Sulema B.,1 Complainant,v.Patrick Pizzella, Acting Secretary, Department of Labor, (Occupational Safety and Health Administration), Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181971 (E.E.O.C. Sep. 24, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sulema B.,1
Complainant,

v.

Patrick Pizzella,
Acting Secretary,
Department of Labor,
(Occupational Safety and Health Administration),
Agency.

Appeal No. 0120181971

Agency No. CRC-17-06-054

DECISION

On May 23, 2018, 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
April 20, 2018 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.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination and a hostile work environment based on her protected
class and in reprisal for her prior protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst/Regional Freedom of Information Act (FOIA) Coordinator at the Agency’s Regional
Office in Dallas, Texas.

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.
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On December 27, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were unsuccessful.

On February 7, 20172, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African American) and in reprisal for prior protected
EEO activity under when:

1. on October 28, 2016, Complainant’s request to telework was denied;

2. on November 30, 2016, Complainant’s request to telework was denied;

3. on December 13, 2016, Complainant’s supervisor failed to respond to her verbal
and written requests to meet with him to discuss the details of her participation in
an upcoming training that was to be given by her office;

4. on December 14, 2016, when Complainant arrived at a meeting with multiple
managers, she was told to leave the meeting and informed that her services as a
note taker for the meeting were no longer required;

5. on December 14, 2016, Complainant’s supervisor did not intervene to defend her
when a colleague falsely accused her of failing to upload a letter in to the SIMS
FOIA system, despite multiple requests to do so;

6. on December 16, 2016, when Complainant was attempting to leave work for a
doctor’s appointment, two management officials (and her supervisor, who was
present over the telephone) instigated a verbal altercation with her;

7. on December 19, 2016, Complainant’s supervisor directed her to submit a “draft
SOP” by December 23, 2016, even though her co-workers had until December 31,
2016 to submit their draft SOPs;

8. on January 10, 2017, after Complainant’s supervisor was promoted to the position
of Deputy Regional Administrator (DRA), she learned that she was the only
member of her team who was still required to report to him, rather than to the new
supervisor of her team;

9. on January 12, 2017, and continuing to the present, her supervisor failed to respond
to an e-mail in which she memorialized a meeting at which it was determined that
two instances of allegedly deficient performance on her part were in fact, not her
fault;

2 Complainant later amended her formal complaint, and the Agency accepted the amended claims
on May 1, June 6, July 28, and November 3, 2017.
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10. on January 12, 2017, Complainant learned that her position title was changed;

11. on January 12, 2017, Complainant’s new supervisor told her: (a) that he would sit
in on her meetings with the Admin Programs Team, (b) that she would be required
to meet with him weekly to discuss her progress on her work, and (c) she would be
required to meet with him daily to report on the Freedom of Information Act
(FOIA) requests that she has completed;

12. on March 30, 2017, Complainant’s supervisor delayed her career ladder promotion
to the GS-12 level, less than a week before she was to become eligible for it;

13. since filing this complaint, her supervisor has scrutinized her work, including the
quarterly newsletter with which she was tasked at completing, despite prior
newsletters not being scrutinized;

14. on May 10, 2017, Complainant’s request to telework on May 11, 2017, was denied;

15. on June 6, 2017, Complainant’s supervisor announced that he would no longer be
accepting formal telework agreements, after Complainant and another African-
American female submitted formal telework agreements a few days previously,
even though an African-American male and a White female with the same job
classification as Complainant’s still have formal telework agreements;

16. on June 14, 2017, Complainant’s supervisor denied her request to telework on June
16, 2017, because he said that he wanted to meet with her on that day, but then, he
never met with her;

17. since at least June 14, 2017, and continuing to the present, Complainant’s
supervisor has denied her the ability to telework more than once a week, even
though White coworkers are allowed to telework more than once a week;

18. on June 19, 2017, Complainant learned that her supervisor would no longer be
supervising her team, but would still be supervising her, making her the only
member of her team who is still under his supervision;

19. on September 13, 2017, one week after she had returned to work upon recovery
from a July 14, 2017 workplace injury, the Acting Supervisor: (a) revoked her
Alternative Work Schedule (AWS) schedule, placed her on a fixed schedule of 8:00
a.m. to 4:30 p.m., and forbade her to work a flexible schedule; and (b) told her that
she was being “dismissed until further notice” and instructed Complainant to go
home; and,

