Audrea L.,1 Complainant,v.Kevin McAleenan, Acting Secretary, Department of Homeland Security (U.S. Coast Guard), Agency.

Equal Employment Opportunity Commission

May 23, 2019

0120182245 (E.E.O.C. May. 23, 2019)

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

Audrea L.,1
Complainant,

v.

Kevin McAleenan,
Acting Secretary,
Department of Homeland Security
(U.S. Coast Guard),
Agency.

Appeal No. 0120182245
Hearing No. 430-2015-00404X
Agency No. HSUSCG026152015

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 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. For
the following reasons, the Commission AFFIRMS the Agency’s final order.

ISSUE PRESENTED

Whether the record contains substantial evidence in support of the Equal Employment Opportunity
Administrative Judge’s decision that Complainant was not discriminated against on the basis of
reprisal when, on January 26, 2015, she was involuntarily reassigned to the Travel/Transportation
Team (OPA MT2).
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Lead Accounting
Technician, GS-0525-08 at the Agency’s Finance Center facility in Chesapeake, Virginia. On
February 9, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against for engaging in protected EEO activity as set forth above.

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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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 and
the assigned AJ held a hearing on March 7, 2018 and issued a decision on April 19, 2018, finding
not discrimination. When the Agency failed to issue a final order within forty days of receipt of
the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R.
§ 1614.109(i).

The AJ made the following factual findings from the record and hearing. The record indicates that
Complainant began working for the Agency in approximately 1994. Complainant had worked as
a Lead Accounting Technician assigned to the OPA-MR1 team since approximately 2007. In her
assignment to the OPA-MR1 team, the Utilities team. Complainant processed invoices for the
Agency’s utilities including telephone, gas, and electricity. In April 2014, Complainant filed an
EEO complaint against the Agency alleging disparate treatment based on her race. Her supervisor
was S1 at that time, and the Section Chief, Accounting Operations was S2. S1 and S2 were both
named in Complainant’s EEO complaint. S2 was aware of Complainant’s EEO complaint because
she was interviewed during investigation. In June 2014, Complainant’s EEO claim was settled.

On December 30, 2014, Complainant was reassigned to a Lead Accounting Technician position
on the OPA-MT2 team, the Miscellaneous Payables team. Complainant had twice declined
reassignment to the OPA-MT2 team, in February 2014 and March 2014, when asked if she would
do so voluntarily. In Complainant’s new assignment to the OPA-MT2 team, she was also
responsible for processing invoices. The job duties were the same as those on her previous team,
but the document types were different.

S2 made the decision to reassign Complainant to the OPA-MT2 team. S2 made the decision to
even out the number of Lead Accounting Technicians assigned to the various teams in her section.
Specifically, as of December 2014, S2 supervised four teams. Complainant’s former team, OPA-
MR1, had three Leads at that time including Complainant. The OPA-MT2 team, to which
Complainant was reassigned, had only one Lead (C1) and one vacancy. The OPA-MR3 team had
two Leads. The OPA-MT1 team also had one Lead and one vacancy. S2 selected Complainant for
reassignment, and not one of the two other Leads on the OPA-MR1 team, because Complainant
had the least seniority among the three of them.

Complainant contended that there were more than just three Lead Accounting Technicians that S2
could have reassigned. She testified that the reassignment did not result in a change of duties. The
only change involved the types of documents or invoices she was processing.

Complainant’s performance ratings were also unaffected by the reassignment. She, however,
argued that the reassignment caused her stress, and that S2 had other teams she could have selected
from. Complainant contended that if S2 had considered the whole universe of Lead Accounting
Technicians, namely those outside of her section (or “purview”), then there were others who
should have been reassigned because they had less seniority than Complainant.
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Complainant testified that S2 had “borrowed” one specific Lead, C2, from another section to fill
in for the vacant OPA-MT2 role prior to Complainant’s reassignment and made the distinction that
this was done on a “rotational basis.”

Specifically, the AJ found that Complainant’s reassignment did not amount to adverse treatment,
because Complainant testified that the reassignment did not result in a change of duties. The only
change involved the types of documents or invoices that she processed. The AJ also noted that her
performance ratings were unaffected by the reassignment. Notwithstanding this determination,
the AJ found that even if Complainant had established a prima facie case of reprisal, the Agency
provided a legitimate, non-discriminatory reason for Complainant’s reassignment, and that
Complainant did not establish that it was motivated by retaliation.

CONTENTIONS ON APPEAL

Complainant contends that the AJ erred in finding that her assignment to an undesirable job was
not a reprisal because, among other things, no one else wanted to work with C1 who was
considered a difficult person to work with; and that the assignment was retaliatory because she
was forced into the undesirable reassignment when no one else was asked if they would voluntarily
take the position, new hires were not placed into the vacancy, and a coworker who had been willing
to accept the position, as a supervisory Lead, was not placed into it. She contends that, in light of
not using the other methods to place an employee in the position, it is clear the Agency’s action of
forcibly placing her in the position was intentional and malicious.

The Agency asserts that Complainant has failed to show that the reassignment constituted a
materially adverse action as it did not result in a decrease in compensation, job title, level of
responsibility, or opportunity for promotion. The Agency also asserts that Complainant’s
disagreement with the reassignment is not enough to render it materially adverse.

STANDARD OF REVIEW

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony, or the testimony so lacks in
credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, at § VI.B. (Aug. 5, 2015).

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ANALYSIS AND FINDINGS

On appeal to the Commission, the burden is squarely on the party challenging an Administrative
Judge’s decision to demonstrate that the Administrative Judge’s factual determinations are not
supported by substantial evidence. See id. at Ch. 9, § VI.C. In this case, this means that
Complainant has the burden of pointing out where and why the AJ’s findings are not supported by
substantial evidence. Cf. id. (pointing out that “[t]he appeals statements of the parties, both
supporting and opposing the [AJ’s] decision, are vital in focusing the inquiry on appeal so that it
can be determined whether the [AJ’s] factual determinations are supported by substantial
evidence”). Upon review of the record, we find that there is substantial evidence in the record to
support the AJ’s findings of fact.

We also find that Complainant did not establish that her reassignment was motivated by
discriminatory animus. Assuming, arguendo, that she established a prima facie case of reprisal
discrimination, like the AJ, we note S2’s testimony that she made the decision based on the
resources she had available in her section, adding that Complainant’s team had three leads and that
all other teams in her section only had one or two leads. Complainant, because she was the least
senior of the three Leads on OPA-MR1, was selected for reassignment. The issue is not whether
S2 could have selected someone else, but whether her selection of Complainant was motivated by
retaliation. We find that the record supports the AJ’s determination that Complainant did not
establish pretext or discrimination.

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 order.

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.
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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).
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.

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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

May 23, 2019
Date