Colene M., Complainant,v.R. Alexander Acosta, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Oct 3, 2017

0120151610 (E.E.O.C. Oct. 3, 2017)

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

Colene M.,
Complainant,

v.

R. Alexander Acosta,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120151610

Hearing No. 520-2013-00368X

Agency No. 13-02-053

DECISION

On April 7, 2015, 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
March 10, 2015, 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

Complainant worked as a Senior Investigator at the Regional Office of the Employment Benefits
Security Administration (EBSA) in New York City. On February 26, 2013, Complainant filed
an EEO complaint in which she alleged that the Supervisory Investigator who served as her
immediate supervisor (S1) and the Regional Director, her second-line supervisor (S2), harassed
her because of her sex (female), religion (Jewish), and in reprisal for having filed the EEO
complaint now before us. She identified the following nine incidents as comprising her
discriminatory harassment claim:

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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1. On September 18, 2012, Complaint was informed that she needed to be present
for a conference call for September 25, 2012, despite already having requested
leave for Yom Kippur.

2. On October 17, 2012, Complainant was rated as “Meets” on her annual
performance appraisal, which prevented her from receiving a bonus.

3. On October 17, 2012, Complainant’s supervisor threatened and pushed her.

4. On November 29, 2012, Complainant’s supervisor continually screamed at her
during a union grievance meeting.

5. On November 30, 2012, Complainant’s supervisor sent out an email concerning a
meeting to take place on December 4, 2012, but did not include her on the email.

6. In December 2012, the Associate Regional Director asked Complainant to sign
and backdate her FY 2012 midyear review when a review had not taken place.

7. On February 15, 2013, Complainant’s supervisor questioned her as to why she
was taking sick leave.

8. On April 22, 2013, Complainant learned that her mid-year performance appraisal
for FY 2012 had been “falsified.”

9. On August 8, 2013, the Regional Director screamed at her during a union
grievance meeting and “threw” her out of his office.

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). Complainant initially requested a hearing
but subsequently withdrew her request. By order dated November 10, 2014, the AJ remanded
the complaint to the Agency, and 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.

Incident (1): Complainant claimed that her presence at work for a conference call on September
25, 2012, at 2:00 PM was required, despite having informed S1 that she needed to leave early in
preparation for the Jewish holiday of Yom Kippur, which would begin at 6:00 PM that evening.
She maintained that if she remained at work for the teleconference, she would not arrive home
early enough to shower, prepare dinner, and attend evening services. Investigative Report (IR)
261-70. According to S1 and S2, Complainant was sent several emails on September 18, 2012,
notifying her that the subject of the conference call was one of her high-profile cases, and for that
reason, she needed to be on the call. IR 459-62, 477-78. However, Complainant did not inform
S1 of her need to be off until September 24, 2012, the day before the teleconference was due to
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take place. IR 479. S2 averred that Complainant never formally requested leave before
September 24, 2012, despite knowing about the teleconference since September 18, 2012. IR
513-15. She did take the day off on September 25, 2012, and leave was retroactively approved
for her. IR 461.

Incident (2): Complainant averred that on October 17, 2012, she received an overall annual
performance rating of “effective,” rather than “highly effective.” IR 485. She attributed her
rating to the fact that she was rated as having met the performance standard on the elements of
timeliness and utilization of time and resources, as opposed to having exceeded the standard.
She maintained that she had enough points for an overall rating of “highly effective,” and that S1
admitted that her failure to attend the conference call on September 25, 2012, had been factored
into her appraisal. IR 270-79, 488-91. She filed a grievance concerning her appraisal on
December 14, 2012. IR 339-43. S1 responded that she had been Complainant’s direct
supervisor for the last six months of Fiscal Year 2012, and consequently, that S1 and the Deputy
Regional Director had input into Complainant’s appraisal. S1 also stated that timeliness and
utilization of time and resources were factors in Complainant’s rating because she had a high-
profile case that had been open for three years and had not devoted sufficient attention to it. In
addition, S1 acknowledged that she had taken Complainant’s failure to inform her of the need for
leave on September 25, 2012, until the day before into consideration when rating Complainant
on the timeliness element. IR 461-65, 481. S2 averred that Complainant had not completed the
fact-finding portions and voluntary compliance letters for two of her major cases, and that her
performance for FY 2012 was effective in that she either met or exceeded all six elements of her
appraisal. IR 515-19.

