Karolyn E.,1 Complainant,v.Elaine C. Duke, Acting Secretary, Department of Homeland Security (Customs and Border Protection), Agency.

Equal Employment Opportunity Commission

Nov 14, 2017

0120150680 (E.E.O.C. Nov. 14, 2017)

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

Karolyn E.,1
Complainant,

v.

Elaine C. Duke,
Acting Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.

Appeal No. 0120150680

Hearing No. 507-2013-00128X

Agency No. HS-CBP-22370-2012

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s November 3, 2014 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. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Management Program Analyst in the Agency’s Office of Training and Development (OTD) in
Washington, D.C. In early 2011, Complainant was transferred from the Operations Division to
the Office of the Assistant Commissioner and assigned under the supervision of OTD’s Chief of
Staff (S1-1). Complainant was the Branch Chief of the Planning and Policy Branch and
supervised several employees. Complainant claimed that from November 2011 through
December 2011, S1-1 held various closed-door meetings with her to discuss her performance and
her staff’s performance. During the meetings, Complainant alleged that S1-1 was angry,

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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unprofessional, and agitated. Complainant claimed that S1-1 told her in one meeting that she did
not believe that Complainant was worthy of being a GS-14 grade-level employee and questioned
her intelligence. The next day, during a meeting, Complainant alleged that S1-1 told her that she
was “too emotional” about a project and that she would not help Complainant complete it. In
December 2011, Complainant claimed that S1-1 questioned her leadership and ability to perform
at the GS-14 level. S1-1 met with Complainant on December 28, 2011, to “clear the air” and
move forward with a “clean slate.” On December 30, 2011, Complainant claimed that she
informed the Deputy Assistant Commissioner (DAC-1) that she believed that S1-1 was harassing
her.

On February 2, 2012, Complainant went to S1-1’s office with one of her subordinate employees.
Complainant claimed that S1-1 told her that she heard that Complainant went to the Assistant
Commissioner about recommendations on an assignment. Complainant alleged that S1-1
became angry and hostile and informed Complainant that she was never allowed to go directly to
the Assistant Commissioner about anything. Complainant felt that S1-1 was unprofessional,
questioning her about the budget process, and doubting her experience.

On April 9, 2012, S1-1 announced to the staff that a Supervisory Border Patrol Agent would be
serving a 90-day detail to Headquarters as the Special Assistant to the Assistant Commissioner.
Complainant believed that the detailee was being brought in by S1-1 to replace her since he was
given assignments that normally fell within her responsibilities. Further, Complainant claimed
that the detailee was allowed to work on things she was not previously allowed to do.

Prior to May 2012, Complainant worked an alternative work schedule (AWS) with a rotating day
off of the second Thursday of each pay period. On May 6, 2012, S1-1 informed Complainant
that she was no longer allowed to work her AWS in order to better align with her staff and the
core hours of the office. On May 7, 2012, Complainant met with S1-1 to discuss her work
schedule and S1-1 refused to allow her to remain on AWS. Additionally, during the meeting,
Complainant claimed that S1-1 told her that she did not perform audits correctly, that she did not
perform well, and that she needed to “babysit” her employees to make sure that they were doing
their work correctly.

S1-1 did not issue Complainant and a co-worker performance reviews for Fiscal Year (FY) 2011.
Additionally, S1-1 did not issue Complainant a mid-year review for FY2012. Complainant
claimed that S1-1 did not want to say anything positive about her because she is a female.
Additionally, Complainant claimed that on July 30, 2012, she submitted an application package
to S1-1 for “long and unusual hours parking.” On August 16, 2012, Complainant and her staff
were transferred to the Training Production and Standards Division. Complainant’s new
supervisor (S1-2) returned Complainant’s parking application on August 21, 2012, and informed
her that it had been denied.

