U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicki D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021000963 Agency No. HS-FEMA-00169-2019 DECISION On November 24, 2020, 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 June 18, 2020, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Disaster Survivor Assistance (DSA) Specialist (Reservist), Grade-01, deployed to a disaster area in North Carolina from September - October 2018 in connection with Hurricane Florence. Person A, Crew Leader, was Complainant’s immediate supervisor during Complainant’s deployment to North Carolina. Person B, Public Assistant Manager, was Complainant’s second level supervisor during Complainant’s deployment to North Carolina. Person C, Assistant Reservist Program Manager, DSA Cadre Management and Training Branch, located in Washington, D.C., was Complainant’s immediate supervisor when Complainant was not 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. 2021000963 2 deployed and also handled personnel issues in the field. Person D was the DSA Cadre Coordinator in the Office of Response and Recovery. On November 21, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment (sexual and nonsexual) on the bases of sex (female) and in reprisal for protected EEO activity (opposition to discrimination) when: 1. On October 7, 2018, management continued to call Complainant, “baby,” after Complainant informed management that she was offended. 2. On October 16, 2018, management raised Complainant’s complaint of sexual harassment during Complainant’s evaluation. 3. On October 26, 2018, management sent Complainant a notification after Complainant received deployment orders to Wisconsin, informing Complainant that her services were no longer required. 4. On October 29, 2018, management sent an email to notify Complainant that Complainant was unavailable in the Deployment Tracking System (DTS), pending analysis and final determination of a personnel issue. 5. On November 8, 2018, management filed an EEO complaint against Complainant, in retaliation for Complainant having filed an EEO complaint. 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Regarding claim 1, Complainant claimed that on one occasion in late September 2018, when she initially joined Person A’s team, and then again on October 7, 2018, Person A called her “baby,” which made Complainant feel “uncomfortable.” Complainant claimed that her sex was a factor since the term “baby” was always directed towards Complainant and she thought Person A has referred to other females as “baby” but not males. Complainant indicated that reprisal was not a factor since she had not yet filed her sexual harassment complaint with Person B, until October 8, 2018. Person A stated she also called males “baby” and explained that she used it as a “term of endearment” when she did not know someone’s name, forgot someone’s name, or could not pronounce their name. Person B noted that Person A apologized to Complainant and that Person A sometimes referred to others as “baby.” The Agency found the two isolated incidents were not sufficiently severe or pervasive to constitute sexual harassment. The Agency found Complainant failed to present evidence that management’s actions were a pretext for discrimination based on her sex or in reprisal for protected EEO activity. 2021000963 3 Regarding claim 2, Complainant alleged that during a performance evaluation meeting with Person A, on October 16, 2016, prior to Complainant initiating the instant complaint on October 18, 2018, Person A stated that Complainant had “lied” to Person B by telling Person B that calling Complainant “baby” was sexual harassment. The Agency noted that from late September 2018, until October 16, 2018, Complainant sent Person A follow-up emails after daily meetings, seeking assignment clarifications from Person A in writing, which Person A considered “harassing” and “insubordinate.” Person A stated that during the October 16, 2018 meeting, she asked Complainant “what she had against me,” and according to Person A, Complainant responded, “I am from the rural west and we hold grudges against people like you.” Person A considered the statement to be racially motivated. Complainant acknowledged making the statement about being from the rural west and holding grudges, however, denied adding “against people like you.” Person A said she asked about the sexual harassment complaint because she “was wondering how a term of endearment can be considered sexual harassment.” The Agency noted Complainant indicated this claim was based on reprisal for the sexual harassment complaint on October 8, 2018, but not based on sex. The Agency stated Complainant did not show she suffered a harm. Specifically, the Agency noted the final performance rating from September 17, 2018, through October 17, 2018, was signed by the former Deputy Branch Director, not Person A, and Complainant received the highest rating of “Satisfactory” for all seven performance categories. The Agency determined Complainant failed to present evidence that the Agency’s actions were a pretext for discrimination based on her sex or in reprisal for protected EEO activity. Regarding claims 3 and 4, Complainant stated that on October 26, 2018, she learned, through the Agency’s DTS, that she would not be deployed to Wisconsin. Then on October 29, 2018, she received an email from Person C that stated she was not deployed because of a “personnel issue.” Person C stated that Complainant complained about mistreatment by Person A regarding her performance appraisal and being called “baby.” Person C stated that Labor and Employee Relations (LER) recommended that both Complainant and Person A be made unavailable until the matter was resolved. Person C noted Complainant was part of an investigation in which Person A stated she was being harassed by Complainant. The Agency noted that Complainant stated that claims 3 and 4 were taken in reprisal for filing the sexual harassment complaint on October 8, 2018, and not based on her sex. However, the Agency noted that both Complainant and Person A were both made unavailable for deployment at the same time. The Agency determined Complainant failed to present evidence that management’s actions were a pretext for discrimination based on her sex or in reprisal for EEO protected activity. Regarding claim 5, Complainant alleged that Person A filed an EEO complaint against her on November 8, 2018, in reprisal for learning that she had filed an EEO complaint against Person A. The Agency noted that when asked why her sex