Herta K.,1 Complainant,v.Thomas E. Perez, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Jan 11, 2017

0120142900 (E.E.O.C. Jan. 11, 2017)

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

Herta K.,1
Complainant,

v.

Thomas E. Perez,
Secretary,
Department of Labor,
Agency.

Appeal No. 0120142900

Agency No. 13-03-135

DECISION

On August 15, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s July 18, 2014, final decision concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Our review is de novo. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Wage and Hour
Technician, GS-07, at the Agency’s work facility in Philadelphia, Pennsylvania. Complainant
worked for the Agency in that capacity from June 17, 2012 to June 13, 2013.

On September 3, 2013, Complainant filed an EEO complaint wherein she claimed that the
Agency subjected her to disparate treatment and a hostile work environment on the bases of her
race (African-American/Hispanic) and sex (female) 2 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.

2 Although Complainant listed sex as a basis of discrimination in her formal complaint, she
subsequently stated in her affidavit that she did not believe her sex was a factor in the
Agency’s alleged actions. Thus, we will not be addressing the basis of sex in our analysis of
this matter.
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1. On or around March 11, 2013, Complainant’s Supervisor responded to her March
5, 2013 request to telework twice a week by informing her that she was not allowed
any telework days;

2. On or around June 10, 2013, Complainant’s Supervisor attempted to relocate her
from her workstation;

3. On or around June 10, 2013, Complainant was belittled by management officials
during a meeting; and

4. On June 13, 2013, Complainant was terminated from her position during her
probationary period.

On December 5, 2013, the Agency notified Complainant that it interpreted claims (2) and (4)
as alleging disparate treatment. The Agency dismissed claim (1), in terms of it being a
disparate treatment claim, pursuant to 29 C.F.R. § 1614.107(a)(2) on the grounds that
Complainant failed to initiate contact with an EEO Counselor in a timely manner. The Agency
stated that the denial of Complainant’s telework request occurred on March 11, 2013, but
Complainant did not initiate contact with an EEO Counselor until July 2, 2013, after the
expiration of the 45-day limitation period. The Agency, however, stated that claim (1) would
be investigated as background evidence of Complainant’s claim of being subjected to a hostile
work environment. The Agency stated that claims (1-4) were interpreted as comprising the
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 Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s
request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. With regard to claim (1), Complainant stated that she had been
teleworking twice a month under an informal agreement and that she requested to be allowed
to telework twice a week. This request was denied by Complainant’s Supervisor and the
Director of Operations. Complainant based her request on her husband’s hip replacement
surgery as recovery would last for approximately one month. Management offered her the
option of teleworking one day per week for four weeks but that she could not telework the
following month. The Agency stated that Complainant argued her race was a factor in the
denial of her telework request because employees of other races were permitted to telework
twice a week. Complainant cited a Caucasian/Hispanic female who was approved to telework
twice a week for five to eight months due to her infant.

The Supervisor asserted that she denied Complainant’s telework request because Complainant
was a probationary employee and was not entitled to a formal telework arrangement. The
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Supervisor noted that the office policy for all telework eligible employees is no more than one
telework day per week. According to the Supervisor, the comparison referenced by
Complainant was not in her probationary period. The Supervisor stated that she approved this
employee’s request to telework twice a week after she returned from maternity leave.
Management proposed to Complainant in addition to the aforementioned telework option that
she could earn credit time to utilize as telework but that if she chose this option, she could not
telework two days a month again until May 2013. The Agency stated that Complainant
rejected these options and continued with the informal telework arrangement.

As for claim (2), Complainant claimed that her Supervisor attempted to relocate her from her
workstation but it did not occur because she was terminated first. Complainant maintained that
the Supervisor informed her that two of her coworkers wished to work at her workspace, and
that they had priority over Complainant due to seniority. According to Complainant, one of
the coworkers (Caucasian/Hispanic) told her that she was contacted by the Supervisor
regarding Complainant’s workspace. Complainant stated that the other coworker (African-
American) mentioned she was not interested in moving to Complainant’s workspace at the
time. Complainant claimed that the Supervisor’s actions created discomfort and a hostile
situation between her and her coworkers.

