Sulema B.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

May 9, 2019

0120180623 (E.E.O.C. May. 9, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sulema B.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(National Park Service),
Agency.

Appeal No. 0120180623

Agency No. NPS-17-0187

DECISION

On November 29, 2017, 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
November 1, 2017 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. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Forestry Technician
at the Agency’s work facility in St. Mary’s, Georgia.

On April 26, 2017, Complainant filed an EEO complaint wherein she claimed that the Agency
subjected her to discriminatory harassment on the bases of her sex (female) and in reprisal for her
protected EEO activity when:

1. In November 2016, Complainant’s term date was changed from February 2017 to
December 25, 2016;

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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2. From September 19, 2016 through December 15, 2016, Complainant was subjected to
hostile and aggressive interrogations regarding the performance of her duties;

3. From September 19, 2016 through December 15, 2016, Complainant was subjected to
degrading remarks and inappropriate text messages;

4. From September 19, 2016 through December 15, 2016, Complainant was verbally
discouraged and physically blocked from reporting incidents to upper level supervisors;

5. From September 19, 2016 through December 15, 2016, management failed to take
action when Complainant reported the harassing incidents;

6. On December 12, 2016, Complainant was given a list of menial tasks to keep her busy
while male coworkers were assigned tasks relevant to Complainant’s position
description; and

7. On December 15, 2016, Complainant was forced to resign from the seasonal position
she occupied.

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). The Agency determined that Complainant failed to prove
that it subjected her to discrimination as alleged.

The record reflects that Complainant was hired for her Forestry Technician position on September
19, 2016. Complainant stated that her first-level Supervisor (S1) harassed her in several instances.
According to Complainant, S1 suggested that she was a loose woman when he remarked “so that
is what girls do these days,” because she gave her phone number to a male fire fighter she had just
met at a fire worksite. Complainant stated that on November 9, 2016, while she and S1 were
sitting in a truck, she objected to the political and religious content of a radio station. Complainant
asserted that S1 responded by threatening to downgrade her work performance when he told her
that she was headed down a slippery slope. Complainant stated that she complained to her second-
level Supervisor (S2), the Fire Manager, about the hostility exhibited toward her by S1, but he
replied that all he wanted was peace in the Park, and that S1 is a good guy.

The Agency noted that Complainant stated that shortly after the truck radio incident, she learned
that her employment was being prematurely ended as S1 told her she would be going home in
December. The Agency stated that Complainant claimed that S1 sent unwanted and degrading
text messages to her personal cell phone during her off hours.

On another occasion, Complainant claimed that S1 yelled at her and demanded she get off the
computer.
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Complainant maintained that she responded that she did not feel comfortable working with S1
and that she told him she would call the Chief to see if she could work somewhere else that day.
According to Complainant, S1 responded by going outside and continuously calling the Chief’s
number to prevent her from contacting the Chief to report his behavior. Complainant claimed that
S1 could not contact the Chief and that he next grabbed the keys from the vehicle she was driving
and left. Complainant stated that the main office where most of the supervisory staff worked was
a 30-minute boat ride from where she was located. Complainant asserted that since S1 took the
vehicle keys, she had to walk over a mile and a half to the boats to get to the mainland to report
S1’s behavior to the Chief. Complainant maintained that the Chief refused to take action to stop
S1’s harassment and permitted S1 to assign her menial tasks to complete. According to
Complainant, due to the hostile work environment, she left her position on December 15, 2016,
rather than the December 25, 2016 end date.

The Agency noted that a witness on behalf of Complainant was a Law Enforcement Ranger who
was Complainant’s roommate on the island. This witness stated that she did not witness any of
the events at issue but that the Superintendent had created a culture where women were treated in
a demeaning and hostile manner, and that she had filed EEO complaints.

S1 stated that Complainant’s position was not terminated prematurely. S1 asserted that
Complainant’s position was subject to a maximum of 1,039 hours but Complainant had been
informed that she definitely would not work the full 1,039 hours, and that it was likely that she
would be needed for only three to four months. S1 maintained that he informed Complainant
before the truck radio incident that her last day of work would be December 25, 2016.

