0120152319
11-16-2017
Sheryl S.,1 Complainant, v. Jay Clayton, Chair, Securities and Exchange Commission, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sheryl S.,1
Complainant,
v.
Jay Clayton,
Chair,
Securities and Exchange Commission,
Agency.
Appeal No. 0120152319
Agency No. SEC000302014
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 June 25, 2015, final decision concerning her equal employment opportunity (EEO) complaint. She alleged 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst (under a probationary appointment) at the Agency's Office of Support Operations facility in Washington, DC.
On October 2, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (55), and reprisal for prior protected EEO activity under Title VII, when:
1. On August 20, 2014, management terminated her employment as a Management and Program Analyst in the Office of Support Operations;
2. During the period October 21, 2013 and August 20, 2014, management subjected her to a hostile work environment, as evidenced by the following incidents:
a. The Director of Office of Support Operations (RMO1) treated Complainant less cordially than he did other similarly situated coworkers;
b. On or about November 1, 2013 and April 15, 2013, the Assistant Director (RMO2) and the Chief of Building Operations (RMO3) excluded Complainant from meetings regarding projects to which Complainant was assigned;
c. On or about December 1, 2013, the Assistant Director (RMO2) questioned another supervisor's decision to put Complainant in charge of the office while the supervisor was on leave;
d. Between December 20, 2013 and August 20, 2014, the Chief, Construction and Leasing Branch and the Attorney Advisor, Business Management Office, asked Complainant to approve work orders and purchases on matters she was not authorized to approve;
e. On several occasions between March 9, 2014 and August 20, 2014, supervisors who were not in Complainant's chain of command assigned Complainant matters not within her duties and responsibilities, and, in some instances, without appropriate advance notice to Complainant or her supervisor;
f. On or about July 24, 2014, Complainant was reassigned from the Business Management Office to the Facilities Branch (within the Office of Business Operations), with significantly worse duties and responsibilities, and without adequate notice, justification, or documentation;
g. On or about July 31, 2014, Complainant's request for contractor support to perform her duties and responsibilities was denied without explanation; and
h. Between August 1, 2014 and August 20, 2014, Complainant was denied an electronic copy of her new job duties and responsibilities and denied assistance in transitioning her prior assignments in order to assume her new responsibilities.
By letter dated December 9, 2014, the Agency accepted the following additional allegation for investigation:
3. Between October 21, 2013 and August 20, 2014, Complainant was disparately impacted because of her age and sex by facially-neutral practices in connection with selections for vacant positions, discipline, and demotions within the Office of Support Services.
The pertinent record shows that Complainant began employment on October 13, 2013. She was employed as a Management Program Analyst SK-0343-14 Office of Support Operations (OSO).
She was in a probationary status.
Complainant acknowledged that she had not filed any prior EEO complaints. Management testified that they had no knowledge of any EEO activity by Complainant.
She reported initially to a female supervisor (Assistant Director of the Business Management Office (BMO)), with whom Complainant used to work, at another agency. The record shows that her previous supervisor selected Complainant for hire. On May 18, 2014, this first level supervisor transferred to another office. The record also showed that the Agency offered the supervisor a lower-graded position "to resolve a situation where [she] believed RMO3 was targeting [her] because of [her] age and sex." Thereafter, Complainant reported to a new Assistant Director (female). As of August 10, 2014, Complainant was transferred to the Office of Building Operations (OBO), which was another office within OSO. The Branch Chief, Facilities Branch, OBO (male) became her first level supervisor (RMO1) (male). Her second level supervisor was the Assistant Director (RMO2) (male) and the Director was her third level supervisor (RMO3).
Complainant named seven management officials as the responsible management officials for the actions at issue in this case.
The record shows that she "complained" to the Business Manager, Office of General Counsel (OGC) and to a union representative about harassment. She did not allege sex or age discrimination. Specifically, she told the Business Manager that she was unhappy. The record shows and she acknowledged that she "expressed her consternation with the hostile environment that led to the departure of [her initial supervisor]."
Claim 1 - Termination
The Agency issued a memorandum, dated August 20, 2014, which terminated Complainant's employment. The memorandum stated that the termination was based on Complainant's "negative attitude." The memorandum also stated that "[Complainant] consistently voiced negative opinions about the Facilities Branch and the SEC. [She]...openly complained about [her] reassignment to the Facilities Branch. [Her] actions have been "combative, argumentative, inappropriate and unprofessional" and her actions affected her performance. The memorandum stated that Complainant lacked "the teamwork skills necessary to succeed in [her] position and that [her] termination during the probationary period will promote the efficiency of the service."
