U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
* * * BEATRIZ P.1 COMPLAINANT,
v.
JEH JOHNSON, SECRETARY, DEPARTMENT OF HOMELAND SECURITY (FEDERAL EMERGENCY MANAGEMENT AGENCY), AGENCY.
Appeal No.
0120131313
Hearing No. 520-2011-00342X
Agency No. HS-10-FEMA-00061
November 19, 2015
 
DECISION
 
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's January 2, 2013 final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission's review is de novo. For the following reasons, the Commission AFFIRMS the final order.
  
BACKGROUND
 
At the time of events giving rise to this complaint, Complainant worked as an Emergency Management Specialist at the Agency's Region I, Individual Assistance Branch in Boston, Massachusetts. On August 17, 2009, Complainant and a co-worker (CW1) called a meeting with another co-worker (CW2) to address issues relating to a workgroup. During the meeting, Complainant and CW1 confronted CW2 regarding a leadership issue within the workgroup. The meeting became hostile because CW2 felt he was being ganged up on. After Complainant left the meeting room, CW2 told CW1, "[i]f we are ever on a disaster and I'm the Branch Director and [Complainant's] there to run a program, she better know what she's doing." CW1 later told Complainant what CW2 had said after she left the meeting and Complainant perceived it as a threat. On or about August 19 2009, Complainant informed her first-level
supervisor (S1) about the conversation with CW1, and indicated that CW2 had threatened her. S1 responded that she would speak to CW2 about it. S1 spoke with CW2 about the situation and concluded that CW2's comment was not threatening.
 
On October 1, 2009, Complainant's third-level supervisor (S3) held a meeting so that everyone could clear the air. During the meeting, both parties were given a chance to express their concerns. CW2 apologized for any misunderstanding and said his words were taken out of context. Complainant accepted CW2's apology and even agreed to go to lunch with CW2 to "smooth things over."
 
On October 9, 2009, Complainant filed an Incident Report Memo regarding the incident with her second-level manager (S2), S3, CW1, and CW2. In the Incident Report Memo, Complainant restated the events leading up to the October 1, 2009 meeting, and complained about management's handling of what she now believed was a physical threat. Complainant further complained about CW2's lack of teamwork and communication skills. In addition, Complainant quoted from a Letter of Reprimand given to a co-worker for threatening behavior against another co-worker. Complainant claimed that she discovered the Letter of Reprimand on the copy machine and made a copy of it for her files.
 
On October 21, 2009, S1 indicated to Complainant in an email that there was no need for the Emergency Support Function 6 (ESF-6) workgroup. S1 explained that the purpose of the workgroup was to facilitate the completion of the revision of the Mass Care Annex, which was in its final draft phase. Complainant experienced no change in pay, title, or duties as a result of the termination of the workgroup.
 
On January 21, 2010, S3 approached Complainant in the hallway and said in a loud voice "I understand you had a conversation with [the Regional Administrator]...COREs cannot deploy." The conversation was about emails Complainant sent to the Regional Administrator questioning why she could not be deployed to Haiti. S3 informed Complainant that she could not be deployed because Stafford Act (CORE) employees could only be deployed to Presidentially-declared disasters, not international disasters.
 
On February 2, 2010, S2 met with Complainant in his office. During the meeting, S2 spoke to Complainant about quoting from her co-worker's Letter of Reprimand in her October 9, 2009 Memo. S2 informed Complainant that the Letter of Reprimand contained confidential information which Complainant disseminated to other staff and co-workers and that similar conduct should not be repeated.
 
On February 19, 2010, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), age (over 40), and in reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia, she was threatened by one of her co-workers and management officials failed to take her hostile work environment complaint seriously; a management official notified her that she would no longer participate in a project workgroup; a management official spoke to her in a hostile manner in front of another co-worker; and a management official called her into his office to admonish her for quoting from another employee's reprimand.
 
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on January 2, 2013.
 
In the decision, the AJ determined that Complainant failed to show the alleged incidents were based on discriminatory or retaliatory animus. Specifically, regarding the workgroup, S1 stated that she discontinued the ESF-6 workgroup because the need for it no longer existed as it was in its final phase. With respect to the claim that S3 spoke to her in a hostile manner in front of another co-worker, the record established that Complainant wanted to deploy to Haiti, but she could not because she was a Stafford Act (CORE) employee. Stafford Act employees could only be deployed to Presidentially-declared disasters, not international disasters. Complainant sought an additional explanation from the Regional Administrator, which prompted the discussion with S3. As to S2's admonishment for her use of another employee's reprimand, S2 told Complainant that it was not appropriate to quote from a confidential letter in a document she disseminated to other staff. Complainant did not deny that she quoted from the confidential letter.
 
