[Redacted], Adena J., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Dec 21, 2022

Appeal No. 2021004347 (E.E.O.C. Dec. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adena J.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2021004347 Agency No. 20-0068-HQ-TT DECISION On July 28, 2021, 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 July 12, 2021, final decision 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. 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 Senior Policy Advisor, GS 15 at the Agency’s Office of Technology Transitions at its Headquarters in Washington, DC. On June 2, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Hispanic), sex (female), and age (57) when: 1. From November 2018 through November 2019, the Director, Office of Technology Transitions (OTT) (Director) undermined Complainant’s authority by excluding her from meetings with her direct reports and decisions involving her 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. 2021004347 2 portfolio. Complainant further asserts that the Director routinely consulted males in the office regarding Complainant’s “work and relationships” without providing Complainant an opportunity to represent her “own work or relationships.” 2. In November 2019, the Director appointed one of Complainant’s male coworkers instead of Complainant to serve as OTT Acting Principal Deputy Director (Deputy Director). By way of background, Complainant asserted that she had superior experience and expertise in the subject matter of the office, supervision, and management than the appointee. 3. In November 2019, the Director demoted Complainant without cause from the position of OTT Deputy Director for Policy and Practice to the position of OTT Senior Policy Advisor. 4. From November 2018 until the filing of the instant complaint, the Director and the Deputy Director have cultivated a male dominated environment through a pattern of behaviors and decisions against Complainant. With respect to the Deputy Director, Complainant asserts more specifically that the Deputy Director belittled her work and addressed her with a demeaning and dismissive tone and language.2 The Agency dismissed claims 1 through 3 as discrete incidents of disparate treatment because of untimely EEO counselor contact but accepted them as part of Complainant’s harassment claim. See Report of Investigation (ROI) at 164. 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 decision found that Complainant did not establish a hostile work environment because the evidence did not indicate that any of the alleged incidents were due to any of Complainant’s protected classes and also because the incidents taken together were not severe or pervasive enough to constitute a hostile work environment. The decision therefore concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant disputes the Agency officials’ reasons and reiterates her beliefs that the Agency subjected her to a hostile work environment based on her national origin and age and sex due to a “misogynistic culture” at the Agency.3 2 The Agency also dismissed one of Complainant’s claims, that Agency effectively “constructively non-select[ed]” Complainant for the position of OTT Principal Deputy Director, for failure to state a claim because Complainant acknowledged she did not apply for the position. See Report of Investigation (ROI) at 166. 3 To the extent Complainant included additional information in her brief as evidence, we note that new evidence is not accepted on appeal and will not be considered. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). 2021004347 3 The Agency filed a response urging affirmance of its decision. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Dismissal for Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Under most circumstances, a complainant will not state a claim of discriminatory non-selection if he or she did not apply for the position in question. However, under certain limited circumstances, a claim can be made that Agency management actively discouraged Complainant from applying based on a discriminatory motivation. See, e.g., Smith v. Dep’t of Defense, EEOC Appeal No. 01A24119 (February 11, 2003) (African American complainants stated a viable claim of race discrimination even when they did not apply for a position when they alleged that the agency purposefully timed the vacancy announcement so that they would not meet all the qualifications for the position). Contrary to Complainant’s assertion, that is not the case here. Complainant contended that the vacancy announcement for the position was a “constructive non-selection” because it was clearly intended only for a specific candidate. We note, however, that there is no evidence in the record to support Complainant’s assertion of any impropriety in the vacancy announcement. The record indicates that Complainant, along with other eligible employees, was specifically notified of the vacancy and encouraged to apply if interested and Complainant responded saying she would not apply even though the position was “certainly within [her] skillset and interest” because she was convinced the position was “clearly wired” for her coworker. See ROI at 473-74. An HR director responded to Complainant, reminding her that she could not be considered if she did not apply and Complainant persisted in her refusal to apply. See ROI at 473. 2021004347 4 Under the circumstances, we find that the Agency properly determined that Complainant had not been aggrieved and therefore, this issue failed to state a claim. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141774 (Sept. 5, 2014). Untimely Counselor Contact We will also briefly address the Agency's dismissal of claims 1 through 3 as discrete acts of discrimination. 