Roxane C.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

0120172944 (E.E.O.C. Feb. 8, 2019)

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

Roxane C.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120172944

Hearing No. 531-2016-00353X

Agency No. 15-0142-HQ-FE and 16-0005-HQ-FE

DECISION

On August 28, 2017, 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
August 2, 2017, 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., and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-15 Program
Analyst at the Agency’s Office of Fossil Energy (FE), Office of Management and Field
Operations facility in Germantown, Maryland.

Complainant has been in her current position since October 22, 2013. Her immediate supervisor
(“Supervisor 1”) (White, prior EEO activity as a named responsible management official) is the
Supervisory Management Analyst and her second line supervisor (“Manager”) (African-
American, prior EEO activity as a witness and named as a responsible management official) is
the Assistant Secretary.

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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Complainant indicated that in her position, she was the team lead for contract solicitation and
procurement for the FE office. She noted that this included solicitation of contracts from small
businesses pursuant to the Agency’s Small Business First Policy. On May 26, 2015,
Complainant learned that the Agency was holding a Small Business Conference. She contacted
the Coordinator (Coordinator 1) and confirmed that there was a slot available for Complainant to
attend. Complainant sent an email to Supervisor 1 asking to attend the conference. Complainant
asserted that in her position, she works with small businesses who want to pursue contracts with
the Agency. As such, she believed that the conference was related to her job. Supervisor 1
contacted another Coordinator (Coordinator 2) to discuss Complainant’s attendance at the
conference. Supervisor 1 responded in an email dated May 28, 2015, stating that the conference
was “locked” meaning that the Agency could not send any additional employees above those
already approved. Further, he indicated that all the FE slots were taken. In addition, he did not
see the benefit to her job since FE was not soliciting support contracts at this time. Complainant
disputed Supervisor 1’s assertions and noted that a college intern was allowed to attend the
conference and was supported by Coordinator 2. During this time, Complainant was also denied
her request for leave of eight hours.

Complainant was subsequently placed on a Performance Assessment Plan on June 18, 2015, and
on July 9, 2015, Complainant was removed from the Agency’s flexiplace program. Complainant
asserted that the removal from the flexiplace program was upon her return from vacation. She
asserted that the harassing action was taken by Supervisor 1 to cancel any joy she experienced
from her vacation. She noted that she was reassigned to a prior supervisor (Supervisor 2).
Supervisor 2 rescinded the PAP and restored her to the flexiplace program on September 16,
2015.

On September 20, 2015, Complainant filed an EEO complaint alleging that the Agency subjected
Complainant to a hostile work environment on the bases of race (African-American), sex
(female), color (dark-skinned), age (54), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. In
support of her claim of harassment, Complainant alleged that the following events occurred:

1. On May 4, 2015, management denied Complainant’s request to travel to the
Agency’s Small Business Conference.
2. On May 6, 2015, management denied Complainant’s request for eight hours of
annual leave.
3. On June 18, 2015, Complainant was issues a Performance Assessment Plan.
4. On July 9, 2015, Complainant was removed from participation in the Agency’s
Flexiplace program.
5. On October 4, 2015, Complainant was assigned the task of Conference Manager
for the Office of Fossil Energy.

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 (AJ). Complainant timely requested a hearing
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but subsequently withdrew her request. Consequently, 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.

This appeal followed. On appeal, Complainant’s attorney stated that Complainant was only
appealing the finding of no discrimination with regard to the bases of race and reprisal. As such,
we will only address those bases in the case at hand. The attorney also noted that Complainant
had two other appeals, namely EEOC Appeal Nos. 0120162423 and 0120170551. The attorney
requested that the appeals be addressed together. However, we note that the Commission has
already addressed the appeals. See Roxane G. v. Dep’t of Energy, EEOC Appeal No.
0120162423 (Nov. 17, 2017); Roxane G. v. Dep’t of Energy, EEOC Appeal No. 0120170551
(Aug. 24, 2018). As such, we cannot consolidate the appeals.