Incident (3): Complainant averred that on October 17, 2012, when she visited S1 in her office to
contest her performance appraisal, S1 screamed at her, threatened her, grabbed her arm, pushed
her, and told her to get out. IR 279-81, 334-35, 345-47. S1 responded that during the meeting,
which was very brief, she sat on one side of the desk while Complainant sat on the other side. S1
maintained that she never threatened or made physical contact with Complainant. IR 465-66. S2
averred that he had investigated the matter and concluded that Complainant’s allegation
regarding S1’s conduct toward her that day were not substantiated. IR 519-20.

Incident (4): Complainant averred that on November 29, 2012, S1 continually screamed at her
during a union grievance meeting. According to Complainant, S1 stood up during the meeting,
leaned over the conference table, berated her, and after several minutes left the meeting. IR 282-
84. S1 responded that from the outset of the meeting, Complainant insulted her both personally
and professionally. S1 denied that she screamed at Complainant, but stated that she told
Complainant that she would not accept her behavior. She also stated that when Complainant
continued to insult her, she stopped the meeting and walked out of the room. IR 466-67. S2,
who was present at the meeting, reported that Complaint behaved extremely antagonistically and
disrespectful toward S1, calling S1 a “back-stabber.” IR 521-22. A Union Steward who was
present stated that although both Complainant and S1 were emotional during the meeting, it was
Complainant who had exhibited more irritation and frustration than S1. IR 645-47.

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Incident (5): Complainant averred that on November 30, 2012, S1 sent out an email to the rest of
the staff concerning a meeting that was to take place on December 4, 2012, but had deliberately
excluded her from the recipient list without giving her a reason for doing so. IR 287-90, 347-48.
S1 admitted that she intentionally excluded Complainant from the email because she wanted to
address concerns that the staff might have had regarding the grievance that Complainant had
filed. According to S1, one of her subordinates informed her that Complainant had been
assassinating her character in front of the staff. S1 also stated that she cancelled the meeting
without rescheduling it. IR 327-28, 467-69, 495.

Incident (6): Complainant averred that sometime during December 2012, the Associate Regional
Director had asked her to sign and backdate her FY 2012 performance appraisal to acknowledge
receiving her mid-year performance review when no such review had taken place, insisting to the
Associate Regional Director, who was her immediate supervisor for three months before S1 took
over, that backdating documents was illegal. IR 293-94, 336. S1, S2, and the Associate
Regional Director all reported that Complainant’s mid-year review had occurred on May 16,
2012, and that Complainant had refused to sign the mid-year review portion of the appraisal.
The Associate Regional Director filled in the box with the notation, “Employee refused to sign.”
IR 469-70, 523-24, 568-69.

Incident (7): Complainant averred that on February 15, 2013, S1 questioned Complainant as to
why she was taking sick leave without giving her a reason for doing so. IR 298-302. On
February 15, 2013, S1 sent Complainant an email instructing her to confirm no later than
Tuesday, February 19, 2013, whether she would be available to participate in a deposition that
was to take place on Tuesday, February 26, 2013. In the email, S1 also asked, “is your sick leave
due to sudden illness or as a result of a doctor’s appointment?” IR 502. S1 averred that her
question about Complainant’s leave arose due to her failure to attend to her high-profile cases
that were being developed for litigation and that Complainant had failed to notify her in advance
that she was going to take sick leave. S1 stated that she was trying to schedule a conference call
with the Agency’s solicitor’s office. IR 470-71.