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The incidents in claims 1 through 3 occurred either before or during November 2019. Complainant contacted the EEO counselor on March 30, 2020. Complainant has not presented any justification to delay or toll the time limit with respect to claims 1 and 2. We therefore find that the Agency properly dismissed claims 1 through 2 as discrete acts of discrimination pursuant to 29 C.F.R. §1614.107(a)(2). With respect to claim 3, Complainant contends that she was not formally notified of the change in her title until March 15, 2020. See ROI at 200. While we note that there is evidence in the record that Complainant was notified of the reorganization of the OTT in November 2019, the evidence indicates that Complainant misunderstood the reorganization announcement and did not realize her title would be changed. See ROI at 631-32. We will therefore analyze claim 3 as a discrete incident, as well as part of Complainant’s overall harassment claim. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, she 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 Dep’t of Cmty. 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. 2021004347 5 See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We initially note that it is not clear from the record that the change in Complainant’s title was, in fact, a demotion. The evidence in the record indicates that Complainant’s title was changed to that of Senior Policy Advisor but that she retained the same GS-15 grade level and salary. See ROI at 413. The evidence does not support Complainant’s characterization of the change in title as a demotion. Regardless, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Director explained that the office was reorganized in November 2019 in order to improve functionality and effectiveness after consultation both internally within the office and externally with Ombudsman, Human Capital, and an outside organizational health reviewer. See ROI at 515. An Organizational Culture Advisor who conducted a review of OTT with respect to performance, reliability, and culture, stated that he found the organization “lacked clearly defined roles and responsibilities” with overlapping missions and redundancy between offices, creating “conflict amongst the staff.” See ROI at 775. The Director explained that the decision was made to consolidate the entire staff under one Principal Deputy Director because the office had “become too siloed” and more transparency and collaboration was needed. See ROI at 517. He further stated that he discussed the reorganization and the change in her title with Complainant at the time without any negative reaction. See ROI at 517-18. We find that Complainant has not established that the Agency’s reasons were a pretext for discrimination. While it is clear that Complainant disagrees with changing her job title, she has submitted no evidence to indicate that the change in her title was due to any unlawful motive. It is well established that agencies have broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation, which is not present here. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130083 (Aug. 8, 2014). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) she is a member of 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 the 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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2021004347 6 We find that the record does not support Complainant’s assertions that any of the alleged incidents of harassment were due to any of her protected classes. The Director stated that he did not appoint Complainant to be the Acting Principal Deputy Director because he had received numerous complaints from Complainant’s subordinates complaining that Complainant was creating a hostile environment with fears of reprisal and further because of two instances of inappropriate conduct where Complainant undermined his authority and then refused to acknowledge her own wrongdoing, which caused him to question her decision making reasoning and ability.4 See ROI at 516. The Deputy Director confirmed that he has received multiple complaints from various coworkers about Complainant’s behavior, noting that they felt belittled, bullied, and disrespected, and that more than one coworker has requested to be removed from Complainant’s supervision. See ROI at 643-44. While we acknowledge the statement of one of Complainant’s former coworkers agreeing that Complainant was targeted because she is not part of the “boys club,” and stating she left the Agency because of the toxic environment, Complainant’s former coworker’s opinion is not sufficient evidence to prove that any of the alleged incidents of harassment were, in fact, motivated by any protected basis. See ROI at 421- 22. We emphasize that there is no other evidence in the record indicating that any of the alleged instances of harassment are due to any of Complainant’s protected classes. Moreover, we find that the incidents of harassment are not sufficiently severe or pervasive to constitute a violation of the EEO laws. The evidence in the record indicates that the incidents are the product of personality clashes, disputes over management style, and other common workplace grievances. However, such grievances, “while sometimes unpleasant, do not constitute harassment, even if done in a confrontational manner.” Felton M. v. Dep’t of Agriculture (Forest Service), EEOC Appeal No. 0120171203 (June 23, 2017). The Commission has repeatedly held that “not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation.” Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120158 (May 15, 2014) citing Shelby v EEOC, EEOC Appeal No. 0120070356 (April 18, 2011); Epps v. Dep’t of Transportation, EEOC Appeal No. 0120093688 (December 19, 2009). Complainant’s subjective assertion that the Agency’s actions have caused her anxiety and insomnia is not sufficient to meet the objective standard required by Title VII. See Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII’s purview.”); see also Aron J. v. U.S. Postal Serv., EEOC Appeal No. 0120180078 (April 12, 2019) (stating that Title VII is not a civility code). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish that she was subjected to discrimination as alleged. 4 We note that Complainant does not dispute that she committed the acts which the Director found to be inappropriate, only contends that her behavior was justified in her own opinion. See ROI at 182-83. Complainant’s opinion that her actions were correct is not, however, evidence of any improper motive. 2021004347 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2021004347 8 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 December 21, 2022 Date