Cathy V.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Dec 20, 2018

0120172474 (E.E.O.C. Dec. 20, 2018)

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

Cathy V.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120172474

Hearing Nos. 410-2015-00070X
410-2015-00071X

Agency Nos. 12-0137-SRO
12-0181-HQ

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June
7, 2017 final order concerning the two captioned formal complaints which claimed unlawful
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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Safety Engineer, GS-803-13, at the Agency’s
Office of Safety and Quality Assurance (OSQA), Technical Support Division (TSD) at the
Savannah River Site (SRS) in Aiken, South Carolina.

Complainant filed two formal complaints on October 23, 2012 and April 22, 2013, respectively.
The Agency consolidated the two formal complaints.

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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In the complaints, Complainant claimed that the he was subjected to harassment/a hostile work
environment based on race (African-American), disability, and in reprisal for prior EEO activity
when:

1. on June 6, 2012, her first-line supervisor spoke “despairingly” about her co-worker’s
work (Agency No. 12-0137-SRO, hereinafter referred to as “Complaint 1”);

2. on June 8, 2012, the supervisor spoke in a “taunting” manner to another co-worker
about Complainant’s leave request, stating “I won’t be approving [Complainant’s]
leave for the requested period (Complaint 1);”

3. on July 9, 2012, the supervisor cancelled the Maxi Flex Tour of Duty policy for the
entire staff, to retaliate against her (Complaint 1);

4. on July 16, 2012, the supervisor and second-line supervisor discussed Complainant’s
co-worker’s suspension letter with other management officials, and the Director of the
EEO Office was seen heading to another management’s official’s office following a
conversation with Complainant’s co-worker (Complaint 1);

5. in July 2012, her supervisor and second-line supervisor directed a group of unspecified
employees not to work with an unnamed employee (Complaint 1);

6. on August 1, 2012, the supervisor harassed her about her sick leave when she left a
meeting early and did not inform the supervisor, but instructed other supervisors to tell
the supervisor (Complaint 1);

7. on August 2, 2012, she provided the second-line supervisor with a doctor’s note
explaining that because she was experiencing health problems related to workplace
stress, Complainant should be removed from the environment. On August 7, 2012, the
second-line supervisor provided Complainant with information about the Agency’s
Reasonable Accommodation policy. Complainant alleged she was concerned about
providing her personal health information to her section’s assessment team because she
did want it shared with her section. Complainant alleged this resulted in her being
considered to have a disability (Complaint 1);

8. on August 6, 2012, the supervisor denied her a training class (Complaint 1);

9. on August 9, 2012, the supervisor discussed her EEO complaint with the Director of
the EEO Office, resulting in an issuance of a Letter of Reprimand based on her absence
in staff meetings (Complaint 1);

10. on August 14, 2012, the supervisor forced her to change her schedule to attend a
training class and denied her request for compensatory time.

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11. Complainant alleged that she was forced to attend the training class, and a co-worker
reported on Complainant’s actions during the training class to the supervisor
(Complaint 1);

12. on August 24, 2012, she and the supervisor attended a training class, and the supervisor
followed her back to the office after the class was over (Complaint 1);

13. on August 27, 2012, the supervisor forced her to change her time sheet after questioning
her about her credit hours. Complainant alleged no other employee in her section has
had their credit hours scrutinized (Complaint 1);

14. on September 4, 2012, she provided the Director of Human Resources (HR Director)
with her response to the Reasonable Accommodation request, indicating she would
only communicate with the HR Director because the HR Department was sharing
information with her supervisor and second-line supervisor (Complaint 1);

15. beginning in October 2012, she expressed concerns about the supervisor’s mental
health following the August 24, 2012 allegations, and in accordance with the Agency’s
Workplace Violence Policy, as Incident Response Team investigated her allegations
(Complaint 1);

16. on September 10, 2012, two of her co-workers did not attend a staff meeting and neither
co-worker received a Letter of Reprimand for missing the meeting (Complaint 1);

17. on September 11, 2012, the HR Director provided her with a response memo regarding
the Reasonable Accommodation procedure. Complainant alleged that a member of the
Human Resources staff provided the Director with false information (Complaint 1);

18. on September 17, 2012, two of her co-workers did not attend a staff meeting and neither
co-worker received a Letter of Reprimand for missing the meeting (Complaint 1);

19. on September 24, 2012, one of her co-workers did not attend a staff meeting, and when
she asked the supervisor where her co-worker was, the supervisor indicated she thought
he was in another meeting. The co-worker did not receive a Letter of Reprimand for
missing the meeting (Complaint 1);

