[Redacted], Kylee C., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Jan 18, 2022

Appeal No. 2020004196 (E.E.O.C. Jan. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kylee C.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2020004196 Hearing No. 443-2018-00159X Agency No. EPA-2018-0012-R05 DECISION On July 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 17, 2020 final order 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. BACKGROUND Complainant worked as the Chief of the Freedom of Information Act & Records Management Section, GS-0028-14. at the Agency’s Field Office in Chicago, Illinois. On September 7, 2016, Complainant served on a three-person interview panel for the position of Enforcement Coordinator. Her role on the panel was to ask the lead questions while the other two panelists, one of whom was the selecting official, would have the option to ask follow-up questions. One of the candidates was the Acting Director of the Superfund Division’s (S2) Administrative Assistant (AA). Following the interviews, the panel unanimously determined that the selectee was the best-qualified candidate for the position. 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. 2020004196 2 On October 7, 2016, however, AA sent an email to Acting Deputy Director of the Superfund Division (ADD) accusing Complainant of harassing her and of influencing the selection panel not to select her. In response to AA’s claims, ADD initiated a 4711 investigation. On May 10, 2017, AAD issued his report on the results of the fact-finding. He concluded that although AA’s allegations that Complainant harassed her were not supported by the evidence, Complainant did exhibit unprofessional conduct towards AA on at least one occasion. IR 196-207, 209-11, 212- 15, 218-25, 230-31, 234-35, 244-45, 248-49, 254-57, 259. A follow-up 4711 investigation was conducted based upon additional allegations made against Complainant by AA, and on September 22, 2017, ADD issued concluding memoranda to both parties explaining that although AA’s claims of harassment were unsubstantiated, the fact-finder determined that Complainant had again exhibited unprofessional conduct toward AA. ADD further noted that he would recommend that the Chief of the Operations Management Branch, Complainant’s immediate supervisor (S1), consult with the Human Resources Office regarding an appropriate response. IR 109-11, 268-73, 274-78, 280-84, 286-89, 298-99. On October 25, 2017, S1 issued Complainant a letter of reprimand and a FY 2017 performance appraisal rating of “exceeds expectations,” both of which were based, in part, on ADD’s 4711 investigative report. IR 105-07, 132-35, 138-41, 145-46, 158, 160, 178, 180, 196-97, 293-94. On February 16, 2018, Complainant filed a formal complaint in which she alleged that the Agency subjected her to discrimination and a hostile work environment in reprisal for prior protected EEO activity when2: 1. Since June 8, 2017, neither S1 nor S2, had initiated a “47113” investigation into incidents of harassment reported by Complainant; 2. On October 25, 2017, S1 lowered a critical element of Complainant’s FY 2017 performance appraisal rating; and 3. On October 25, 2017 S1 issued Complainant a letter of reprimand. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On January 29, 2020, the AJ assigned to the case granted the Agency’s motion for summary judgment on incidents (2) and (3). On May 12 and 13, 2020, the AJ held a hearing on incident (1) only, and on May 22, 2020, the AJ issued a bench decision finding that Complainant was not subjected to reprisal. The Agency thereupon issued a final order fully implementing the AJ’s decisions. This appeal followed. 2 The incidents have been rearranged in chronological order for clarity. 3 A “4711” investigation, also referred to as a “fact-finding” is an internal investigation conducted in accordance with the Agency’s anti-harassment policy statement. According to the ADD, Agency Order 4711 sets forth the procedure for investigating allegations of workplace harassment. Hearing Transcript (HT) 126, 128. 2020004196 3 ANALYSIS AND FINDINGS Post-Hearing Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l. Labor Rels. Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Hostile Work Environment - Incident (1) To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, to prove her harassment claim, Complainant must establish that S1 subjected her 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 S1’s actions were taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that any of S1’s or S2’s actions were based on retaliatory animus. 2020004196 4 Complainant and her attorney had written to ADD alleging that she, Complainant, was the victim of retaliatory harassment by AA in connection with her alleged role in AA not being selected for the Enforcement Coordinator position. In a memorandum dated March 21, 2018, the Assistant Regional Administrator (ARA) directed the Chief of the Labor and Employee Relations (CLERS) to conduct a 4711 fact-finding inquiry into Complainant’s allegations of harassment against her management team, particularly S1 and S2. As of May 13, 2020, the date of the hearing, that investigation had yet to be completed. At the hearing, ARA and CLERS admitted in their hearing testimony that they delayed initiation of the 4711 investigation until after Complainant had filed the instant EEO complaint and that they failed to expeditiously conclude the investigation once it began. IR 144-47, 177-78, 270-71, 287-89, 296-304; HT 106, 120-22, 140, 158-63, 167, 185-86, 188, 193-95, 201-02, 208-11, 217-29, 234-38, 245-46, 248, 270-71, 310-14, 342, 400-01. The AJ found CLERS’s testimony to be both credible and supported by the evidence. In particular, the AJ found CLERS credible in his testimony that he did not think another 4711 investigation was necessary since Complainant’s counter-accusations were addressed in the 4711 initiated on behalf of AA. The AJ also found CLERS’s testimony credible with regard to management’s concern that pursuing a 4711 investigation against AA might be seen as retaliation against AA for her own protected EEO activity. AJ’s Bench Decision, May 22, 2020, pp. 14-15. As to CLERS’s failure to complete the investigation, the AJ found that the Agency regularly conducts 4711 investigations concurrently with EEO complaints, which indicated that management does not delay when an individual engages in protected activity. In addition, the AJ found credible CLERS’s testimony that his failure to conclude the investigation was a result of his own failure to prioritize the investigation following a series of administrative setbacks, including the departure of a human resources representative who was to assist him. AJ Decision, pp. 15-16. While Complainant offers her own interpretation of the evidentiary record on appeal, she has not presented evidence sufficient to cause us to question the AJ’s assessment of CLERS’s credibility as a witness. We therefore find that the AJ’s finding of no reprisal with respect to incident (1) is supported by substantial evidence of record. Summary Judgement Standard of Review - Incidents (2) & (3) 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). 2020004196 5 Disparate Treatment To warrant a hearing on her disparate treatment claim, Complainant must raise a genuine issue of material fact with respect to the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 articulated a legitimate and non-retaliatory reason for the reprimand and Complainant’s FY 2017 performance appraisal. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). S1 testified that both actions were based on the 4711 fact-finding report that she had received from ADD in September 2017. IR 105-07, 133, 293-94. In order to successfully oppose a decision by summary judgment, 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 the reason given for terminating Complainant was a pretext designed to conceal a retaliatory motivation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that reprisal was a factor in her performance appraisal and in receiving the reprimand, Complainant replied that she had reported that AA was being coached for the Enforcement Coordinator job interview and was told by S1 that “white people do it all the time.” IR 37-40, 68-70, 75. S1 denied using those words and responded that it was a common practice, and even encouraged for people to ask about jobs they were interested in. Again, Complainant has presented neither affidavits, declarations or unsworn statements from witnesses other than herself nor documents which contradict or undercut S1’s explanations for the performance appraisal rating or the reprimand. Likewise, she has not presented any evidence that would cause us to question S1’s truthfulness as a witness. As a result, the Commission finds that Complainant was not subjected to reprisal as alleged. We therefore find that the AJ’s decision to issue summary judgment on incidents (2) and (3) was proper. 2020004196 6 CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order. 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. 2020004196 7 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 January 18, 2022 Date