The Supervisor asserted that no management official attempted to relocate Complainant from
her workstation and that Complainant’s workstation was not relocated. The Supervisor
maintained that she was unaware if any employee requested to be moved to Complainant’s
workstation. The Agency stated that the Supervisor explained that office policy concerning
workstation location and seniority mandates that the Supervisor hold a meeting for all
employees impacted by a workstation change with their union representative, and that
employees select a workstation based on seniority. The Supervisor stated that a plan is
presented to her for approval and review. The Supervisor asserted that one of the employees
mentioned by Complainant asked about changing her workstation and she told her that a
meeting would be held with the union to address the relocation of staff. The Supervisor stated
that she informally discussed the situation with each potentially affected employee under her
supervision.

The Supervisor denied that she told Complainant that two other employees wanted to relocate
to Complainant’s workspace. According to the Supervisor, on June 10, 2013, before she had
an opportunity to discuss the issue with Complainant, Complainant approached her about the
matter. The Supervisor stated that she explained to Complainant the process of changing
workstations at that time. The Supervisor maintained that Complainant became visibly upset
and began to walk away. The Supervisor claimed that she asked Complainant to return and
talk but Complainant responded that she did not want to move and it wasn’t fair.

With regard to claim (3), Complainant contended that the Deputy Regional Administrator
belittled her at a staff meeting. Complainant stated that she raised the issue of teleworking
twice a week. The Agency stated that the Regional Administrator responded that a decision
still needed to be evaluated and that it would take some time for management to reach a
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decision. Complainant asserted that the Deputy Regional Administrator told her that she had
only been in her position for one year and that she had no clue whether the change in telework
policy affected her as an employee. Complainant responded that her one year of experience
was of value to the department, and the Deputy Regional Administrator acknowledged that he
needed to have personal interactions with employees. Complainant stated that she inquired
about the frequency of these interactions and the Deputy Regional Administrator replied that
Complainant did not understand the manager’s position.

The Deputy Regional Administrator asserted that during the staff meeting he responded to
Complainant’s argument and that of others on behalf of more telework days by stating that he
understood the employees’ concerns, but that managers had to balance telework requests with
the needs of the Agency in order to ensure that the mission and goals of the Agency were met.
According to the Deputy Regional Administrator, Complainant became agitated at his response
and was disrespectful and sarcastic to him. Both the Deputy Regional Administrator and the
Regional Administrator denied being aware of what could have been said to Complainant that
she would consider belittling.

In terms of claim (4), Complainant claimed that she was not provided with a reason for her
termination. Complainant stated that her Supervisor issued her a rating of “Highly Effective”
on her mid-year performance evaluation. According to Complainant, she was not notified of
her deficiencies and did not receive any sort of feedback from management. Complainant also
denied ever being admonished or counseled about her workplace conduct or about courtesy,
respect, or lack of professionalism in the workplace. Complainant acknowledged that her
letter of termination stated that she was combative with other managers while receiving
feedback and guidance, but that she only received positive verbal and written feedback from
her Supervisor. Complainant claimed that her strong Latino/Hispanic accent was a factor in
her termination. Complainant maintained that her Supervisor acted as if she did not
comprehend what Complainant was saying, and would make facial expressions showing her
annoyance when Complainant talked. According to Complainant, her Supervisor asked her the
day before she was terminated whether customers were having trouble understanding her.

Complainant cited a Caucasian employee and an African-American employee who had similar
performance or conduct as her, but were not disciplined or terminated during their
probationary period for work performance or conduct. Additionally, Complainant argued that
she was informed by the union representative that the reason for her termination was that in
April 2013, she sent an e-mail to her Supervisor and the Director of Operations concerning an
issue with another employee’s incompetence and failure to cooperate to finish required tasks.