20. on September 27, 2012, one of Complainant’s co-workers overheard a conversation
between the supervisor and another co-worker. The supervisor stated, “they are
accusing me of prejudice.” Complainant contacted the EEO Counselor who informed
her that no information about Complainant’s EEO complaint had been released
(Complaint 1);

21. she received a “Meets Expectation” on her annual rating of record. Complainant
alleged this evaluation was based on her EEO activity (Complaint 1);
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22. beginning in November 2012, she was continuously denied detail opportunities and
requests (Agency No. 12-0181-HQ, hereinafter referred to as “Complaint 2”);

23. on March 20, 2013, she received a Letter of Proposed Suspension from her third-line
supervisor which resulted in a 7-day suspension (Complaint 2);

24. on April 9, 2013, the supervisor issued a non-disciplinary Letter of Counseling to her,
based on her leave requests (Complaint 2);

25. she was retaliated against in a 2013 management inquiry based on her EEO complaint
(Complaint 2);

26. beginning in April 2013, the supervisor placed her on an “unofficial PIP” [Performance
Improvement Plan] when she required her to meet with her weekly (Complaint 2);

27. in March 2013, the third-line supervisor agreed to attend her performance review
meeting with the supervisor. The third-line supervisor later changed her mind and did
not formally attend (Complaint 2); and

28. on December 5, 2012, she was required to attend an individual training meeting with
an outside consultant while others in the organization were not required to participate
in this meeting (Complaint 2).2

After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a
Decision Without a Hearing. On March 27, 2017, the AJ issued a decision by summary judgment
in favor of the Agency.

The AJ found finding the following pertinent undisputed facts were established during the
investigation of the complaint:

Complainant has worked as a Safety Engineer since March 2009. From January 2011 through
December 2012, the Director of OSQA was Complainant’s second-line supervisor. From May
2011 through August 2013, the Director of TSD was Complainant’s supervisor. Beginning in
August 2013, the former supervisor served as Complainant’s second-line supervisor. In January
2013, the Assistant Manager of OSQA began temporarily as Complainant’s third-line supervisor
and permanently become the third-line supervisor in August 2013.

As a Safety Engineer, Complainant was responsible for coordinating and conducting oversight
activities at the SRS Site, including conducting inspections, assessments and documentation in

2 The record reflects that claims 20 -24 and 27 were later amended to the instant complaints.

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systems, walk-downs of job sites and facilities, and documentation of field time. Complainant was
also assigned to the Waste Facilities group as part of the review team because she had expertise in
that area.

In allegation 1, Complainant asserted that on June 6, 2012, her first-line supervisor spoke
“despairingly” about her co-worker’s work.

The Director of the Technical Support Division (Caucasian, no disability/prior protected activity)
stated that during the relevant period. she was Complainant’s supervisor. The supervisor denied
speaking of the named co-worker (Co-worker 1) in a disparaging manner. The supervisor
explained that Complainant tried to assign the Co-worker 1 to a review team “in her place – and
assigning personnel to any team is my responsibility.”

Further, the supervisor stated that she was not sure why Complainant tried to assign Co-worker 1
and “I discussed her situation with [Complainant]. She kept saying that she would be on leave
during the review and I was confused as I did not have any leave requests for her for that time
period. I did tell her that I needed each of them to focus on their assigned facility and organization
areas.”

In allegation 2, Complainant alleged that on June 8, 2012, the supervisor spoke in a “taunting”
manner to another co-worker about Complainant’s leave request stating “I won’t be approving
[Complainant’s] leave for the requested period.

The supervisor stated “I did not make such a statement to anyone and would not discuss the type
of leave of one employee with another employee. I did not disapprove any of [Complainant’s]
leave requests. [Complainant] had told the review leader that she could not be a part of the review
team because she would be on leave.”

In allegation 3, Complainant alleged that on July 9, 2012, the supervisor cancelled the Maxi Flex
Tour of Duty policy for the entire staff to retaliate against her.

The supervisor acknowledged cancelling all Modified Maxi-Flex Tours of duties for all employees
in her division including Complainant’s during the relevant period. Specifically, the supervisor
stated that the Director of OSQA indicated this tour of duty was no longer allowable within the
organization. The supervisor stated, however, Complainant was allowed to remain on it for one
month longer than other employees “due to her expressing that she had to reschedule some
personal appointments because of the change.” Furthermore, the supervisor stated that it was the
Director’s decision to make the change for the entire organization.

In allegation 4, Complainant claimed that on July 16, 2012, the supervisor and second-line
supervisor discussed her co-worker’s suspension letter with other management officials, and the
Director of the EEO Office was seen heading to another management’s official’s office following
a conversation with Complainant’s co-worker.

