[Redacted], Sharon C., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Nov 3, 2022

Appeal No. 2021003839 (E.E.O.C. Nov. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sharon C.,1 Complainant, v. Samantha Power, Administrator, Agency for International Development, Agency. Appeal No. 2021003839 Agency No. OCRD-057-20-F DECISION On June 23, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 24, 2021 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. Complainant worked as a Supervisory Human Resources Specialist, GS-0201-14 at the Agency’s Headquarters in Washington, D.C. She served as the Chief of the Performance Management division, which was located within the Agency’s Center for Performance Excellence (CPE) in the Office of Human Capital and Talent Management (HCTM). On November 22, 2020, Complainant filed a formal complaint in which she alleged that the Agency discriminated against her and subjected her to a hostile work environment in reprisal for prior protected EEO activity when: 1. For the rating period from April 1, 2019 through June 30, 2020, her first-level supervisor (S1) did not complete Complainant’s annual evaluation form and mid-cycle progress review in a timely manner; 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. 2021003839 2 2. For the rating period from April 1, 2019 through June 30, 2020, S1 failed to capture Complainant’s actual performance at the end of the rating period; 3. On May 28, 2020, S1 did not accept Complainant’s course of action or resolution for backlogged service tickets2; 4. On August 20, 2020, S1 did not accept Complainant’s comments or resolution to a charter which outlined Complainant’s roles and responsibilities in support of promotion boards; 5. For the rating period from 2020 to 2021, S1 did not complete Complainant’s annual performance plan in a timely manner; 6. For the rating period from 2020 to 2021, S1 failed to consult with Complainant regarding new performance plan elements, standards, and professional development opportunities before signing the plan and obtaining her second-level supervisor’s (S2) signature as the approving official; and 7. On September 3, 2020, S1 spoke negatively about a coworker in a manner in which Complainant felt forced to agree with S1’s opinion regarding that coworker. 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. Complainant requested a final agency decision. In accordance with Complainant’s request, the Agency issued its final decision in which it found that Complainant failed to show that she was subjected to reprisal or a retaliatory hostile work environment as alleged. This appeal followed. 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”). 2 This allegation was dismissed as untimely raised with an EEO counselor. Nevertheless, the Agency considered it as background evidence in support of Complainant’s hostile work environment claim. 2021003839 3 Hostile Work Environment To establish a retaliatory hostile work environment claim, Complainant must show that: (1) she engaged in protected activity; (2) she was subjected to a materially adverse action taken by her employer; (3) there is a causal connection between the protected conduct and the adverse action; and (4) there is a basis for imputing liability to the Agency. See EEOC Enforcement Guidance on Retaliation and Related Issues (Retaliation Guidance), EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Retaliation Guidance. Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Commerce., EEOC Appeal No. 0120160024 (Dec. 20, 2017). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues (Enforcement Guidance on Retaliation), EEOC Notice No. 915.004, at II.B. (Aug. 25, 2016). Retaliatory harassing conduct is actionable if it is sufficiently material to deter protected activity, even if it is insufficiently severe or pervasive to create a hostile work environment. Id. at II.B.3. In this case, we find that Complainant failed to show that the Agency's actions were based on retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. More specifically, as to incidents (1) and (5), S1 and S2 both averred that due to the heavy workload, none of the mid-year progress reviews, performance evaluations, or performance plans were completed in a timely manner. IR 276-78, 288, 316-18, 326-30, 380-82, 387-88. Regarding incident (2), S1 and S2 maintained that S1 had captured Complainant’s performance exactly as he had observed it during the period from April 1, 2019 through June 30, 2020, that Complainant’s performance merited a rating of “Exceeds Fully Successful,” and that all of the subordinate supervisors had heavy workloads. IR 279-80, 319-25, 384-85. Concerning incident (3), S1 and S2 stated that Complainant’s division was expected to process service tickets as part of their day-to-day responsibilities and Complainant and her team had gone for many months without processing tickets and had reached the point where some of the tickets were more than a year old. S1 and S2 also pointed out that everyone was short-staffed, not just Complainant. IR 280-83, 298-315, 382-83. With respect to incident (4), S1 and S2 maintained that S1 was simply exercising her discretion as a manager regarding what direction the project should take, and that Complainant’s progress on the project had not been sufficient. IR 283-85, 330, 386. With regard to incident (6), S1 acknowledged that S2 had signed the plan before Complainant had a chance to provide her input, but averred that S2 needed to sign the appraisal before she left her position. IR 289-90. As to incident (7), S1 affirmed that the coworker had a track record of demonstrated lack of respect toward her, S1, and that Complainant had never come to her regarding any disagreement with her assessment of the coworker’s behavior. IR 291-292. 2021003839 4 When asked why she believed that she had been retaliated against by S1 in connection with her prior protected EEO activity, Complainant averred that S1 had constantly bullied her, especially with regard to the service ticket issue. She also claimed that S1 had excluded her from the decision-making process, failed to provide help when she needed assistance, and that S1 treated her like a child who was incapable of making decisions on her own. IR 137-38, 145-46, 151, 155- 57, 160. In addition to her own sworn statements, Complainant presented affidavits from two former subordinates and a colleague who worked directly under S1 supervising the Awards Division. These individuals stated that the workload under S1 was exceptionally heavy and that S1 tended to micromanage her subordinates and get flustered under pressure. IR 418-22, 425-27, 432-34. When asked whether they believed that S1 had retaliated against Complainant, both subordinates averred that they knew nothing about that matter. IR 422, 434. Complainant’s colleague averred that she was not aware of Complainant’s earlier complaint but that, “if it did happen, it could have been a factor. IR 427-28. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing to better ascertain whether or not a retaliatory motive exists. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. That evidence is not sufficient to support Complainant’s contention that she was treated more harshly than others who worked under S1 due to her prior protected EEO activity. Ultimately, we agree with the Agency that the record in this case is insufficient to establish that Complainant had been subjected to a hostile work environment because of her prior protected EEO activity. Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for reprisal. As a result, the Commission finds that Complainant was not subjected to reprisal or a retaliatory hostile work environment as alleged. 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 decision because the preponderance of the evidence of record does not establish that reprisal occurred. 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 2021003839 5 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. 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. 2021003839 6 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 November 3, 2022 Date