[Redacted], Tanya D., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022001280 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tanya D.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2022001280 Hearing No. 550-2020-00068X Agency No. DOI-NPS-19-0317 DECISION On January 9, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from a 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Superintendent, GS- 13 at the Agency’s National Park Services in Sitka, Alaska. On May 15, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (Native Alaskan and Caucasian), sex (female), and reprisal for prior protected EEO activity when on February 20, 2019, she was subjected to verbal abuse, bullying and threats by the Regional Director (alleged harasser). The alleged harasser was Complainant’s third-level supervisor. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. 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. 2022001280 2 Complainant filed prior EEO claims. She testified that she prevailed on the prior EEO claims after the alleged harasser spent several years trying to remove her from her position. Complainant stated the alleged harasser’s efforts were thwarted because she was reinstated into her current position twice2. Shortly after her reinstatement, the alleged harasser called a meeting. Complainant asked several times for a meeting agenda so that she could understand the purpose of the meeting and ensure that she was prepared, but she did not get a response. Complainant became uneasy about the upcoming meeting, so she invited Director to the meeting. Director welcomed Complainant back to the Agency when she returned to federal service and asked her to let him know immediately if she ever again experienced any work-related issues or harassment. Complainant believed that Director genuinely wanted her to succeed and thrive. Whereas she believed that the alleged harasser held retaliatory animus. On February 20, 2019, the alleged harasser held a face-to-face meeting with Complainant, Complainant’s first-level supervisor and second-level supervisor. Director attended the meeting by telephone. According to Complainant, the alleged harasser dismissed First-level Supervisor and Second-level Supervisor from the meeting to deprive her of supervisory representation and proceeded to engage in abusive behavior. Complainant said, the alleged harasser accused her of “pulling a stunt” by inviting Director, who was “five levels up the chain of command” to the meeting. Complainant stated that the alleged harasser yelled that he “would reprimand [her] if she ever pulled a stunt like that again.” Complainant added that there was no need for him to yell because she was seated right next to him. When the investigator asked Complainant why she believed that her race and was factor in the alleged harasser’s behavior, she replied, that a Caucasian would not be treated in the same manner. And she stated that her sex was a factor in the alleged harasser’s behavior because the alleged harasser would not treat a male in the same manner. The alleged harasser (White, male) testified that he was disappointed that Complainant invited Director to the meeting without telling him until after meeting had started. The alleged harasser indicated that he should have been afforded the courtesy of an advanced notice since Director was a high-level official. Consistent with Complainant’s testimony, the alleged harasser admitted that he threatened to give Complainant a letter of reprimand. However, he explained that felt a letter a reprimand was warranted because Complainant’s behavior was inappropriate. He added that he would have had the exact same comments for his other subordinates, regardless of their race, sex and prior EEO activity. Contrary to Complainant’s testimony, he denied stating that she was “pulling a stunt.” Director (White, male) testified that he was still on the phone when the alleged harasser threatened Complainant. Director stated that he heard the alleged harasser yell that if Complainant “ever pulled a stunt like that (going around the chain of command) he would 2 Complainant and the Agency engaged in a long running legal dispute between 2010 and 2019, she was removed from the Agency twice and reinstated twice. 2022001280 3 reprimand her.” Director described that the alleged harasser was “in a fit of rage,” while Complainant remained silent. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. On the AJ issued a decision by summary judgment in favor of the Agency. The Agency did not issue a final order within 40 days of the receipt of the AJ’s decision in accordance with 29 C.F.R. § 1614.110, therefore the AJ’s decision became the final action of the Agency. See issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. See 29 C.F.R. § 1614.109(i). The instant appeal followed. Complainant did not submit a brief or statement with her appeal. The Agency submitted a brief in opposition of the instant appeal. 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. 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. (as revised, August 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. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. The AJ found that although the alleged harasser’s conduct was unprofessional, distasteful, and petty, one episodic incident of being yelled at and told that discipline could happen was not sufficiently severe or pervasive to constitute a hostile work environment. 2022001280 4 In addition, the AJ determined that Complainant failed to establish a prima facie case of retaliatory discrimination. The AJ determined pointed out that Complainant failed to show that she was subjected to an adverse personnel action; she was not disciplined, transferred, issued an unsatisfactory performance or the like. The AJ found that Complainant failed to establish a prima facie claim of raced-based or sex-based discrimination because she failed to show that the event was motivated by her race or sex. Furthermore, the AJ found that the Agency articulated a legitimate non-discriminatory reason for the event. The alleged harasser articulated that he said he would discipline Complainant because Complainant circumvented the chain of command and did not give him the courtesy of advanced notice to let him know that a high-level official would be present at the meeting. In this case, the alleged harasser screamed at Complainant, which should not happen in the workplace. We agree with the AJ, that although the alleged harasser’s conduct was deplorable, Complainant’s claim essentially involves a single incident and under the specific circumstances present is not sufficiently severe or pervasive to constitute harassment. We also agree with the AJ that Complainant failed to establish a prima facie case of retaliatory discrimination. The alleged harasser stated that he would discipline Complainant but that was never carried out and did not result in the sort of adverse treatment that would be reasonably likely to deter employees from engaging in protected activity. As for Complainant’s claim that the alleged harasser’s comment was motivated by her race and sex, we agree with the AJ that beyond her own assertions Complainant failed to provide evidence that the alleged harasser’s comment was motivated by her race or sex. Complainant did not refer to race-based or sex-based comments or conduct. And she did not point to any similarly situated comparators. A finding of raced-based or sex-based discrimination is precluded by our determination that Complainant failed to establish that the alleged harasser’s comment was motivated by discriminatory animus. 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 AJ’s decision, a decision without a hearing was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 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: 2022001280 5 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). 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. 2022001280 6 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 March 22, 2023 Date