Tiffanie M., Complainant,v.Neil Chatterjee, Chairman, Federal Energy Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Oct 12, 2017

0120150612 (E.E.O.C. Oct. 12, 2017)

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

Tiffanie M.,
Complainant,

v.

Neil Chatterjee,
Chairman,
Federal Energy Regulatory Commission,
Agency.

Appeal No. 0120150612

Hearing No. 570-2011-01027X

Agency No. EEO2011-RLF-0001

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 28, 2014
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 a Supervisory
Management Analyst at the Agency’s Office of Electric Reliability (OER) in Washington, D.C.
In November 2009, a manager and her employee (E1) sought assistance regarding a sexual
harassment incident involving E1 and a male employee (E2). E2 had left a document entitled “8
Sexy and Simple Desserts: Seduce your wife or girlfriend with these decadent, impressive final
courses any guy can make” on E1’s chair. Complainant told E1 that she would not be offended
by the materials. Complainant advised the manager and E1 about how to handle the incident.
Complainant later made comments about E1 that were overheard by one of Complainant’s

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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subordinates who relayed it to E1. E1 later raised the recipe incident and other allegations
against E2 with the Agency’s EEO Office. Additionally, the Agency hired an independent
investigator to conduct a management inquiry.

In January 2010, Complainant learned that a subordinate had misplaced E1’s student loan
repayment paperwork. Complainant first ordered the employee to conduct a careful search, and
when the paperwork still could not be located, Complainant reported a breach of Personally
Identifiable Information (PII) to the proper authorities. On April 9, 2010, Complainant’s second-
level supervisor (S2) issued Complainant a Letter of Warning regarding the breach of PII.
Complainant’s subordinate received similar discipline. A document containing E1’s PII was
discovered approximately a year later in Complainant’s former subordinate’s office. On March
3, 2011, Complainant requested that S2 remove the Letter of Warning from her personnel file.
S2 learned that the discipline had never been placed in Complainant’s official personnel file, but
it was never rescinded.

In March 2010, the management inquiry was expanded to examine possible wrongdoing by other
Agency employees. Complainant’s alleged inappropriate conduct was included in the expanded
management inquiry. For example, one allegation involved Complainant’s conduct regarding a
November 2009 selection certificate. Complainant allegedly returned a selection certificate
without making a selection because the two candidates were veterans and/or disabled.
Additionally, Complainant’s alleged comments about E1 and allegations of preferential
treatment of certain subordinates were included in the management inquiry.

The management inquiry investigator concluded that Complainant’s comments about E1 were
“totally inappropriate.” Additionally, the investigator determined that Complainant made
“untruthful statements under oath,” failed to demonstrate leadership characteristics including
“moral turpitude” and trustworthiness, showed favoritism within her office, and selectively
supervised by “fear and intimidation.” The investigative report recommended that Complainant
be reassigned to a non-supervisory position due to poor supervision skills and that other
disciplinary action be taken. Based on the report, Complainant’s supervisor (S1) reassigned
Complainant to a Special Assistant position on July 4, 2010; relieved her of her supervisory
duties; and relocated her to a new office. Additionally, several other employees received
disciplinary actions based on the findings in the investigative report.

On August 25, 2010, S1 issued Complainant issued a Notice of Proposed Demotion based on
allegations of discrimination against veterans and/or individuals with disabilities and
inappropriate comments/conduct unbecoming of a supervisor for her comments about E1. On
September 29, 2010, Complainant submitted a written reply to the Notice of Proposed Demotion,
and provided an oral response on October 14, 2010. S2 determined that the proposed demotion
should be mitigated to a five-day suspension.

On March 29, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(Caucasian), sex (female), age (60), and in reprisal for prior protected EEO activity as evidenced
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by multiple incidents including, inter alia, she received a notice of suspension for five days;
management improperly undertook an investigation into her conduct; she was told that if she did
not retire she would be terminated; she was reassigned, removed of many of her duties, and
relocated to a smaller office; she received a proposed demotion which was later mitigated down
to a five-day suspension; she was not allowed to view the investigative report upon which her
proposed demotion was based for several weeks; she was not provided work assignments on a
consistent basis; and she received a Letter of Warning regarding the loss of personally
identifiable information (PII) which management refused to rescind.2

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. The AJ assigned to the case granted summary judgment in favor of the
Agency, and issued a decision on September 18, 2014.