was a factor, Complainant stated she did not know. With regard to the basis of reprisal, the Agency noted the record indicated that Person A complained to management about Complainant’s allegedly harassing clarification emails (which later became the subject of Person A’s own EEO complaint against Complainant in November 2019), at least since 6:42 a.m. on October 8, 2018, prior to Complainant filing a sexual harassment with Person B at 10:58 a.m. on October 8, 2018, and prior to Complainant initiating 2021000963 4 the instant EEO complaint. The Agency found Complainant failed to present any evidence that management’s proffered reasons for its actions were a pretext for discrimination based on her sex or in reprisal for protected EEO activity. On appeal, regarding claims 1 and 2, Complainant notes that Person A stopped calling her “baby;” however, Person A brought up Complainant’s sexual harassment complaint at Complainant’s performance appraisal meeting. Complainant states while Person A claimed that Complainant made the statement, “I am from the rural west and we hold grudges against people like you,” Complainant actually stated, “I am from the rural west and we hold grudges.” Regarding claims 3 and 4, Complainant notes that the Agency said she was “temporarily” unavailable for deployment; however, for employment that comes up once a year for the duration of 30 days, 118 days is not temporary. Complainant claims the cited investigation was pretext since there was no “final determination of a personnel issue” and she was not contacted as part of the investigation until the summer of 2019, long after she was available again in DTS. Further, Complainant notes she was made not available in DTS on October 26, 2018, while Person A was sent home from deployment on November 4, 2018. Complainant cites the nine-day difference in her treatment versus Person A. Regarding claim 5, Complainant claims the record shows management actions were taken in retaliation for her filing a sexual harassment complaint. She claims there was no basis for an EEO harassment complaint against her. In response to Complainant’s appeal, the Agency argues that her appeal was untimely filed. The Agency also notes its decision correctly determined that Complainant failed to show the Agency subjected her to an unlawful, discriminatory, and hostile work environment based on her sex or in reprisal for protected activity. ANALYSIS AND FINDINGS 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”). At the outset, we find Complainant’s appeal was timely filed. We note Complainant indicates she never received the decision when it was emailed to her in June 2020. Complainant stated she repeatedly inquired whether a decision was issued and stated she did not receive the Agency’s final decision until October 27, 2020. Thus, we find her November 24, 2020 appeal timely. 2021000963 5 We note that Complainant filed a second brief on February 16, 2021, as this brief was filed beyond the applicable limitations period, we decline to consider it in our decision. Upon review, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination or retaliation. Regarding the cancellation of Complainant’s deployment to Wisconsin and subsequent notice that she was unavailable in the DTS (claims 3 and 4), we note the Agency indicated these actions were taken while the Agency was investigating the respective complaints that both Complainant and Person A had raised against each other. We note that both Complainant and Person A were made unavailable for deployment while the Agency was investigating the claims raised. Regarding Complainant’s claim that her deployment was cancelled a little over a week earlier than Person A’s deployment, we note Person C advised that Person A had to be demobilized because her deployment request was removed when she was already on a plane headed to her deployment location. In contrast, Person C stated that Complainant’s deployment was in the system and only had to be removed from the system. Thus, the record reveals both individuals were subjected to the same action, while the cancellation of Person A’s deployment took a little longer to accomplish given their differing situations. We find Complainant failed to present persuasive evidence that the Agency’s actions were a pretext for discrimination or retaliation. Regarding claim 5, we find that such a complaint alleging that another person filed an EEO complaint is properly dismissed for failing to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). As an initial matter, we note that Complainant's allegations in Claims 3, 4, and 5 discussed above may not properly be considered as evidence supporting her harassment claim as we have already determined that neither Complainant’s sex nor protected EEO activity were factors in these actions. Regarding Complainant’s claim of sexual harassment (claim 1), we find that the two identified incidents where Complainant was called “baby” did not rise to the level of unlawful sexual harassment. We note that these two incidents were not sufficiently severe or pervasive as to alter the conditions of Complainant's employment or create an abusive working environment. Accordingly, we find that Complainant did not establish that the Agency subjected her to sexual harassment. Regarding the remaining incident (claim 2), we note that during the meeting on Complainant’s evaluation, Person A admitted to bringing up Complainant’s sexual harassment complaint because she “was wondering how a term of endearment can be considered sexual harassment.” 2021000963 6 Person A stated that Complainant responded that where she comes from, the term “baby” is used between a husband and wife. In her affidavit, Complainant indicated that this claim was based on reprisal for filing the sexual harassment complaint on October 8, 2018, and “not based on sex.” Although the timing of Person A’s question about Complainant’s complaint during her performance evaluation was not ideal, we find in this situation the statement made was not reasonably likely to deter protected activity. To the extent that Complainant is attempting to claim on appeal that the actual rating was retaliatory or discriminatory, we find that claim 2 was properly defined by the Agency and that the actual rating is not part of the instant complaint. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision 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. 2021000963 7 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. 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 July 20, 2022 Date
