Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

May 28, 2015

01-2013-2310-0500 (E.E.O.C. May. 28, 2015)

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

,
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(Federal Emergency Management Agency),
Agency.

Appeal No. 0120132310

Hearing No. 461-2012-00067X

Agency No. HS-09-FEMA-00571

DECISION
On May 29, 2013, Complainant filed an appeal from the Agency’s final decision1

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. The Commission deems the appeal timely and accepts it for de novo review
pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND
Complainant worked as a Community Education Outreach Specialist (CEOS) at the Agency’s
Transitional Recovery Office in New Orleans, Louisiana. On September 24, 2009, she filed
an EEO complaint in which she alleged that her immediate supervisor (S1) and the Deputy
Section Compliance Chief, her second-level supervisor (S2) harassed her and retaliated against
her for having previously filed an EEO complaint, beginning on an unspecified date in 2008
and ending with the cessation of her employment with the Agency on July 17, 2010.

Complainant filed an EEO complaint on September 5, 2008, after having unsuccessfully
applied for S1’s position. Investigative Report (IR) 33, 92. S1 testified that prior to his
appointment, he enjoyed a good rapport with Complainant, but that afterward, she became
very cold and formal toward him. IR 125.

1While the Agency did not issue its final decision until September 24, 2013, the appeal is now
ripe for adjudication.
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Complainant initially alleged that, since 2008, the office climate had deteriorated, as a
consequence of which S1 and S2 had consistently excluded her from meetings, failed to give
her appropriate supervision or guidance, failed to communicate with her regarding her job
performance, and ostracized her. IR 92, 98-102, 104-07. When asked by the EEO
investigator about the state of the work atmosphere, S1 replied that department staff meetings
took place every Monday in order to ensure that everyone was aware of what their
responsibilities were for the week. IR 122-23. S2 also testified about the weekly staff
meetings, and noted that Complainant was given guidance whenever she needed it. IR 136,
138.

Complainant next alleged that in September 2008, S1 and S2 failed to give her appropriate
office space and denied her the use of a parking pass in an adjacent garage. IR 98, 107-08.
S1 and S2 averred that Complainant and CEOS 1, another Community Education and Outreach
Specialist, were moved from their cubicles into a shared private office, and that both were
amenable to the arrangement. IR 125, 138-39. As to the parking pass, S1 and S2 testified that
only upper level management were entitled to parking passes, and that they were not involved
in decisions as to whom received those passes. IR 126, 139.

Third, Complainant alleged that in February 2009, S1 delayed delivering a Blackberry device
to her. IR 98, 108-09. S1 denied that there was a delay, noting that Complainant, CEOS 1
and CEOS 2, a third Community Education and Outreach Specialist, were the only ones in
their workgroup who were given Blackberries. IR 126. S2 averred that he was not aware of
any delay, and that it sometimes took a while to get the necessary approval from the
organization. IR 139.

Fourth, Complainant alleged that she received correspondence from the Office of Personnel
Management (OPM) regarding accusations of falsifying payroll records relating to overtime.
IR 98, 109. Complainant did receive a letter from a Senior Personnel Security Specialist from
the Agency’s Regional Office. The letter referenced that Complainant had made false
accusations regarding her work and had failed to follow proper procedures and protocol when
requesting overtime. The letter also noted that several of Complainant’s coworkers had
complained about her honesty and integrity. IR 176. S1 and S2 testified that they were
unaware of any background investigation by OPM that had targeted Complainant. IR 127,139.
On September 24, 2009, Complainant received a response from OPM concerning a Freedom-
of-Information-Act inquiry she had made earlier. Someone had reported in Box 6 of an
Investigative Request that Complainant was “dishonest and manipulative.” Information
concerning the identity of the source had been redacted. Complainant filed an appeal
concerning the nondisclosure, but OPM had affirmed its initial determination and notified
Complainant by letter dated December 23, 2009. IR 178-83.

