0120150409_01201505_0120161184
04-13-2017
Kelsie T.,1 Complainant, v. Kevin Haugrud, Acting Secretary, Department of the Interior (Fish and Wildlife Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kelsie T.,1
Complainant,
v.
Kevin Haugrud,
Acting Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.
Appeal Nos. 0120150409, 0120151505, 0120161184
Agency Nos. FWS130218, FW130302, FWS140025, FWS140158, FWS140400
DECISION
Complainant filed an appeal, pursuant to 29 C.F.R. � 1614.403(a), from the Agency's September 29, 2014, final decision concerning two of her equal employment opportunity (EEO) complaints, which were consolidated for processing and are referenced as FWS130218 and FW130302. In addition, Complainant filed three other complaints: FWS140025, FWS140158, and FWS140400. All five of the complaints 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. The complaints are pending before us for a decision, under three separate appeals: 0120161184, 0120150409, and 0120151505. For purposes of clarity and expediency, we issue this consolidated decision for the three pending appeals.
BACKGROUND
At the time of events giving rise to these complaints, Complainant worked as a Management Analyst at the Agency's Fish and Wildlife Service (FWS) facility in Atlanta, Georgia. Complainant's official position title was Management Analyst (GS-0343-11). Her title was changed to Lead Management Analyst as the result of a May 2012 EEO settlement agreement between the parties in resolution of another earlier EEO complaint.
In the subject complaints, Complainant alleged that the Agency subjected her to a hostile work environment and discrimination on the bases of race (African-American) and reprisal for prior protected EEO activity under Title VII. She cited 30 incidents to support her claims. Complainant repeatedly claimed that three officials, whom she identified, "all discriminated against her and subjected her to a hostile work environment because she is African-American and because of her known EEO activity."2 The Agency rephrased the issues. For purposes of this analysis, we will use the allegations as stated by Complainant. Specifically, she claimed discrimination, when:
Agency Complaint No. FWS-14-0400 (EEOC Appeal No. 0120161184)
1. Since May 2012, the Chief Budget Planning and Financial Services (BPFS) Budget and Finance Officer (BFO) (RMO1) and the Assistant Regional Director (ARD) for Budget and Administration (RMO 2) failed / refused to approve and classify Complainant's position as the Lead Management Analyst and failed to abide by the terms of the May 2012 Resolution Agreement that Complainant signed in good faith with the Agency;
2. On an unspecified date in September of 2012, management refused to include her in the FY 2012 year-end closing process;
3. In September of 2012, her duties as a "COR" were taken away and assigned to another employee;
4. On October 11, 2012, her supervisor lashed out at her while providing her performance evaluation;
Agency Complaint Nos. FWS-13-0218 and FWS-13-0302 (EEOC Appeal 0120150409)
5. On January 8, 2013 and on January 14, 2013, Complainant complained to management that she was being subjected to ongoing harassment, but management delayed a response to her concern until February 26, 2013;
6. During February 2013, the Chief BPFS/BFO (RMO1) directed that Complainant's training be canceled, yet allowed a Caucasian employee to attend three different training opportunities;
7. On March 8, 2013, the Assistant Regional Director(ARD), Region 3 (RMO2) accused Complainant of lying and being unprofessional;
8. On May 15, 2013, she was notified that management's inquiry into her hostile work environment claim resulted in a finding of no harassment;
9. On May 22, 2013, Complainant's second-line supervisor (RMO2) threatened to alter Complainant's position description;
10. On May 24, 2013, Complainant saw a copy of her position description on which her second-line supervisor had marked up the position description with condescending annotations;
11. On June 21, 2013, management failed to approve and classify her position as the Lead Management Analyst, making her ineligible to compete for the Financial and Business Management System Position;
12. On or about August 13, 2013, RMO 2 divulged to Complainant's new immediate supervisor that Complainant had entered into a Resolution Agreement with the Agency and the agreement was supposed to be confidential in nature;
13. Since 2012, she has been repeatedly denied a promotion through an accretion of duties, but she learned a Caucasian employee received a promotion through an accretion of duties;
14. On December 11, 2013, after being granted unrestricted access to the facility by senior managers, her former supervisor / RMO in her prior EEO activity, entered her office area and intimidated her and the Agency failed to immediately and adequately investigate her harassment and safety claims; and
15. On December 13, 2013, the Deputy Director and RMO2 failed to immediately act on her request for a 4th day of telework.
