Emilia Z.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Apr 9, 2019

2019001071 (E.E.O.C. Apr. 9, 2019)

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

Emilia Z.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Prisons),
Agency.

Appeal No. 2019001071

Hearing No. 450-2015-00211X

Agency No. BOP-2014-0750

DECISION

On October 25, 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
September 26, 2018, final order concerning an equal employment opportunity (EEO) complaint
claiming 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 Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Human Resource Specialist in the Agency’s
Consolidated Staffing Unit in Grand Prairie, Texas.

1. On July 23, 2014, Complainant filed a formal EEO complaint. Complainant claimed that
the Agency discriminated against her based on disability and reprisal for prior protected
EEO activity when:

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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2. On May 8, 12, and 30, 2014, Complainant was not included in training given to other
staff. Additionally, a manager recommended training in her Performance Work Plan,
which she asserted could prevent her from obtaining employment with another agency.

On September 5, and 12, 2014, Complainant requested to amend the formal complaint to add the
following claim:

3. From August 13 to September 12, 2014, Complainant was subjected to a hostile work
environment when she was yelled at, kicked out of the Team Lead’s office, assigned an
increased workload, and called incompetent. Additionally, management failed to act on
her reports of a hostile work environment.

On October 22, 2014, the Agency accepted both claims. The investigative record reflects the
following pertinent matters relating to the subject claims.

Complainant stated that she was diagnosed in 1987 with asthma and fibromyalgia, and she was
recently diagnosed with diabetes and major depression due to work related stress. Complainant
explained that she when she experiences stress, fibromyalgia flares up which makes breathing
difficult. Based on this evidence, we presume, without so finding, that Complainant is a qualified
individual with a disability.

At the Agency, work spaces were configured into “pods”. Each pod consisted of six desks in an
office with a door. At the time, Complainant worked in a pod that was called the “Tumbleweed”.

From June 2010 until July 24, 2012, the Deputy Chief, Supervisory Human Resources Specialist
was Complainant's first line supervisor (hereinafter referred to as “the Deputy Chief”). Due to a
reorganization, the Chief of the Consolidated Staffing Unit (hereinafter referred to as “S1”)
became Complainant’s first line supervisor after July 2012.

On May 8, 12, and 30, 2014, Complainant asserted that the Deputy Chief held what Complainant
construed as a training session with other employees in a section of the pod. The session
regarded how to review candidates for managerial positions. Complainant worked on such
assessments, and felt it was rude to exclude her. At the time, the Deputy Chief was no longer
Complainant’s first line supervisor. Complainant contacted her third-line supervisor, the Deputy
Chief of the Human Resource Services Center (hereinafter referred to as “S3”) to report the
incident. S3 responded that Complainant had previously made the request to be removed from
the Deputy Chief’s line of supervision, and therefore was no longer included in team meetings
with the Deputy Chief. S3 noted that the Deputy Chief’s session was a team meeting, and not a
training. S1 reiterated these statements.

The Deputy Chief stated that she had not excluded Complainant from any informal or formal
training. Instead, the referenced event was a team discussion held in an open area of the pod. It
was meant for employees under her direct supervision.
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At the time, S1 was Complainant’s direct supervisor and individually met with Complainant with
guidance on assessing managerial applicants. However, when Complainant accused the Deputy
Chief of disrespectfully not including her, the Deputy Chief asked her to join the discussion.
Complainant declined.

Fellow pod members and coworkers (hereinafter referred to as “CW1” and “CW2”) stated that a
team meeting was held on one side of the pod regarding managerial applicant assessments. CW1
and CW2 stated that Complainant interrupted the meeting, stated that it was rude of the Deputy
Chief not to invite her to the meeting, but then declined an invitation to join the discussion.

