[Redacted], Marvella B., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Agency, Agency.

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2021004289 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvella B.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Agency, Agency. Appeal No. 2021004289 Hearing No. 570-2020-00764X Agency No. 19-48143-02053 DECISION On July 23, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), prior to the issuance of the Agency’s July 29, 2021, 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Environmental Protection Specialist (Assistant Director) at the Environmental Protection Agency (EPA)’s Region 9, Superfund Division in San Francisco, California.2 On June 13, 2017, Complainant attended the Agency’s Environmental Management Executive Council (EMEC) annual meeting. While attending the meeting, Complainant was allegedly harassed by the Agency’s Environmental Compliance and Restoration Policy Director (Director). 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 We note that Complainant was not employed by the Department of the Agency during the relevant period. 2 2021004289 According to Complainant, the Director called her a “Mexican” and said that even though he knew she was not Mexican, he loved to refer to her as such. Complainant also alleged that when she encountered difficulties with the security screening process, the Director took videos and photos of her as she passed through the building’s metal detector multiple times and later told people the story and showed them the photos that he took of Complainant. Complainant maintained that the Director ultimately realized on June 14, 2017, that he had crossed some boundaries and informed Complainant that he liked to tease her because she was one of his friends. The day after returning from the EMEC meeting, Complainant met with her EPA supervisor on June 15, 2017, to report the incident with the Agency employee. She also contacted the EPA’s EEO Office regarding the incidents at the EMEC meeting. Thereafter, an attorney with the EPA contacted the EPA’s Office of Inspector General (OIG) to report Complainant’s allegations of harassment. On June 29, 2017, Complainant met with an EPA EEO official for an initial interview and was advised that there was no jurisdiction to file a complaint against a federal employee employed by a different agency. On July 25, 2017, the EPA OIG referred the matter to the Agency’s OIG for an investigation. The EPA subsequently received a draft copy of the Agency’s OIG report on February 12, 2018. Complainant’s supervisor and the EPA attorney advised Complainant that the Agency would complete its report. While Complainant never received a copy of the Agency OIG’s report because the EPA attorney denied her request for a copy, the record reflects that the Agency OIG finalized its report on May 30, 2019, and concluded that while the Director’s actions were insufficiently severe or pervasive to constitute harassment, corrective action was still needed to address his unprofessional and offensive behavior. The Agency ultimately issued the Director a Letter of Caution on June 25, 2019, warning him to act professionally and requiring him to undergo 16 hours of anti-harassment training. On March 13, 2019, Complainant contacted the Agency’s EEO Office to initiate EEO counseling on the June 2017 incidents. She subsequently filed a formal complaint on April 12, 2019. In her complaint, Complainant alleged that she had been harassed and subjected to a hostile work environment based on race (Latina),3 national origin (Nicaraguan) and sex (female) when: 1. On June 13, 2017, the Director called Complainant a Mexican and said that even though he knew she was not Mexican, he loved to refer to her as such. 2. On June 13, 2017, the Director took videos and photos of Complainant as she passed through the building’s metal detector multiple times. Later, Complainant heard the Director tell people the story and showed them the photos despite Complainant asking him not to. 3 Though Complainant alleged discrimination based on her “Latina” race, we note that the Commission considers that term to denote a national origin rather than a race. The legal analyses for race and national origin discrimination are the same. See Charlie K. v. Equal. Emp’t Opp. Comm’n, EEOC Appeal No. 2020002546 (Oct. 13, 2021). 3 2021004289 3. On June 14, 2017, the Director told Complainant that while he liked to tease her because she was one of his friends, he realized he crossed some boundaries. On May 14, 2019, the Agency dismissed the complaint in its entirety for failure to state a claim under 29 C.F.R § 1614.107(a)(1). In its decision, the Agency determined that Complainant was an employee of the EPA and therefore, she had no standing to raise discrimination claims against the Agency. Moreover, the Agency found that she was not aggrieved with respect to the terms and conditions of her employment with the EPA. Alternatively, the Agency found that Complainant failed to bring her concerns to the attention of a Agency EEO Counselor in accordance with 29 C.F.R. § 1614(a)(2). Complainant subsequently appealed the Agency’s decision to the Commission, which the Commission docketed as Appeal No. 2019004741. We reversed the Agency’s decision, reinstated the complaint, and remanded the matter for further processing. Marvella B. v. Dep’t of the Navy, EEOC Appeal No. 2019004741 (Sept. 27, 2019). While we considered the Agency’s finding that the alleged incidents were isolated in nature, we ultimately determined that “a fair reading of the record, including the OIG report,” persuasively showed that Director first made Complainant uncomfortable in October 2016, months prior to the alleged incidents of harassment in June 2017. “With this context,” we found that Complainant’s allegations were sufficiently severe or pervasive to render Complainant aggrieved. In reinstating the complaint, we also found that Complainant had timely initiated EEO counseling, as the record clearly showed that Complainant reported her concerns to an EPA EEO official immediately upon her return the EMEC meeting, well within the 45-day time limitation prescribed by EEO regulations. We concluded that reversal was warranted because