On May 30, 2012, Complainant filed a formal complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the basis of sex (female) as
evidenced by multiple incidents including, inter alia, her supervisor held various closed door
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meetings with Complainant in which she conveyed various performance issues regarding
Complainant and Complainant’s staff; her supervisor notified Complainant, in the presence of a
subordinate employee, that she was not allowed to go directly to the Assistant Commissioner
about anything and demanded to know about the budget process; her supervisor announced that a
male Supervisory Border Patrol Agent would be serving a 90-day detail to their office as a
Special Assistant to the Assistant Commissioner, purportedly to replace Complainant; her
supervisor advised Complainant that she would not be allowed to work an Alternative Work
Schedule (AWS) and her supervisor refused to reconsider her decision; and Complainant was not
issued an end-of-year performance review for fiscal year FY2011 and has not received a new
performance plan or a mid-year performance review for FY2012.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) 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 granted summary judgment in favor of the
Agency, and issued a decision on September 25, 2014.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence the conduct at issue was based on discriminatory animus. Specifically, as to the closed-
door meetings, S1-1 stated that she held closed-door meetings with Complainant to provide
feedback on her and her staff’s performance, including instances where Complainant was not
meeting her work expectations as a GS-14. S1-1 explained that the door was closed out of
respect for Complainant’s privacy as employees who passed by her office could hear the
conversations. S1-1 stated that she held a meeting on November 15, 2011, because Complainant
had yelled at her during a meeting with the former Acting Assistant Commissioner. S1-1
informed Complainant that yelling at her was neither appropriate nor acceptable in the
workplace, especially in front of OTD leadership.

With respect to her directive to follow the chain-of-command, S1-1 explained that this was an
attempt to force Complainant to supervise her staff. Complainant was tasked with handling first-
level supervisor issues such as routine questions and reviewing her staff’s work before
submitting it to S1-1. Regarding the detailee, the Agency explained that he was not detailed to
Headquarters to replace Complainant. The Acting Assistant Commissioner stated that he
selected the detailee to develop him for career development progressions and to infuse some
“operational lens” into the office. The Acting Commissioner explained that he assigned the
detailee to work with Complainant so both could assist him in representing OTD at meetings and
various workgroups and coordinating with other Agency offices.

As to Complainant’s work schedule, S1-1 advised Complainant that her schedule needed to align
more closely with her staff’s schedules so Complainant could be in the office to supervise,
provide guidance, and to review the work product of her subordinates. On May 6, 2012, S1-1
directed Complainant to change her schedule beginning with the next pay period due to
resistance from Complainant’s staff regarding S1-1’s directions and guidance about an important
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work product for the Assistant Commissioner. S1-1 did not direct Complainant to change her
work tour of duty from one day to the next without proper notification.

Lastly, Complainant was not issued an end-of-year performance review for FY2011 or a
performance plan for FY2012, due to IT issues with the Agency’s performance plan program.
Nonetheless, S1-1 provided Complainant feedback on her work product and provided her with a
list of her duties and expectations for FY2012.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination
or a hostile work environment as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the
Agency as there were serious issues concerning the credibility of the witnesses, inadequate
discovery, and genuine material issues of fact in dispute. Complainant argues that S1-1 was
unaware of the effects of her unconscious bias in favor of men against competitive women.
Complainant claims that the AJ erred in precluding her from deposing the Assistant
Commissioner and for denying her discovery request for S1-1’s complete official personnel file.
Complainant contends that the Agency’s reasons for its actions were pretext for discrimination.
Complainant argues that S1-1’s acts of yelling, slamming the desk, and her “constantly derisive
tone” created a hostile work environment. Accordingly, Complainant requests that the
Commission reverse the final order. The Agency submitted a brief in opposition to
Complainant’s appeal in which it urged the Commission to affirm its final order and the AJ’s
decision.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An 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.

As an initial matter, with respect to Complainant’s arguments regarding discovery, the
Commission notes that an AJ has broad discretion in the conduct of hearings, including
discovery, and the determination of whether to admit evidence or to permit or compel the
testimony of witnesses. See 29 C.F.R. § 1614.109; Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). Upon
review of the record, the Commission finds no evidence that the AJ abused her discretion in the
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manner in which she managed and adjudicated this case. Additionally, the Commission finds
that the AJ properly issued summary judgment as the material facts are undisputed.

Hostile Work Environment

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).