Agency Complaint Nos. FWS-14-0025 and 14-0158 (EEOC Appeal 0120151505)
16. During September of 2013, the Agency failed to immediately contact Complainant as required by the EEOC Compliance Order;
17. During September of 2013, the Agency EEO Officer (RMO4) called Complainant and intimidated her regarding recouping a Quality Step Increase (QSI) associated with the May 2012 Resolution Agreement and further intimidated her by not recognizing her position as Lead Management Analyst;
18. RMO1 and RMO2 refused to authorize compensatory time for Complainant for the FY 2013 year-end close out;
19. Management refused to include Complainant on the emergency essential team during the FY 2013 Federal Government Closure / Furlough;
20. In November of 2013, the HR Specialist (RMO3) slandered Complainant's name, participated in rumor and gossip with employees and lost his neutrality as Chief of Human Resources, as it related to his objectivity regarding her complaint and her right to privacy;
21. On an unspecified date, [another named management official] divulged that RMO1 had informed him of her arbitration, thereby breaching the confidentiality of the May 2012 Resolution Agreement;
22. On March 10, 2014, RMO 2 refused to support her accretion of duties promotion, but supported the accretion of duties promotion for a Caucasian employee;
23. On March 20, 2014, RMO 2 refused to grant Complaint an extension to her remote work request, but granted a Caucasian employee and extension;
24. In June, 2014, Complainant was discriminated against when RMO 2 refused to sign an affidavit and therefore refused to cooperate in an official EEO investigation;
25. On August 1, 2014, the FWS EEO Officer (RMO4) failed to immediately notify Complainant and her attorney regarding the EEOC Compliance Order in her breach complaint;
26. On August 6, 2014, RMO4 allegedly intimidated Complainant regarding the Compliance Order;
27. On August 14, 2014, Complainant was discriminated against when the FWS EEO Officer failed to notify Complainant's attorney regarding the detailed instructions for the EEOC Compliance Order;
28. From August 14, 2014 to the present, RMO2 has consistently failed/refused to meet with Complainant and a third party regarding the terms and conditions of the EEOC Compliance Order;
29. From August 14, 2014 to the present, the Agency placed RMO2 as the official for oversight over execution of the EEOC Compliance Order regarding her breach claim, for which she (RMO2) had a conflict of interest; and
30. On November 14, 2014, the Human Resources Officer, Region 4, breached the neutrality required by his position and authority. (A revised Acceptance Letter issued on April 8, 2014, stated the date as November 14, 2013, the Human Resources Office (HRO) breached the neutrality required by his position and authority).
The Agency dismissed issue 1 of complaint no. DOI-FWS-13-0302, which alleged that management failed to approve and classify Complainant's position as the Lead Management Analyst. The Agency dismissed the complaint on the basis that it stated the same claim that was already decided by the Agency or Commission. The Agency referenced as the basis for its dismissal the earlier complaint DOI-FWS-12-0267, which was settled on May 24, 2012.
In terms of remedies, Complainant seeks compensatory and pecuniary damages, retroactive promotion to a GS 12, Step 5 as Lead Management Analyst, compensation for attorney's fees and costs, and permanent telework. She also seeks an apology from management, the posting of the EEOC Breach decision and to have RMO1 and RMO2 permanently removed from supervisory positions with the federal government.
The record reveals the following facts.
Complainant is an African-American woman. She has worked for the Agency for 24 years. She was described as "an excellent employees" who is "consistently receiving laudatory comments for her work and customer service." ROI FWS-14-0158, Ex. 9.
She has known prior EEO activity. As noted above, the Agency and Complainant entered a May 2012 settlement agreement regarding Complainant's previous EEO complaint. Litigation on that breach claim was ongoing during the period in which the alleged incidents arose.
At the time of the incidents at issue, Complainant reported to the Chief of Budget, Planning and Financial Services (BPFS) for the Southeast Region (Caucasian) (RMO1). He has since left the position with FWS. While he was the supervisor, RMO1 reported to the Assistant Regional Director (ARD) and Administrative Officer, GS-0341-15 with the Southeast Region (Caucasian), who was Complainant's second line supervisor (RMO2). Both RMO1 and RMO2 were aware of Complainant's prior EEO activity. Management was also aware of Complainant's race.
As of July 2013, Complainant was assigned a new immediate supervisor (African-American), who is not named and who has filed her own appeal regarding a complaint against the Agency.
