[Redacted], Tessa G., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2021003567 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tessa G.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2021003567 Agency No. HS-HQ-01829-2018 DECISION On June 8, 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 May 6, 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 Pregnancy Discrimination Act2 (PDA), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Program Analyst, GS-12, at the Agency’s Emergency Management Oversight, Office of Inspector General (OIG) in Frisco, Texas. 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 The PDA, 42 U.S.C. § 2000e(k) (1978), is an amendment to Title VII’s prohibition of employment discrimination because of sex to include “because of or on the basis of pregnancy, childbirth, or related medical conditions.” 2 2021003567 Complainant is a mother of three children.3 Her second child was born in late October 2017. Complainant asserted that in mid-March 2018, she learned that she was pregnant with a third child. In August 2017, Complainant requested 12 weeks of maternity leave, from October 24, 2017 until January 19, 2019, to care for her baby anticipated to be born in October 2017. Complainant’s request was summarily approved. During Complainant’s absence, however, the Agency consolidated the OIG’s Emergency Management Oversight Office into the Agency’s Office of Audits. As a result, Complainant’s first-line supervisor became an Audit Manager (male), while Complainant’s second-line supervisor became the Office of Audits Director (female). The Acting Deputy Assistant Inspector General (A-DAIG), (male) remained Complainant’s third-level supervisor throughout the period at issue. On March 23, 2018, as a reasonable accommodation, Complainant requested full-time telework and reassignment to different supervisors. In support of her request, Complainant provided a letter from her doctor stating that Complainant was five weeks pregnant. The Agency denied Complainant’s overall accommodation request, but nevertheless reassigned her to a different supervisory chain. In May 2018, Complainant contacted an EEO Counselor, but the parties were unable to resolve the matter informally. On July 13, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and pregnancy when: 1. On or about December 21, 2017, the Office of Audits Director (“AD”) (female) attempted to deny Complainant’s approved maternity leave, and suggested she return to work earlier than what her physician prescribed. 2. On January 24, 2018, the AD suggested Complainant travel to Houston, and dismissed her communicated concerns regarding her children, nursing, and overnight travel. 3. On January 31, 2018, the AD suggested Complainant be an Emergency Management Oversight Team member who travels to natural disaster sites, despite her communicated concerns regarding her children nursing, and overnight travel. 4. On February 7, 2018, the AD entered Complainant’s office, without knocking, while Complainant was pumping breastmilk. 3 We concur with the Agency in that Complainant’s parental status is not a protected characteristic that is covered under EEOC Regulations 29 C.F.R. §§ 1614.103 and 1614.106(a). Moran v. Dep't of Veterans Affairs, EEOC Appeal No. 01A10499 (Oct. 8, 2002). 3 2021003567 5. On March 7, 2018, the AD made statements at a team meeting that Complainant could not attend a happy hour because she was breastfeeding, and an Audit Manager/Supervisory Auditor joked that it was okay for Complainant's baby to be drunk. 6. On or about March 7, 2018, the AD stated to the staff, “I know that some of you have small children, but we are not to have our phones in sight, so you may have it in your pocket and on silent, but do not look at it,” then stopped her discussion, looked at Complainant, and communicated, “Well, how many times do I have to say I do not want to see your phones,” and waited until Complainant placed her phone in her lap. 7. On or about April 4, 2018, during an office meeting, the AD made reference to Complainant’s grievance, which had not been resolved. 8. On April 4, 2018, the Acting Deputy Assistant Inspector General (“A-DAIG”), asked Complainant about her reasonable accommodation and personal health questions. 9. On April 23, 2018, Complainant received her reasonable accommodation response, and the Agency denied it due to her not being “disabled,” although she never claimed to be disabled. 10. On May 16, 2018, the A-DAIG shared with his staff Complainant’s pregnancy- related medical accommodation information. 11. On April 20, 2018, Complainant received her grievance decision/response, but the Agency did not address her discrimination and harassment claims. 12. On April 23, 2018, the Anti-Harassment Unit (AHU) sent Complainant’s case closure letter to the wrong party. 13. On June 30, 2018, DHS redacted her grievance file. After an investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). After dismissing Claims 11, Claim 12, and Claim 13, as collateral attacks which failed to state a claim under 29 C.F.R. § 1614.107(a)(1), the Agency found no discrimination on the remaining claims. The instant appeal followed. 