S1 stated that his relationship with Complainant was fine at first but she was often late and it
became an issue. S1 noted an occasion where crewmembers told him that Complainant was not
working and was constantly on break. S1 explained that he informed Complainant what was
expected of her so she could correct her performance, but she did not take the feedback well and
did not change.

With respect to the truck radio incident, S1 stated that Complainant turned off the radio and he
told her if she had a problem, the radio could stay off. He acknowledged that he told her she was
going down a slippery slope due to her negativity. S1 maintained that during that conversation he
informed Complainant about what others had said about her work attendance and low level of
engagement.

As for the incident where Complainant claimed she said that she was not comfortable being around
him, S1 commented that he called the Chief and asked him if he could come to the island because
Complainant wanted to talk to him. S1 maintained that it was not his intent or purpose to keep
Complainant from talking to the Chief. S1 asserted that he did not try to keep Complainant from
leaving. According to S1, he left because he did not want to be around the situation. S1 asserted
that there were keys available for the fire engine, and there were also other people around, and that
he told Complainant that she could call the biologist or the Chief, and maybe he would come and
get her with a small boat.
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S1 denied that Complainant received a list of menial tasks because she is female. According to
S1, he and the Chief decided that he would no longer supervise Complainant during her last two
weeks at the Park. The Chief corroborated this statement by S1. S1 explained that he and the
Chief developed a task list so Complainant could work independently for her last two weeks. S1
denied making comments to Complainant about her exchange of phone numbers with male
employees.

With regard to the tasks assigned to Complainant, the Fire Manager stated that these were not
menial tasks, but rather tasks any crew member would have been given to do in support of the fire
program. Additionally, the Fire Manager denied that Complainant was terminated prematurely.
The Fire Manager stated that because funding and workload would expire around the third week
in December, he and S1 gave Complainant notice of her end date four weeks in advance.
According to the Fire Manager, when he asked Complainant how things were going, she replied
fine. The Fire Manager stated that he did not learn that Complainant believed she was being
harassed by S1 until December 2016.

In the final decision, the Agency determined that Complainant’s term date was not prematurely
changed from February 2017 to December 25, 2016. The Agency observed that Complainant was
placed on notice before she applied for the position that the position could be terminated earlier
than the 1,039 hours. The Agency determined that management articulated legitimate,
nondiscriminatory reasons for terminating Complainant on December 25, 2016. The Agency
stated that her termination was the result of a lack of funding and workload. The Agency noted
that S1 was furloughed during the same time period for the same reasons and that added legitimacy
to management’s stated reasons for Complainant’s termination.

The Agency further determined that S1 had no discriminatory motivation to cause Complainant to
be terminated early. According to the Agency, the decision to terminate Complainant was made
by the Chief rather than S1. The Agency noted that S1 argued against terminating Complainant in
early November for performance reasons as the Fire Manager had suggested.

With respect to the truck radio matter, the Agency found that S1 could hardly be blamed for the
content of a radio station that Complainant selected. The Agency determined that Complainant’s
illogical reaction justified S1’s warning to her that her work performance and negative attitude
could damage her career. The Agency reasoned with regard to the truck radio incident and the
texts at issue that Complainant exhibited a resistance to S1’s supervisory authority to direct and
evaluate her work and this was the cause of the conflicts between them. With regard to the incident
involving the phone and keys, the Agency determined that S1’s account of what occurred was
more credible and plausible than Complainant’s account. The Agency stated that S1 did not take
any actions to restrain Complainant from contacting the Chief via telephone to report what she
believed to be S1’s hostile conduct. The Agency also determined that S1 did not take the keys
from the truck in order to prevent Complainant from driving to the island boat dock. The Agency
observed that S1 appropriately attempted to contact the Chief and to immediately remove himself
from the situation.
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As for the Agency’s actions upon learning of the alleged harassment, the Agency determined that
it took appropriate action. The Agency stated that Complainant first reported sex-based
harassment to the Chief on December 8, 2016, and that the Chief and the Management Support
Specialist met with Complainant the same day and subsequently obtained S1’s side of the story.
The Agency indicated that the Chief’s decision not to place a memo in S1’s file indicating he had
done anything wrong reflected his conclusion that there was not evidence to support wrongdoing.
The Agency further determined that management did not assign Complainant a list of menial tasks
to perform based on her sex. The Agency noted that Complainant only had two weeks left for her
position. The Agency stated that Complainant’s job description established that the tasks were
relevant to Complainant’s position. According to the Agency, Complainant agreed during this
period to perform tasks at the direction of the Chief rather than S1, and the Chief was not in the
field or a firefighter. As a result, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment.