Complainant denied that she had a negative attitude or that her performance was lacking. She acknowledged that she objected to the reassignment and told them "that was not the work [she was] hired or trained to do." She also told them she would "salute smartly and go."
After she was effectively demoted, she stated that younger male probationary employees were retained. After she was terminated, her duties were absorbed by the current staff and contractors.
Claim 2 - Hostile Work Environment / Harassment
The record shows that, on two occasions (November 1, 2013 and April 15, 2013), two of the officials excluded Complainant from meetings regarding projects to which Complainant was assigned. On December 20, 2013 and on August 20, 2014, the Chief of the Construction and Leasing Branch and the Attorney Advisor, Business Manager Office, asked Complainant to approve work orders and purchases for matters she was not authorized to approve. Complainant refused the requests.
Between March 9, 2014 and August 20, 2014, supervisors outside of her chain of command assigned her duties and responsibilities. Sometimes the assignments were made without advance notice to her supervisor. Some of the contracts assigned to Complainant were redirected to others.
Complainant stated that one of the supervisors questioned another supervisor's decision to put Complainant in charge of the office while the supervisor was on leave.
On or about July 24, 2014, Complainant was reassigned from the Business Management Office to the Facilities Branch. Her duties were not the same. A meeting was held in which Complainant tried to get more information about the new duties and to get a position description. During the meeting, Complainant expressed her opposition to the decision to transfer her. Complainant questioned the Agency's reasons for reassigning her, for transferring most of the contracts she had been managing and for assigning her to a position that was not defined.
On August 10, 2014, Complainant was officially transferred to the Office of Building Operations, which was another office within OSO. At that point JR, Branch Chief, Facilities Branch became Complainant's first level supervisor. The Assistant director became her second level supervisor. The Director was her third level supervisor.
Claim 3 - Disparate Impact
Complainant claims that the Agency disfavors older women and only employed 15 women over the age of 40. The record showed the Agency hired 14 new employees, six were female and over the age of 40. Although Complainant contends that OSO does not favor older employees or women, and provided a chart in support of her claim, the record shows that of the 125 employees on board, 106 were over age 40 and 49 (or 46%) were women. Of the 14 hires for supervisory SK-15 level positions, 12 were over age 40 and six were women.
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 (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).
Agency Decision
The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The Agency found that Complainant had not shown that there were any similarly situated probationary employees who exhibited similar attitudes about their work and the organization, who were treated more favorably. The Agency concluded that it articulated legitimate non-discriminatory reasons for its actions. The Agency cited testimony that that her position was transferring from "BMO to the Facilities Branch effective August 11, 2014" and that "it made business sense to have the tasks performed under the OBO umbrella." She showed a negative attitude towards the transfer to the Facilities Branch. The Agency concluded that the transfer did not constitute harassment. The Agency reasoned that the incidents did not occur as alleged and were insufficient to "satisfy the requirements of a prima facie case based on age, sex and / or retaliation. In addition, the Agency found that "the incidents, that did occur, were no more than management exercising its prerogative to set work priorities and manage its employees."
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she demonstrated a prima facie case of discrimination based on her age and sex. She stated that she was unlawfully transferred from her former position on August 10, 2014, despite good performance and receiving specific commendations for her teamwork. Further, Complainant argues that the "reason given for removing [Complainant] from her job is purely subjective and it is contrary to the only evaluation of performance." Complainant argues that the Agency's "stated reason is not only a thin pretext for discrimination, [and] it is facially retaliatory" because "the agency explicitly relies on her discussion of the prior harassing conduct as a basis for her termination." She argues that the "termination likely falls short of the standard for firing probationary employees in 5 C.F.R. � 315.803."
The Agency argues that Complainant cannot rebut the Agency's articulated legitimate, nondiscriminatory reasons for her probationary termination. In addition, the Agency states that she failed to state a claim of retaliation because she admitted that she had not previously participated in protected EEO activity and that she failed to prove her claims of harassment and disparate impact.
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").
We review this matter de novo and through the lens of the federal sector mandate of Title VII's Section 717 and the ADEA's Section 633 (a). Title VII requires that "[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based . . . sex." See 42 U.S.C. � 2000e-16(a). Similarly, the ADEA requires that all personnel actions shall be made free of age discrimination. See 29 U.S.C. 633(a). Retaliation is included within the definition of discrimination. 29 C.F.R. � 1614.103(a). To prevail in a disparate treatment claim, Complainant must establish that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. Waters, 438 U.S. 567, 576 (1978).
