[Redacted], Madelaine G., 1 Complainant,v.Jessica Rosenworcel, Acting Chairwoman, Federal Communications Commission, Agency.

Equal Employment Opportunity Commission

Jun 14, 2022

Appeal No. 2021002247 (E.E.O.C. Jun. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madelaine G.,1 Complainant, v. Jessica Rosenworcel, Acting Chairwoman, Federal Communications Commission, Agency. Appeal No. 2021002247 Agency No. FCC-EEO-19-10 DECISION 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 February 8, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronics Engineer and Tiger Team Field Agent, GS-13, at the Agency’s Enforcement Bureau facility in Columbia, Maryland. On December 19, 2019, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against her on the bases of race (African American) and in reprisal for prior protected EEO activity when: 1. On November 22, 2019, following the Complainant’s request for ad hoc telework, her first-line supervisor (S1) denied her request using a previously unenforced 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. 2021002247 2 telework policy that requires employees to submit documentation 24-hours in advance detailing what they plan to accomplish while teleworking; 2. On September 26, 2019, after another employee failed to complete case work and update the Enforcement Bureau Activity Tracking System (EBATS), S1 assigned the employee’s work to Complainant; 3. On September 16, 2019, S1 told Complainant that her urgent medical appointment could wait and then denied her request for sick leave; and 4. On unspecified dates, Complainant was denied the opportunity to earn credit hours and prohibited from flying or renting a vehicle to travel to worksites. 5. On various dates, Complainant was subjected to additional harassing behavior, including: a. On November 20, 2019, S1 asked Complainant if she thought he was racist in an attempt to determine whether she had initiated an EEO complaint against him; and b. On August 23, 2019, despite requesting confidentiality, S1 informed other employees that Complainant was discontinuing her employment with the Agency. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. 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”). 2021002247 3 Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order 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 2021002247 4 on his 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). In order to meet the requirements of prong 4, 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show she was subjected to a discriminatory hostile work environment. Regarding claim 1, Complainant’s first line supervisor (S1) asserts that upon receiving her email request for ad hoc telework, he reviewed her weekly report and felt she did not have enough remote work to fill an 8-hour shift. S1 sent Complainant an email requesting additional details regarding the work to be accomplished on telework. He followed up with an additional email that included the Agency policy for requesting ad hoc telework. S1 asserts that Complainant’s previous telework requests were supported by her weekly reports. Once S1 requested details regarding the work Complainant planned to complete on telework, Complainant responded that she would come to the office. Thus, S1 did not deny Complainant’s request. Furthermore, we find there is no evidence that S1 treated other employees differently about requesting details about work to be accomplished on telework. Regarding claim 2, Complainant asserts that on September 26, 2019, S1 required her to complete case work and update the Enforcement Bureau Activity Tracking System (EBATS) after Comparator 1 (C1) failed to do so. S1 notes that both Complainant and C1 were assigned to a case in Coraopolis, Pennsylvania along with several other employees. Complainant was the lead agent. S1 further stated that several employees participated in the investigation and uploaded their notes in EBATs. He asserts he has no record of him requesting Complainant to update EBATs with the investigative notes from other employees as their evidence was entered into EBATs as attachments. S1 further contends it would not have been unusual for him to request Complainant or any other lead agent on an investigation to make entries in EBATs with information about another agent’s investigation. According to the EBATs Best Practices Guide, the lead agent is required to update their assigned EBATs cases within two days. 2021002247 5 S1 did not recall and could not find evidence that he asked Complainant to complete the work assignment of another employee with respect to the Coraopolis case. S1 further explained that in general, C1, who was taking significant amounts of sick leave, had a backlog of cases and he did reassign some of his cases to other agents including Complainant. Regarding claim 3, S1 asserts that the team was to participate in a mandatory Radio Frequency Radiation (RFR) training in Arizona from October 7-11, 2019. The staff was informed of the training in July 2019. The training covered important subject matters necessary for the job, was being presented by an outside vendor, and could not be rescheduled or readily replicated. S1 further