Therefore, 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 her sex. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive
to create a hostile work environment, the Commission finds that Complainant failed to show that
the Agency’s actions were based on discriminatory animus. For example, as to the closed-door
meetings, S1-1 confirmed that she met with Complainant to privately discuss Complainant’s
performance and her expectations of Complainant and Complainant’s branch. ROI, at 147. S1-1
noted that she met with Complainant once in November 2011, to discuss an incident where
Complainant yelled at her in front of upper management. Id. at 148. S1-1 denied telling
Complainant that she was “not worthy of being a GS-14 level employee;” rather, S1-1 stated that
she informed Complainant on several occasions that she was not meeting the expectations of a
GS-14 supervisor. Id. S1-1 added that she never questioned Complainant’s intelligence, but that
it was her expectation for Complainant to take her guidance and translate that into more specific
direction for her staff. Id. at 149, 151. S1-1 stressed that during one of the closed-door
meetings, she explained to Complainant that the implementation stage of a project was being
transferred to another team and that while she and her staff did a good job in the “idea” stage of
the project, things did not go well for the team during the final and implementation stages. Id. at
152. Based on those reasons, S1-1 confirmed that she told Complainant that her branch would
not likely get another large project. Id. Finally, S1-1 added that after several counseling
sessions in which Complainant became very emotional, she attempted to get Complainant’s
thoughts on how they could move forward in a congenial environment, but Complainant was not
interested in having that discussion. Id. at 155.
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With respect to the chain-of-command meeting, S1-1 affirmed that Complainant disagreed about
instructions S1-1 had given her about a work product Complainant’s branch was preparing. ROI,
at 157. Complainant took her disagreement to the Acting Assistant Commissioner who later
informed S1-1 that he agreed with her instructions and that it was inappropriate for Complainant
to circumvent the chain-of-command to speak to him directly about work products. Id. S1-1
stated that, at the request of the Acting Assistant Commissioner, she informed Complainant that
it was inappropriate for her to have gone to the Acting Assistant Commissioner for guidance on
her work product and that she needed to adhere to the chain-of-command unless the matter
involved a personal complaint. Id. at 158.

Regarding the detail assignment, the Acting Assistant Commissioner affirmed that he selected
the detailee for the Special Assistant position as a developmental assignment and to infuse some
operational perspective into the office. Agency’s Motion for Summary Judgment, Ex. 5, at 14-
15. There is no evidence that S1-1 recommended or selected the detailee. S1-1 noted that with
the exception of a policy project, none of the detailee’s duties fell within Complainant’s branch.
ROI, at 161.

As to her AWS schedule, S1-1 first informed Complainant that her schedule needed to align
more closely with her staff’s schedule so that she could supervise, provide guidance, and review
work products. ROI, at 128. On May 6, 2012, S1-1 informed Complainant that she would need
to change her schedule to a straight 8:00 a.m. to 4:30 p.m. schedule beginning with the next pay
period to address her staff’s struggles on certain work products. Id. at 126. S1-1 maintained that
this change was made because Complainant and her branch were not accomplishing their work
as required and it was exacerbated by Complainant’s work schedule being misaligned with her
staff. Id. at 164. S1-1 added that she was not open to reconsidering this decision until the
branch’s problems were resolved and Complainant’s schedule no longer adversely impacted
operations. Id. at 165.

As to her performance review, S1-1 stated that she did not issue Complainant a FY2011 end-of-
year performance review because she was not coded into the Agency’s system as Complainant’s
supervisor at the time. ROI, at 166; Agency’s Motion for Summary Judgment, Ex. 2, at 44. S1-
1 stated that she was advised that the Assistant Commissioner or the Deputy Assistant
Commissioner could give Complainant her end-of-year review; however, S1-1 did not consider
that to be a viable option. ROI, at 166. S1-1 added that the issue was resolved several months
later, but her time was consumed trying to carry out her Chief-of-Staff duties and other projects.
Id. at 166-67. S1-1 affirmed that she attempted to provide Complainant regular feedback on her
performance throughout the year. Id. at 167. S1-1 confirmed that she did provide detailed
written and verbal performance expectations to Complainant for FY2012. Agency’s Motion for
Summary Judgment, Ex. 2, at 45. Finally, with respect to her parking application, S1-1 stated
that she did not approve Complainant’s application because she did not meet any of the criteria
to qualify for subsidized parking (e.g., carpool, long and unusual hours, physically disabled,
etc.). ROI, at 168. S1-1 asserted that she provided Complainant’s application to her new
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supervisor in the event that Complainant might meet one of those criteria in her new position and
arrangements were made to allow it to be processed if S1-2 approved it. Id.

The Commission agrees with the AJ that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions was pretext for discrimination. As a
result, the Commission finds no basis to disturb the AJ’s summary judgment decision finding
that Complainant was not subjected to discrimination or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

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
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(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.

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

November 14, 2017
Date