The Organization chart and workforce profile associated with Agency Complaint Number FWS-14-0158 for Budget and Administration indicated that RMO2 oversaw nine positions. Fourteen (14) individuals were listed on the BPFS workforce roster. Eight are Black, five are Caucasian and one is identified as Hispanic. Five have prior EEO activity. There are pending appeals against the Agency that raise race and reprisal claims.
The organization chart and workforce profile associated with Agency Complaint Number FWS-14-0025 for BPFS indicates that there were 17 employees within Complainant's workgroup. Eight are identified as Caucasian, eight were Black and one identified as Hispanic. Four (4), including Complainant had prior EEO activity. All four who had prior EEO activity were African-American. In support of her claim, Complainant cited concerns raised by Blacks in Government (BIG).
Claim 1 - Refusal / Failure to Abide by Term of Agreement and to Recognize her as a GS 12 Lead Management Analyst, as Complainant states was agreed in the May 2012 agreement
On December 4, 2013, 18 months after the settlement was signed, RMO2 signed Complainant's position description which assigned her as a Lead Management Analyst. The grade remained a GS-11.
Claims 2 and 5 - Not included in the FY 2012 Year-end Closing Process and Delayed Response to Harassment Claim
The record shows that RMO1 did not include Complainant in the year-end closing process. He determined that another employee should do the close-out.
In December 2013, Complainant alleged that the Agency refused to effectively address Complainant's concerns of a hostile environment and concerns for her safety. She raised safety concerns on January 8, 2013. RMO1 continued to contact Complainant, after being directed to stop. He stopped by her area in December of 2013. Complainant stated that he glared at her. Complainant told management she was concerned for her safety and requested another day of telework.
The FWS policy requires Administrative Inquiries to be conducted immediately and not later than ten days from the time that Human Resources is notified of the complaint or allegation. The Administrative Inquiry was conducted six weeks after Complainant alleged a hostile work environment. One of the named responsible officials coordinated the inquiry.
The inquiry found that RMO1 engaged in inappropriate conduct, but it did not find a hostile work environment. The Administrative Inquiry conducted by the independent contractor found that RMO 1's behavior was "problematic" and troubling, but it did not find that Complainant was subjected to a hostile work environment.
Complainant was not given a copy of the inquiry. Complainant states that her manager never scheduled a meeting to discuss the findings and recommendations of the Administrative Inquiry and informed Complainant that there were no appeal right rights.
Claim 3 - Duties Changed Training Canceled
Following a reorganization, the duties in Complainant's unit shifted. Some of Complainant's duties were reassigned.
Claim 4 - Supervisor Lashed Out and Complainant Accused of Lying and Being Unprofessional
During an October 11, 2012 evaluation session with Complainant and her immediate supervisor, RMO 1 yelled at Complainant saying, "Don't You Go There" and "I didn't sign it"; and "I Don't Know what to tell you." RMO1 left the FWS in mid-July 2013.
On the evening of March 7, 2013, Complainant averred that she sent an email to HR Specialist (RMO3) and copied RMO2. She expressed her frustration over the investigation and was trying to learn why there was delay in the inquiry into the complaint she filed on January 8, 2013.
On March 8, 2013, the third level supervisor testified that she met with Complainant, at Complainant's request. Complainant told RMO2 that she (Complainant) was expected to provide customer service, but the HR contact would not contact her despite the numerous attempts she made and it appeared that [the HR specialist] was being given a "buy" for his customer service." RMO2 became "visibly enraged" and yelled at her, according to Complainant. RMO 2 told Complainant that her email was disrespectful and very unprofessional. The third level denied yelling at Complainant or saying that she was paranoid. She acknowledged that she told Complainant that her emails to the HR official were unprofessional and not consistent with Complainant's usual professionalism.
When Complainant told the RMO that she heard that she was labeled a "troublemaker," the RMO2 told Complainant that she was "paranoid" and she was worried about her. RMO2 then began to blame Complainant's supervisor and stated that Complainant's supervisor was the problem.
Complainant spoke with her immediate supervisor after the meeting. She told her immediate supervisor what had occurred at the meeting. The record also includes the testimony of her supervisor in support of Complainant's claims. We note that Complainant's supervisor has since filed her own claims of retaliation against RMO2.
