[Redacted], Starr R., 1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Jan 4, 2022

Appeal No. 2021000959 (E.E.O.C. Jan. 4, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Starr R.,1 Complainant, v. David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency. Appeal No. 2021000959 Agency No. 1810STL DECISION On November 23, 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 October 26, 2020, final decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Supervisory Archives Specialist at the Agency’s National Personnel Records Center in Saint Louis, Missouri. On February 26, 2018, Complainant filed an EEO complaint (Complaint-1) alleging discrimination and harassment on the bases of race (African-American), sex (female), color (Black), age (not specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when she was not selected for a promotion detail. Record of Investigation (ROI) at 16. Complaint-1 was amended on March 23, 2018, and again in June 2018. Complainant alleged that management subjected her to an ongoing pattern of discrimination and/or harassment. 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. 2021000959 2 The alleged incidents related to the assignment of duties, pay including overtime, reassignment, and the movement of her personal items to the Core 2 storage closet while she was on leave. Id. at 18-23, 62-70, 231-234. On June 5, 2018, Complainant emailed Third-Level Supervisor stating that unidentified matters she had discussed during mediation were mentioned to her by several sources. According to Complainant, Third-Level Supervisor commented that either she or the remedies she requested were “insane.” Complainant did not identify the individuals who purportedly made such statements to her. Id. at 220. The same day, Third-Level Supervisor responded that he was not fully aware of the scope of Complainant’s EEO complaint before the mediation and that he had a responsibility to investigate the issues raised during mediation. Moreover, Third-Level Supervisor explained that he was unable to grant the remedies Complainant requested during mediation and was required to address them with General Counsel and a member of the leadership team. He denied making the alleged “insane” comments. According to Third-Level Supervisor, that was the extent of his communication regarding Complainant’s complaint and the mediation. Id. at 219. In an email dated June 20, 2018, the Agency requested that Complainant provide information regarding her amended claims, including the date and location of the alleged incident(s), persons involved, summary of what happened, why Complainant believed it was discriminatory, and the remedies she was seeking. Id. at 94. On September 18, 2018, the Agency followed up with a letter requesting Complainant provide the information, within 15 days of receipt of the letter, and advising that failure to do so could result in the dismissal of her complaint, pursuant to 29 C.F.R. § 1614.107(a)(7). Id. at 181. In her September 24, 2018 email response, Complainant stated "I do not choose to amend EEO Case No. 1810STL, at this time." Id. at 206. On October 15, 2018, the Agency issued a decision dismissing Complaint-1. In its decision, the Agency framed the claims as follows: 1. On November 29, 2017, the feedback she received regarding a promotion detail gave her the impression that there was preferential treatment toward one employee; 2. On June 4, 2018, management moved her personal items to Core 2 storage closet while she was on leave; and 3. On June 5, 2018, management allegedly commented to others that either she and/or the remedies that she requested were "insane." Complainant appealed the Agency’s decision to the Commission. 2021000959 3 On March 4, 2019, while Complainant’s appeal of Complaint-1 was pending with the Commission, she filed another EEO complaint alleging discrimination on the bases of race (African-American), sex (female), color (Black), age (not specified), and reprisal for prior protected EEO activity (Complaint-2). Complaint-2 included claims 1 and 2 from Complaint-1.2 The Agency accepted Complaint-2, comprised of 20 claims, for investigation, including: the denial of a temporary promotional detail on November 7, 2017, and that management moved her office without her permission between April and May 2018. Complainant confirmed that these two issues were the same as claims 1 and 2. Id. at 248-249. Complainant clarified that the inconsistency of the reported dates for the movement of her possessions was because she was unsure of the exact dates. Id. at 249. After the conclusion of the investigation of Complaint-2, Complainant requested a hearing before an Administrative Judge (AJ). On April 17, 2020, the Agency was notified of the request for a hearing for Complaint-2. An acknowledgment order was issued by an AJ November 2, 2021. As for Complaint-1, on September 17, 2019, the Commission rendered a decision regarding the Agency’s dismissal. Starr R. v. Nat’l Archives & Recs. Admin., EEOC Appeal No. 2019001285 (Sept. 17, 2019). The Commission found claim 1 was sufficient to state a claim, reasoning that it concerned a non-selection and not merely feedback. See id. Regarding claims 2 and 3, however, the Commission concluded Complainant failed to allege matters with sufficient specificity to state a claim, despite being afforded the opportunity to do so by the Agency. See id. Consequently, the dismissal of claims 2 and 3 was found to be proper. See id. The Commission reversed the Agency’s dismissal and the case was remanded for an investigation. See id. In accordance with the Commission’s decision, the Agency issued an Acceptance Letter accepting all the claims as set forth by the Commission: 1. On November 29, 2017, the feedback she received regarding a promotion detail gave her the impression that there was preferential treatment toward one employee; 2. On June 4, 2018, management moved her personal items to Core 2 storage closet while she was on leave; and 3. On June 5, 2018, management allegedly commented to others that either she and/or the remedies that she requested were "insane." We note that the matters accepted for investigation included claims 2 and 3, which the Commission had determined were properly dismissed. 