Regarding her Performance Work Plan, it included a recommendation that Complainant
participate in training dealing with personality clashes at work, managing emotions, and thriving
under pressure. Complainant asked S1 why she (Complainant) needed that training, especially
the portion of training relating to managing emotions. S1 allegedly responded, "Because of all
the memos you're writing." Complainant told S1 that she had the right to file complaints and
asserted that S1 brushed her off. Complainant asserted that S1 placed the training
recommendations based on her prior EEO complaints and not because Complainant actually
needed emotional help. Complainant refused to sign her performance evaluation, which was
marked Excellent. Complainant asserted that the incident caused her to become severely
depressed and she missed several weeks of work. Complainant stated that if some Agency
official ever reviews Complainant’s performance appraisal and sees such training listed, she
might not be selected for future positions.

S1 stated that Complainant has had numerous personality conflicts, and that it got to the point
where it was a distraction in the workplace. S1 asserted that, in numerous conversations with
Complainant, she always placed the blame on someone else, and has never considered how she
might bear any responsibility. Additionally, Complainant tended to discuss issues from years
past, and involving individuals from other parts of the Agency. S1 believed Complainant carried
considerable frustration with her and noted that she often became very emotional and
argumentative. S1 stated Complainant appeared to believe that everyone was out to “get her.”
S1 hoped that Complainant could find value from the training and that it would assist her with
her work-related issues. He noted that other agencies would not be privy to Complainant’s work
performance plan and noted that he has never been contacted for a reference.

Claim 2

From August 13 to September 12, 2014, Complainant asserted that she was subjected to a hostile
work environment when she was yelled at, called incompetent, and kicked out of the Team
Lead’s office. Complainant asserted that the Team Lead attempted to confuse her to make her
look incompetent. Complainant asserted that the Team Lead assigned her an increased workload
in retaliation for reporting him for creating a hostile work environment.

S1 stated that Complainant informed her of an alleged altercation between the Team Lead and
herself.
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S1 requested that both Complainant and the Team Lead to write memorandums regarding the
event. The matter was later referred to the Agency’s Office Internal Affairs for review.

The Team Lead was shocked to learn that Complainant accused him of creating a hostile work
environment. The Team Lead stated that the incident involved a disagreement on how to review
transcripts in a candidate’s application. They discussed the matter but reached a standstill.
Complainant wanted to go above the Team Lead, but he noted that he was senior and had final
authority in the disagreement. Because they did not have an agreement on this matter, he asked
Complainant to leave his office. He denied yelling at her, kicking her out, or calling/inferring
that she was incompetent. He felt the conversation was normal, considering Complainant often
questioned his decisions.

Complainant asserted that after reporting the Team Lead for creating a hostile work environment,
her work load increased. Complainant noted that she was never disciplined for not completing
the increased work load, but that two cases were removed from her pile and redistributed.

S1 reviewed the assigned jobs from July 1 through September 8, 2014. Based on the search, S1
determined that Complainant was not assigned a dramatically increased work load. For example,
she had three more jobs than the next highest assigned employee. He acknowledged that cases
were also reassigned as part of normal operations.

The Team Lead stated that he was not deliberately giving Complainant more work. The Team
Lead stated that around the relevant time, a new staff member joined the pod, and he could not
give her the same complex cases that he could give to a veteran specialist, like Complainant. He
noted that all senior members were assigned more work than the newest team member.
Additionally, another team member had retired which also caused more work to be shuffled
around.

Finally, Complainant asserted that she raised her hostile work environment concerns with S1, her
third and fifth-line supervisors (hereinafter referred to as “S3” and “S5”), and nothing came of it.
Complainant felt that no one cared or listened to her concerns.

S5 stated that he spoke with Complainant on the telephone, and she informed him that she was
being mistreated. S5 asked if Complainant felt threatened or unsafe at work, and Complainant
responded that she did not. Complainant stated she only felt her career advancement
opportunities was being threatened. In response, S5 asked if Complainant was seeking other
employment, and she responded she was not. S1 and S3 stated that they always took
Complainant’s concerns seriously and took actions to remedy her concerns. The Deputy Chief
noted that Complainant never reported claims of hostile work environment to her. The Deputy
Chief noted that many of her own staff complained that it was actually Complainant who created
the hostile work environment. The Deputy Chief noted that several staff refused to sit in the
same area as Complainant due to her disruptive behavior.

