0120152737
12-29-2017
Marti F.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Executive Office of the U.S. Attorneys), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marti F.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Executive Office of the U.S. Attorneys),
Agency.
Appeal No. 0120152737
Agency No. USA201200765
DECISION
On August 21, 2015, 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 July 18, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are: (1) whether Complainant established that the Agency's proffered explanation for its actions was pretext to mask discrimination based on race (African-American) and reprisal for engaging in prior EEO activity; and (2) whether Complainant established that she was subjected to hostile work environment harassment.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Superior Court Division Liaison and Operations Manager at the Agency's Office of the U.S. Attorney facility in Washington, D.C. Her immediate supervisor was M-1, the Deputy Chief of the Superior Court. Her second level supervisor was M-2, the Superior Court Division Chief. Complainant filed a formal EEO complaint alleging that she was subjected to hostile work environment harassment based on retaliation for engaging in prior EEO activity when:
1. On or about March 16, 2012, management officials interfered with, and undermined her supervisory authority by assigning B-1, her subordinate, to review and approve two vacancy announcements;
2. Management delayed issuing her 2011 annual performance appraisal;
3. B-1 instructed C-1, a Criminal Investigator, and C-2, an Intelligence Analyst Unit investigator, not to share information with her;
4. M-1 assigned her "clerical" responsibilities;
Complainant also alleged that she was subjected to hostile work environment harassment based on race (black) and retaliation (prior EEO activity) when:
5. Management withheld information and did not involve her in the vacancy announcement for Criminal Investigator and Intelligence Analyst positions in the CIIU);
6. M-1 and M-2 instructed her not to participate in interviews for the Investigative Analyst position in her unit; and
7. M-2 changed the CIIU staffing level from the CIIU to the Homicide Section without giving Complainant prior notice.
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. In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
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").
With regard to claim 1, Complainant stated that on March 26, 2012, she returned to work after being on leave for three weeks. Complainant said she met with M-1 and M-2 to discuss office matters that she missed while she was away. Complainant claimed that neither M-1 or M-2 informed her that the office had been granted exemptions to hire a Criminal Investigator and an Investigative Analyst. Complainant also was not told that vacancy announcements had been approved and posted during her absence. Prior to 2012, Complainant had participated in preparing the position descriptions and vacancy announcements for the Criminal Investigator position. Complainant stated that, on March 26, 2012, the day she returned to work, B-1, who she supervised, reviewed and approved the vacancy announcements that were posted on April 12, 2012. Complainant stated that B-1 worked on the vacancies in her absence.
M-2 denied that his decision not to consult Complainant was related to her prior EEO activity. He stated that in the past, Human Resources created very generic Criminal Investigator vacancy announcements that did not attract qualified applicants with the specific skills and talents that they were seeking. He cited four reasons for assigning B-1 rather than Complainant to work with Human Resources to develop the vacancy announcements. They were: (1) B-1 was a Supervisory Investigator with extensive experience in law enforcement and therefore, more knowledgeable than Complainant about the qualifications they were seeking in the applicants; (2) Complainant had previously failed to produce a vacancy announcement for the Criminal Investigator position in 2008; (3) the Criminal Investigator would be supervised by B-1 and others; therefore, Complainant had no direct supervisory authority over either position; and (4) the vacancies had to be filled very quickly and Complainant was unavailable during much of the time that the announcements were being developed and reviewed.
With regard to claim 2, Complainant asserted that her rating official, M-1, and her reviewing official, M-2, failed to provide her with a timely performance appraisal for the 2011 rating period. Complainant stated that the Human Resources Officer sent managers a memorandum directing them to complete the 2011 reviews by February 14, 2012. The date was later extended to April 30, 2012. M-1 and M-2 did not complete Complainant's appraisal until May 1, 2012.
M-1 explained that her office has 140 plus attorneys and that she personally rated or reviewed about 85 people. M-1 stated that she was late with some evaluations because of the volume that she had to complete or review. She stated that she was late with other employees' evaluation's along with Complainant's. M-2 stated that it was not unusual for the evaluations to be delayed because of the volume of evaluations that he and M-1 had to complete while also tending to their day to day duties as supervisors. He stated that any delay in the issuance of Complainant's 2011 evaluation had had nothing to do with her EEO activities.
With respect to claim 3, C-1, an employee who was supervised by B-1, informed Complainant of a security violation without first speaking to B-1 about the matter. Brophy stated that he was upset that C-1 had gone "outside the chain of command" by telling Complainant about the security breach before he, B-1, had a chance to remedy the situation. B-1 denied telling C-1 or any other Investigator that they should not share information with Complainant. He stated that he told his Investigators that they should bring any problems to him for discussion before going to Complainant. B-1 denied that Complainant's prior EEO activity played any role here.2
With respect to claim 4, Complainant stated that M-1 emailed her on October 25, 2012, that she would be forwarded the lists of hearings on halfway house remand cases so that she could notify the appropriate section and/or Assistant U.S. Attorney (AUSA). Complainant stated the assignment was to take the information in the notice (i.e., name of the defendant, case number and hearing date), look in the case management system to find the AUSA assigned to the case, and send an e-mail to that AUSA informing him or her of the hearing date for the remand. Complainant asserted that the assignment was clerical in nature and not in her position description. Complainant stated that the lower graded legal assistants or M-1's secretary could have handled the halfway house remand case notifications. Complainant stated that she was not treated or recognized as a manager. Complainant claimed that M-1 assigned her the halfway house remand case task in retaliation because M-1 was interviewed by the EEO Counselor in Complainant's case the day before, on October 24, 2012. Complainant stated the halfway house remand cases took five to seven minutes to complete. Complainant acknowledged that M-1 assigned her other tasks she considered clerical prior to engaging in EEO activity, such as the "GunStat" cases assigned to her in 2009 and seized vehicle cases assigned to her in January 2012.
