Season H.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency.

Equal Employment Opportunity Commission

Sep 15, 2020

2019002952 (E.E.O.C. Sep. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Season H.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency. Appeal No. 2019002952 Agency No. ATF201800268 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from an April 3, 2019 Final Agency Decision (“FAD”) 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., Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Industry Operations Investigator (“IOI”) Training Manager, GS-13, Human Resources and Professional Development (“HRPD”), Office of Training and Professional Development, at the ATF National Academy in Brunswick, Georgia. 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. 2019002952 2 On March 15, 2018, and amended on April 12 and 25, 2018, Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment/hostile work environment by the Agency on the bases of race (African American), sex (female), physical disability (migraines), age (46), and reprisal (engaging prior protected EEO activity)2 when: 1. On December 14, 2017, Management declined to select her for the position of Program Manager, GS-14, and applied requirements to that position that had a disparate impact upon her, 2. On February 14, 2018, an ATF manager sent inappropriate e-mails to her, 3. On March 15, 2018, an ATF manager accused her of insubordination, 4. On March 15, 2018, an ATF manager relieved her of her duties and barred her from a class room, 5. On April 9, 2018, Management notified her that she would be suspended for three days, and, 6. On April 9, 2018, Management notified her that she would be reassigned to a different work location. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of her right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant opted for a FAD. In accordance with Complainant’s request, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). The record provides the following relevant facts: Complainant reported to the Branch Chief as her first level supervisor (“S1” white, male, 54) and the Deputy Chief, GS-15, (“S2,” Caucasian, male, 50) as her second level supervisor. 2 The following EEO matters relating to the management officials and/or the worksite for the instant complaint were open and pending with the Commission during the relevant time frame: EEOC Hearing No. 520201600443X (May 4, 2020) (denying class certification for ATF201501870, currently pending hearing as individual complaint); EEOC Appeal No. 2019001251 (Jan. 17, 2020) (AJ summary judgment finding for Agency aff’d, Hearing Nos. 410201700207X & 410201600515X (Aug. 17, 2018) Agency Case Nos. ATF201502182 & ATF201600416); EEOC Appeal No. 2019001512 (May 29, 2019) recon. den., 2019005201 (Jan. 7, 2020) (EEOC Hearing No. 410201700540X (withdrew hearing request for FAD on April 10, 2018, FAD finding for Agency aff’d) Agency Case No. ATF201600731); EEOC Appeal No. 0120181640 (Jun. 13, 2018) (AJ summary judgment finding for Agency aff’d, EEOC Hearing No. 510201400301X (Feb. 15, 2018) Agency Case No. ATF201300881). 2019002952 3 The Division Chief, GS-15, was her third level supervisor (“S3,” white, male, 53, prior EEO activity). As a TM, she also reported to the PMs, who scheduled training. Claim 1: Nonselection On December 14, 2017, a job announcement was posted on the Agency’s internal system, “ATF Connect,” stating that HRPD is seeking a GS-14 volunteer for permanent reassignment to the position of PM, Industry Operations Investigator Basic Training (“IOIBT”), Basic Training Programs Branch, GS-14, at the ATF National Academy. The announcement also specified that “[i]nterested employees must have at least two years of area supervisory experience to be considered, and extensive practical experience in the subject matter.” On December 26, 2017, Complainant emailed S1, asking to be considered for the Program Manager IOIBT position. S1 forwarded Complainant’s request and application materials to S2, the selecting official, but noted that Complainant, a GS-13 IOS without the minimum of 2 years supervisory experience, did not meet the stated requirements in the job announcement. S2 agreed with S1’s assessment and did not consider Complainant for the position. On January 12, 2018, S2 sent an office-wide email announcing the Selectee for the Program Manager IOIBT position (white, male, age not specified), a lateral transfer from the position of Branch Chief, GS-14, at ATF Headquarters. Complainant alleges that the Selectee, while a GS- 14, lacked the supervisory experience specified on the announcement. According to Complainant, his selection represented the cronyism and a good ol’ boy network. Claim 2: Inappropriate Emails On February 14, 2018, Complainant notified S1 that one of the PMs (“PM-1” white, male, 42), an IOI, GS-13, from the Agency’s Orlando Field Office serving a 