Celeste P.,1 Complainant,v.John F. Lansing, Director, Broadcasting Board of Governors, Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

0120170450 (E.E.O.C. Feb. 5, 2019)

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

Celeste P.,1
Complainant,

v.

John F. Lansing,
Director,
Broadcasting Board of Governors,
Agency.

Appeal No. 0120170450

Hearing No. 570-2014-00577X

Agency No. OCR1313

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 7, 2016,
final order concerning an equal employment opportunity (EEO) complaint claiming employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq.

BACKGROUND

During the period at issue, Complainant worked as a Budget Office Director, GS-15, at the
Agency’s Office of the Chief Financial Officer (“OCFO”) in Washington, District of Columbia.

On August 28, 2013, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against her based on race (black), national origin (African-American), and
color (not specified) when:

1. beginning on November 2012, Complainant was subjected to unfair acts to which
similarly situated employees who previously held her position were not subjected,
which included:

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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a) having Complainant’s workload increase dramatically;

b) having Complainant’s staff systematically reduced (several positions were
removed);

c) Complainant was not allowed to hire a Deputy;

d) Complainant had pieces of her budget segregated from her control;

e) key functions were removed and given to a Caucasian female with no
budget formulation experience;

f) Complainant continuously received harassing emails; and

g) on July 3, 2012, Complainant was accused of committing an anti-
deficiency based on a single person’s allegation, which proved to be
incorrect, but supported a demanding and hostile work environment

and the Agency discriminated against Complainant and subjected her to a hostile work
environment based on her race, color, national origin, and reprisal for prior protected EEO
activity when:

2. on July 25, 2013, Complainant was placed on administrative leave pending an
investigation into allegations of failure to follow supervisory orders and improper
conduct and publicly escorted Complainant out of the building and humiliated her
in the presence of her staff and other Agency personnel.

After an 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 timely requested a hearing.
The Agency moved for a decision without a hearing. On September 27, 2016, the AJ issued a
decision by summary judgment, over Complainant’s objection, in favor of the Agency.

On October 7, 2016, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.

The instant appeal followed. On appeal, Complainant argues, through counsel, that the record
supports a finding that the Agency discriminated against Complainant and subjected her to a
hostile work environment. Complainant further argues that the AJ erred in finding no genuine
issues of material fact.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has been adequately
developed for summary disposition.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail,
he or she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we agree with the AJ’s finding that the Agency articulated legitimate non-discriminatory
reasons for its actions. The Deputy Director (white, Celtic/Ukrainian) testified that
Complainant’s workload increased because the Chief Financial Officer (“CFO”) left the Agency
in November 2012, and the candidate selected to fill this vacancy declined in February 2013,
which further delayed the process for filling this vacancy. The Deputy Director explained that
the prior CFO was “very ‘hands-on,’ and took a direct hand in many detailed elements of the
OCFO’s work.” The Deputy Director further explained that sequestration and Agency efforts to
avoid furloughing employees also attributed to increased workloads for all employees and left 40
administrative Agency-wide vacancies unfilled.

The Deputy Director further testified that the Director of Communications and External
Relations determined that it was beneficial for the Agency to establish a single point of contact
(Congressional Coordinator) for the Agency with parties on Capitol Hill. The Deputy Director
explained that this approach “permitted consistency is messaging and communication with the
Hill” and was a “standard practice” at other federal agencies. The Deputy Director further stated
that the Congressional Coordinator was not a budget expert, but was a communications expert.

The Chief of Staff (Caucasian, white, American) testified that many responsibilities fell on
Complainant after the CFO’s departure because Complainant was one of the two most senior
managers in the office. The Chief of Staff also explained that the Director had the final say on
the filling of positions and did not recall moving any positions or preventing Complainant from
hiring a team lead. The Chief of Staff clarified that two staff members were reassigned at the
direction of the Office of Strategy and Development (“OSD”). The Chief of Staff further
clarified that she reported a possible Anti-Deficiency Act (“ADA”) violation based on her
interpretation of relevant Office of Management and Budget (“OMB”) policies and given that
OMB approved apportionment of $90,100,000 but the Agency signed a grant obligation
exceeding that amount for $91,576,000.

Regarding claim 2, the Deputy Director explained that he reviewed “extensive” files and emails
with the Agency’s HR department and the Office of General Counsel.

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Together, they determined that a fuller investigation was warranted regarding Complainant’s
conduct toward her supervisor and further determined that the investigation would be more
easily conducted while Complainant was on leave. Specifically, The Deputy Director stated that
he found Complainant’s “tone and/or content was not appropriate especially for a high-level
manager.” However, the Budget Director testified that Complainant resigned before the Agency
investigation completed.

The Chief of Staff stated that the Deputy CFO presented evidence that “of numerous instances
where [Complainant] failed to follow instructions or had otherwise not been responsive to the
Deputy CFO’s requests.”

The Deputy CFO (Caucasian, American) testified that she was not involved with the decision to
place Complainant on administrative leave, but she was in communication with HR about
Complainant’s conduct issues and provided HR copies of the emails addressing these concerns.

The record includes a copy of a March 1, 2013 letter where the Deputy Director and the Chief of
Staff address their concerns regarding Complainant’s “unconstructive interaction with colleagues
inside and outside the CFO organization.”

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on her race, color, national origin, and reprisal for prior
protected EEO activity.

Hostile Work Environment

To establish a claim of discriminatory hostile environment harassment, Complainant must show
that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and
(5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, to prove her harassment claim, Complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected basis – in this case, her race,
color, national origin, and reprisal for prior protected EEO activity. Only if Complainant
establishes both of those elements – hostility and motive – will the question of Agency liability
present itself. Here, as discussed below, Complainant simply has provided inadequate evidence
to support her claim that her treatment was the result of her race, color, national origin, and
reprisal for prior protected EEO activity.
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As discussed above, we found that Complainant did not establish a case of discrimination on any
of his alleged bases. Further, we conclude that a case of harassment is precluded based on our
finding that Complainant failed to establish that any of the actions taken by the Agency were
motivated by Complainant’s raised bases. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

The Administrative Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that discrimination occurred.
Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is
AFFIRMED.

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.
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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

February 5, 2019___
Date