2 Claim 3 of Complaint-1 was not included in Complaint-2. 2021000959 4 During the course of the investigation, Complainant was asked about Third-Level Supervisor’s comment that her requested remedies were “insane” (claim 3). According to Complainant, upon returning to work after an absence, unidentified individuals commented about the remedies she was requesting. She surmised that “the only source of their information could have been [Third- Level Supervisor]….the only obvious conclusion is that [Third-Level Supervisor] made these comments, and he made it to those who were not part of the mediation, and who should not have been privy to what was discussed in our mediation.” ROI at 250-251. When asked to identify other individuals who had also complained of similar behavior from Third-Level Supervisor, Complainant named Coworker. The file reflects, however, that Coworker denied personal knowledge of discriminatory conduct against Complainant by Third- Level Supervisor. Id. at 252, 253, 517. Third-Level Supervisor, in his affidavit, stated that he did not recall private conversations regarding Complainant’s requested remedies. Id. at 316. There is no testimony, or other evidence, that Third-Level Supervisor made any specific comments regarding Complainant’s requested remedies for her 2018 complaint. At the conclusion of the investigation of the Complaint-1, 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 AJ. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In its October 26, 2020 decision, the Agency dismissed claims 1 and 2, asserting that the claims were pending a hearing before the Commission. The Agency concluded that, regarding claim 3, Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not submit a brief, or specific arguments, in support of her appeal. The Agency maintains that its dismissal of claims 1 and 2 was proper, as the matters are currently pending before the Commission. As to the claim 3, the Agency asserts that Complainant has not demonstrated that she was subject to an action that was “serious and tangible enough” to alter the terms, conditions, or privileges of her employment. 2021000959 5 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, 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”). Procedural Dismissal The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. With regard to claims 1 and 2, the record reflects that Complaint-2 includes both her non- selection for a detail in November 2017 and the movement of her belongings. Complaint-2 is currently pending before the Commission (EEOC No. 560-2020-00234X). As outlined above, in our prior decision we found that claim 1 of Complaint-1 alleged Complainant’s non-selection was discriminatory. Moreover, Complainant, herself, acknowledged that these are the same instances, explaining that any difference in dates are simply due to her lack of recollection. Therefore, claims 1 and 2, regarding her non-selection and the movement of her belongings, are properly dismissed for stating the same claim that is pending before the Commission, pursuant to 29 C.F.R. § 1614.107(a)(1). Harassment In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of a complainant's employment. A complainant can show that harassment alters the conditions of her employment by showing that the harassment culminated in a tangible employment action or that the harassment was sufficiently severe or pervasive to create a hostile work environment. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54 (1998). To establish a claim of harassment a 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 2021000959 6 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). As for claim 3, while Complainant is a member of a protected class, the Commission finds that she has not established a prima facie case of harassment. Specifically, Complainant is unable to provide specific evidence that the statement was made by Third-Level Supervisor as alleged. Further, she does not recall who made any of the alleged comments regarding her requested remedies. Rather, Complainant merely offers opinions, based upon her own perceptions and personal deductions. Third-Level Supervisor does not recall making any such comments, and there is no evidence that he did so. As such, there is no basis for imputing liability to the employer. In light of the above, the Commission finds that the Agency’s finding that Complainant failed to establish a claim of harassment was proper. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. 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). 2021000959 7 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. 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. 2021000959 8 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 4, 2022 Date