In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, the record contains sworn statements from both the
Proposing Official (S1) and the Deciding Official (S2), and supporting documents, which
exhaustively state the specific reasons that Complainant received the five-day suspension. S1
stated that an investigation was conducted into allegations against Complainant regarding
discrimination against veterans/disabled employees, preferential treatment, inappropriate
comments, and conduct unbecoming of a supervisor. S1 determined that Complainant had failed
to adequately communicate with her employees which led them to believe that they were not
being treated fairly. Further, additional allegations were sustained by the investigation. S1
consulted with the Agency’s Office of General and Administrative Law regarding the
appropriate disciplinary actions for the circumstances, and he decided to reduce the proposed
demotion to a five-day suspension. The AJ concluded that Complainant failed to establish that
the Agency’s reasons for issuing her a five-day suspension were pretextual. As a result, the AJ
found that Complainant had not been subjected to discrimination or reprisal as alleged.

With respect to Complainant’s overall hostile work environment claim, the AJ determined that
the alleged incidents were insufficiently severe or pervasive to establish a hostile work
environment. Further, the AJ found that Complainant failed to show that the conduct at issue
was based on discriminatory or retaliatory animus. For example, Complainant claimed that
management rushed to judgment to accept the investigative inquiry and accepted statements as
factual without corroboration. The AJ noted that Complainant’s assertions were subjective and
speculative. Complainant alleged that management improperly initiated an investigation into her
conduct following the EEO Advisor’s decision to expand the scope of the initial and unrelated
investigation into E1’s sexual harassment allegations. S2 affirmed that management decided to

2 The Agency dismissed Complainant’s claim regarding management’s refusal to rescind the
Letter of Warning pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The AJ
considered the claim as background evidence in support of Complainant’s overall hostile work
environment claim.
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investigate Complainant’s conduct based on allegations by one of Complainant’s subordinates.
The independent investigator noted in the inquiry that based on information conveyed to the
EEO Advisor by staff employees, the inquiry was expanded because they felt there were racial
biases against them as Black employees in the way they were generally treated.

As to her claim that she was told that she would be terminated if she did not retire, S2 stated that
he spoke with Complainant and reviewed a wide range of potential personnel actions that could
be taken if the allegations were substantiated. S2 denied telling Complainant that if she did not
retire she would be terminated. Regarding her reassignment to the Special Assistant position,
management stated that the decision was made to relocate her primarily to separate her from the
employee who made the accusations against her. Additionally, Complainant was reassigned in
response to the allegations against her in the investigative report. With respect to the proposed
demotion, S1 asserted that it was issued based on discussions with the Agency’s Office of
General and Administrative Law and the Office of Human Resources and their recommendation
that the proposed action was appropriate given the severity of the allegations and findings of the
independent investigator. S2 confirmed that Complainant was issued the proposed demotion
solely based on the findings and conclusions of the investigation.

Regarding the Letter of Warning, S2 stated that he issued the Letter of Warning based on
Complainant’s subordinate’s misplacing of PII. As the employee’s supervisor, Complainant
received a Letter of Warning based on her employee’s actions. The missing paperwork was later
found after the subordinate employee departed employment with the Agency, and Complainant
requested that the Letter of Warning be removed from her personnel file. S2 asserted that he
contacted both Human Resources and the Legal Department and that Human Resources
contacted Information Technology Security which resulted in an adjustment to the PII report. S2
stated that he was informed that the warning letter was never placed in Complainant’s permanent
file and explained that he understood that either Human Resources or the Legal Department
would contact Complainant regarding her request, that the PII had indeed been lost for over a
year, and that the letter would not be rescinded. With respect to her claim about her work
assignments, S1 stated that while Complainant does not have many of the same duties she
previously had, he does not agree with Complainant’s contentions regarding the work
assignments given to her. S1 cited several assignments Complainant had been given and added
that he has tried to assign her as much work as possible, even asking other Division Directors to
assign her work on his behalf.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order
fully implementing the AJ’s decision. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of the
Agency. Complainant argues that the AJ failed to consider the facts in the light most favorable
to her and that there were genuine issues of material fact still in dispute. Complainant alleges
that the Agency’s only justification for its actions against her was complete reliance on the
complaints of black employees and total deference to the conclusions of the black investigator
who reported their complaints. Additionally, Complainant contends that management ignored
her supporting evidence during the investigative inquiry and issuance of discipline. Complainant
claims that the Agency’s reasons for its actions were pretext for unlawful discrimination.
Accordingly, Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

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.

Dissatisfaction with Complaint Processing

When a complainant raises allegations of dissatisfaction regarding the processing of his or her
pending complaint, the Agency official responsible for the quality of complaints processing must
add a record of the complainant’s concerns, and any actions the Agency took to resolve the
concerns, to the complaint file maintained on the underlying complaint. If no action was taken,
the file must contain an explanation of the Agency’s reason(s) for not taking any action. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5,
IV.A.12 and IV.D. (Aug. 3, 2015).

