Kim V.,1 Complainant,v.James F. Bridenstine, Administrator, National Aeronautics and Space Administration (Goddard Space Flight Center), Agency.

Equal Employment Opportunity Commission

Oct 6, 2020

2019005048 (E.E.O.C. Oct. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kim V.,1 Complainant, v. James F. Bridenstine, Administrator, National Aeronautics and Space Administration (Goddard Space Flight Center), Agency. Appeal No. 2019005048 Agency Nos. NCN-15-GSFC-00027, NCN-15-GSFC-00059 DECISION 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 June 26, 2019 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. 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 Contract Specialist, GS-1102-09, at the Agency’s Goddard Space Flight Center in Greenbelt, Maryland. On April 29, 2015, Complainant filed an EEO complaint (Complaint 1 - Agency No. NCN-15- GSFC-00027) alleging that the Agency discriminated against her on the bases of race (African- American), disability, age (59), and in reprisal for prior protected EEO activity 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. 2019005048 2 1. on September 19, 2013, Complainant’s supervisor (S1) wrongly accused Complainant of not completing an assigned task in a timely manner, and created a ruse to make it appear to others that Complainant was untimely with the assignment; 2. on September 19, 2013, Complainant’s supervisor revoked Complainant’s telework privileges; 3. on May 21, 2014, Complainant’s supervisor placed Complainant on a Performance Improvement Plan (PIP); 4. on January 28, 2015, S1 informed Complainant that she did not satisfy the PIP; and 5. beginning March 2015, S1 was inaccessible to discuss Complainant’s work assignments because of S1’s fluctuating telework and leave schedule. The Agency dismissed Complaint 1 on the grounds Complainant failed to participate in the investigation process. Complainant appealed the dismissal to the Commission. While her appeal was pending, Complainant filed a second formal complaint (Complaint 2 - Agency No. NCN-15- GSFC-00059) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), disability, age (59), and in reprisal for prior protected EEO activity when:2 6. effective June 28, 2015, management reassigned Complainant from the Procurement Operations Division (Code 210) to the Office of Mission Enabling Program (Code 210M), where she was downgraded from a GS-12 to a GS-9 position; and 7. on an unspecified date, Complainant received a negative mid-year performance evaluation review. On January 5, 2016, the Commission reversed the Agency’s decision on Complaint 1 and remanded the matter for processing. Ludie M. v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 0120152861. The Agency consolidated Complaints 1 and 2 for investigation. During the investigation of her consolidated complaint, Complainant did not answer many of the questions posed to her by the investigator except to say that she knows she has a disability. However, Complainant did not identify the disability, how she is limited by the disability, or how it resulted in discrimination. According to the Counselor’s Report, Complainant claimed, as to Claim (1), that S1 was in her office on September 13, 2013, and asked about an invoice that Complainant was assigned to process. S1 told Complainant she had already reassigned the invoice to another contract specialist to complete. Complainant said she did not understand why the invoice was reassigned because she was ready to process it but was waiting for additional information. 2 For ease of reference, we continue the claim numbering convention through to Complaint 2. 2019005048 3 In an affidavit, S1 detailed a situation where Complainant had been assigned to review a contractor’s proposal in mid-February 2013. The final action had to be issued by the end of April 2013. On April 22, 2013, S1 directed Complainant to submit a package to her by the next day. On April 24, 2013, Complainant said the package was still not ready. S1 then pulled the package from Complainant and assigned it to another employee. When S1 reviewed the package, she noticed that Complainant had performed no work on it, despite having two months. S1 further identified three other situations, including an incentive fee invoice that was due September 20, 2013. Complainant had submitted an incomplete package the day prior to the deadline despite having the package for nearly a month. On Claim (2), Complainant claimed that S1 sent her an email revoking her telework privileges. Complainant stated that she asked S1 why because she had never abused her telework privileges. S1 indicated to Complainant that her telework privileges were being revoked because did not meet her deliverables, Complainant asserted that she had legitimate reasons for the delay and always communicated these reasons to S1. S1 articulated two reasons for revoking Complainant’s telework privileges. S1 had allowed Complainant to telework in order to complete a project, but she did not complete it. Complainant also teleworked on unscheduled days without permission. S1 asserted that she has not revoked any other employee’s telework privileges because other employees do not abuse the privilege and provide their work products in a timely fashion. As with Claim (3), Complainant disagreed with being placed on a PIP because she believed she had always communicated explanations for any issues that arose, and that S1 did not give her enough time to improve her performance before placing her on the PIP. When S1 determined that Complainant failed the PIP, as alleged in Claim (4), Complainant reiterated that S1 did not give her time to improve prior to the PIP and that S1, through the PIP, was bullying her and setting her up to fail. S1 averred that Complainant’s performance during the first quarter of 2014 was at the “fails to meet expectations” level as a result of her failure to complete quality and timely work. S1 explained that the PIP contained specific timelines for projects that Complainant needed to complete. Complainant did not timely complete the projects. Although Complainant “improve[d] in processing some of her administrative actions . . . she continued to demonstrate an unacceptable level of quality and continued to fail to submit work products in a timely manner.” In Claim (5), Complainant contended she was unable to perform her tasks because S1 frequently takes leave from the office without providing adequate notice to Complainant. As a result, Complainant had difficulty finalizing work. S1 denied that she was ever inaccessible to Complainant. S1 explained that she typically teleworks on Fridays, can be reached by email, phone, and is online while on her computer. S1 also delegates authority if she is on leave and there is always a manager on duty who can provide assistance to her employees. Further, all of her employees have access to her calendar. 