4 2021003567 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). EEO Management Directive for 29 C.F.R. Part 1614, at Ch. 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 of Claims 11 - 13 The Agency procedurally dismissed Claims 11, Claim 12, and Claim 13, for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). We concur with the Agency’s determination that these three claims are improper collateral attacks on decisions made during the grievance process or by the anti-harassment program. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another adjudicatory forum's proceedings, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint). These matters cannot be addressed in the EEO complaint process and should have been raised in the forum where they occurred. Adequacy of the Record On appeal, Complainant challenges the adequacy on the record for lacking a sworn statement from AD who had retired from the Agency. However, the regulations for the administrative EEO complaint process only provide that a current employee of a federal agency can be compelled to provide testimonial or documentary evidence. See 29 C.F.R. § 1614.108(c)(1). Here, it is undisputed that AD was no longer a federal employee during the EEO investigation. Therefore, we conclude that the Agency did not violate its duty to develop an impartial and appropriate factual record in this case. Discrimination Claims It is unlawful for an employer to “discriminate against any individual with respect to ... terms, conditions, or privileges of employment, because of such individual's ... sex.” 42 U.S.C. § 2000e- 2(a)(1). The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions. 42 U.S.C. § 2000e(k). “Women affected by pregnancy, childbirth, or related medical conditions shall be 5 2021003567 treated the same for all employment-related purposes ... as other persons not so affected but similar in their ability or inability to work....” Id. Accommodation Requests A complainant alleging that the denial of an accommodation for a pregnancy-related condition constituted disparate treatment sex discrimination may state a prima facie case by showing that: (1) she belongs to the protected class; (2) she sought accommodation; (3) the agency did not accommodate her; and (4) that the agency did accommodate others “similar in their ability or inability to work.” Young v. United Parcel Service, 575 U.S. ___, 135 S. Ct. 1338, 1354 (2015). Regarding Claim 2 and Claim 3, after Complainant returned to duty from maternity leave, she informed AD and her new supervisor, Audit Manager that she needed to pump breast milk during the day.4 Complainant therefore requested that the AD excuse her from all assignments that required travel. Complainant was disappointed because the AD indicated that she would only limit Complainant from travel which required over four or five hours of travel beyond their local area. Thereafter, the AD sent an email asking that Complainant be included on a project that had the potential to require travel. Complainant emailed the Audit Manager that she could not travel because of her nursing newborn. The Audit Manager assured Complainant that she would not be required to travel and further stated that the project resulted in no need for travel to Complainant or any other employee. The record remained devoid of evidence that Complainant was actually compelled to travel while nursing. Claim 9 addressed an Agency memorandum, dated April 23, 2018, that denied Complainant a request for full-time telework for the duration of her pregnancy with her third child. The Agency’s denial explained that the recommendation from Complainant’s doctor described her as stressed but did not articulate how or why she was impaired from coming into the workplace. Although the Agency denied her telework request, the Agency nevertheless granted her request to be placed under a new direct supervisor and under different a second-level supervisor who was not AD. Under these circumstances, we are unconvinced that the Agency harbored unlawfully discriminatory animus against Complainant or her pregnancy, or that it improperly denied her telework request as an accommodation for her pregnancy. Regarding Claim 10, Complainant informed management that she was unable to travel for training that had been scheduled to take place in Virginia in the summer of 2018. Complainant submitted a doctor’s note and informed the A-DAIG that she had a high-risk pregnancy. Thereafter, management held a meeting to discuss general issues that had arisen from the late- 2017 office consolidation. 4 The Commission has long held that a complainant's status as a nursing mother is protected under the Pregnancy Discrimination Act (Pub. L. 95-955) (hereafter PDA). See O'Brien v. National Sec. Agency, EEOC Appeal No. 01951902 (May 27, 1997). 6 2021003567 Complainant was not present at the meeting, but it is undisputed that managers determined that Complainant could not attend the Virginia training because of her pregnancy.5 In sum, for all three claims, we find the evidence of record supports the Agency’s determination that it did not unlawfully deny Complainant accommodation for her pregnancies or as a lactating mother. Harassment To prove her harassment claim, Complainant must establish 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 - in this case, her sex, pregnancy or pregnancy- related condition. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In Claim 1, Complainant accused AD of cancelling previously granted maternity leave and suggested that she return to work earlier than she had originally planned. The record reveals that Complainant’s maternity leave request included various types of leave (i.e., sick leave, annual leave, advance leave and leave without pay). The AO, who served as Complainant’s timekeeper, explained that the matter raised in Claim 1 related to a misunderstanding by the AD. Apparently, in December 2017, Complainant had exhausted her earned leave and the AD did not have authority to approve the use of advance leave. The AD emailed Complainant and asked that Complainant call to discuss when she was coming back. That same day, the AO and AD received written confirmation from Complainants’ prior supervisor, which showed that A-DAIG had indeed approved the Complainant’s use of advance leave through January 19, 2018, as she had originally scheduled. Complainant’s prior supervisor additionally explained that after the Office of Audits consolidation, advance leave requests required more documentation and had to be reviewed at upper levels of management. To the extent that the AD’s December 21, 2017 email suggested that Complainant needed to return to from maternity leave before January 19, 2018, we find said email was a non-discriminatory error that was ultimately corrected later in the same day. Regarding Claim 4, Complainant accused AD of simultaneously knocking and entering such that Complainant was exposed while pumping breast milk in her office. Complainant admitted the AD said “sorry” and then left immediately. Complainant was further upset, when AD recommended that Complainant post a sign or lock the office door when she was breastfeeding. We concur with the Agency in that nothing shows discriminatory intent in this occurrence. 5 The record is also devoid of evidence to support Complainant’s accusation that the Agency wrongfully disclosed her confidential medical information. 7 2021003567 In Claim 5, co-workers discussed possibly celebrating a birthday at happy hour, made jokes at Complainant’s expense that she could not attend because she was breastfeeding. They also teased that it was permissible for Complainant to attend the happy hour and intoxicate her nursing child. The comments were arguably in questionable taste. However, this attempt at humor, as ill-advised as it may have been, does not constitute discrimination. Regarding Claim 6, Complainant accused the AD of singling her out at a meeting by saying that she knew some employees had children but directed them to keep their cellphones out of sight during the meeting. We disagree. Complainant herself admitted that some of her co-workers were also parents. Moreover, AD was legitimately ordering subordinate staff to focus on the meeting and refrain from personal activity on their cellphones. In Claim 7, Complainant accused the AD and A-DAIG of making disparaging comments about her during a meeting that took place on April 4, 2018. The subject of the meeting was some sort of group training. At one point during that meeting, the discussion turned to the importance of paying attention during audits. According to Complainant the A-DAIG facetiously stated words to the effect of “Or you can just throw me under the bus. I don’t mind.” The AD added that she had been run over by the same bus several times. While it is clear that Complainant disliked A- DAIG’s and AD’s jokes, nothing whatsoever in the record evidenced Complainant’s perception that these were negative comments directed somehow at her. Claim 8 involved Complainant’s conversation with the A-DAIG that she initiated immediately after the meeting. Complainant asked the A-DAIG about the status of her union grievance. The A-DAIG demurred and said that the Agency attorneys advised him not to speak on the matter. A-DAIG advised Complainant to set aside her “personality differences” with DA and focus on her performance. Complainant responded by raising her concerns about DA mistreating based on her pregnancy. A-DAIG assured Complainant that he also took the matter seriously and would talk to AD about how to improve the situation. We find nothing inappropriate nor discriminatory about A-DAIG’s comments, that followed the meeting of April 4, 2018. In sum, we find that Complainant’s harassment claim has not been established as the disputed incidents either did not occur as alleged or were insufficiently severe or pervasive to amount to a violation of Title VII. Moreover, Complainant failed to establish that management’s decisions regarding her employment were unlawfully motivated by animus against her EEO-protected statuses. Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination, for the reasons discussed above. 8 2021003567 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). 9 2021003567 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 March 30, 2023 Date