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The AJ noted that Complainant believed that the SRS’s Site Director, EEO Director, and a named
HR Specialist discussed the co-worker’s EEO activity, without further elaboration.

In allegation 5, Complainant asserted that in July 2012, her supervisor and second-line supervisor
directed a group of unspecified employees not to work with an unnamed employee.

The AJ noted that Complainant does not allege that she was one of the employees told to not work
with an unnamed colleague nor does she alleged that she was the unnamed colleague.

In allegation 6, Complainant alleged that on August 1, 2012, the supervisor harassed her about her
sick leave when she left a meeting early and did not inform the supervisor, but instructed other
supervisors to tell the supervisor.

The supervisor explained that according to the office policy and protocol, anytime she is on leave,
the acting GS-14 fills in for her. The supervisor stated at that time she was in the office and had
no designated acting for her. The supervisor further stated that Complainant “does not talk to me,
and she made the choice to not discuss this matter with me or try to contact me.”

Further, the supervisor stated that she merely asked Complainant if she let another supervisor know
that she was leaving because she did not talk to me about leaving that day. According to
Complainant, she stated that she informed two supervisors that she was leaving work and they
were supposed to let the supervisor know. However, the supervisor stated “neither of them had
said anything to me, and I was not informed. I was confused, and followed up with those she said
she notified…[Complainant] created her own protocol on this, and all I did was ask a question
because I am responsible for certifying her time, and I was onsite on that day.”

The supervisor noted that she addresses leave issues with Complainant “more frequently than with
some of my employees but less frequently with her than with a few others. I believe [Complainant]
believes that I have no authority over approving or disapproving her leave.”

In allegation 7, Complainant claimed that on August 2, 2012, she provided the second-line
supervisor with a doctor’s note explaining that because she was experiencing health issues related
to workplace stress, Complainant should be removed from the environment. On August 7, 2012,
the second-line supervisor provided Complainant with information about the Agency’s Reasonable
Accommodation policy. Complainant alleged she was concerned about providing her personal
health information to her section’s assessment team because she did want it shared with her section.
Complainant alleged this resulted in her being considered to have a disability.3

The Director of OSQA (Caucasian, no disability/prior protected activity), also the second-line
supervisor, acknowledged receiving a doctor’s note from Complainant and provided her the

3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.

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information that is required by the Department to support a request for reasonable accommodation.
The Director noted that in the note, Complainant’s doctor stated that she was under his care and
was in a hostile work environment. The Director stated that he then contacted HR and “they said
they would give [Complainant] everything she needs, and they gave the appropriate information
to me, which I provided to Complainant. She never responded to me.”

The HR Specialist (Caucasian, disability, prior protected activity) stated that he advised the
Director concerning Complainant’s reasonable accommodation request. The HR Specialist stated
that after Complainant received the letter concerning her request, he explained to Complainant that
all medical determinations would be made by a qualified physician, and not by her supervisor.
The HR stated that the letter the Director sent to Complainant initiated the formal accommodation
process and he told Complainant that the Director was the deciding official.

Further, the HR Specialist stated that the letter the Director sent to Complainant “indicated there
was insufficient information provided by her, and indicated the information she would need to
provide to ensure [Director] could make an informed decision regarding this request. Complainant
responded to the letter via letter to [HR Director] and stated she had received the memo from
[Director], and that the stress related issues are not a result of her occupation, and she was not
providing the requested information because her situation did not fall under the Rehab Act/ADA.
That was the last I heard of this issue.”

In allegation 8, Complainant asserted that on August 6, 2012, the supervisor denied her a training
class.

The supervisor acknowledged denying two project management classes for Complainant because
she has no Project Management responsibilities and “there is nothing in her position description
or her performance plan that requires her to have a Project Management Certification as a Federal
Project Director.”

The Director stated that the supervisor informed him that she planned to deny Complainant’s
request to attend the project management classes and “provided the reasoning for the denial and I
concurred with this request.”

In allegation 9, 15, 17, and 18, Complainant alleged that on August 9, 2012, the supervisor
discussed her EEO complaint with the Director of the EEO Office, resulting in an issuance of a
Letter of Reprimand based on her absence in staff meetings, and on September 10, 17 and 24,
2012, several of her co-workers did not attend a staff meeting and they did not receive a Letter of
Reprimand for missing the meetings.