2019005048 4 The Director, Directorate of Management Operations was Complainant’s third-level supervisor (S3) acknowledged that Complainant complained about S1 being inaccessible. S3 said he asked Complainant if she tried to call, email, or reach out to S1 during that time. “Complainant said she did not because she thought [S1] was on leave. Complainant stated she would scan emails and send them to [S1] to review, and [S1] would respond back. I asked her why she would think then that [S1] was on leave since she was receiving a response. Complainant did not have a good response to that question.” Regarding Claim (6), Complainant claimed that as a result of the failed PIP, the Agency decided to demote Complainant to the GS-9 level and reassign her to the Office of Mission Enabling Program. Complainant asserted that these actions constituted reprisal for her prior EEO activity because, according to Complainant, there are no GS-9 positions anywhere in Procurement. Complainant’s second-line supervisor at the time, the Associate Director for Acquisitions within Management Operations Directorate (S2) said that she met with Complainant after Complainant failed the PIP and offered to move Complainant to the position of Industrial Property Specialist, which would allow Complainant to maintain her GS-12 status. Complainant rejected the offer. S3 affirmed that Complainant refused the lateral transfer. As a result, S2’s options were limited to termination, a downgrade, or a directed reassignment. S2 believed Complainant could still provide value to the Agency, so she did not want to terminate Complainant. After consultation with Human Resources, S2 concluded that a downgrade to the GS-9 level was an appropriate approach. S3 added that Complainant failed the PIP because she would frequently provide drafts by the deadlines instead of final versions. The Notice of Decision to downgrade Complainant detailed the critical elements that Complainant failed. S3 acknowledged Complainant’s response to the proposed decision to downgrade but concluded that Complainant’s performance did not meet requirements and rejected, as explained above, Complainant’s contention that S1 was not available to provide Complainant with feedback or assistance. Regarding Claim (7), Complainant discussed a desk audit with the EEO Counselor, not a mid-year performance evaluation. The record does contain a mid-year evaluation dated by the rating official on November 17, 2015. Therein, in the summary narrative, the rating official stated that Complainant was “encouraged to continue to develop her procurement expertise though on-the- job and formal training opportunities as well as contribute to the establishment of an effective working relationship with the Contracting Officer so there is a greater understanding of expectations and everyone is on the same page.” 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. 2019005048 5 The Agency first concluded that Complainant failed to establish a prima facie case of disability discrimination because she did not identify a disability or demonstrate any actions were taken because of her disability. The Agency found that there was no evidence that any of management’s actions were based on discriminatory animus. Further, Complainant did not establish a hostile work environment because, in addition to failing to demonstrate a connection to her protected basis, her allegations were neither severe or pervasive conduct. As a result, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONTENTIONS ON APPEAL On appeal, Complainant repeatedly requested extensions of time to submit a statement on appeal. The Commission granted Complainant one extension, until September 10, 2019, but she did not file a timely statement. Rather, in February 2020, Complainant submitted multiple documents dated prior to the Agency’s final decision with the exception of a December 10, 2019, document. Complainant does not, however, explain the significance of that document to the instant complaints. 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”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. 2019005048 6 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated legitimate, non-discriminatory reasons for its actions, as described above. S1 extensively documented Complainant’s inability to complete tasks in a timely, quality manner, which led to revocation of her telework privileges and placement on the PIP. Complainant did not improve her work during the PIP and therefore, failed it. When Complainant did not accept a lateral transfer, the Agency chose to demote her rather than terminate her. The Agency also demonstrated Complainant’s allegation that S1 was unavailable to be unfounded. Finally, with respect the mid-year evaluation, the record reveals that the rating official simply encouraged Complainant to continue to develop her skills through training and to work on improving her communication with the Contracting Officer to ensure everyone was on the same page. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden. Indeed, Complainant makes no argument in support of any of her positions, either during the investigation or on appeal. Accordingly, we find that Complainant has not established that she was subjected to discrimination or reprisal as alleged. Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably 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 Agency management were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2019005048 7 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 final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2019005048 8 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 October 6, 2020 Date