Selina S.,1 Complainant,v.John F. Kelly, Secretary, Department of Homeland Security (Headquarters), Agency.

Equal Employment Opportunity Commission

Apr 18, 2017

0120150723 (E.E.O.C. Apr. 18, 2017)

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

Selina S.,1
Complainant,

v.

John F. Kelly,
Secretary,
Department of Homeland Security
(Headquarters),
Agency.

Appeal No. 0120150723

Hearing No. 460-2013-00133X

Agency No. HS-HQ-01976-2011

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 25, 2014, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment
Act of 1967, as amended, 29 U.S.C. § 621 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 Mission Support
Specialist at the Agency’s work facility in Houston, Texas.

On January 19, 2012, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African-American), sex (female),
color (Black), age (54), and in reprisal for her prior protected EEO activity under Title VII and
the ADEA 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. On August 11, 2011, Complainant was issued an unfavorable and unduly low
annual performance appraisal.

Complainant amended her complaint on April 11, 2013, to include the following events:

2. Between May 2011 and August 2011, Complainant was subjected to harassment by
the District Commander without intervention by management.

3. Complainant was subjected to further harassment by a Management and Program
Analyst who was not in her chain of command, when the Management and Program
Analyst interfered with her job performance, and, during a two-week detail in May
2011, informed Complainant that she did not have time to meet with her to assist
her in transitioning to new duties.

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). Complainant requested a hearing.

On September 16, 2014, the AJ issued an Order of Sanction Dismissal of Complainant’s
hearing request. The AJ detailed the events leading up to the decision to issue a sanction
against Complainant. The AJ stated that Complainant filed a Motion for Sanction and Default
Judgment Against the Agency in November 2013, and on December 9, 2013, Complainant
filed a Motion Requesting the Administrative Judge to Direct the Agency to Enter into
Settlement Discussions. According to the AJ, numerous motions, requests for amendment and
e-mails concerning discovery disputes ensued from the parties. Based on these actions and
requests for clarification from Complainant, on January 9, 2014, the AJ issued an Order
Requiring the Parties to Request Leave of Court. The AJ noted that the Order stated that:

“[e]ffective immediately, no correspondence; requests for clarification; statements, in-
person visits; telephone calls; voicemail messages; facsimiles; e-mails or any other
forms of written or verbal communication can be submitted to or made with the Court;
if they are likely to elicit a response from the Court; without the prior express
permission of the Court. Permission must be sought in advance if the parties wish to
contact the Court in writing, in person or via any electronic means, to discuss or
request any form of action by the Court. Specifically, prior to any contact with the
Court, each party must request permission, in writing, from Administrative Judge…
The Request for Leave of Court should provide a short, detailed explanation of why the
motion, correspondence, telephonic conference, or other action is needed, and give
specifics regarding the informal efforts made to resolve the issue prior to the request.
The Request for Leave of Court cannot exceed one (1) typewritten page and must be
double-spaced. Failure to follow this or any other Order of the Administrative Judge
may result in sanctions, up to and including dismissal of the complaint or default
judgment in favor of the Complainant. No further warnings will be issued in this case.
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If the Court believes that any future contact violates the Court’s Order, this matter may
immediately be removed from the hearing docket and returned to the Agency for Final
Action or a default judgment may be entered in the Complainant’s favor, forthwith.”
(emphasis in original).

The AJ noted that the Agency complied with the Order as it submitted appropriate requests for
leave of court. The AJ stated that Complainant failed to comply on multiple occasions. The
AJ stated that on February 12, 2014, she issued a Second Order Requiring Parties to Request
Leave of Court. According to the AJ, Complainant attempted to circumvent the Court’s Order
by contacting alternate sources of authority, including the Deputy District Director of the
Houston District Office.

The AJ noted that on June 17, 2014, she instructed the parties that no further pleadings or
correspondence from any party in this matter will be accepted until a ruling on the multiple
pleadings which had already been filed was made. The AJ notified the parties that the
submission of any additional requests for reconsideration and/or leave of court may result in
sanctions up to and including dismissal of the complaint. The AJ stated that Complainant
subsequently contacted the Hearings Complaint Department in the Office of Federal Operations
requesting a status update on her case. The AJ noted that the inquiry required a response from
the AJ. In light of Complainant’s numerous violations of the Court’s Order, on September 16,
2014, the AJ dismissed the hearing request and remanded the complaint to the Agency for
issuance of a final order.