Claims 6, 7 and 9- Training / Second-line Supervisor Threatened to Alter Complainant's Position Description and Condescending Annotations
A Caucasian co-worker was authorized to attend three development training courses in March 2013, while Complainant's course was canceled by RMO1. The record suggests that favoritism in the form of nepotism was a factor in some of the decision.
On May 22, 2013, RMO1 threatened to alter Complainant's position description and to take away the purchase requisition process that she was responsible for. The PD had words scribbled on it by RMO1. The PD contained the words "Really?" and emphasized certain terms such as "mastery." Complainant's immediate supervisor averred that she was directed to "dumb down" and reduce points on Complainant's PD to ensure that the PD was a GS-12. RMO1 noted on Complainant's draft PD that the complexity of each factor should be lower than a GS-12 Around this same time, RMO1 asked the supervisor to accept a contract employee in the branch as a GS-12. The individual was hired as an accountant. ROI, FWS-14-0158, Ex. 24. Her immediate supervisor supported Complainant's request for promotion to GS-12. RMO1 and RMO2 did not support the request.
Claim 8 - Notified of Management Inquiry Results and Management failed to approve and classify her position as Lead Management Analyst
RMO1 never sent or otherwise notified the staff and coworkers that Complainant was the Lead Management Analyst. Instead three others, all Caucasian were appointed as the FBMS Manager (Tab 49), and the BTT Coordinator for the region. Complainant overheard RMO1 state, on or about September 19, 2012, to her immediate supervisor and another named management official that "she [Complainant] would never be a "12". RMO1 and RMO2 averred that Complainant did not request a promotion through accretion of duties and also maintained that her PD did not support a GS-12 grade.
Complainant attributed the hostility to past history between Complainant the RMO1. There was an earlier incident in which police were called. RMO1 had been involved with a married woman. The woman's husband showed up on the job with a gun. Complainant was present when this occurred and was a witness to it. She acknowledged that the animosity shown by the RMO1 toward her stemmed from that earlier work relationship history.
The record shows that RMO2 stated in a July 18, 2013 email that she refused to support an accretion of duties promotion for Complainant but overwhelming supported an accretion of duties for a Caucasian employee.
Claim 9 - Divulging the Terms of her Resolution Agreement and Negative Remarks
Testimony from the new immediate supervisor confirms that RMO1 informed her (the new supervisor) of the settlement agreement. She was also told that she was to carry out some of the terms of the Agreement. RMO1 transferred his responsibilities under the terms of the Agreement to the new immediate supervisor. The new immediate supervisor averred that she heard negative remarks by RMO1 with regard to Complainant.
Claim 10 - Agency did not follow through on EEOC Order
We note that the Commission has issued a decision which found that the Agency did not act in good faith and initially delayed compliance with the EEOC Order. We did not find that the Agency failed to comply.
Claim 11 - Intimidations regarding a Quality Step Increase
The FWS EEO Officer contacted Complainant threatening to recoup Complainant's previous QSI because the OCR had rendered Complainant's Complaint of Breach "in dispute" in an August 2013 FAD.
Claims 12 and 13- Refusal to authorize compensatory time for FY 2013 year-end close out - Not included in emergency essential team during furlough
Complainant averred that RMO1 removed her from the FY 2012 Year-End Budget Close Process, even though she was senior in grade, with 22 years of experience in the finance/budget community and despite the fact that she was supposed to be the "Lead Management Analyst" as agreed in the May 24, 2012 Resolution Agreement. In addition, around September 2013, the Agency refused to grant Complainant compensatory time for the year end close out.
On October 11, 2012, during a performance review, RMO1 "almost jumped out of his chair" Supervisor [J] (not named as an RMO on these complaints) was there and witnessed the incident. Complainant stated that she overheard RMO1 say "That lady is whacky" and also said, "Don't go there," when she raised the issue of the Agreement and Complainant perceived RMO1's remark as a threat. The new supervisor provided testimony which supported Complainant's claims as to what was said.
During December 2012, RMO2 directed Complainant to report daily for an assignment that had been previously performed by a Caucasian contractor. The contractor was not required to report on a daily basis.
On September 26, 2013, the Agency removed her from the Emergency Response Team (ERT) during the 2013 Government Furlough.
Claims 14, and 15 - Actions of HR Specialist, Disclosure of her Arbitration Agreement
Testimony from the HR Specialist confirmed that he believed Complainant to be a "troublemaker." His affidavit stated that he "personally did not feel that her complaint warranted an investigation." He continued that he believed that "her complaint was just another in a string of complaints she was rumored to make every year, especially around performance time." He also intimated that there was an inappropriate relationship between Complainant and her immediate supervisor.