On appeal, Complainant argues that she has been subjected to harassment for years and that the
harassment has continued through changes in management and work locations. She argues that
the instant matter is only the most recent events which have created a hostile work environment.
As to claim (1), Complainant argues that the Supervisor first denied Complainant’s request to
attend the Conference by claiming that there was no space for her. Secondly, the Supervisor
argued that the Agency would not benefit from her attending the Conference. Complainant
asserted that the Agency’s action in claim (2) was retaliatory. Complainant also summarily
stated that claims (3) and (4) were additional hostile events and that the actions were reviewed by
the Agency’s Office of General Counsel. She speculated that the matter was reviewed in
anticipation of Complainant filing an EEO compliant. Further, Complainant noted that the
Agency reversed itself regarding claims (3) and (4). As such, the PAP was rescinded and
Complainant was restored to the flexiplace program when Supervisor 2 returned.

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”).

As an initial matter, based on a review of the Commission’s decision in EEOC Appeal No.
0120170551 (Aug. 24, 2018), we find that Complainant already raised claim (2) with the
Commission. Given that Complainant has raised her claims previously with the Commission,
the Commission finds that claim (2) should be dismissed pursuant to the doctrine of res judicata.
Accordingly, the Commission shall address Complainant’s claims of disparate treatment and
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harassment on the bases of race and retaliation regarding the events alleged as claims (1), (3),
(4), and (5).

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
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. 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, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, 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. St.
Mary’s Honor Ctr. 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 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 Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

As to the denial of travel to the conference alleged in claim (1), Supervisor 1 averred that the
Agency plans the conference some six to twelve months in advance. He noted that the Deputy
Secretary had authorized six employees to attend, namely four employees of the Agency and two
contractors. Supervisor 1 indicated that the Deputy Secretary received the request for the
employees to attend the Conference in January 2015 and approval was given on January 29,
2015. At the time Complainant requested to attend in May 26, 2015, all the FE spots had been
filled. The only way Complainant could have attended was if Complainant were to take a slot
from another office within the Agency. He further inquired about the Conference to assess the
benefit for Complainant if she attended. Supervisor1 asserted that Complainant’s position did
not provide for procurement, acquisition, or related dealings with small businesses. He
determined that Complainant’s attendance would not further the mission of the office and there
would be no benefit to the organization for approving Complainant’s request. As such,
Supervisor 1 did not pursue a spot from another Agency office and denied Complainant’s request
to attend the Small Business Conference.

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As for claim (3), Supervisor 1 stated that Complainant was reassigned to a new position effective
March 8, 2015. He noted that he, Complainant, and Human Resources engaged in months of
drafting of the position description. Due to updates in the system, Complainant’s performance
standards became effective March 26, 2015. Prior to that time, Supervisor1 asserted that he met
with Complainant about the specific assignments and deliverables. He monitored her
performance from March 30, 2015, through May 27, 2015. Supervisor 1 determined that
Complainant was not meeting her performance expectations for “Meets Expectations” level.
He wanted to notify Complainant that her performance had fallen short of expectations and
several specific performance deficiencies. As such, he issued the PAP on June 15, 2015.
Supervisor provided examples of Complainant’s failure to meet performance expectations. One
example was Complainant was instructed to complete the Contracting Officer's Technical
Representative (COR) Level 1 certification training by April 30, 2015. This certification is
required to perform the duties of Complainant's position. He noted that Complainant did not
enroll for the training until May 7, 2015. On May 8, 2015, she began the course and completed
the Introduction and Pre-Award sections. Complainant then proceeded to fail the Pre-Award
Exam three times in a matter of seven minutes. He indicated that the course stated that
participants were given three chances to pass. Complainant failed to take the time between the
attempts to study for the exam. She was also instructed to contact the instructor before
attempting the third test for there were penalties for failing the test three times. Supervisor 1 also
noted deficiencies with a report she submitted; her failure to complete assignments; and her
failure to create an atmosphere of internal and external collaboration. Supervisor1 also ran the
PAP by Human Resources. Based on the record, we find that Supervisor 1 provided legitimate,
nondiscriminatory reasons for issued the PAP.

