U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deidra D.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020003792 Hearing No. 520-2019-00337X Agency No. HS-FEMA-27078-2016 DECISION On June 16, 2020, 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 May 22, 2020 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Program Specialist, GS-0301-12, at the Agency’s Region II facility in New York, New York. On October 5, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on national origin (Israeli), sex (female), religion (Jewish), and color (dark brown) 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 2020003792 1. On October 30, 2015, Complainant was intimidated by the Deputy Director of Mitigation into changing her request from religious accommodation leave to annual leave (alleged discrimination for this claim is religion). 2. From November 2015 to March 8, 2016, Complainant was repeatedly excluded from work related meetings and emails. The Deputy Director of Mitigation screamed at Complainant in the presence of co-workers, in response to her raising this exclusion from meetings and emails, and for requesting work-related information from the March 8, 2016 meeting (alleged discrimination for this claim is gender and national origin). 3. In February 2016, the Deputy Director of Mitigation and the Division Director refused to discuss Complainant’s roles and responsibilities and develop an Individual Development Plan (IDP) (alleged discrimination for this claim is gender and national origin). 4. On April 1, 2016, Complainant’s request for disaster deployment to New Orleans was denied by the Deputy Director of Mitigation and the Division Director (alleged discrimination for this claim is gender and national origin). 5. On April 7, 2016, Complainant’s request for rotational detail to the Customer Service Branch was denied (alleged discrimination for this claim is color and national origin). 6. On June 2, 2016, Complainant’s request for telework due to the cold office temperature was denied by the Natural Hazards Program Specialist (alleged discrimination for this claim is gender and national origin). 7. On August 8, 2016, the Deputy Director of Mitigation issued Complainant a Notice of Release from her Term (temporary full-time) appointment. However, on September 27, 2016, management rescinded the previous release notice, and provided Complainant another Notice or Release with the effective date of October 14, 2016 (alleged discrimination for this claim is color, religion, national origin and gender). 8. On August 22, 2016, the Natural Hazards Program Specialist and the Deputy Director of Mitigation issued to Complainant an unacceptable second quarter performance review (alleged discrimination for this claim is color, religion, national origin and gender). 9. On October 27, 2016, the Natural Hazards Program Specialist and the Deputy Director of Mitigation issued Complainant an unacceptable performance review (alleged discrimination for this claim is color, religion, national origin, and gender). 3 2020003792 10. On December 13, 2016, Human Resources denied Complainant’s repeated requests for an accurate SF-50 and SF-52 reflecting her position title (alleged discrimination for this claim is color, religion, national origin and gender). After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the assigned AJ granted the Agency’s November 5, 2019 motion for a decision without a hearing. The AJ issued a decision by summary judgment in favor of the Agency on April 13, 2020. On May 22, 2020, the Agency issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. On appeal, Complainant states that she was not converted from her temporary full-time (TFT) position to a permanent position, unlike her male counterparts. Complainant states that she was told there was a delay from human resources (HR) in converting her position to permanent, and that her position would be posted for her to compete for a permanent position. Complainant states that her position was never posted for her to compete. Complainant also states that her SF-50 was made to appear as if she was “Excepted” status and not “Competitive” status, and that HR refused to fix the error. Complainant also states that she was subjected to hostile work environment throughout 2016. Complainant avers that the Deputy Director of Mitigation, her acting first-line supervisor (AS1) (National Origin - American, sex - male, religion - Catholic, color - Caucasian/White) and the Risk Analysis Branch Chief, her other acting first-line supervisor (OAS1) (American, male, Atheist, and White/Caucasian) excluded her from meetings and mandatory trainings. Complainant also states that AS1 and OAS1 refused to provide her with an individual development plan (IDP), they refused to allow her to interview for a 90-day detail, and they refused to give supervisor approval for a volunteer opportunity. Complainant asserts that the termination letters that were issued to her, were issued by unauthorized individuals. She further asserts that the initial tactic to push her out of her position was to demonstrate that she was failing in her position, and when that effort was unsuccessful, the Agency falsified that she was a temporary employee, instead of a competitive employee. Finally, Complainant states that several of the undisputed facts of the record, were actually in dispute. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. 4 2020003792 At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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. Timeliness of EEO Counselor Contact: Claims 1 - 5 In his decision, the AJ found that claims 1-5 were discrete acts that predate Complainant’s initial EEO Counselor contact by more than 45 days. An aggrieved person must initiate EEO counselor contact within 45 days of the date of the alleged discriminatory act. 29 C.F.R. § 1614.1105(a)(1). Complainant’s failure to make contact with 45 days makes her contact untimely regarding these claims. The AJ found that claims 1-5 were generally isolated from claims 6-10. Claims 4 and 5 concerned the denial of deployment and detail, which were one-time events concerning discrete term of employment. He found that Complainant’s claim of harassment from November 2015 through March 8, 2016 was also untimely, as she did not make EEO counselor contact until June 1, 2016. Claims 1 through 5 were dismissed as untimely. On appeal, Complainant does not address the issue of timeliness. We find that claims 1-5 were properly dismissed for untimely EEO Counselor contact. Disparate Treatment A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation 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 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). 5 2020003792 Complainant’s initial employment, effective November 23, 2008, was for a TFT, not to exceed (NTE) November 22, 2010. Complainant had numerous TFT with NTE appointments, in the Agency. Complainant’s SF-50, effective December 18, 2014, lists her appointment as NTE November 15, 2016. In his decision, the AJ discussed the definition of Term Employment and how these appointments terminated upon completion of the work. The AJ further discussed each of the TFT with NTE appointments for which Complainant was hired, as well as the reason for memoranda - the rescissions and reissuances. The AJ further clarified that Complainant did not receive any performance rating for 2016, because she separated prior to the end of the rating cycle. Finally, with regard to Complainant’s SF-50 and her communications with HR, HR stated that Complainant’s tenure was correct, but that her official title incorrect. The AJ found that Complainant should have been listed as in competitive service with reinstatement rights, and her SF-50 was corrected to reflect that. On appeal, Complainant has not provided evidence to support her assertions that there was a genuine dispute of material fact that warranted a finding of discrimination. Harassment To establish a claim of harassment 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 classes; (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, in order to establish her harassment claim, Complainant must show 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. While Complainant states that she was subjected to harassment that was severe or pervasive in nature, she has not provided evidence to support that assertion. Instead, her statements and the record support the AJ’s conclusion. Complainant does not provide evidence that her request for telework because it was cold in the office was denied because of her sex and national origin. The record reflects that Complainant’s supervisors and HR were not targeting Complainant because of her national origin, color, sex, or religion. HR was not subjecting Complainant to harassment when Complainant’s official title was incorrectly listed on her SF-50. When HR was made aware of the error, it was corrected. 6 2020003792 Complainant’s position was a TFT with NTE is a matter of record, as that is how she was hired. It is not an action taken based on Complainant’s statutorily protected bases. Finally, Complainant’s claims regarding her supervisor yelling at her, leaving her off of emails, and other behavior do not rise to the level of severe or pervasive. Additionally, we note that Title VII is not meant to be a general civility code, ridding the workplace of all petty slights and annoyances. Rather, Title VII was enacted to protect against behavior that is based on a protected basis and so severe or offensive so as to alter the complainant's working conditions. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order implementing the AJ’s finding of no discrimination. 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 7 2020003792 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. 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. 8 2020003792 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 14, 2021 Date
