Tammy S.,1 Complainant,v.Betsy DeVos, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

2019001476 (E.E.O.C. Sep. 19, 2019)

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

Tammy S.,1
Complainant,

v.

Betsy DeVos,
Secretary,
Department of Education,
Agency.

Appeal No. 2019001476

Hearing No. 410-2018-00257X

Agency No. ED2016FSA0035

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 2, 2018
final order concerning an equal employment opportunity (EEO) complaint claiming 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

During the period at issue, Complainant worked as a Loan Analyst, GS-11, at the Agency’s
Office of Federal Student Aid in Atlanta, Georgia.

On April 11, 2017, Complainant filed a formal EEO complaint claiming that the Agency
subjected her to discriminatory harassment based on race (African-American), sex (female),
color (medium brown), age (YOB: 1962), and in reprisal for prior protected EEO activity when:

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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1. at a meeting on or around July 12, 2016, the Branch Chief shouted at Complainant
in an angry and harassing manner;

2. on or around July 12, 2016, Complainant became aware that she was being given
different assignments than her co-workers;

3. on or around July 28, 2016, Complainant was denied the use of a Learning
Coupon to attend a training course title, “Managing for Results” at the USDA
Gradate School; and

4. between July 7, 2017 and July 11, 2017, Complainant was required to use
personal leave when there were building maintenance problems at work:
Complainant was given different work standard requirements than her co-workers
as to the “One Time Change In Schedule” work life benefit; Complainant was
directed to return home because she was disallowed from using the “One Time
Change In Schedule” work life benefit; and Complainant was accused of
“developing a disturbing pattern” in responding to her supervisor’s emails.

After an investigation of the accepted claims, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ).2 Complainant timely
requested a hearing. On September 11, 2018, the AJ issued a Notice of Proposed Summary
Judgment (“Notice”). Complainant and the Agency submitted responses to the AJ’s Notice. On
September 28, 2018, the AJ issued a decision, by summary judgment, in favor of the Agency.3

On October 2, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.

The instant appeal followed. On appeal, Complainant does not submit additional statements or
briefs.

2 The report of investigation indicates that Complainant did not complete or submit an affidavit
or a rebuttal statement.

3 The AJ summarily adopted her analysis provided in the September 11, 2018 Notice in her
September 28, 2018 decision.
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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
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 “material” fact has the potential to affect the
outcome of a case.

To successfully oppose a decision by summary judgment, Complainant must identify material
facts of record that are in dispute or present further material evidence establishing facts in
dispute. Here, Complainant does not address the merits of the AJ’s decision on appeal.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment concluding
no discrimination was established.

To establish a claim of discriminatory environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

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 protected basis – in this case, her race, sex, color, and reprisal
for prior protected EEO activity. Only if Complainant establishes both of those elements –
hostility and motive – will the question of Agency liability present itself.

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The undisputed evidence of record shows that Agency management officials articulated
legitimate non-discriminatory reasons for the actions cited by Complainant in support of her
harassment claim.

Regarding claim 1,4 Complainant’s second-level supervisor and Branch Chief (“S2”) testified
that he led the July 12, 2016 meeting and he met with Complainant to discuss Complainant’s
“poor performance and lack of work.” S2 explained that Complainant’s immediate supervisor
(“S1”) briefly attended the meeting to answer one question. S2 further explained that he was
“calm” during the meeting and denied that he raised his voice or became aggressive toward
Complainant.

S1 testified that S2’s tone during the meeting was “moderate,” but not loud or argumentative.

Aside from Complainant’s statements in her formal complaint, there is no evidence in the record
to collaborate Complainant’s allegation that S2 shouted at her in an angry and harassing manner.

Regarding claim 2, S1 testified that Complainant received the same work assignments as other
staff members and Complainant’s assignments were within the scope of her position description.

S2 explained that Complainant’s work assignments were based on “workload need and
management discretion.” S2 clarified that Complainant had the same work assignments as the
other employees and Complainant’s assignments were within the scope of her position
description.

Regarding claim 3, S1 confirmed that she denied Complainant’s request to use a Learning
Coupon to attend a training course titled, “Managing for Results.” S1 explained that she denied
this request because the course was an upper management course for GS 14/15 level and SES
members and Complainant did not meet the pre-requisites for the course. Specifically, S1 stated
that Complainant did not meet grade requirement for the course and was, therefore, not eligible
to take it.

Regarding claim 4, S1 explained that a July 7, 2017 directive from Headquarters indicated that
the Atlanta Regional office would be open on July 7, 2017, even though there was a problem
with the water that day. S1 further explained that the directive informed staff that they had the
option to telework or request leave that day. S1 stated that she sent a reminder email to her staff
about this directive, but Complainant arrived to work at 10:15am, approximately three hours
after the start of her tour of duty. Because Complainant was late to work on July 7, 2017, S1
explained that Complainant submitted a leave request from 7:00 am – 11:00 am for that day.

4 We note that the AJ’s analysis for this claim was confined to exclusively to determine that
Complainant did not establish a prima facie case of disparate treatment based on her raised basis.
Our review of the record indicates that the Agency also provided legitimate non-discriminatory
reasons for its actions, even though the AJ did not address this analysis.
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The record includes a July 7, 2017, directive from Headquarters indicating that the Atlanta
Regional Office was open on July 7, 2017, and employees had the option for unscheduled leave
or unscheduled telework. The directive further indicates that the city of Atlanta was under a Boil
Water Advisory.

Regarding Complainant’s “One Time Change in Schedule” request, S1 explained that this
request is used when an employee on an alternative work schedule requests to change his/her
flex day off within a specific pay period to a different day with supervisory approval. S1
clarified that a One Time Change in Schedule is not considered a “Work Life Benefit.” S1 stated
that on July 7, 2017, Complainant requested a One Time Change in Schedule from Monday, July
10, 2017 to Friday, July 14, 2017, to “work on outstanding EIMFs.” S1 stated that Complainant
intended to work on Friday to complete “4 actions or more if computer and time allow[ed].”
However, S1 explained that she denied Complainant’s request because Complainant should be
able to complete no less than 20 actions. Nevertheless, S1 stated that Complainant reported to
work on her flex day even though S1 has informed her that her request to change her flex day
was not approved. As a result, S1 stated that she sent Complainant home because she was not in
duty status and should not have been performing work on her flex day.

With respect to Complainant’s email responses, S1 confirmed that she had informed
Complainant that she was developing a “disturbing” pattern in her email responses. S1 further
explained that Complainant would send emails with a “misdirected subject matter.” Specifically,
S1 stated that Complainant had a “habit of sending emails, then without changing the subject
line, resends with a different subject issue.” As a result, S1 explained that she would have two or
three different issues under the same subject matter which made it difficult for her to follow the
email trail.

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s race, sex, color, and reprisal for
prior protected EEO activity. As such, we conclude that a case of harassment is precluded based
on our finding that Complainant failed to establish that any of the actions taken by the Agency
were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

Because we discussed all claims on the merits, we need not address the Agency’s argument,
submitted on appeal, that Complainant’s appeal before us is untimely.

The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

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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.
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.
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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

September 19, 2019
Date