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20. on September 25, 2017, and continuing to the present, Complainant’s supervisor
requires her to report her work status/outcome for every single task/assignment that
she performs.3

The Agency accepted all claims for investigation as part of Complainant’s hostile work
environment claim. However, the Agency dismissed Claim 1 for untimely EEO Counselor contact
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted that the discrete event occurred on
October 28, 2016, and that Complainant’s December 27, 2016 EEO Counselor contact therefore
made it untimely. Furthermore, the Agency determined that there was no persuasive reason to toll
the 45-day time frame limitation. The Agency also dismissed Claims 3-6 and 9, as part of the
allegations of disparate treatment based on race, for failure to state a claim. The Agency
determined that Complainant was not an aggrieved employee. Specifically, the Agency determined
that the alleged events Complainant described in Claims 3-6, and 9 (supervisor’s failure to respond
to emails and meeting requests, dismissal from a meeting, supervisor’s failure to “defend” her to
a colleague, and a verbal altercation with managers) did not cause a harm or loss to her terms,
conditions or privileges of employment. Despite the procedural dismissal, all claims were
investigated as part of Complainant’s hostile work environment claim.

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

On April 20, 2018, the Agency issued its final decision. The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination and a hostile work environment as
alleged.

CONTENTIONS ON APPEAL

Complainant did not provide any statement or brief in support of her appeal.

The Agency provided a detailed appellate brief reiterating the history of the complaint. The
Agency stated that Complainant did not provide any persuasive arguments, below or on appeal, to
overturn the final Agency decision. The Agency asserted that the final decision is fully supported
by the record, and that the Commission should affirm its final decision.

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-

3 Claim 20 was not addressed in the final Agency decision because Complainant withdrew it during
the investigation.
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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”).

We note that the Agency procedurally dismissed Claims 1, 3-6, and 9. Despite the procedural
dismissal, the Agency still accepted and investigated those claims in the context of Complainant’s
hostile work environment claims. Based on the record, we do not find it necessary to disturb the
Agency’s procedural dismissal of Claims 1, 3-6, and 9.

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, 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, n. 13; 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 Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the 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 Center 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. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, 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 Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Unlawful Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in 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
(Mar. 8, 1994). To establish this claim, 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 had the purpose or effect of unreasonably interfering with the work environment and/or
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creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability.

The Supreme Court in Harris explained that an “objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently
severe to trigger a violation must be determined by looking at all the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Id. at 23.

A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the
complainant’s employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 78 (1998).

With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for
harassment when it is created by a supervisor with immediate (or successively higher) authority
over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Reprisal

Complainant also alleges that the Agency retaliated against her. In accordance with the burdens
set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

Analysis

Upon our review of the voluminous evidentiary record, which consists of numerous affidavits and
exhibits, and having fully considered and analyzed the Agency’s decision, which recites and
addresses each claim and identifies the evidentiary support on which it relied for its alleged actions,
we conclude that the preponderant evidence does not establish discriminatory animus.4

4 The record in this case is exhaustive and details numerous incidents in support of the claim. We
will not individually address each incident of alleged discrimination. Although the claims will
not be individually addressed, all matters which Complainant raised have been considered and
viewed in the context of all bases and in the context of disparate treatment and a hostile work
environment.
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Complainant’s allegations concern denial of telework requests; training requests; shifting project
deadlines; chain of command issues; performance inquiries; position title change; weekly progress
meetings; promotion challenges; and performance scrutiny. The record contains very detailed and
numerous documents concerning Complainant’s claims. However, despite the volume of
documentation, Complainant has failed to show that the claims raised were causally connected to
unlawful discrimination on any basis or motivated by discriminatory or retaliatory animus.

Even if the claims occurred as alleged, Complainant failed to show that the Agency officials were
in any way motivated by discriminatory animus. In addition, many of the actions taken by the
alleged discriminating officials were routine managerial actions, denial of telework requests,
performance inquiries, and promotion delays, and other managerial decisions based on Agency
operations, all of which, absent discriminatory animus, will not be second-guessed by the
Commission. Agencies generally have broad discretion to carry out personnel decisions and
exercise business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6,
1996).