The supervisor stated that on August 9, 2012, she issued a Letter of Reprimand to Complainant for
not attending the mandatory staff meeting. The supervisor stated that after she consulted with
Human Resources, she decided to issue her a Letter of Reprimand due to “her non-compliance
with office protocol and policies.”
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Furthermore, the supervisor stated that she hoped the letter “would heighten [Complainant’s]
awareness of her responsibility to coordinate with me and help with communication.”

The record clearly reflects that Complainant preferred t work on her own, that she would talk leave
without information management officials, and did not talk to her supervisor. Therefore, in regard
to allegation 9, any disciplinary action was precipitated by these circumstances, and was not
precipitated by discussions with EEO officials.

The supervisor acknowledged that two named co-workers missed the September 10 and 17, 2012
meetings because they were on a certain project. The supervisor stated that the two co-workers
requested that they be excused from the meetings and she granted their request.

With respect to Complainant’s allegation that on September 24, 2012, a named co-worker did not
attend the meeting, the supervisor stated that at that time the co-worker was in another meeting
“when this meeting occurred, and he was excused from the staff meeting.”

In allegation 10 and 12, Complainant asserted that on August 14, 2012, the supervisor forced her
to change her schedule to attend a training class and denied her request for compensatory time and
forced to attend the training class whereas a co-worker reported on Complainant’s actions during
the training class to the supervisor, and on August 27, 2012, the supervisor forced her to change
her time sheet after questioning her about her credit hours while no other employee in her section
has had their credit hours scrutinized.

Regarding allegation 10, the supervisor explained that any time an employee is in training, he or
she is required to change their tour of duty according to Agency policy. Specifically, the supervisor
stated that according to 5 C.F.R. 410.402, management is prohibited for paying premium pay for
training purposes. The supervisor stated that on Monday, August 13, 2012, Complainant was on
leave and on Tuesday, August 14, 2012, she sent her “a request of 25 hours of premium pay for
the training period in question. This was the day the training started. According to the law, I
cannot pay her premium pay for this time…I had to direct [Complainant] to change her shift even
though she was outside of Order and CFR requirements if she did not.” The supervisor stated that
Complainant was never forced to take the training.

Complainant asserted that the supervisor instructed a co-worker to notify her of Complainant’s
actions. The supervisor stated, however, that because the supervisor had paged and sent an email
to Complainant about not being able to pay her premium pay, she asked the co-worker to have
Complainant call her or respond to her email. The supervisor also stated “there was no discussion
of any [Complainant’s] actions beyond that. I have a supervisory responsibility to ensure my
employee’s time and attendance is completed accurately and to ensure they are compensated in
accordance with all rules and regulations.”

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The supervisor stated that in regard to allegation 12, she probably asked Complainant about the
work she had accomplished during the relevant period “because I knew she was in training for
those two weeks,,,it is my supervisory responsibility to know what an employee is accomplishing
because I oversee their work. [Complainant] was in training those two weeks and had no
responsibilities outside attendance at the training sessions – which accounted for an 8-hour day.”
Moreover, the supervisor stated that she had asked other employees what they were working on
“with regard to credit hour work, and at times if I know a review is scheduled – I do not have to
ask. The majority of my employees do not work credit hours while in training.”

In allegation 11, Complainant claimed that on August 24, 2012, she and the supervisor attended a
training class, and the supervisor followed her back to the office after the class was over.

The supervisor denied following Complainant back to her office after the training session ended.
The supervisor stated “I did not follow her in any way. I did not follow her in the car, or make any
attempt to follow her.”

In allegation 13, Complainant alleged that on September 4, 2012, she provided the HR Director
with her response to the Reasonable Accommodation request, indicating she would only
communicate with the HR Director, because the HR Department was sharing information with her
supervisor and second-line supervisor.

The Director stated that the HR Director and her office “did not provide any confidential
information that was inappropriate to discuss with me. I am not aware they violated any agency
policy or procedure in sharing information they did with me.” The Director further stated that the
HR Director “did discuss Complainant’s issues with me because she wanted me perspective on
[supervisor’s] interactions with Complainant. This is common practice.”

The supervisor explained that HR “have not shared confidential information regarding anyone that
I was not authorized to know or didn’t have a need to know.”

The HR Specialist denied providing confidential information to the supervisor and Director. For
instance, the HR Specialist stated, “I provided procedural guidance to [Director] regarding
Complainant’s request, which he brought to me.”

In allegation 14, Complainant alleged that beginning in October 2012, she expressed concerns
about the supervisor’s mental health following the August 24, 2012 allegations and in accordance
with the Agency’s Workplace Violence Policy, as Incident Response Team investigated her
allegations.