In the instant case, Complainant alleged that the EEO Director denied her request to have her
EEO complaint processed by an outside agency. The EEO Director was personally involved in
the matter as she was responsible for expanding the management inquiry based on allegations
raised against Complainant and other officials in the initial inquiry. In response, the EEO
Director recused herself from participating in the processing of Complainant’s complaint, and
one of her subordinates, the EEO Specialist, handled the process. Complainant alleged that the
EEO Specialist was fairly new to the EEO Office and was undoubtedly advised by the EEO
Director. The Commission finds that Complainant has not presented any evidence of
impropriety in the processing of her complaint. Thus, despite the above-referenced arguments,
the Commission determines that the processing and investigation into her complaint were
properly conducted.

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Hostile Work Environment

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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive
to create a hostile work environment, the Commission finds that Complainant failed to show that
the Agency’s actions were based on discriminatory or retaliatory animus. The record is clear that
during an investigation into E1’s sexual harassment allegations, matters outside of the scope of
the original investigation were raised. ROI, Ex. 20, at 4. As a result, the investigative inquiry
was expanded to investigate allegations of misconduct committed by other Agency employees
and managers. During the investigative inquiry, several of Complainant’s subordinates stated
that they had witnessed Complainant making inappropriate comments and engaging in improper
behavior. One of Complainant’s subordinates claimed that Complainant decided against
selecting a veteran candidate because she “did not want to hire anyone that she couldn’t easily
get rid of” and “did not want to deal with anyone that was potentially handicapped.” ROI, Ex.
17, at 24. Additionally, another subordinate stated that Complainant made inappropriate
comments about E1 and her sexual harassment allegations. Id. at 29. The investigative inquiry
concluded that Complainant had made “totally inappropriate” comments about E1’s sexual
harassment allegations, had failed to demonstrate leadership characteristics, showed favoritism,
selectively supervised by “fear and intimidation,” and made untruthful statements under oath.
ROI, Ex. 20, at 14. The investigator recommended that Complainant receive discipline and be
reassigned to a non-supervisory position. Id. at 14, 43.

S1 affirmed that he reviewed the investigative report and reassigned Complainant to the Special
Assistant position based the investigator’s findings. ROI, Aff. 1, at 6. Additionally, S1 relocated
Complainant to a different office to diffuse a potentially volatile situation because two of the
employees that raised allegations against her during the investigation were in offices directly
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across from her office. Id. S1 stated that he issued Complainant the Notice of Proposed
Demotion after discussions with the Office of Human Resources and the Office of General and
Administrative Law and based on their recommendation that a demotion was appropriate given
the severity of the allegations and findings of the independent investigator. Id. at 5. The Notice
of Proposed Demotion charged Complainant with discrimination against veterans/individuals
with disabilities and inappropriate comments/conduct unbecoming of supervisor or federal
employee based on the findings of the investigative inquiry. ROI, Ex. 16. Several other
employees and management officials were disciplined as well based on their conduct as
discovered by the investigative inquiry. ROI, Aff. 1, at 4. Complainant provided a written
response to the proposed demotion and was provided over an hour to present an oral response.
Ultimately, S2 decided to mitigate the proposed demotion and issued Complainant a five-day
suspension based on the conclusions of the investigative inquiry. ROI, Aff., 3, at 3-4; ROI, Ex.
26.

Finally, with respect to the Letter of Warning, S2 affirmed that Complainant’s subordinate
employee misplaced E1’s loan repayment paperwork, which contained PII. ROI, Aff. 3, at 7. S2
stated that he issued Complainant the Letter of Warning based on her subordinate’s actions to
advise her of the Agency’s PII policy and to ensure that the Agency’s PII-handling procedures
were followed in the future. ROI, Aff. 3, at 7; ROI, Ex. 13. Complainant’s subordinate
employee received a reprimand for her direct role in the incident. ROI, Aff. 3, at 8. The PII-
related documentation was later found; however, S2 stressed that the Letter of Warning was still
warranted since it had been lost for over a year. Id. at 8. S2 forwarded Complainant’s request
for the Letter of Warning to be rescinded to the Office of General and Administrative Law and
the Office of Human Resources; however, he learned that the letter had never been placed in
Complainant’s personnel file. Id. S2 asserted that he took no other action because he believed
that either the Office of Human Resources or the Office of General and Administrative Law
would respond to Complainant’s request and that there was nothing to expunge. Id.

The Commission agrees with the AJ that Complainant has not shown that she was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that she was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal.
As a result, 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 Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.
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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.
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).

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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 12, 2017
Date