90-day detail, "sent e-mails with certain words capitalized and highlighted which reflected emphasis to include a negative connotation, negative tones, sometimes yelling and screaming when using highlights, capitalization and exclamation marks." Both S1 and S2 received emails from PM-1 in a similar format, but interpreted it as PM-1’s way of emphasizing the important points within his email messages, rather than “yelling.” S1 testified that he immediately instructed PM-1 to stop using capitalization, highlights and excessive exclamation marks in his emails to Complainant. Complainant also felt PM-1’s emails were harassing because he was “reminding” her to do work that was his responsibility. As additional context, Complainant explains that she named PM-1 as a responsible management official in a prior EEO Complaint she filed over four years earlier, when she worked in Tallahassee, Florida, and he was her first level supervisor. However, it appears that PM-1 stopped using excessive highlighting, capitalizations and exclamation points when emailing Complainant once S1 instructed him not to. 2019002952 4 Claim 3: Allegation of Insubordination One of the PMs Complainant reported to (“PM-2,” Asian, female, 54, prior EEO activity), was a GS-14 on detail from the Atlanta Field Office. PM-2 served a previous detail as a TM, working with Complainant, in 2016. During PM-2’s 2016 detail, Complainant filed an EEO Complaint alleging, among other things, that both PM-2 and S2 subjected her to a hostile work environment. When PM-2 returned in 2018, S1, S2, and PM-2 knew about the 2016 EEO Complaint, which was still open and pending a hearing. Complainant testifies that she asked S1 not to allow PM-2 to return, but, S1 said that S2 specifically requested PM-2 for the detail. Complainant alleges that placing her alleged harasser in a supervisory position over her, was a retaliatory act by S2 meant to harass her. On March 15, 2018, PM-2 emailed Complainant requesting clarification on whether Complainant’s scheduled instruction block had been shortened. By Complainant’s account, PM- 2’s email was part of an overall pattern of micromanagement, and she responded, "I have been at the Academy since 2014 and with ATF over 2 decades and since you feel that I don't know my responsibilities, can you please give me a copy of my job duties that are pleasing to your liking." Within the email exchange, Complainant told PM-2 that she did not “know how to leave well enough alone” and that PM-2’s “constant harassing and abusive behavior” caused her to have a migraine, and she would need time off to recover. PM-2 forwarded Complainant’s e-mails to S2, and also notified him that Complainant attempted to change the schedule without authorization and spoke to her in a condescending tone. PM-2 called Complainant in for a meeting, and asked a neutral colleague to be present for the exchange. In relevant part, S2 described Complainant’s emails that day as “borderline insubordinate.” He also instructed her not to speak with S3 on the matter, however, Complainant disregarded the instruction, as she believed S2 was harassing her, and intended to go up the chain of command to find resolution. When S2 saw Complainant enter S3’s office, he allegedly yelled and screamed at her for disobeying a direct order. Claim 4: Relieved of Duties Complainant was scheduled to work 7:30-4:30, but requested that she work 7:00 am to 3:00 pm. S2 denied her request. S3 confirms that during this time, S2 consulted him about removing Complainant’s classroom responsibilities because she “refused” to work the hours required for the TM, and because she reported that she was being harassed by PM-2, and that she suffered migraines due to the stress caused when working with certain colleagues. S2 denies removing Complainant’s classroom access. Claim 5: Suspension On March 30, 2018, S1 issued Complainant a Proposed 3-day Suspension for “Conduct Unbecoming an Employee” and “Failure to Follow Policies, Procedures of Instructions.” Relying on statements from Complainant, S2, and PM-2 regarding the March 15, 2018 incidents. 2019002952 5 S1 determined that Complainant had disobeyed orders and acted disrespectfully toward a supervisor, to such an extent that it warranted suspension. Complainant was provided an opportunity to respond, which she did in writing. S3, the deciding official, upheld the proposed suspension in a decision issued April 9, 2018. Claim 6: Reassignment On April 9, 2018, Complainant was notified that she would be reassigned to one of 11 Agency field offices in need of an experienced IOI, effective June 24, 2018. The only option located in state was a four hour drive away. The Notice further stated that if Complainant did not make a selection by April 23, 2018, a selection would be made for her. The FAD concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant 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, (“EEO MD- 110”) 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”). Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. 2019002952 6 Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Claim 1: Nonselection In a non-selection case, pretext may be demonstrated by a showing that complainant's qualifications are observably superior to those of the selectee. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) citing Bauer v. Bailor, 647 F.2d 1037, 1048 (10th Cir. 1981); Williams v. Dep’t of Education, EEOC Request No. 05970561 (Aug. 6, 1998). Having considered the evidence of record, we find that complainant has not established pretext because she was not a level GS-14 employee. S1 testified that the IOIBT PM position at issue was located in Headquarters, so they sought an internal volunteer that was already GS-14 and had at least two years of supervisory experience, in order to “ensure that the person has the necessary experience to effectively manage the program.” Complainant argues that S1 used the supervisory experience requirement as pretext to exclude her from competing for the position, reasoning that when PM positions were advertised externally, there was no such requirement. Moreover, Complainant asserts that the individual S2 selected lacked 2 years of supervisory experience. We note that the ROI lacks a copy of the official position description for the IOIBT PM, GS-14, and does not contain any evidence of the selectee’s qualifications and experience, such as a resume or application. There is also no documentation of the selectee’s transfer. Regardless, is undisputed by the parties that the selectee was already GS-14, whereas Complainant was not. Given that this was a requirement of the position, Complainant cannot establish that her qualifications are not observably superior to those of the selectee. To the extent Complainant is arguing that S2 pre-selected the selectee for the IOIBT PM, the Commission recognizes that pre-selection and favoritism alone do not establish a violation of laws prohibiting discrimination in employment, so long as the selection was based on the qualifications of the pre-selected or favored individual. See Jenkins v. Dep’t of Interior, EEOC Request No. 05940284 (Mar. 3, 1995), McClinton v. Dep’t of the Air Force, EEOC Request No. 05921032 (May 6, 1993). If, however, the selection is predicated on some prohibited basis, then evidence of pre-selection and favoritism can operate to discredit the legitimacy of the Agency's explanation as proof of pretext. Nickens v. Nat'l Aeronautics & Space Admin., EEOC Request No. 05950329 (Feb. 23, 1996). In other words, pre-selection can be reviewed as part of a mosaic of actions taken that may evidence unlawful discrimination. Complainant offers no additional evidence that would indicate the Agency’s explanation for her nonselection was pretext for discrimination and reprisal. 2019002952 7 Claim 4: Relieved of Duties & Barred from Classroom The Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). The Agency’s legitimate nondiscriminatory reason for relieving Complainant of her teaching duties and assigning non-classroom duties instead was that she would not come in during her work hours. On appeal, Complainant reiterates, but offers no evidence to support, her contention that S2’s explanation for refusing to change her scheduled hours as a TM was motivated by discrimination. Moreover, the alleged action falls well within the scope of the Agency’s business judgment. The Agency denies barring Complainant from her classroom. While Complainant may have been under the impression that, as a result of being stripped of her duties, she was also barred from entering her classroom, we are unable to find evidence in the record that this occurred. Claim 5: Suspension The Agency’s legitimate nondiscriminatory reason for issuing Complainant a 3-day suspension on April 9, 2018, was that its actions were consistent with disciplinary policies, and taken in response to Complainant’s actions on March 15, 2018. Specifically, the Suspension Notice stated that Complainant engaged in “Conduct Unbecoming an Employee” when, “during a meeting with [S2] on March 15, 2018, [Complainant] was disrespectful and argumentative.” It also cited her “Failure to Follow Policies, Procedures of Instructions” by disregarding S2’s instruction that she “refrain from going to ATF Academy Chief office and speak with him.” The record supports that Complainant engaged in the conduct as described. The record also supports S3’s observation, as the deciding official, that Complainant “was on notice that this behavior is unacceptable,” referencing Letters of Caution she received on June 3 and September 29, 2016. The record also contains a November 10, 2016 non-disciplinary “Letter of Expectation” addressing Complainant’s failure to utilize the chain of command, and follow instructions. In reaching his decision to uphold the suspension, S3 states that he considered Complainant’s written response to S1’s March 30, 2018 proposal, and relied on the ATF Guide for Offenses and Penalties (June 1, 2015) for recommended penalties for her conduct and failure to follow instructions. We find that S3’s decision to uphold the three day suspension was rendered in a manner consistent with Agency policy. Complainant has not shown that these explanations were pretext for discrimination. 