Therefore, we turn to claim (4), Supervisor 1 averred that Complainant was placed on the PAP
on June 18, 2015. Immediately following the issuance of the PAP, he went on annual leave from
the afternoon of June 18, 2015 through June 29, 2015. Subsequently, Complainant was on annual
leave from June 29, 2015 through July 8, 2015. On July 9, 2015, Supervisor1 removed
Complainant from telework. He indicated that Complainant was terminated from the flexiplace
program pursuant to the terms of the program. The Collective Bargaining provided that
positions shall not be considered for telework if the employee's performance is evaluated at less
than the Meets Expectations (ME) level or equivalent Fully Successful level or if the employee is
improving while subject to a Performance Assistance or Improvement Plan. Based on the terms
of the flexiplace program, as Complainant's performance was below the Meets Expectation level,
she was not eligible to continue on her telework arrangement. He noted that the PAP period
concluded on September 18, 2015. At that time, he averred that Complainant's performance was
determined to be at the “Meets Expectation” level. Accordingly, Complainant was once again
eligible for telework and he reinstated her telework arrangement effective September 21, 2015.

Finally, as to claim (5), the record indicated that the Conference Manager had retired and due to
budgetary issues, the Agency could not hire a replacement. Upon the return of Supervisor 2, he
suggested that Complainant would be a good fit to assume the conference management role. On
or about September 16, 2015, Supervisor 2 met with Complainant and Supervisor 1 to discuss
the assignment. Supervisor 2 provided a copy of the Unclassified Duties to Complainant at the
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meeting. He also directed Complainant and him to work with Acting Conference Manager to
develop a training plan to educate Complainant on the conference manager roles and
responsibilities. Her detail started on October 4, 2015, with a transition period where
Complainant would receive assistance from the Acting Conference Manager.

Upon review of the record, we find that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. We now turn to Complainant to establish that the Agency’s reasons
constituted pretext for discrimination based on her race and/or prior EEO activity.

As to claim (1), Complainant asserted that others were permitted to attend the Conference.
Particularly, on appeal, she provided emails indicating that a summer intern was provided with
the opportunity to attend the training which would be contrary to Supervisor 1’s reasons for
denying her the same opportunity to attend. However, a review of the record shows that the
summer intern was not enrolled in the conference as an employee of the Agency. The emails
provided indicated that the summer intern was designated a contractor, not an employee. On the
other hand, Complainant would clearly have been designated as an employee. As such, the
summer intern was not an appropriate comparator. Complainant also argued that Supervisor 1
automatically denies her requests for training even if the requests are related to her job while
other coworkers are permitted to take training outside of the office. Further, she argued that the
training was in line with her position. However, we find that Complainant’s assertions alone are
not sufficient to show that the Agency’s reasons regarding claim (1) was pretext for
discrimination and/or in retaliation for her prior EEO activity.

As for claims (3) and (4), Complainant argued that the PAP and the decision to remove her from
the flexiplace program were rescinded upon the return of Supervisor 2. The Union President
stated in his affidavit that Complainant informed him that she believed that the Agency’s actions
constituted retaliation. However, he provided no support for his assertions. Finally, as to claim
(5), Complainant failed to address this claim on appeal. We find, upon review of the record, that
Complainant failed to establish that the Agency’s reasons for its actions were pretext for
unlawful discrimination based on her race or in retaliation for her prior EEO activity.

Harassment

Complainant asserted that the events alleged constituted a hostile work environment. To prove
his/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, her race, age and/or retaliatory animus. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.

Here, as already concluded above, there is no evidence to support a finding that Complainant’s
race or prior protected activity played any role whatsoever in the decisions regarding claims (1),
(3), (4), and (5). Moreover, the responsible management officials provided a legitimate, non-
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discriminatory explanation for alleged events as noted above. In sum, Complainant failed to
prove that her race or retaliatory animus played any role in the incidents she proffered as
evidence of her harassment claim.

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 finding no
discrimination.

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 8, 2019
Date