Incident (8): Complainant averred that on April 22, 2013, during her mid-year progress review
for FY 2013, she became aware that her FY 2012 performance appraisal had been falsified. She
stated that the Associate Regional Director had signed her 2012 mid-year review with the
notation, “employee refused to sign,” and had back-dated the notation to May 16, 2012. IR 302-
07. S2 averred that he had asked the Associate Regional Director to sign and back date
Complainant’s FY 2012 mid-year review in order to complete the record, reiterating that
Complainant had, in fact, been given her mid-year progress review on May 16, 2012. IR 337,
471-72, 526-27.

Incident (9): Complainant averred that on August 8, 2013, S2 screamed at her during a union
grievance meeting and threw her out of his office. Both Complainant and the Union Steward
who was present at the meeting stated that S2 became enraged as he read the grievance
documents, and that he called Complainant “insolent” and “insubordinate” and told her to get out
of his office. IR 309-13, 595. S2 averred that on August 8, 2013, he conducted a step-2 meeting
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in response to Complainant’s grievance concerning her FY 2012 performance appraisal, and that
during the meeting, Complainant repeatedly accused him of falsifying the appraisal as it
pertained to the mid-year review. He denied that he yelled at Complainant but acknowledged
that in a stern voice, he made it clear to her that he would not be continually berated by
Complainant. He ended the meeting after telling Complainant that continuing would not be
productive. IR 527-29. A Labor Relations Officer who was participating in the meeting via
telephone averred that Complainant interrupted S2, that S2 had warned her that she was
becoming disrespectful, and that S2 had asked Complainant to leave after Complainant told him
that she had nothing further to add. IR 587-89.

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”).

To establish a claim of harassment 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 classes; (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
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 Systems, Inc., 510 U.S. 17, 21 (1993).

We find initially that Complainant satisfied the first element of a claim of harassment in that she
is female, she is of the Jewish faith, and that she engaged in protected EEO activity by filing the
instant complaint. IR 261. According to the EEO Counselor’s report, the Counselor interviewed
both S1 and S2 on February 12, 2013. IR 130, 314. Complainant sufficiently alleged that the
Agency’s actions were unwelcome.

In order to prevail on her harassment claim, Complainant must show 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
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that the conduct was taken because of a protected basis. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

In order to satisfy the third element, Complainant must establish that S1 or S2 relied upon
considerations expressly proscribed by statute in taking the actions that she characterized as
comprising her hostile work environment claim. See Aldaberto P. v. Dept. of Veterans Affairs,
EEOC Appeal No. 0120142387 (Mar. 29, 2016). Complainant can establish unlawful motive on
the part of S1 and S2 by presenting evidence showing that the reasons they articulated for their
actions are so full of weaknesses, inconsistencies, or contradictions in the Agency's proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy
of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20,
2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

When asked by the EEO investigator why she believed that her sex was a motivating factor in
the incidents at issue, she stated in general terms that she had been treated differently than male
staff members by S1 and S2. In particular, Complainant averred that she had asked for a change
of supervisors on multiple occasions, but had been turned down while two male staff members
who asked for supervisory changes immediately got them. She stated that the only reason why
S2 continually denied her request was that she was female. IR 276-277, 281, 284-85, 290-291,
294-296, 299, 306-307, 313-314. Beyond her own assertions and the testimony of the Union
Steward with respect to incident (9), Complainant does not offer affidavits, declarations, or
unsworn statements from witnesses other than herself or documents that contradict the
explanations offered by S1 and S2 for their actions in any of the incidents or which challenge
their veracity as witnesses. While the Union Steward corroborated that S2 called Complainant
insubordinate and told Complainant to leave his office when she was finished at the end of the
meeting on August 8, 2013, she did not contradict S2’s explanation of why he asked
Complainant to leave, namely her insubordination.