2019002952 8 Claim 6: Reassignment The Agency’s legitimate nondiscriminatory reasons for issuing Complainant the April 9, 2018 Notice of Reassignment were that there was a “need for experienced IOIs in a number of Field Divisions,” and, because Complainant had “communicated [her] discontent with numerous colleagues and supervisors throughout [her] tenure at the ATF Academy." The Agency cites its authority under 5 U.S.C. § 7106 and 5 C.F.R. § 335.102, and provides a copy of its Mobility Policy for IOIs in the record. We agree with Complainant, that the Agency’s explicit reference to her conflict with other employees, including those she named as alleged harassers and responsible management officials in open EEO actions, as a reason for her permanent reassignment gives rise to an inference of retaliatory motive. However, in this case, the Agency provided ample evidence that reassignment was a condition of Complainant’s employment as an IOI. Specifically, the Agency’s Mobility Policy for IOIs states that “Management reserves the right to assign or reassign employees, which may include a permanent change of station, as necessary, to accomplish the mission critical goals and objectives of ATF.” ATF O 2300.8 (Feb. 15, 2017). Typically, IOIs are required to sign a “Mobility Agreement.” Although the Agency has not produced a Mobility Agreement for Complainant, it is undisputed that she holds the position of IOI, and is subject to the Agency’s Mobility Policy. On appeal, Complainant has not provided evidence of pretext, such as demonstrating that the Agency’s stated need for IOIs in other the eleven other field offices it listed was not true, or not “mission critical” and the record supports that she had reported conflicts with multiple employees. Given the nature of her IOI position, Complainant has not overcome the Agency’s legitimate nondiscriminatory reasons for her reassignment. Harassment/Hostile Work Environment 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 her protected classes. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). Even considering Complainant’s claims together, the alleged harassment is not sufficiently severe or pervasive given the Agency’s legitimate nondiscriminatory reasons for its actions in Claims 1, 4, 5 and 6, and because she has not established the requisite hostility and motive for her remaining claims. 2019002952 9 With respect to Claim 2, we note that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., 523 U.S. 75, 81 (1998). The conditions of employment are altered only if the harassment culminated in a tangible employment action or was sufficiently severe or pervasive to create a hostile work environment. EEOC Notice No. 915.002, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 18, 1999). While PM-1’s use of highlighting, exclamation points, and capitalization in his emails may have come across as “yelling,” his actions were not sufficiently severe or pervasive to constitute harassment. Further, the actions ceased once Complainant notified S1 that she felt they were harassing. Claim 3 describes a "common workplace occurrence," that while unpleasant, did not constitute harassment. In Gormley v. Department of the Interior, we found that a complainant's allegations that her "work duties and time in and out of the office were closely monitored on a daily basis; and she was treated more harshly and unprofessionally by her supervisor than other employees" were "common workplace occurrences." EEOC Appeal No. 01973328 (Feb. 18, 2000). Even if done in a confrontational manner, a supervisor questioning an employee about work duties is also a "common workplace occurrence." See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). S2’s statement during the March 15, 2018 meeting that Complainant’s actions were “borderline insubordinate” was in the context of discussing her work duties, making it a “common workplace occurrence.” Having thoroughly reviewed the record and the Parties’ contentions on appeal, including those not specifically addressed herein, Complainant has not established discrimination as alleged. CONCLUSION Accordingly, the Agency’s Final Decision is AFFIRMED. 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. 2019002952 10 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). 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. 2019002952 11 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 September 15, 2020 Date