Agency Complaint No. FWS-14-0025 (EEOC Appeal No. 0120151505)
We note that some of her claims in 0120151505 overlap with claims from her previous complaint.
Claim 16 - Agency failed to take immediate and appropriate action on her harassment claim
On January 8, 2013, Complainant notified her supervisor that she was being harassed by her second-level supervisor (RMO1). On January 9, 2013, RMO 1 contacted her four times and then visited her desk at around 3 PM, ostensibly to show her a holiday card from a previous manager.
On January 14, 2013, her immediate supervisor provided the allegations to HR and the third level supervisor (RMO2). Management had discussions. The then third level supervisor (RMO2) testified that there were no "untoward delays" in the investigation.
On January 25, 2013, the third-level supervisor (RMO2) "met with everyone" and asked for some additional guidance. According to Complainant's immediate supervisor, who was present at the management meeting, RMO2 told the group that she had discussed the allegations with RMO1 and that "it sounded to her that RMO1 was being harassed, not Complainant, and that RMO1 should be able to talk to his employees." RMO2 stated that "she didn't see it" meaning that she did not find the allegations raised by Complainant to constitute a hostile work environment. The EEO Manager (RMO3) also offered his opinion that Complainant had not alleged discrimination. HR testified that he did not recommend a third party investigation because of Complainant's inability to articulate what the manager was doing to her that created a hostile work environment. He also averred that he believed that Complainant and Complainant's new supervisor "were working in concert and might have an inappropriate employee/supervisor relationship."
RMO2 received additional guidance on January 30, 2013 and determined that a "M1" was the appropriate action. She directed the HR Specialist (RMO3) to arrange for the MI.
RMO3 contacted a contractor to arrange for an investigation. The contractor arranged to fly into Atlanta to conduct the inquiry. Complainant was contacted the day before the contractor arrived, via an email from RMO3. Complainant had scheduled leave for that day. She asked for a postponement, but the schedule was not changed.
The Agency acknowledged that there were two weeks when nothing happened regarding Complainant's concerns, but the Agency stated that this was due to the absence from the office of Complainant's immediate supervisor and RMO3.
On February 7, 2013, Complainant was informed that her claim of hostile work environment had been received by the Human Capital Management Division. The HR Specialist stated that he met several times with Complainant's immediate supervisor and some of those meetings were attended by the EEO Manager and "one or more of the meetings included the ARD" (RMO2). ROI a, Ex. 10, p. 274.
On December 11, 2013, Complainant's former supervisor (RMO1), who was an RMO in her prior EEO activity, entered her office area. Complainant said he intimidated her. On November 14, 2014, the HRO, Region 4 withheld information from the Administrative Inquiry Investigator. It is not clear which information was withheld.
Claim 17 - Refused to grant 4th day of telework
Complainant advised RMO 1 that she was not pleased that she was given a restricted amount of days for remote telework. She made the request several times, but was not given a positive response. She compared her treatment to that given to another coworker. The record shows that she was given permission to work the fourth day of telework.
Claim 18 - Denied Accretion of Duties Promotion
Since 2012, Complainant has been denied a promotion through an accretion of duties. On or about March 10, 2014, Complainant learned that a Caucasian employee received a promotion through an accretion of duties. Complainant was told that the Service (FWS) does not offer or support accretions. Complainant's immediate supervisor was supportive of her request for an accretion of duties promotion, but RMO1 and RMO2 were not. Complainant identified two other employees, both Caucasian, who have received accretion of duty promotions in the last two years. RMO1 averred that Complainant did not request an accretion of duties promotion. RMO averred that, while she never received a formal request from Complainant for a promotion by accretion of duties, she did have several conversations with Complainant about the possibility of a promotion by accretion of duties. RMO2 denies stating the Agency did not offer or support accretion of duties promotions. She stated that the FWS policy provided that an accretion of duties promotion is given when a position is reclassified to a higher grade because additional duties and responsibilities of the initial position has been absorbed into the new position and the promotion does not directly affect other employees in the organization.