noted that the training was at substantial cost to the Agency and its occurrence was infrequent with the last such training being in 2014. On September 16, 2019, Complainant emailed S1 stating that she would not be attending the training because she had an urgent medical issue and the earliest appointment available was for October 9, 2019. She stated she would submit sick leave for that time and may submit annual leave in conjunction because she is not sure what kind of results she will receive. S1 encouraged Complainant to move the appointment so she could attend mandatory training, but Complainant was reluctant to provide any information about the need for sick leave. S1 contacted the Acting Field Director who agreed the training was mandatory and suggested S1 contact Labor Relations for direction. After consulting with Labor Relations, S1 informed Complainant that he would not approve a sick leave request for a doctor’s appointment scheduled for October 9, 2019, absent acceptable medical documentation that the appointment on that date or week is medically required. Ultimately, they reached an agreement that allowed Complainant to attend the training for the first few days and then leave early to attend her appointment. She was not required to submit medical documentation. Regarding claim 4, Complainant admits that she was had not been denied the opportunity to earn credit hours and was not prohibited from flying to worksites. She reported one instance from 2017 in which she was prohibited from renting a car to drive to a worksite although C1 was allowed to rent a car. S1 explained that both C1 and Complainant were driving to the same worksite for the same case and it would not have been fiscally appropriate to allow them both to rent vehicles. S1 stated that he permitted C1 to rent a vehicle because he was the lead agent on the case. Regarding claim 5a, Complainant asserts that on November 20, 2019, during her performance evaluation meeting, S1 asked her if she thought he was racist. S1 stated that in the days prior to their meeting, his supervisor informed him that he received complaints that S1 was showing favoritism to particular individuals in the New York office. On November 19, 2019, S1 received an email from an EEO counselor to schedule an interview regarding an anonymous informal complaint filed against him. 2021002247 6 The meeting with the EEO counselor was scheduled for November 20, 2019, at 11:30 am. S1 stated he assumed the meeting was regarding the complaint from the New York office. On November 20, 2019, between 8:30 am and 9:30 am, S1 met with Complainant regarding her performance evaluation. S1 stated that after her review he asked if she thought he was racist and if his actions in the office could be considered discriminatory. He contends he asked her because they had some very frank conversations and she never seemed shy about expressing her concerns and opinions. He asserts he thought she could provide some constructive criticism or perspective because he had been facing allegations of racism over the years from various employees without having had an opportunity to have a conversation with any of them. He asserts he was hoping to get some insight to improve his relationship and interaction with employees he manages. S1 stated that Complainant appeared uncomfortable once he asked the question, so he told her she did not need to answer. Later that morning, after having the meeting with the EEO counselor he realized that Complainant filed a complaint and he went to her desk and apologized for posing the question. He asserts that when he asked if Complainant thought he was racist, he was not aware of her EEO activity. Regarding claim 5b, S1 asserts that in May 2019, Complainant reported she was leaving the Agency in October 2019, and requested that he keep the information confidential. In August 2019, he shared the information with other members of management to troubleshoot how the personnel change would affect future events the office was hosting. S1 also forwarded a commendation email to the entire staff that referenced Complainant’s impending departure. S1 acknowledges that his actions violated Complainant’s request for privacy but asserts that her race and EEO activity were not considerations. We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions in the complaint. Complainant asserts that the Agency was motivated by race because C1 is the same race as S1, and C1 was consistently afforded preferential treatment and not held to the same standards. Complainant has failed to provide any evidence other than her own general assertions that the Agency was motivated by racial discrimination or retaliation. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). In sum, Complainant failed to show that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination or retaliation. Thus, 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. 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. 01982923 (Sept. 21, 2000). 2021002247 7 CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 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). 2021002247 8 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 June 14, 2022 Date