When asked what evidence she had that her religion was a factor in the incidents comprising her
claim, Complainant responded that S1, a devout Catholic, and S2, a non-practicing Jew, showed
great disdain for her religious observances. IR 277-278, 282, 285-286, 291-292, 296-297, 299-
300, 308, 313. However, on September 25, 2012, S1 sent S2 an email concerning Complainant’s
failure to inform her of the needed to take leave for religious observance prior to September 24,
2012, the day before Yom Kippur Eve. In that email, S1 stated: “Absent any indication of abuse,
I can’t and will never question someone about their religious leave, especially tonight’s /
tomorrow’s holiday (Yom Kippur). However, her timing and failure to make any effort to
properly and responsibly work this case will most appropriately be addressed during appraisal
time.” IR 461, 481. We note that Complainant was not precluded by S1, S2, or anyone else
from taking leave on September 25, 2012, in order to prepare for her observance of Yom Kippur,
or otherwise forced to work during Yom Kippur. She was subsequently allowed to take 8 hours
of leave for religious observance. Again, beyond her own assertions, Complainant has presented
no evidence of a religious-based motive attributable to S1 or S2. With respect to the incident (2),
which pertained to her FY 2012 performance appraisal rating, the email from S1 to S2 dated
September 25, 2012, conclusively establishes that the reason S1 lowered her rating in the
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timeliness element of her appraisal was not her religious observance. Rather, it was her failure to
inform S1 of her need to take leave until the day before the teleconference concerning her case
was scheduled to take place.

When asked why she believed that reprisal was a motivating factor in the actions of S1 and S2
and what evidence she had to support her reprisal allegation, Complainant stated that she was
instrumental in the firing of a corrupt official to whom S2 was extremely loyal and that S2 had
never forgiven her for that. She also asserted, again in general terms, that as a result of her filing
of EEO complaints, S1 and S2 had been subjecting her to a hostile environment. IR 278-279,
282, 286, 297 292, 300, 308-309. However, the Counselor’s report establishes that neither S1 or
S2 was aware that Complainant had initiated the instant EEO complaint until February 12, 2013,
when the EEO Counselor interviewed them. Consequently, it is impossible for Complainant to
establish a causal connection between her EEO activity and incidents (1) through (5). As to
incident (7), the email dated February 15, 2013, indicated that S1 merely wanted Complainant to
clarify her reasons for taking sick leave. Concerning incident (9), the heated discussion between
Complainant and S2 took place because of Complainant’s conduct toward S2 when pressing her
grievance. As to Complainant’s contention regarding her efforts to get the official in question
fired, even if her assertion were true, she has not shown that matters related to EEO were
involved in that situation.

To summarize, when asked to provide evidence of a discriminatory or retaliatory motive on the
part of S1 and S2 in connection with the incidents comprising her reprisal claim, Complainant
had not done so. She merely rehashed her allegations in the instant complaint, characterizing the
allegations themselves as evidence of unlawful motivation. IR 299. Consequently, we find, as
did the Agency, that Complainant failed to establish that the Agency’s actions were due to her
protected bases.

Even if Complainant established that the Agency’s actions were based upon her protected bases,
we find that she has not established that the actions were severe or pervasive such that a legally
hostile work environment existed. The anti-discrimination statutes that the Commission enforces
are not general civility codes designed to protect against the “ordinary tribulations” of the
workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v.
Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts,
general workplace disputes, trivial slights and petty annoyances between an alleged harasser and
a Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory
conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 81 (1998). A single incident or group of isolated incidents will generally not be
regarded as discriminatory harassment. See Erika H. v. Dept. of Transportation, EEOC Appeal
No. 0120151781 (June 16, 2017), citing Frye v. Dept. of Labor, EEOC Request No. 05950152
(Feb. 8, 1996); Backo v. U.S. Postal Service, EEOC Request No. 05960227 (June 10, 1996).

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was subjected to
discrimination 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.
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).

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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

October 3, 2017
Date