RMO stated that the Caucasian comparator's situation was different than Complainant's comparator, because she was a GS-13 Supervisory Program and Management Analyst in a separate program and under the Assistant Regional Director for Ecological Services. According to RMO 2, the accretion of duties promotion for the Caucasian employee fell within service guidelines and was reviewed and approved by her ARD, Regional HR Officer and HR at Headquarters.
Claims 19 and 23- Denied extension of remote work request
The record shows that the Agency eventually granted her request for remote telework. Management stated that the comparator was granted telework after she requested a reasonable accommodation.
Claims 20 to 28 - Issues regarding compliance with settlement agreement
Management refused to sign affidavit or include her witnesses and failed to notify Complainant or her attorney regarding the EEOC Compliance Order. Complainant averred that she was intimidated by the Agency's slow compliance with the terms of the settlement agreement. From August 14, 2014 and ongoing, management failed to meet with Complainant and a third party regarding the terms of the EEO Compliance Order
Claim 29-30 - Agency placed an official with a conflict of interest as the official for oversight over execution of the EEOC Compliance Order
RMO 2 averred that she reviewed the Administrative Inquiry report and sent Complainant a memorandum advising her that the independent investigator concluded that her allegations did not rise to the level of a hostile work environment. The record shows that Complainant was not provided an actual copy of the Report.
Complainant states that the HR official's own testimony underlines his bias against her. Management states that the HR official was new to the position, undergoing his own personal issues and had been responsive to her concerns, but Complainant did not explain why she felt that RMO1 was treating her differently than other employees.
After consolidating two of the complaints and at the conclusion of the investigations of the accepted claims, the Agency provided Complainant with a copy of the reports of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued final decisions pursuant to 29 C.F.R. � 1614.110(b).
Agency Decisions
The decisions concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
0120150409
The Agency acknowledged in its FAD that "Complainant provided details of her allegations in her affidavit, the investigator did not address those allegations in that he did not obtain an affidavit from [the named official] or anyone else that responded to them." The Agency found that there was enough in the record from the details provided by Complainant to issue a decision on whether the incidents descried to management on January 14, 2013 rose to the level of a hostile work environment.
Next, the Agency found that Complainant failed to prove that the alleged harassing actions had the purpose or effect of unreasonably interfering with her work performance or created an intimidating, hostile, or offensive work environment. The Agency did not find that the events described by Complainant were so severe or pervasive, that, if true, they created a work environment a reasonable period would find intolerable. The Agency found that assuming the incidents were all true were sufficient to create a hostile work environment.
Regarding the claim that the HR official intentionally delayed the investigation, the Agency acknowledged that the Agency was required to address allegations of harassment "immediately and it does not appear from the timeline that the AI was conducted 'immediately.'" The Agency found that there is no evidence in the record before the Agency identifying any employee who was involved in an AI that was processed in a more expeditious manner than the AI in the instant case. The Agency found that Complainant provided no valid comparators regarding the accepted issued and the record does not support her contentions that she was treated less favorably than any other employee under similar circumstances. The Agency found that its handling of the claims was proper. The Agency also stated that there is no evidence, direct or indirect, that would otherwise raise an inference that Complainant's race was a factor in her treatment. The Agency assumed for purpose of analysis that the prima facie had been established.
0120151505
The appeal was filed on March 16, 2015 from the January 26, 2015 FAD with regard to the complaint filed on January 6, 2015. The Agency found that Complainant failed to demonstrate that the unwanted actions and conduct by RMO1 was in fact, based on her race or participation in prior EEO activity. The Agency found that the comparators were not similarly situated and that management's articulated, legitimate, non-discriminatory reasons for the adverse actions were pretext for prohibited discrimination.
0120161184
The Agency found that Complainant did not demonstrate the comparators were similarly situated complainant.3 The Agency reasoned that none of the alleged comparators were under the same job function or on the same tour of duty. The Agency also found that she was not similarly situated to the individual who was granted a Remote Work Agreement extension, reasoning that the comparator was provided a reasonable accommodation.
The Agency found that Complainant established a prima facie case of reprisal, but the Agency had a legitimate reason for its actions, which Complainant failed to rebut.
The instant appeals followed.
CONTENTIONS ON APPEAL
On appeal, Complainant restates her allegations and contentions that the discrimination was undisputed and supported by the determination issued in her breach decision. She also challenges the credibility of management's witnesses. The Agency asks that we affirm its decisions.
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").
Initially, we note that Complainant did not challenge the dismissal of her claim that the Agency discriminated against her when it refused to reclassify her PD, we will not address that as a separate issue.