M-1 stated that she did not consider the assignment of the halfway house remand case notifications to be clerical in nature. M-1 explained that for several months she handled the notifications herself and did not forward the emails to Complainant. M-1 stated that she wanted Complainant to assume the responsibility of making sure that there was coverage at the hearings because in the past AUSAs did not appear for the hearings. M-1 stated that Complainant never complained to her about the assignment. M-1 stated that the "GunStat" responsibilities, which started in 2008, were assigned only periodically to Complainant. M-1 stated she did not consider the "GunStat" duty to be a clerical duty. M-2 stated he did not know of any clerical responsibilities that were assigned to Complainant.
With regard to claim 5, Complainant claimed that management did not involve her in creating the vacancy announcements for the Criminal Investigator and Intelligence Analyst positions in the CIIU. Complainant stated that the July 2012 vacancies were the same as those advertised in March of 2012, but were not filled then. Complainant stated that the March 2012 announcements had been cancelled because managers were not satisfied with the applications they received in response to the vacancy announcements. Complainant stated that on May 11, 2012, she, B-1 and others were informed by Human Resources that they would have to wait 90 days before the positions could be reposted. Complainant stated that she did not hear anything else about the vacancy announcements until July17, 2012, when Human Resources told her that the vacancy announcements for those positions had been sent that morning. Complainant stated that she was not told that the positions were being reviewed for re-advertisement, the contents of the vacancy announcements, or whether the criteria had changed. Complainant stated that she was left out of the loop and was just a manager on paper. She maintained that all of the actions were evidence of retaliatory harassment for her prior EEO action in 2010. Complainant stated that the harassment was based on race discrimination because the management officials leaving her out of the vacancy announcement process - M-2, B-1, and another manager - were all white men and she is Black.
M-2 denied withholding any information from Complainant regarding the vacancy announcements. M-2 stated that he was told that he needed to get the vacant positions filled quickly. M-2 stated that once the criteria had been established for the Criminal Investigator and Investigative Analyst positions, management had to move very quickly and during this time, Complainant was "not around a lot." According to M-2, he "probably would have explained [that] to her had [he] seen her." M-2 stated that he had intended to involve Complainant in the interview process for the Criminal Investigator position, since she would have supervised the selectee, but the Investigative Analyst position had nothing to do with Complainant's section, thus, she would not have been involved in the selection process for it. M-2 stated that the Investigative Analyst position was in the Homicide section involving gang prosecutions.
Regarding claim 6, Complainant stated that on or about September 7, 2012, M-2 and M-1 instructed her not to participate in interviews for the Investigative Analyst position in the CIIU. Complainant stated that she had previously received an email from M-1 dated September 4, 2012, informing her that she would be on the interview panel for the Investigative Analyst position.
M-2 stated that he believed he told M-1 by telephone that there was no reason for Complainant to be involved in the interview for the Investigative Analyst position, because the selectee would not report to Complainant. M-2 stated that he did not talk to Complainant about the matter. M- and would not tell a supervisor that he or she could not participate in the interviews of a subordinate position. He explained that he would always want the supervisor of the position to be on the interview panel. He stated that neither Complainant's race nor her prior EEO activity were factors in the decision not to have her participate in the Investigative Analyst interviews.
Regarding claim 7, Complainant stated that during a meeting on October 1, 2012, M-2 stated that he had been granted approval to hire a second Investigator for the CIIU. Complainant indicated that B-1 was also present at the meeting and that M-2 asked Complainant and B-1 if there was an applicant that they were interested in extending an offer to from the interviews that had been conducted. Complainant stated that M-2 informed her during that meeting that the Investigative Analyst position was being moved "permanently" to the Homicide Section to assist with cold case investigations. Complainant alleged that removing the Investigative Analyst position without first notifying her was retaliatory harassment for her EEO activity in 2010. Complainant believed that the staffing change was based on her race and prior EEO activity because, although M-2 explained to Complainant why the Investigative Analyst vacancy was being moved to the Homicide Section in October 2012, the position was not moved until after March 18, 2013, when M-2 provided a sworn statement in her complaint.
M-2 explained that the CIIU received two Criminal Investigator positions in lieu of the Analyst position. M-2 further explained that "there was nothing permanent about any change because the number of people in the office was "always in flux." M-2 indicated that there was no reduction at all to Complainant's section, nor did it affect her grade. He stated that the decision regarding where the Analyst position went was based on the needs of the Homicide Section which needed help "in the gang intelligence arena." M-2 stated that he has often moved a position from one section to another "because the needs of the of the office prevail."
DISPARATE TREATMENT
To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially 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, 441 U.S. at 804 n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
For purposes of this decision, we will assume that Complainant established a prima facie case of discrimination based on race and reprisal with respect to all seven (7) of her claims. Moreover, we find that the Agency articulated legitimate, non-discriminatory reasons for its actions as set forth above. Finally, we find no persuasive evidence of pretext. We simply find no evidence that that would lead a reasonable factfinder to conclude that Complainant's race and/or prior EEO activity were factors in the Agency's actions.
With respect to Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's FAD.
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. 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
_12/29/17_________________
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 During a meeting on the matter involving Complainant, B-1 and the other investigators, Complainant was asked to leave at one point by one of the participants. Because B-1 did not intervene on her behalf, Complainant felt he undermined her authority and sent a message to the investigators that they should not talk to her.
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