The Agency stated that Complainant’s Supervisor and the Director of Operations decided to
terminate Complainant during her probationary period based on her conduct. The Supervisor
asserted that when incidents involving Complainant’s conduct would occur, she met with her
and addressed her unprofessional behavior and conduct. The Supervisor remarked that she
regularly met with Complainant about the tone of her e-mails and suggested to her that she be
more professional when requesting or providing information to coworkers and management
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officials. Specifically, the Supervisor cited three occasions where Complainant was
disrespectful and unprofessional toward her. The Supervisor stated that when she was
attempting to train Complainant, Complainant became visibly angry and turned her back on
her. Additionally, the Supervisor commented that there were occasions when she asked
Complainant to discuss a matter with her in the conference room, and Complainant would
pause and continue walking away from her.

The Supervisor maintained that she received numerous complaints from personnel in other
Division offices about Complainant’s conduct, attitude, and harsh e-mails. According to the
Supervisor, on June 10, 2013, she met with one of Complainant’s coworkers regarding
Complainant’s behavior toward that coworker and another coworker concerning the workspace
situation. The Supervisor stated that she was informed by the coworker that Complainant
raised her voice to her two coworkers and said they could not move their workstation. The
Supervisor stated that no other employees under her supervision were terminated during their
probationary period. According to the Supervisor, the employees referenced by Complainant
as comparisons were not in their probationary period at that time.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for
Complainant’s termination as well as its response to Complainant’s claim that an attempt was
made to relocate her workstation. With regard to Complainant’s attempt to establish pretext as
to her termination, the Agency noted that a coworker stated that the Supervisor and the Deputy
Regional Administrator did not like Complainant’s accent. However, the Agency stated that
the coworker did not provide any reasons or explanation for why he held this belief. The
Agency further determined that Complainant did not provide any connection between her
allegation concerning her Supervisor’s facial expressions and the Supervisor asking if her
customers had trouble understanding her. The Agency rejected Complainant’s argument that
the Agency’s explanation was untrue or unworthy of credence.

As for the alleged attempted relocation of Complainant from her workstation, the Agency
determined that there was no evidence in the record beyond Complainant’s own testimony that
would support her allegations of the Supervisor’s motives. The Agency noted that
Complainant acknowledged that she was never relocated.

With respect to Complainant’s claim of a hostile work environment, the Agency noted that as
to claim (1) Complainant argued that employees outside of her protected group were permitted
to telework twice a week. The Agency distinguished Complainant’s situation by pointing out
that Complainant’s request was denied because she was a probationary employee, and
probationary employees were not entitled to a formal telework arrangement. As for claim (2),
the Agency stated that Complainant claimed that her Supervisor attempted to create a hostile
work environment between her and two of her coworkers. The Agency noted that in addition
to Complainant not being moved, the Supervisor denied that she tried to relocate Complainant
or informed Complainant that any other coworker could move to her workspace.

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With regard to claim (3), the Agency noted that one of Complainant’s coworkers asserted that
the Deputy Regional Administrator responded to Complainant’s question in a very derogatory
manner and that he was in an “ugly” mood at the staff meeting. The Agency, however,
rejected Complainant’s argument concerning this claim noting that the management officials
uniformly stated they were unaware of what was said to Complainant that could be considered
belittling. The Supervisor stated that the Deputy Regional Administrator emphasized the
importance of communication between staff members and employees who were teleworking.
The Deputy Regional Administrator stated that he told Complainant during the meeting that
managers had to balance telework requests with the needs of the Agency.