Disparate Treatment: Race and Reprisal, Terms and Conditions
Section 717 of Title VII requires that federal agencies make all personnel actions free of discrimination. See 42 U.S.C. � 2000e-16(a) ("[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race." Reprisal is also unlawful under Title VII.
Complainant may prevail by demonstrating, by a preponderance of the evidence, that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). To establish a claim of disparate treatment on the basis of race or reprisal, a complainant must show the agency took an adverse employment action against the complainant because of the complainant's race or reprisal or otherwise failed to make its personnel actions free of discrimination. This can be shown through either direct or indirect evidence.
In this case, the record shows that the comparators were not similarly situated to Complainant. They worked in different areas under different supervisors. Moreover, Complainant herself acknowledged that her poor working relationship with RMO1 was attributable to their past history and his controlling management style. Others who are of her race, who were recently hired, did not experience the same issues with RMO1.
Nevertheless, for purposes of this analysis, we will assume that Complainant established her prima facie claims, for four reasons: 1) we construe her race claim as alleging that Caucasians were favored for accretion of duty promotions, training, telework and she was not; 2) she has supporting testimony from one management official in her favor; 3) the Agency delayed complying with the terms of the Agreement; and 4) the comments by RMO1 and the HR official suggest retaliatory animus toward Complainant.
The prima facie inquiry may be dispensed with in this case, however, since the Agency asserted that it had legitimate reasons for its action. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). The supervisor stated that RMO2's actions regarding promotions through accretion of duties were premised on her perceptions of the regulations, the telework rules, or based on management's prerogatives regarding assignments. On these bases, she decided not to grant an accretion of duties promotion because she determined that the criteria had not been met in this case. Management made the determination that her position was not a GS-12 position and also made its decisions regarding who would staff certain projects, such as the end-of-the year project, who would attend training and who was deemed "essential personnel" for purpose of the furlough. RMO1 and RMO2 decided others were better suited for these tasks.
To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
We find that Complainant provided insufficient evidence to show that the Agency's reasons were a pretext for race discrimination or reprisal. She questioned why the Agency failed to act sooner on her harassment complaint and refused to recognize her for promotion. Complainant raised some questions as to whether his supervisor's perceptions were legitimate and, particularly, whether RMO1 behaved consistent with good management practices. At best, this evidence shows that RMO 1 was petty, controlling and unreasonable. This does not, however, establish pretext for race discrimination or reprisal. Moreover, Complainant acknowledged that her poor working relationship with RMO1 was due to their earlier work history.
Hostile Work Environment
To establish a claim of harassment, Complainant must show that: (1) she is a member of a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the protected class; (4) the harassment 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. Johnson v. Department of Homeland Security (Immigration and Customs Enforcement), EEOC Appeal No. 0120113331 (July 1, 2014).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create a hostile or abusive working environment." The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceived it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id at 23.
Thus, not all claims of harassment are actionable.
We examined the record and accepted the evidence as presented by Complainant in its entirety. We agree that the working conditions were unpleasant and sufficiently severe to alter the conditions of her employment. We find, however, that Complainant failed to prove that the actions were taken because of her race or any prior EEO activity. She conceded that she thought that the adverse treatment was due to interpersonal dynamics between Complainant and her former supervisor (RMO1). We find that, in the instant case, there is insufficient evidence that the harassment was based on her protected classes. Consequently, we find that she did not show, by a preponderance of the evidence that the adverse treatment and harassment was due to unlawful discrimination or reprisal.
For the reasons set forth herein, we find that the Agency's decision is supported by the record.
CONCLUSION
Accordingly, we AFFIRM the Agency's Final Decision.
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 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 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
April 13, 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.
2 The Agency did not accept or investigate her claim that she was harassed by her second level supervisor, who was named as a responsible management official in a prior EEO complaint. As is acknowledged in the Agency's decision in 0120150409, the Agency did not view the matter as an EEO matter. The "Agency's EEO Officer and headquarters EEO Manager both reviewed complainant's allegations and found that "the claims did not allege discrimination and should be handled by HR related processes."
3 The record in appeal 0120161184 pertains to DOI-FWS-08-0215 and DOI-FWS-13-0218, according to EEO Counselor, but the FAD pertains to DOI-FWS-14-0400.
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2
0120150409
17
0120150409, 0120151505, 0120161184