On November 25, 2014, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b) wherein it determined that Complainant failed to prove that it subjected her to
discrimination as alleged. With regard to Complainant’s claim of disparate treatment as to
claim (1), the Agency determined that it articulated a legitimate, nondiscriminatory reason for
Complainant’s performance rating. The Agency stated that Complainant’s Supervisor issued
Complainant an “Achieved Expectations” rating, and the rating was based on a review of
Complainant’s performance plan, and an assessment of communications from Complainant on
assignments that she completed and her own personal knowledge of Complainant’s
assignments. According to the Supervisor, she sent an email message to the individuals in her
unit requesting they submit a memorandum on accomplishments for the year, but that she did
not receive the information from Complainant. The Agency noted that Complainant argued
that she did not receive fair consideration and that she deserved a higher rating in light of the
lack of work produced by her coworkers. The Agency rejected this argument and concluded
that Complainant failed to show that management was motivated by discriminatory animus.

With respect to Complainant’s hostile work environment claim, the Agency stated that
Complainant claimed there was unresolved hostility in the workplace, especially involving the
District Commander, and that improper advantages and preferences were given to a specific
group of employees, particularly management. The Agency stated that the Supervisor and
Complainant discussed the District Commander and that she attempted to address
Complainant’s concerns. The Agency noted that the District Commander complimented
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Complainant’s performance on at least one occasion. The Agency noted that Complainant
further asserted that after volunteering to perform the duties of an Information System Security
Officer, and also to assist in space planning, the Management and Program Analyst interfered
with her work, and during a detail continued to make excuses for not properly providing her
with critical information that was necessary to successfully perform the duties. According to
the Agency, the Supervisor explained that the Management and Program Analyst was asked to
train Complainant in Information System Security Officer and space planning duties, and that
Complainant indicated the Management and Program Analyst was not helpful. The Supervisor
maintained that with the assistance of the Management and Program Analyst and others,
Complainant was performing the required duties.

The Agency determined that the alleged acts of harassment failed to rise to the level of severity
required to establish a hostile work environment. The Agency further concluded that
Complainant failed to provide evidence demonstrating that the alleged incidents were based on
any of her protected bases.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency was not timely in issuing its final decision.
Complainant states that the Agency was required to issue a final decision within forty days of
receiving the AJ’s decision. Complainant points out that the Agency should have issued a
decision by November 9, 2014, but she did not receive it until December 2, 2014.
Complainant requests that the final decision be reversed.

In response, the Agency asserts that Complainant does not challenge on appeal the merits of its
final decision or the AJ’s Dismissal. The Agency argues that any delay on its part in issuing
its final decision has not prejudiced Complainant as she has not been prevented from filing the
instant appeal. The Agency notes that Complainant waited to file her appeal until after
receiving the final decision and then only addressed the matter of the untimely issuance of the
final decision.

ANALYSIS AND FINDINGS

Timeliness of FAD

With regard to Complainant’s contention on appeal that the Agency issued its final decision in
an untimely manner, we observe that the AJ issued the Dismissal of Complainant’s hearing
request on September 16, 2014. The Agency did not issue its final decision until November
25, 2014, which was clearly after the 40-day period afforded the Agency to issue its decision.
However, we find that Complainant has not been prejudiced by the delay in the issuance of the
final decision. The Agency’s delay was not extreme and Complainant received the final
decision and had the opportunity to review and consider the decision prior to filing the instant
appeal. Thus, in light of the circumstances, we find that a reversal of the final decision on the
basis of untimeliness is not warranted.
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Dismissal of hearing request

Next, we shall address the AJ’s Dismissal of Complainant’s hearing request. The
Commission’s regulations afford broad authority to AJs for the conduct of hearings. 29
C.F.R. § 1614.109 et seq; Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO MD-110), Chapter 7, Section III(D) (Aug. 5, 2015). An AJ has the
authority to sanction a party for failing, without good cause shown, to fully comply with an
order. See 29 C.F.R. § 1614.109(f)(3).