Finally, the Agency also determined that Complainant was not constructively discharged when she
resigned from her position seven days early. The Agency reasoned that Complainant was not at
any time subject to conduct that was so severe and abusive that she was forced to resign.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant challenges the quality of the investigation of her complaint. Complainant
argues that she was only afforded seven days to submit a rebuttal to the testimony provided by
Agency employees. Complainant states that she was moving to begin a new job during this period
and it was not reasonably possible to access a computer at that time. Complainant contends that it
was unfair that only one of her witnesses was interviewed while in contrast four witnesses on
behalf of S1 were interviewed by the investigator.

Complainant maintains that she experienced severe and pervasive harassment from S1 which
resulted in her resignation once management officials did not acknowledge the situation and
reduced it to a personality clash. Complainant states that she was in fear for her physical and
mental health when alone with S1 and that she feared the workplace retaliation that was threatened
by him. Accordingly, Complainant requests that the Commission reverse the final decision.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s argument on appeal regarding
the fairness of the investigation. Upon review of the entire record, the Commission is not
persuaded that the investigation into Complainant's complaint was unfair or biased. Complainant
failed to request a hearing, a process which would have afforded her the opportunity to conduct
discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments,
the Commission determines that the investigation was properly and adequately conducted.
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Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she 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 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 her sex or her prior protected EEO activity. Only if Complainant
establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

The Commission notes that Complainant chose not to request a hearing; therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. Here, Complainant
asserted that based on her protected classes, management officials subjected her to a hostile work
environment. Complainant alleged several incidents of what she believed to be sex-based
harassment and retaliatory harassment. The Commission finds that Complainant has not shown
that she was subjected to conduct sufficiently severe or pervasive to create a hostile work
environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a
hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory or retaliatory animus. For example, regarding the change in her term date, the
record demonstrates that Complainant was informed prior to applying and entering duty that her
position could be terminated earlier than 1,039 hours. Further, management explained that her
position was terminated on December 25, 2016, due to lack of funding and workload.

The record reflects that the remaining alleged incidents were more likely the result of routine
supervision, managerial discipline, and general workplace disputes and tribulations. Complainant
has presented insufficient evidence that the truck radio incident, text messages, the assignment of
tasks were motivated by her protected classes. While Complainant and S1 offered different
accounts of the incident in which S1 took the vehicle keys and removed himself from the situation,
the Commission cannot conclude that this incident was based on discriminatory or retaliatory
animus. Further, Complainant presented no corroborating evidence supporting her claim that S1
suggested that she was promiscuous.
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Finally, we discern no impropriety or lack of responsibility on the part of the Agency in how it
responded to Complainant’s concerns that she was being harassed. Accordingly, we find that
Complainant has not established that she was subjected to a hostile work environment based on
her sex or reprisal as alleged.

Finally, to the extent that Complainant alleges that she was forced to resign because of the
Agency's discrimination, the Commission notes that the central question in a constructive
discharge case is whether the employer, through its unlawful discriminatory behavior, made the
employee's working conditions so difficult that any reasonable person in the employee's position
would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003
(Apr. 17, 2002). As stated above, the Commission finds that Complainant has not demonstrated
that the Agency's actions were motivated by discriminatory or retaliatory animus. Thus, the
Commission finds that Complainant cannot establish the necessary elements to prove constructive
discharge.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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 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. 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.
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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

May 9, 2019
Date