstandings, but “[S1] didn’t want to listen and she stood up and pointed towards the door, gesturing for me to leave and I left.” Regarding claim 11, S2 indicated that he issued Complainant a 90-day PIP, via email, on April 24, 2019, to assist Complainant due to her falling below minimum performance standards. S2 stated that the 90-day period had been extended several times and Complainant informed him that she would not be participating in the meeting as directed and her union representative would also not be available to attend the meeting. S2, in response, informed Complainant that the PIP was effective April 24, 2019, even if a meeting was held after the fact. Regarding claim 12, S2 indicated that he informed Complainant on May 1, 2019, that as a result of her failure to meet expectations of her performance plan, she forfeited her eligibility to participate in the AWS and telework program under the Agency’s standard procedure. S2 noted that Complainant was nevertheless allowed to telework part-time. Regarding claim 13, the Supervisory Operations Research Analyst stated that he was detailed as a Team Lead for Complainant’s team in June 2019. During their meeting, the Team Lead 2021002390 6 informed Complainant that S2 would be supervising her while she was still working under the PIP issued by S2, described in claim 11. The Team Lead did not remember saying “for a long time.” In its final decision, the Agency found that Complainant failed to demonstrate that its actions were motivated by discrimination or that she was subjected to harassment as alleged. Complainant appealed from the Agency’s final decision. 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 (EEO MD-110), Chap. 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"). Dismissals (Claims 1, 4, 5, and 8) The Agency dismissed claim 1, concerning a reassignment, as a discrete act, due to untimely EEO Counselor contact. The incidents occurred from January - April 2018, but Complainant did not contact an EEO Counselor until November 15, 2018, which was beyond the 45-day time limit set by the regulations. Complainant does not provide any justification to warrant an extension of the applicable time limit for contacting an EEO Counselor. Thus, the Agency’s decision dismissing claim 1 as a discrete act is proper. 29 C.F.R. § 1614.107(a)(2). We note that the Agency, nevertheless, properly investigated claim 1 as a part of Complainant’s harassment claim. We will address such accordingly herein. The Agency also dismissed claims 4, 5, and 8, concerning not issuing Complainant’s FY 2018 performance evaluation in November 2018, and placing her on a PIP, for raising the same matters in a negotiated grievance. Although the Agency cited Section 11.03(A) of its collective bargaining agreement, the agreement was not included in the record. There is no evidence in the record to show that the Agency’s negotiated grievance procedure permitted Complainant to raise allegations of discrimination or that she elected to pursue the subject matters through the grievance. Thus, we find that the Agency’s dismissal of claims 4, 5, and 8, was improper pursuant to 29 C.F.R. § 1614.107(a)(4). Nevertheless, the record reveals that the Agency investigated the subject claims. Thus, we will address the merits of claims 4, 5, and 8, accordingly herein. 2021002390 7 Discrimination/Harassment To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs 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 Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). In order to establish a claim of harassment, Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in those classes or her prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. The Agency indicated that Complainant was not nominated for the innovation award because she did not provide an adequate justification for the award nomination. Complainant has not shown this reason to be untrue or somehow motivated by discrimination. 2021002390 8 The Agency also indicated that Complainant was placed on a PIP because her performance for Critical Element 3 (i.e., writing articles, reports and documentation) was rated Fails to Meet Expectations, which would have resulted in a FY 2018 summary performance rating of Fails to Meet Expectations, the lowest rating. Management decided to extend Complainant’s FY 2018 rating cycle for additional 90 days in order to give her opportunity to improve her FY 2018 performance rating to at least the Needs Improvement level. S1 indicated and the record reveals that Complainant’s writing on Irrigation in California had many deficiencies even after two revisions. The Agency further indicated that Complainant’s transfer request was denied because she did not provide an adequate business reason for the request and she had performance issues. The record reveals that Complainant was approved to attend several training classes which were related to her job duties. The Agency indicated that Complainant was unable to and/or no longer allowed to participate in the AWS and telework program due to her failure to meet expectations of her performance plan in accordance with its procedure. Upon review, we find that Complainant has not shown that the Agency’s proffered reasons for its actions were pretext for discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. We find that Complainant failed to show that any of the Agency’s actions were motivated by discrimination. Regarding her claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Further, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences as addressing performance deficiencies sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs., EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, Complainant provides no evidence that the incidents were abusive or offensive, or taken in order to harass her based on discriminatory bases as alleged. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as alleged or that she was subjected to discriminatory harassment.2 2 On appeal, Complainant indicates that she was removed from her employment at the Agency on January 29, 2021. This is not at issue herein. Our records indicate that the Commission, in EEOC Petition No. 2022000814 (May 23, 2022), concurred with the Merit Systems Protection Board’s final decision finding no discrimination regarding the January 29, 2021 removal. 2021002390 9 CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021002390 10 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. 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 August 08, 2022 Date