In this case, the record reflects that Complainant acknowledged that she has not previously filed an EEO complaint. She claims, however, that she participated in EEO activity when she told the Business Manager that she was unhappy and expressed consternation about the treatment of her former supervisor. The record did not show that the management decision makers were aware of any of her alleged EEO activity at the time it took the actions against Complainant. We note that the termination memorandum expressly references her "complaining." There is some evidence that Complainant questioned her reassignment to a different unit. With regard to the age and sex claim, there is insufficient evidence to show that others who were similarly situated were treated better.
For purposes of our analysis, however, we will assume that Complainant has established a prima facie case. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, at 253 (1981). The Supreme Court has described this burden as being met "if the [agency's] evidence raises a genuine issue of fact as to whether it discriminated against the [complainant]," and has noted that, "[t]o accomplish this, the [agency] must clearly set forth, through the introduction of admissible evidence, the reasons for the [complainant's] rejection." Id. at 255-56. Although the agency's burden of production is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded a complainant. See Complainant v. Department of Homeland Security (Federal Emergency Management Agency), EEOC Appeal No. 0120140085 (January 15, 2015) (finding that the agency failed to articulate a legitimate, nondiscriminatory reason for its action when the record provided no affidavit or explanation or evidence from any agency official articulating the specific reasons which the complainant could rebut).
Upon review of the record, we find that the Agency met its burden of articulating legitimate, nondiscriminatory reasons for its actions. The responsible management officials stated that it based its determination of the business needs of the unit and the termination decision was based on management's view, perhaps mistakenly, that Complainant had expressed a "negative attitude" and exhibited "negative body language" during meetings held in July, 2014 regarding her reassignment to the Facilities Branch.
To ultimately prevail, Complainant must provide evidence that those Agency's explanations are a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, Complainant did not establish that the reason for the actions taken against her were due to discriminatory or retaliatory hostility. We recognize that the termination memorandum referenced that "[Complainant had] openly complained about [her] reassignment to the Facilities Branch," but she had not filed an EEO complaint prior to the reassignment.
We note that Complainant argues that the Agency's actions were subjective and did not meet the standards set by the Office of Personnel Management (OPM). It is not our role to evaluate whether the Agency's actions comply with the OPM rules governing probationary employee protections. Rather, we evaluate whether the employee has shown that the Agency engaged in employment discrimination based on the alleged protected basis. We find, in this case, that Complainant did not establish by a preponderance of the evidence that the Agency's stated reasons were a pretext for unlawful discrimination or discrimination for known prior EEO activity.
Harassment/Hostile Work Environment Claim
To establish a claim of hostile environment harassment, Complainant must show that: (1) he or she belongs to a statutorily protected class; (2) s/he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his or her 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. See Henson v. City of Dundee, 682 Fd.2 897 (11th Cir. 1982.)
To prove her harassment claim, Complainant must establish that the actions were taken because of a protected basis - in this case, because of her age, sex or prior EEO activity. The record strongly indicates that management was making business reassignment decisions, which she questioned, regarding her contracts and her refusal to follow instructions that she believed were inappropriate, such as requests to her to sign off on contracts for which she had no authority.
Even if we determined that the alleged actions were sufficiently severe and pervasive that a reasonable person would have found the actions to be hostile, we see no reason to disturb the Agency's finding that the alleged actions were not taken against Complainant based on her prior EEO activity or any discriminatory animus.
Disparate Impact
As noted above, Section 717 and ADEA Section 633(a) require that federal agencies make all of their personnel actions free of sex or age discrimination. In addition, EEOC regulation 29 C.F.R. � 1608.3(a) states that Title VII prohibits practices, procedures, or policies which have an adverse impact unless they are justified by business necessity." Consequently, Federal agencies are expected to "promote equal opportunity and to identify and eliminate unnecessary practices" that serve as built-in headwinds to employment and advancement. See EEOC Regulation 29 C.F.R. � 1614.102(a).
Complainant did not identify any specific facially neutral policy or practice that adversely impacted her. Her disparate impact claim fails because she failed to show a neutral policy that had an unlawful adverse impact for women over the age of 40. Moreover, she failed to establish a statistically significant adverse impact.
CONCLUSION
Based on our review of the record and application of the facts to the applicable federal-sector law, we find that Complainant failed to show that the Agency discriminated against her based on her sex, age or her prior alleged EEO activity.
Accordingly, we AFFIRM the Agency's Final Decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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 tends 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
November 16, 2017
__________________
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.
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