0120141567
01-09-2017
Renee P.,1 Complainant, v. Sally Jewell, Secretary, Department of the Interior, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Renee P.,1
Complainant,
v.
Sally Jewell,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120141567
Agency No. DOI-12-0157
DECISION
On March 10, 2014, Complainant filed an appeal,2 pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 6, 2014, 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 Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
At the time of events giving rise to this complaint, Complainant worked as a Structural Engineer, GS-0810-13, at the Agency's Bureau of Safety and Environmental Enforcement, Regional Field Operations, Office of Structural and Technical Support (OSTS), in New Orleans, Louisiana.
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (light brown), age (48), and reprisal for prior protected EEO activity (April 2011 and onwards) when:
1. Beginning in April 2010, she was subjected to hostile work environment harassment when: management criticized her work efforts; management accused her of being disruptive, uncooperative, and difficult to work with; on one occasion, a coworker told other employees, "[She]'s a bitch;" on one occasion, a coworker told her, "Your big mouth is going to get you in trouble;" on July 11, 2012, a coworker followed her around the office, shouted at her about an assignment, and said, "She's wrong. She's always wrong;" and management issued her a notice of counseling for her role in the July 11, 2012, incident.
2. Beginning in March 2010, management excluded her from certain meetings, trainings, workshops, conferences, database accesses, and projects that were related to her position.
3. In October 2011, management removed her as the Project Manager and Lead of the NTL 2007-G27 structural assessment project.
4. In November 2011, management gave her a summary rating of "Superior" on her Fiscal Year (FY) 2011 performance appraisal.
5. On June 21, 2012, management undermined her authority as OSTS Acting Chief by telling her subordinates to ignore her instructions.
6. In June 2012, management did not select her for the position of OSTS Chief, advertised under vacancy announcement number BSEE-CE-12-MM644210.
7. In October 2012, management gave her a summary rating of "Fully Successful" on her FY 2012 performance appraisal.
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. Complainant timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The Agency concluded that Complainant did not establish hostile work environment harassment (claim 1) or disparate treatment (claims 2-7) on the bases of race, sex, color, age, or reprisal.
Regarding claim 1, the Agency found that Complainant showed that the "[She]'s a bitch" comment was based on her sex, but did not show that it was sufficiently severe or pervasive to create an abusive working environment because it was an isolated comment by someone outside of her supervisory chain. Moreover, the Agency found that Complainant did not show that the other unwelcome conduct was based on her protected classes. As to the criticism of Complainant's work efforts, the Agency found that management criticized her for legitimate reasons. As to the accusation that Complainant was disruptive, uncooperative, and difficult to work with, the Agency found that many managers and coworkers shared that sentiment. As to the "Your big mouth is going to get you in trouble" and "She's wrong. She's always wrong" comments, the Agency found that they were unrelated to Complainant's protected classes. As to the July 11, 2012, incident, the Agency found that it was a work-related incident and there was no evidence that Complainant's protected classes played a role in the coworker's actions or management's response.
Regarding claims 2-7, the Agency initially found that management articulated legitimate, nondiscriminatory reasons for its actions. For claim 2, the Agency cited management's affidavit testimony that, due to budgetary constraints, manpower constraints, and relevance to individual job duties, it could not include Complainant in every meeting, training, workshop, conference, database, or project that she wished to attend or access. For claim 3, the Agency cited management's affidavit testimony that it removed Complainant as the Project Manager and Lead of the NTL 2007-G27 structural assessment project because she did not complete the assessments in a timely manner. For claim 4, the Agency cited management's affidavit testimony that it gave Complainant a summary rating of "Superior" in her FY 2011 performance appraisal because she did not demonstrate the skill level or understanding of the mission to enable her to have a fundamental impact on program objectives and because she did not show substantial progress on the NTL 2007-G27 assessments. For claim 5, the Agency cited management's affidavit testimony that it overrode Complainant's instructions as the OSTS Acting Chief when the instructions did not align with existing policy, regulations, or previous management directives. For claim 6, the Agency cited management's affidavit testimony that the selectee for the OSTS Chief position was more qualified than Complainant in terms of education (a master's degree in civil engineering versus a bachelor's degree in civil engineering), experience in structural engineering (38 years, with all of that related to the oil industry versus 28 years, with only nine of that related to the oil industry), experience being a member of the American Petroleum Institute's Engineering Standards Committees (32 years versus zero years), and experience in engineering management (five years versus project management experience). For claim 7, the Agency cited management's affidavit testimony that it gave Complainant a summary rating of "Fully Successful" in her FY 2012 performance appraisal based on objective, quantitative data related to the completion of her work assignments and its observation of her work performance as neither above nor below average. Moreover, the Agency found that Complainant did not prove that management's reasons were a pretext for discrimination. Although Complainant asserted that management actions were based on her protected classes, the Agency determined that she did not show that management's testimony was unworthy of belief or produce any evidence to demonstrate that her protected classes were a factor in how management treated her.
After a review of the record in its entirety, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision, because a preponderance of the record evidence does not establish that race, sex, color, age, or reprisal discrimination occurred.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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
__1/9/17________________
Date
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 Complainant did not submit a brief or statement in support of her appeal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120141567
2
0120141567