[Redacted], Melinda S., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 9, 2022

Appeal No. 2022001656 (E.E.O.C. Nov. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melinda S.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2022001656 Agency No. 21-0030-HQ-TT DECISION On February 5, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 24, 2021 final decision 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 relevant time, Complainant worked as a Senior Policy Advisor, GS-15, at the Agency's Office of Technology Transitions (OTT) in Washington, D.C. On June 24, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment based on sex (female) and in reprisal for prior EEO activity when: 1. On or about April 13, 2021, the Principal Deputy Director, Office of Technology Transitions, and Complainant’s first-line supervisor, denied her request to participate in a detail at the National Science Foundation; and 2. On or about April 16, 2021, the Principal Deputy Director issued Complainant a written reprimand via email. 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. 2022001656 2 After an investigation into her complaint, Complainant was provided with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on January 24, 2021, pursuant to 29 C.F.R. 1614.110(b), finding no discrimination or unlawful retaliation was established. The instant appeal followed. ANALYSIS AND FINDINGS 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). 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, as here, 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). Complainant identified a prior EEO complaint, Complaint No. DOE-20-0068-HQ-TT, as the basis of her claim of retaliation. Complainant’s direct supervisor, the Principal Deputy Director (“Deputy Director”) (male) stated that he was aware of this complaint in late December 2020, about four months prior to the events at issue. However, after careful review of the evidence of record, we determine that the responsible Agency management officials articulated legitimate, non-discriminatory reasons for taking the disputed actions that form the basis of the current complaint. 2022001656 3 Regarding claim 1, the Deputy Director (male) stated that on April 12, 2021, Complainant requested to participate in a detail to the National Science Foundation. The Deputy Director replied to Complainant’s request via email on April 13, 2021, indicating that the office would need to identify a backfill for her position and that the organization to which she would potentially be detailed to would need to reimburse the Agency office for Complainant’s costs while she was on detail. The Deputy Director categorically rejected the claim that Complainant’s detail request was denied. In his email response on April 13, 2021, the Deputy Director instead indicated that he already had some ideas in mind for how to make the detail work, including an option for a backfill for Complainant. The Deputy Director stated that in another email, sent on April 16, 2021, he stated that he was willing to support the detail to another agency, but the detail schedule had to be timed for both Complainant and the office so that important mission work was not left unattended. The Deputy Director stated, however, that Complainant never replied to his email on April 16, 2021, requesting further information from her in order to have a productive conversation about a potential detail to the National Science Foundation. The Deputy Director stated that he scheduled a meeting with Complainant on April 28, 2021, but canceled the meeting since there had been no response from Complainant and she continued to be out on leave. The Deputy Director stated that Complainant has been on extended sick leave through the present day. Regarding claim 2, the Deputy Director explained that he sent Complainant an email on April 7, 2021, titled “FLC mtg conflict with TTEP mtg you set up,” to disapprove of Complainant’s behavior when she pulled out of a previously scheduled meeting (scheduled over a week in advance) just two minutes prior to the meeting’s scheduled start time. The Deputy Director noted that in the email, Complainant had done this on multiple prior occasions. The Deputy Director determined that it was unacceptable. With respect to Complainant’s assertion that the Deputy Director’s April 16, 2021 email was a written reprimand, the Deputy Director stated that a formal written reprimand was never issued. Specifically, the Deputy Director stated that such an action would have required the involvement of the personnel department and would have been documented clearly as a formal reprimand and included in Complainant’s personnel file. After careful review of the evidence of record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by management for the disputed actions were a pretext designed to mask discriminatory or retaliatory motives. There is simply no evidence to support a finding that Complainant’s sex or unlawful retaliatory animus played any role whatsoever in the disputed matters. Finally, we note that for the first time on appeal, Complainant argues that the alleged discriminatory actions have resulted in her constructive discharge from Agency employment. A constructive discharge claim was not part of her EEO complaint and has not been investigated. 2022001656 4 Complainant is advised to contact an Agency EEO Counselor if she wishes to further pursue this new claim. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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, a 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. 2022001656 5 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). 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 November 9, 2022 Date