After a review of the record, we agree with the AJ’s finding that dismissal of the hearing
request was appropriate. The record is replete with evidence of Complainant’s barrage of
motions, requests for amendment, e-mails, and requests for clarification. The AJ issued two
Orders Requiring Parties to Request Leave of Court, yet Complainant failed to comply with
these Orders. The AJ noted that the subsequent inquiry to the Hearings Complaint Department
in the Office of Federal Operations required a response from the AJ. In light of Complainant’s
numerous violations of the Court’s Orders, we find that the AJ justifiably dismissed the
hearing request, and it was not an abuse of discretion to do so.

Disparate treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating 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). Proof
of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must
show that (1) she engaged in protected EEO activity; (2) the Agency was aware of the
protected activity; (3) subsequently, she was subjected to adverse treatment by the Agency; and
(4) a nexus exists between her protected activity and the adverse treatment. Whitmire v. Dep't
of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. 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). 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).

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We shall assume arguendo that Complainant set forth a prima facie case of discrimination as to
her claim of disparate treatment with regard to her performance appraisal. The Agency stated
that Complainant’s Supervisor issued Complainant an “Achieved Expectations” rating, and the
rating was based on a review of Complainant’s performance plan, and an assessment of
communications from Complainant on assignments that she completed and her own personal
knowledge of Complainant’s assignments. The Supervisor noted she sent an email message to
the individuals in her unit requesting they submit a memorandum on accomplishments for the
year, but that she did not receive the information from Complainant. We find that the Agency
articulate legitimate, nondiscriminatory reasons for the rating issued to Complainant. We
observe that Complainant has offered no argument on appeal to address this issue. We discern
no evidence or argument in the record that is sufficient to demonstrate that the Agency’s
explanation is pretext intended to hide discriminatory motivation. Thus, we find that
Complainant has failed to establish that she was discriminated against with regard to claim (1).

Harassment

Complainant claims that she was subjected to harassment by a management official and
coworkers. To establish this claim, 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). In determining that a working environment is hostile, factors to consider are the
frequency of the alleged discriminatory conduct, its severity, whether it is physically
threatening or humiliating, and if it unreasonably interferes with an employee’s work
performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC
Enforcement Guidance at 6 (March 8, 1994).

The alleged incidents of harassment referenced in the record include the District Commander
displaying a lack of professionalism and tact with regard to how he looked at Complainant
when he walked past her office and Complainant’s belief that the District Commander
addressed email messages she thought she should address; an occasion where two coworkers
were engaged in a loud and aggressive dialogue although Complainant acknowledged she was
not in the office that day; the Management and Program Analyst’s interference with
Complainant’s work caused a delay in some of her projects; the professional relationships and
rapport that she was trying to establish were tainted by the Management and Program
Analyst’s actions; and during a detail the Management and Program Analyst continued to make
excuses for not properly providing Complainant with critical information that was necessary
for her to successfully perform her duties.

Upon review of the record, we find no reasonable basis to conclude that Complainant was
subjected to a hostile work environment, as she has not established that any of the alleged
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Agency actions were severe or pervasive such that a legally hostile work environment existed.
Moreover, we observe that Complainant’s Supervisor stated that she addressed Complainant’s
concerns about the District Commander with her Supervisor, she advised Complainant on how
to act around the District Commander, and she informed the District Commander about the
argument in the office between two employees. The Supervisor further stated that she
addressed Complainant’s concerns about the Management and Program Analyst by no longer
including the Management and Program Analyst in email messages about space planning and
by sending an email to all employees notifying them that Complainant was the point of contact
for the region Information System Security Officer and space planning needs. According to
the Supervisor, Complainant was able to perform the Information System Security Officer and
space planning duties with training and assistance from the Management and Program Analyst
and others.

The Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc.,
510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar.
3, 1994). Complainant has not shown how any of the Agency’s actions were based on her
protected bases. The record reflects that the alleged incidents were more likely the result of
routine supervision, personality conflicts, and general workplace disputes and tribulations.
Accordingly, the Commission finds that Complainant was not subjected to a discriminatory or
retaliatory hostile work environment as alleged.

CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
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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
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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 18, 2017
Date