Here, Claims 1, 2, 14-17, and 19, regard Complainant’s claims regarding the denial of telework
requests. Complainant asserted that her prior EEO activity and race must have been a factor as the
two managers were both previously named as responsible management officials (RMO) in prior
EEO complaints, and are both White. However, the record demonstrated that the Assistant
Regional Administrator for Administrative Programs, and the Deputy Regional Administrator
(RMO1 and RMO2, respectively) both had legitimate, nondiscriminatory reasons for how the
telework requests were handled. For example, in Claims 1 and 2, RMO1 denied the requests due
to managerial discretion, and the need for Complainant to be in the office to assist with projects,
tasks, and deadlines that are difficult to handle while teleworking. Complainant had argued that in
neither incident was her physical presence necessary. In those incidents, RMO1 made the
managerial decision that it was best for Complainant to be on hand in case she was needed. This
decision was well within a manager’s right to manage business operations.

Complainant also alleged in Claim 12 that her career ladder promotion was delayed, less than a
week before she was to become eligible for the promotion. Complainant argued that management
was clearly holding her promotion back based on her race and her prior EEO activity. Complainant
stated that she was eligible for a promotion on April 5, 2017, and that since her performance was
Satisfactory, there was no reason to delay her promotion. Here, the record demonstrated that the
Assistant Regional Administrator of the Whistle Blower Programs (White) (RMO3) felt that
Complainant was performing well, but he wanted an additional time to fully evaluate
Complainant’s performance as she had recently transitioned to his team. RMO3 also noted that
around the time of her transition to his team, new performance standards had been set in place.
RMO3 wanted to ensure that Complainant would perform at the GS-12 level, and therefore wanted
the additional evaluation time. The record also demonstrated that the Agency does not provide
automatic career ladder promotions, and an employee must clearly demonstrate the ability to
perform at the higher-grade level prior to his/her promotion.
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Ultimately, Complainant received her promotion retroactive to April 30, 2017. Based on the
record, we find that the reasons provided for the extended evaluation period constituted a
legitimate, nondiscriminatory reason.

Despite the detailed record, Complainant has failed to show that the Agency’s legitimate,
nondiscriminatory reasons were pretext for discrimination. Pretext inquiry is not concerned with
bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Security,
EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made
the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere
assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is
insufficient because subjective belief, however genuine, does not constitute evidence of pretext.
The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory
animus. Further, at all times the ultimate burden of persuasion remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited
discrimination. Complainant has not done so in this regard.

Regarding Complainant’s various claims supporting her hostile work environment claim, such as
being falsely accused of wrongdoing, being yelled at, having different deadlines than her White
peers, and having a different chain of command from her peers, we find that none of the examples
provided, alone or all together, provide evidence of a pervasively hostile work environment. For
example, in Claim 6, Complainant asserted that three management officials instigated a verbal
altercation with her. The management officials each provided an affidavit testifying that
Complainant was argumentative, repeatedly refused the work task, and left before completing the
assignment. Even if we viewed the situation in favor of Complainant, there is insufficient evidence
to demonstrate that management chose to instigate altercations with Complainant in an effort to
subject her to a hostile work environment. Based on the record, it was apparent that there was
miscommunication over Complainant’s responsibilities regarding the task, and that while she had
approved leave for the day, those involved in the altercation were unaware of this fact.

We note that the discrimination statutes are not a civility code. What is prohibited is “behavior so
objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. at
81. We are mindful that the discrimination statutes do not create a right to work in a pleasant
environment, merely one that is free from discrimination. As a result, employees may experience
unprofessional, inappropriate, and disrespectful treatment. Based on the record, aside from
common workplace matters, there were no incidents that would demonstrate that Complainant was
subjected to a hostile work environment.

In the instant matter, the record demonstrates that Complainant had a contentious relationship with
her superiors. However, the incidents do not demonstrate that Complainant was subjected to a
legally hostile work environment, discrimination, or retaliation. In sum, the evidence does not
support a finding of discrimination on any basis, the presence of discriminatory animus, or the
existence of a hostile work environment.

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The Commission notes that a finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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.
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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. 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.
Carlton M. Hadden, Director
Office of Federal Operations

September 24, 2019
Date