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After an investigation into her EEO complaint, 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. The AJ assigned to the case determined sua sponte that the complaint did
not warrant a hearing and over Complainant's objections, issued a decision by summary
judgment in favor of the Agency on August 16, 2018.

Based on the record, and considering the totality of all the circumstances, the AJ determined that
Complainant failed to demonstrate that she was discriminated against and subjected to a hostile
work environment based on her protected classes, or in reprisal for her prior EEO activity. On
September 26, 2018. the Agency issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed. On appeal, Complainant provides an appeal brief along with
purportedly new evidence to dispute the AJ’s findings of fact. Complainant argues that there are
material facts in dispute, and that a hearing is warranted. Complainant also argues that the AJ
overlooked certain Agency actions as discriminatory and retaliatory. Complainant asserts that
management purposely barred her access to full training opportunities to prevent her future
career advancement.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The
U.S. Supreme Court has held that summary judgment is appropriate where a court determines
that, given the substantive legal and evidentiary standards that apply to the case, there exists no
genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In
ruling on a motion for summary judgment a court does not sit as a fact finder. Id. The evidence
of the nonmoving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the nonmoving party's favor. Id. A disputed issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding under Title VII, an
AJ may properly consider summary judgment only upon a determination that the record has been
adequately developed for summary disposition.

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law.
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Here, Complainant has failed, either at the hearing stage or on appeal, to point to any particular
evidence in the investigative file or other evidence of record that indicates such a dispute.
Therefore, we find no error in the AJ’s decision to adjudicate this case without a hearing.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

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 complainant to prevail, he
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. See 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. See 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. See 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 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim
1, there is no evidence that Complainant was excluded from any formal or informal training
based on her protected classes or in reprisal. The record reflects that the Deputy Chief was
holding a staff meeting for her direct subordinates, which did not include Complainant.
Furthermore, when Complainant interrupted the meeting to express her frustration at not being
included, she was invited to join the discussion, but declined instead.

Complainant also asserted that S1 maliciously recommended certain emotional-based training in
her Performance Work Plan to prevent potential career advancement. However, there is no
evidence to suggest that S1’s recommendation was discriminatory, retaliatory, harassing, or in
any way meant to prevent Complainant’s potential career advancement.
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The record reflects that Complainant had a contentious relationship with many colleagues, and
S1 believed that Complainant could benefit from a variety of training focused on dealing with
personality clashes at work, managing emotions, and thriving under pressure.

Additionally, 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 a protected basis – in this case, because of her disability,
or prior EEO activity. Only if Complainant establishes both of those elements – hostility and
motive – will the question of Agency liability present itself.

Here, Complainant alleged that the Team Lead subjected her to a hostile work environment when
he yelled at her, called her incompetent, kicked her out of his office, and then increased her
workload in retaliation of her claim. The record reflects that once Complainant made her
concerns aware, management officials, including S1, took swift action to ensure the matter was
investigated. Beyond her bare assertions, Complainant has failed to meet her burden of proving
that the Team Lead’s actions were motivated in any way by her disability or prior protected
activity. For example, the record demonstrated that any increased workload was inadvertent. The
record demonstrated that around the relevant time, an experienced team member retired, and a
new, less experienced team member joined the pod. These events caused workloads to be shifted
and reassigned. There is no evidence to demonstrate that the two actions are related or that
retaliatory animus can be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No.
01A35231 (Jan. 25, 2005); Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340
(Sept. 25, 2000).

Here, as detailed by the record and in the AJ’s well-reasoned decision, the record supports the
AJ’s determination that the Agency’s proffered reasons regarding the events were legitimate and
non-discriminatory. Complainant did not provide persuasive arguments, below or on appeal, that
the Agency’s actions were pretext for discrimination or unlawful retaliation.

CONCLUSION

The Agency’s final action implementing the AJ’s decision finding no discrimination is
AFFIRMED.
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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).
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.
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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

April 9, 2019
Date