Fifth, Complainant alleged that on May 18, 2009, during a meeting that took place in S1’s
office, S2 placed his hands closed to Complainant’s face and told Complainant to “shut up” in
a manner that left her in fear for her safety. IR 94, 104. S1 and S2 both testified that they
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were having a discussion with Complainant concerning irregularities in Complainant’s travel
expenses that were reported by the Finance Director. While she was being questioned by S1
and S2, Complainant became defensive and abruptly left the office, slamming the office door.
IR 118-20, 132-33, 168-70, 213.

Sixth, Complainant alleged that on October 7, 2009, S1 wrote on her annual proficiency
report, under the criterion labeled, “teamwork,” that she needed to improve her working
relationships with Department employees. IR 67, 70, 95-96. S1 averred that his comments
were based on feedback that he had received from a few people in the Department who had
expressed a preference for working with CEOS 1 or CEOS 2 instead of Complainant. He
further testified that Complainant did not take kindly to the criticism and had refused to sign
her evaluation at the time. IR 120.

Seventh, Complainant alleged that on an unspecified date in March 2010, S1 denied
Complainant the use of an air card for her computer. IR 99, 109. S1 stated that everyone in
the office, including him, had to surrender their air cards because upper management had
determined that they were becoming too expensive to use. IR 126.

Eighth, Complainant alleged that in March 2010, S1 and S2 denied her opportunities to travel
and earn overtime pay. IR 99, 110-11. Both S1 and S2 testified that travel was stopped for
everyone because of budgetary restrictions, and that overtime was strictly limited to the most
mission-critical activities, also for budgetary reasons. IR 127, 140.

Ninth, Complainant alleged that S1 denied her the opportunity to work on a mapping project.
IR 99, 111-12. S1 and S2 both denied that Complainant’s work group had been removed from
the mapping project, and S2 testified that Complainant had expressed a desire not to be
involved in the mapping project. IR 128, 140.

Tenth, Complainant alleged that S1 had denied her the opportunity to participate in the 2010
Southeast Louisiana Preparedness Exposition and substituted two White males for her and
CEOS 1 within hours of the event. IR 81, 103, 192. S1 and S2 averred, however, that the
local liaison who was on the host committee for the exposition had expressed a preference for
subject matter experts in insurance and floodplain issues, and the two individuals who were
sent to the exposition had that experience. IR 124, 136-37.

Finally, Complainant alleged that the Acting Director of the Transitional Recovery Office had
issued her a notice of termination at the urging of S1 and S2, which became effective on July
17, 2010. The memorandum notifying Complainant of her termination characterized the action
as the expiration of her temporary appointment. IR 80, 101, 114. S1 and S2 averred that
there was no longer a need for CEOSs involved in general outreach, and that technical
expertise in floodplains, insurance, and other areas was needed. IR 122-24, 129, 135, 204.

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge.
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Complainant timely requested a hearing but subsequently withdrew her request. Consequently,
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.

ANALYSIS AND FINDINGS
Where Complainant raises a hostile environment claim, she must prove, by a preponderance of
the evidence, that either S1 or S2 was motivated by unlawful considerations of her previous
EEO activity in connection with the discrete and non-discrete incidents comprising her claim.
See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Wibstad v.
U.S. Postal Service

, EEOC Appeal No. 01972699 (Aug. 14, 1998). If Complainant does not
establish the existence of retaliatory intent on the part of S1 or S2, there would be no need to
for the Commission to address whether any of those incidents are severe or pervasive enough
to rise to the level of harassment or whether they constitute separate acts of discrimination in
and of themselves.
S1 and S2 articulated legitimate reasons for all eleven incidents described in the complaint.
Their affidavit testimony has been corroborated by various emails and contemporaneously
prepared memoranda documenting the occurrences. While Complainant asserts that the actions
taken by S1 and S2 were in retaliation for the complaint she had filed against S2 in 2008, she
has not presented any sworn statements from other witnesses or documents that contradict the
explanations provided S1 and S2, or which call their veracity into question.

It is Complainant’s burden to establish the existence of an unlawful motivation on the part of
the responding management officials by a preponderance of the evidence, and more is required
to meet that burden than merely expressing one’s belief. We therefore find, as did the Agency
that Complainant failed to meet her burden of proof as to the existence of a retaliatory motive
on the part of S1or S2 with respect to any of the incidents at issue in her complaint.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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:

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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
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
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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
May 28, 2015