With respect to the incident with CW2, Complainant complained to S1 that she believed that CW2 had threatened her. S1 informed Complainant that she would speak to CW2 about it. S1 then discussed the matter with both CW1 and CW2, and concluded that CW2's comments were not a threat. S3 held a meeting with Complainant, S1, CW1, and CW2 to clear the air. The record indicates that the meeting was cordial and Complainant accepted CW2's apology. In addition, Complainant agreed to go to lunch with CW2 to smooth things over. Thus, the AJ found that, even assuming that the alleged incidents were sufficiently severe or pervasive to establish a hostile work environment, the Agency took prompt and effective corrective action. As a result, the AJ found that Complainant had not been subjected to a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ's decision. The instant appeal followed.
  
CONTENTIONS ON APPEAL
 
On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the Agency as material facts remain in dispute and the AJ impermissibly weighed evidence. Complainant argues that she has established that she was subjected to a retaliatory and discriminatory harassment as demonstrated by numerous incidents. Complainant alleges that the harassment interfered with her ability to do her job and that the many examples show that the pattern of harassment was severe and pervasive. Further, Complainant claims that the Agency did not take prompt effective action in response to her complaint of harassment and her fears for her personal safety were not taken seriously. Accordingly, Complainant requests that the Commission reverse the final order.
  
ANALYSIS AND FINDINGS
 
Initially, we note that while the matter was before the AJ, Complainant filed a motion to amend her complaint to add approximately 200 additional issues. The AJ denied the motion, but determined that some claims would be considered as background information for Complainant's overall hostile work environment. On appeal, Complainant challenges the AJ's decision to deny her motion to amend and alleges that the AJ failed to correct the Agency's numerous processing errors during the investigation. EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings, including whether to accept additional claims. See 29 C.F.R. § 1614.109. The Commission has reviewed the documentary evidence in the record and finds no evidence that the AJ abused her discretion in any of her rulings, including denying Complainant's motion to amend her complaint to include additional claims. Likewise, despite Complainant's appellate arguments, the Commission finds that the Agency conducted an adequate and proper investigation of the instant complaint.
 
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect the outcome of the case.
 
To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
 
Therefore, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a ""reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis (in this case, sex, age, or prior protected activity). Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself.
 
In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Here, Complainant alleged that based on her protected classes, she was subjected to a hostile work environment as evidenced by multiple incidents. Construing the evidence in the light most favorable to Complainant, the Commission agrees with the AJ that Complainant has not shown she was subjected to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations.
 
Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. For example, S1 explained that Complainant's involvement in the ESF-6 workgroup ended because there was no longer a need for the workgroup. ROI, Tab F-11B, at 47-48. The purpose of the workgroup had been to facilitate the completion of the revision of the Mass Care Annex, which had then reached its final draft phase. Id. There is no evidence that the workgroup continued without Complainant's participation. With respect to her claim that S3 spoke to her in a hostile manner, the record indicates that Complainant wanted to deploy to Haiti and had been informed by S1 that she was not eligible. Complainant sought further explanation and sent emails to the Regional Administrator questioning why she could not deploy. ROI, Tab F-1, at 14. As a result, S3 approached Complainant and explained that she could not deploy to Haiti because she was a Stafford Act employee (CORE) and Stafford Act employees could only be deployed to Presidential disasters, not international disasters. Finally, S2 met with Complainant and admonished her for quoting from another employee's reprimand and disseminating confidential information to other staff and co-workers. ROI, Tab F-4, at 26-27.
 
Further, the Commission concurs with the AJ's determination that the Agency took prompt and effective action upon Complainant's report of the incident with CW2. The record reveals that S1 spoke to CW1 and CW2 after Complainant reported feeling threatened by CW2's comments. ROI, Tab F-2, at 8. After speaking with all three parties, S1 concluded that CW2's comments were not a threat. Nonetheless, S3 subsequently called a meeting for all parties to clear the air. During the meeting, CW2 apologized to Complainant and explained that he never meant his comments to be a threat. ROI, Tab F-5, at 3; ROI, Tab F-1, at 10. There is no evidence that any similar conduct occurred. Thus, nothing in the record shows that the Agency's corrective actions were insufficient or inappropriate. Accordingly, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged.
  
CONCLUSION
 
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final order, because the Administrative Judge's issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred.
  
STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815)
 
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 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, P.O. Box 77960, Washington, DC 20013. 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
Director
Office of Federal Operations
Footnotes

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.