U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madalene A.,1 Complainant, v. Emily W. Murphy, Administrator, General Services Administration, Agency. Appeal No. 2020003006 Agency No. GSA-19-CO-H-0064 DECISION On April 4, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 13, 2020 final decision concerning an 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. 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 Management and Program Analyst at the Agency’s Office of Administrative Services (OAS) in Washington D.C. On June 12, 2019, Complainant filed a formal complaint. Complainant claimed that the Agency subjected her to harassment/a hostile work environment based on race (African-American), sex (female), and age (over 40) when: a. beginning in September 2018, Complainant’s duties were removed; b. beginning in October 2018, Complainant was singled out, ridiculed, or reprimanded by her supervisor; 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. 2020003006 2 c. in January 2019, Complainant’s performance plan was changed; and d. on or around February 19, 2019, Complainant was informed that all messages and correspondence must be approved by the Chief of Staff before issuance. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on March 13, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS To establish a claim of hostile environment harassment, 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. 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). In other words, to prove her harassment 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, sex, and/or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant claimed that, beginning in September 2018, the Chief of Staff (Asian-American male, over 40) (hereinafter identified as “S1”) removed her duties. S1 stated that he joined OAS in September 2018. However, he stated that he did not take away Complainant’s key roles and assume them as his roles. S1 explained that Complainant’s role as OAS HR [Human Resources] Liaison “is to connect OAS employees with the correct OHRM specialist. The Complainant does not work for OHRM [Office of Human Resources Management]. She works for OAS.” Complainant next claimed that she was removed from the front office meetings and was no longer allowed to give expert advice in the Human Resources area, S1 asserted that Complainant “was never not allowed to give expert advice in the human resources area. The front office meetings are closed door meetings between the Chief Administrative Services Officer (CASO) and his direct reports. 2020003006 3 Front office support staff are invited to provide expert advice when appropriate and relevant.” S1 also denied that he ever told Complainant that she could not make decisions in her field. S1 acknowledged, however, that Complainant voiced displeasure about her duties being changed/removed on multiple times and “each time I explained to her that none of her duties have been changed or removed.” S1 noted that on February 28, 2019, Complainant “said to me ‘I do not need you to tell me to do work. I do not need to be managed!’ She then said ‘Read my PD - there are also legalities to taking me out of my duties.’” He stated that he tried to calm Complainant down and explained to her that none of her duties have been changed or removed.” S1 further stated that he explained to Complainant that some transactional processes are being done differently. Complainant next claimed that beginning in October 2018, she was singled out, ridiculed, or reprimanded by her supervisor. S1 stated that on November 19, 2018, Complainant was instructed to copy him on all correspondence she was giving to the OAS Directors “to provide me, as the supervisor of record, with situational awareness. I was not singling her out.” Complainant also claimed that S1 had weekly check-in meetings with a named co-worker (Co- worker 1) and Complainant. However, Complainant stated that she was the only one who had weekly one-on-one meetings to discuss her weekly “bandwith” and provide follow up on HR actions. S1 asserted that he has weekly meetings with the Co-worker 1 “to review the status of work matters. These meetings are the same as the ones held with the Complainant.” Finally, S1 maintained that Complainant was not singled out. In addition, S1 denied Complainant’s allegation that beginning October 18, 2018, S1 reprimanded her. Specifically, S1 stated, “[i]n the normal course of business the Complainant and I would collaborate on various matters and I would give her feedback, I do not consider these a reprimand.” Regarding the claim that in January 2019, Complainant’s performance plan was changed, S1 stated that he consulted with the Deputy Chief Administrative Services prior to changing Complainant’s performance plan. He acknowledged that there “revisions to the performance plans for both my direct reports were made to enhance clarity of both performance expectations and priorities.” S1 also noted that the changes to Complainant’s performance plan “matched her position description and addressed work assignments performed on a daily basis.” Furthermore, S1 stated that, “I revised the performance plan of both the Complainant and [Co-worker 1], the other employee I supervise, in the same way.” Finally, S1 stated that on or around February 19, 2019, Complainant was placed on notice that all messages and correspondence must be approved by the Chief of Staff before issuance. He explained to Complainant that he was reviewing “draft messages for completeness, accuracy, consistency and appropriateness of messaging.” Moreover, S1 noted that OAS managers asked him to streamline email messages sent by the front office “because Complainant was inundating staff with frequent emails and instructions that were redundant, confusing, or inaccurate.” 2020003006 4 The Deputy Chief, CASO (Caucasian male, over 40) stated that he did not believe S1 removed Complainant from her duties and S1 “reengineered internal processes and communications to correct long-standing issues and improve the support and services provided by the Complainant.” He also noted that Complainant shared her concerns about being singled out, ridiculed and reprimanded. but he was not aware of it personally. The Deputy averred that he coached S1 “on strategies to manage organizational change; strategies on how to effectively communicate with staff; and strategies on how to create clear performance expectations.” Additionally, the Deputy Chief acknowledged that S1 changed Complainant’s performance plan. He stated that he assisted S1 “by providing suggestions and edits focused on establishing clear expectations that align with the goals, objectives, expected outcomes of the organization.” The Chief Administrative Services Officer (Administrative Officer) stated that during the relevant period, he followed up with S1 concerning Complainant’s concerns “however, I do not recall the date I spoke with him or exactly what was discussed. In general, I wanted him to take the Complainant’s concerns into consideration as he assigned her work going forward. Based on subsequent feedback from the Complainant, she did not feel that her issues were resolved to her level of satisfaction.” Further, the Administrative Officer stated that he was aware that S1 required review and concurrence for both of his direct reports and OAS administrative assistant on any messages being sent to OAS supervisors “as a group and organization -wide to ensure that the information being provided was completed and accurate.” He noted that this was in response to complaints from OAS managers about lack of information being shared with them regarding HR areas that are the responsibility of the Complainant and the quality and accuracy of the information that was being shared.” After careful review of the evidence of record, we conclude that there is no support for a finding that played any role in the incidents that form her discriminatory harassment claim. Assuming the events occurred as alleged by Complainant, she could not explain for the most part why she believed discriminatory factors were at play. Moreover, we do not find, even assuming the incidents occurred as alleged by Complainant and are considered together, that they were sufficiently severe or pervasive to create a hostile work environment that rose to the level of a violation of the anti-discrimination statutes. The record reflects that there may have been conflicts and tensions with S1's management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. 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 his or her protected bases. 2020003006 5 Here, the preponderance of the evidence does not establish that S1 was motivated by discriminatory 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 We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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). 2020003006 6 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 13, 2020 Date
