Complainant,v.Gina McCarthy, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Jul 14, 2015

01-2013-0568-0500 (E.E.O.C. Jul. 14, 2015)

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

,
Complainant,

v.

Gina McCarthy,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0120130568

Hearing No. 530-2010-00207X

Agency Nos. 2008-0012-R03, 2010-0008-R3

DECISION
On November 19, 2012, Complainant filed an appeal from the Agency’s October 21, 2012,
final order 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

. The Commission deems the appeal
timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final order finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chief of the Air
Quality Planning Branch at the Agency’s facility in Philadelphia, Pennsylvania. On December
7, 2007, Complainant filed an EEO complaint alleging that the Agency discriminated against
her on the bases of her race (African-American), sex (female), color (black), age (44), and in
reprisal for prior protected EEO activity when:

1. In August 2007, while Complainant was on a leave of absence, management filled
her position and upon her return, on November 7, 2007, reassigned her to a non-
supervisory position;
2. In 2009, management did not select her for any of three Associate Director, Air
Protection Division vacancies she applied for; and
3. She was subjected to a hostile work environment when regional managers appeared
disinclined to get on the elevator with her, management frequently failed to invite
her to meetings that impacted her position, people she worked with for a number of
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years appeared reluctant to interact with her, and on July 6, 2009, the Acting
Director scolded her in front of peers at a meeting.

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 timely requested a hearing
and the AJ held a hearing on September 19-20, 2011, and issued a decision on September 12,
2012. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. On
appeal, Complainant contends the AJ erred in her finding of no discrimination.

ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint

, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See

EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Complainant must initially establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc

., 530 U.S. 133 (2000).
With respect to claims (1) and (2), we concur with the AJ’s finding that assuming, arguendo,
Complainant established a prima facie case of race, sex, color, age, and reprisal
discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, as to claim (1), the record supports the AJ’s finding that the Agency had
granted Complainant sick and annual leave in order to care for her new daughter, and that
from the date she went out on leave, in April 2007, through June 2007, Complainant
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maintained periodic contact with her staff. However, around mid-June Complainant’s
subordinates informed S1 that Complainant failed to attend a lunch they had planned. S1 stated
she was worried and tried to reach Complainant via telephone and e-mail but was unsuccessful.
S1 stated she also contacted Complainant to confirm the duration of her absence since this had
not been established prior to her leaving. After not hearing from Complainant, S1 sent her a
letter, dated July 30, 2007, asking about her leave plans and asking for her assistance in setting
assignments for new employees. When Complainant again failed to respond to S1’s inquiries,
S1 spoke to a Human Resources Officer, who told her to advertise Complainant’s position as a
competitive temporary vacancy. Prior to advertising the position, S1 sent Complainant a
registered letter, dated August 16, 2007, informing her she had been trying to reach her for
two months and that she had urgent matters to discuss with her, including when she would
return from leave. S1 received confirmation Complainant received and signed for the letter on
August 17, 2007, but she still did not receive a response. When this letter was not answered,
on August 29, 2007, S1 advertised the position as a competitive temporary vacancy.
Complainant finally responded to S1 on August 30, 2007, but S1 decided to continue with the
selection process for the advertised vacancy and to reassign Complainant to a non-supervisory
position.

The record shows that S1 stated that she decided to reassign Complainant because of serious
concerns about Complainant’s management and leadership skills. Specifically, S1 stated that
while Complainant was excellent at the technical aspects of her job, her management style had
created high emotional stress in her branch. A subordinate of Complainant emailed S1 during
Complainant’s absence telling her she wanted to move to a different branch, in part because of
the stress of Complainant’s highly emotional management style which had significantly
decreased during her absence. A Deputy Director in the office (S2) spoke with several of
Complainant’s employees, and conducted exit interviews with others, who told him
Complainant had an intimidating management style, did not allow them to provide assistance to
other branches, and that they felt that Complainant had created a hostile work environment. S2
also stated he had been told that employees felt Complainant did not allow them to perform
their jobs in an effective manner. Furthermore, two other employees told S2 during exit
interviews that they would only consider returning to the office if it was under a different
supervisor. S1 stated Complainant did not interact well with other managers in the division and
did not want to meet with or speak to them directly. She stated she had to intercede and
mediate between Complainant and other managers on numerous occasions. S1 further stated
that she sent Complainant to management training on numerous occasions to try and fix these
problems but that Complainant failed to show any long-term improvements. Accordingly, we
concur with the AJ’s finding that Complainant failed to establish that she was reassigned to a
non-supervisory position due to discriminatory animus.

As to claim (2), the AJ found the testimony of the interview panelists and selecting official
(SO) to be credible and there is no evidence in the record to refute this finding. The SO
explained that the Agency’s People Focused Leadership initiative governed their selection
criteria and mandated that management select supervisors with strong leadership skills who
could manage others effectively. All of the interview panelists and the SO stated that the
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individuals selected for the positions were more qualified than Complainant. The SO stated that
S1’s input about Complainant’s management deficiencies merely confirmed what the SO had
heard from other sources. As such, we concur with the AJ’s finding that Complainant failed to
show that her qualifications for the positions at issue were superior to those of the selectees, or
that her nonselection was motivated by discriminatory or retaliatory animus.

Finally, with respect to claim (3), 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 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). 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
Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Whether an environment is
hostile or abusive can be determined only by looking at all the circumstances, which may
include 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. A single incident or group of isolated
incidents will not be regarded as discriminatory harassment unless the conduct is severe.
Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th

Cir. 1982).
Here, the record supports the AJ’s finding that Complainant failed to present credible evidence
demonstrating any of the allegedly adverse or unfriendly treatment she received was motivated
by any unlawful discrimination, or that it was sufficiently severe or pervasive to rise to the
level of unlawful harassment. Complainant’s claims that co-workers appeared reluctant to
interact with her or get on the elevator with her are based on her perceptions of the situation.
Even if we assume, arguendo, Complainant’s perception is correct, there is no evidence in the
record to show these incidents were motivated by unlawful discrimination. Her remaining
claims that management failed to invite her to meetings that impacted her position and that a
supervisor scolded her in front of her peers, are not sufficiently severe or pervasive to
constitute unlawful harassment.

CONCLUSION
Therefore, the Agency’s final order finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
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and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 14, 2015