The Agency also rejected Complainant’s claim that her termination reflected a hostile work
environment. The Agency took note of Complainant’s assertion about her accent but stated
that this did not refute the Agency’s explanation that she was terminated based on her poor
conduct and behavior in the workplace. The Agency further determined that even taking the
alleged conduct as true, when considered cumulatively, it was not so severe or pervasive as to
rise to the level of a hostile work environment. The Agency reasoned that management’s
actions were neither hostile nor abusive in nature, but rather constituted normal and routine
managerial responses to workplace problems.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that her Supervisor informed her that two coworkers
requested to be relocated to Complainant’s workspace and their requests would be granted due
to seniority. Complainant argues that the fact she was not relocated does not negate the fact
that she was asked to relocate without any explanation or that no non-African-American
employee was asked to do the same. With regard to her termination, Complainant contends
that she had high performance reviews and that the record does not show any documentation
for a failure to show respect or lack of professionalism regarding her work conduct.
Complainant maintains that she never had any issues communicating with other employees
because of her accent.

In response, the Agency asserts that although Complainant received a “Highly Effective”
performance rating, management did not terminate her based on her performance but rather
that she was terminated due to poor conduct and behavior in the workplace. With respect to
Complainant’s claim of a hostile work environment, the Agency notes that as to Complainant’s
telework request she was already permitted to telework twice a month under an informal
telework arrangement, and that management provided her with alternatives to her request,
including using future telework days in advance and earning credit hours so that she could care
for her husband. The Agency also reiterates the arguments that were presented in its final
decision.

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally 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 Constr. 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 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request
No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is a pretext for discrimination.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

With regard to Complainant’s claim of disparate treatment as to claims (2) and (4), we shall
assume arguendo that Complainant has set forth a prima facie case of race discrimination. The
Agency explained as to claim (2) that no management official attempted to relocate
Complainant from her workstation and Complainant’s workstation was not relocated. The
Supervisor asserted that one of the employees asked about changing her workstation and she
told her that a meeting would be held with the union to address the relocation of staff. The
Supervisor stated that she informally discussed the situation with each potentially affected
employee under her supervision. With regard to claim (4), the Agency stated that Complainant
was terminated from her position based on her poor conduct and behavior in the workplace.
The Agency offered examples of situations where Complainant acted in an unprofessional
manner and was recalcitrant toward her Supervisor. We find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions in claims (2) and (4).

Complainant attempts to establish pretext as to claim (2) by arguing that her Supervisor
informed her that two coworkers requested to be relocated to Complainant’s workspace and
their requests would be granted due to seniority. We observe that Complainant has not
submitted sufficient evidence to corroborate her version of what occurred. Moreover, there is
no dispute that Complainant was not relocated from her workstation. We find no evidence of
disparate treatment as to claim (2).

With respect to claim (4), Complainant contends that she had high performance reviews and
that the record does not show any documentation for a failure to show respect or lack of
professionalism regarding her work conduct. Complainant further contends that her strong
Latino/Hispanic accent was regarded unfavorably and was a factor in her termination. The
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record reflects that Complainant received a rating of “Highly Effective” for her mid-year
performance review. However, Complainant’s Supervisor stated that she frequently met with
Complainant and addressed her unprofessional behavior and conduct. The Supervisor
explained that she addressed the tone of her e-mails and suggested to her that she be more
professional when requesting or providing information to coworkers and management officials.
The record also documents the instances where Complainant exhibited a recalcitrant attitude
toward her Supervisor. We discern no persuasive evidence that Complainant’s accent was a
factor in her termination. We find that Complainant has not established that the Agency’s
explanation for her termination was pretext intended to hide discriminatory motivation.

Complainant claims that she was subjected to harassment by management officials. To
establish this claim, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance at 6 (March 8, 1994).

In addition to claims (2) and (4), claim (1), which concerns the denied telework request, and
claim (3), which involves Complainant allegedly being belittled at a staff meeting, are the
matters that constitute the hostile work environment claim. We find no reasonable basis to
conclude that Complainant was subjected to a hostile work environment, as she has not
established that any of the alleged Agency actions were severe or pervasive such that a legally
hostile work environment existed. Additionally, the Commission finds that under the standards
set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of
hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant’s harassment claim is
precluded based on the Commission’s finding that she failed to establish that any of the actions
taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v.
U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000).

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 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. The requests 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 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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 11, 2017
Date