Complainant had been improperly advised by her employing agency that she could not file an EEO complaint against the Agency. As the Commission’s regulation at 29 C.F.R. § 1614.106(a) clearly required aggrieved individuals to file a complaint against the agency that allegedly discriminated against them, we determined that Complainant had properly filed her complaint with the Agency. Based on the foregoing, we ordered the Agency to accept the complaint for investigation and process it in accordance with at 29 C.F.R. § 1614.108. At the conclusion of the ordered 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). Complainant requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to adjudicate the matter. Following discovery, the Agency filed a motion for a decision without a hearing on May 6, 2021, wherein it argued that the alleged incidents of harassment were insufficiently severe or pervasive to constitute harassment as they were isolated in nature and uncharacteristic of Complainant’s usually friendly working relationship with the Director. Furthermore, the Agency contended that even if the alleged incidents of harassment were sufficiently severe or pervasive to constitute harassment, liability could not be imputed to the Agency because it had ordered the Director not to have any direct contact with Complainant, cautioned him, and required him to undergo training. 4 2021004289 Complainant opposed the Agency’s motion. In her opposition, Complainant recalled that she first met the Director in December 2014 and since that time, he had repeatedly yelled at her and acted in an agitated and aggressive manner when discussing the way in which the EPA carried out its regulatory authority. Complainant also recalled that on September 28, 2015, the Director invited her to come to his hotel, and when she refused, allegedly told her that no one had rejected him before. Complainant further maintained that the following year, on October 25, 2016, the Director asked her to “discuss R9 Superfund concerns” over drinks and became “angry and confrontational” when she declined his invitation. Complainant argued that the Director’s behavior was not unique to her but also affected other women, whom he had harassed since 2005. Complainant emphasized that she did not have a friendly working relationship with the Director and merely tolerated him when he yelled and acted aggressively towards her. She stressed that “[t]oleration is not the same as welcoming.” To this end, Complainant asserted that the Director’s behavior towards her at the EMEC meeting was so unprofessional that it made one of her subordinates feel uncomfortable. Finally, in her motion in opposition, Complainant argued that a decision without a hearing was improper because the Agency “inappropriately narrowed the [EEO] investigation to an isolated incident” and should have broadened its investigation to include the Director’s “pattern of behavior towards [Complainant] and others.” She argued that “[a] complete investigation would have included examination of his government phone for evidence of his use and behavior in the case.” In response to Complainant’s opposition, the Agency filed a reply addressing Complainant’s contentions. In its reply, the Agency maintained that Complainant’s recollection of her interactions between 2014 to 2016 were not only immaterial to the accepted claims, but also inconsistent with her statements to the Agency OIG, as she had previously described her interactions with the Director as friendly. The Agency also questioned the relevance of the statements from Complainant’s subordinate and reiterated that even if the alleged incidents were sufficiently severe or pervasive to constitute harassment, there was no basis to impute liability to the Agency. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s May 6, 2021, motion for a decision without a hearing and issued a decision without a hearing on June 16, 2021. In finding in favor of the Agency, the AJ acknowledged that Complainant’s perception of incidents on June 13, 2017, may have been influenced by her history with the Director. Still, the Agency found that “even considering Complainant’s view of her history with [the Director], the two incidents of alleged harassment on June 13, 2017” were isolated in nature and insufficiently severe or pervasive to constitute harassment. Prior to the Agency’s issuance of a final order, Complainant filed the instant appeal. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision,4 the AJ’s 4 The Agency issued its final decision on July 29, 2021, approximately 43 days after receipt of the AJ’s final decision. 5 2021004289 decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant did not submit any contentions in support of her appeal. The Agency, however, opposes the appeal and reiterates its prior contention that the alleged incidents of harassment were not sufficiently severe or pervasive to constitute harassment. 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. We are mindful that in her opposition, Complainant argued that a decision without a hearing was not appropriate because the Agency, “inappropriately narrowed the [EEO] investigation to an isolated incident” and should have broadened its EEO investigation to include the Director’s “pattern of behavior towards [Complainant] and others,” and included a search of the Director’s government phone. However, we note that discovery is not a fishing expedition. See Woodrow F. v. Dep’t of Justice, EEOC Appeal No. 2021004432 (Aug. 17, 2022). As Complainant has not offered any specificity as to what evidence would have been uncovered had the Agency broadened its investigation, we find that the AJ properly issued a decision without a hearing after providing the parties with the opportunity to engage in discovery. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. In reaching this conclusion, we note that Complainant has not offered any arguments as to why the AJ erred in finding no discrimination. As we find no independent basis to find in favor of Complainant, we shall AFFIRM the Agency’s final order. 6 2021004289 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). 7 2021004289 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 19, 2022 Date