The HR Specialist stated that the HR Director advised him of her conversation with Complainant
and “one of his functions is that I am the proponent for the Directive for Workplace Violence. I
am part of the initial response team that does the investigation into allegations of Workplace
violence.”

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According to Complainant, she feared for her safety following the August 24, 2012 training. The
HR Specialist stated that he put together a team to investigate Complainant’s allegations and he
recused himself. The HR Specialist stated “I explained the team that due to Complainant’s
reluctance to discuss matters with me based on her statements in her letter that she submitted during
this timeframe. I told the investigative team that I thought I would be a hindrance to communicate
with Complainant, and I withdrew from that process.” Moreover, the HR Specialist stated that the
HR Director did not share any concerns with him.

The Director acknowledged that the HR Director “did inform me of Complainant’s accusations.
[HR Director] did not share inappropriate information.”

In allegation 16, Complainant asserted that on September 11, 2012, the HR Director provided her
with a response memo regarding the Reasonable Accommodation procedure. Complainant alleged
that a member of the HR staff provided the HR Director with false information.

The HR Director (Caucasian, disability, prior protected activity) stated that she was not aware that
there was information provided that was false. Specifically, the HR Director stated that she
indicated to Complainant “that we could not act on her request because we did not have sufficient
information. I informed Complainant of the information we needed. We told her that we needed
the medical documentation from her doctor. She indicated she was not providing the requested
information and, therefore, we could not move forward with her request.”

In allegation 19, Complainant claimed that on September 27, 2012, one of Complainant’s co-
workers overheard a conversation between the supervisor and another co-worker. The supervisor
stated, “they are accusing me of prejudice.” Complainant contacted the EEO Counselor who
informed her that no information about Complainant’s EEO complaint had been released.

The supervisor stated “I did not make that statement to anyone, so, I do not know what she is
talking about. It does not sound like me. I do not use that word (prejudice) in conversation.”

In allegation 20, Complainant asserted that received a “Meets Expectation” on her annual rating
of record. Complainant alleged this evaluation was based on her EEO activity.

The supervisor stated that she gave Complainant a “Meets Expectation” rating. Specifically, the
supervisor stated that there were no negative consequences to Complainant and “the performance
elements are written to the Meets Expectation level, and she met those requirements.”

The Director stated that at that time he was the second-line reviewer for the entire office. The
Director stated while Complainant received “Meets Expectation” rating, “there was nothing out of
order in her FY2012 performance evaluation from my standpoint. I would not say the comments
for this rating were more negative. I think they were appropriate for the discussion and
performance issue that [supervisor] made me aware of on the part of Complainant.”

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In allegation 21, Complainant claimed that beginning in November 2012, she was continuously
denied detail opportunities and requests.

The supervisor explained that she did not deny Complainant’s requests for detail opportunities.
For instance, the supervisor stated that on July 1, 2011, she received an email from Complainant
stating that she had been offered a detail with promotion in which she accepted, pending her
approval. The supervisor stated that she responded to Complainant requesting additional
information “in order to make an informed decision. I asked if this was a DOE-SR organization,
etc. etc. I heard nothing else from [Complainant] on this topic. [Complainant] never provided any
more information so no decision could be made one way or the other.”

The supervisor stated that on an unspecified date in 2011, Complainant called her stating that she
found a detail that she would like to take on, and she told her that she needs more information
“before a decision can be made. [Complainant] responded – Never mind. She hung up and I never
heard another word about this detail.”

In allegation 22, Complainant asserted that on March 20, 2013, she received a Letter of Proposed
Suspension from her third-line supervisor which resulted in a 7-day suspension.

The Assistant Manager for Organizational Culture, Safety and Quality Assurance Management
(Caucasian, no disability, prior protected activity) stated that in January 2013, she was
Complainant’s temporary second line supervisor after the Director left in December 2012 and in
August 2013, she became Complainant’s third-line supervisor.

The Assistant Manager stated that on March 20, 2013, she issued the proposal to suspend
Complainant for making false and highly irresponsible statements about her supervisor. The
Assistant Manager stated that several incidents occurred before she arrived at SRS on January 11,
2013, but she was aware of them. The Assistant Manager stated that on November 1, 2012,
Complainant reported to the HR Director stating that she feared for her safety by the supervisor
but she refused to provide any information to the Incident Response Team. The Assistant Manager
stated, however, the Incident Response Team found that Complainant’s allegations were “baseless
and unfounded.”

Furthermore, the Assistant Manager noted that on March 18, 2013, Complainant again made
claims against her supervisor without any supporting information.

In allegation 23, Complainant claimed that on April 9, 2013, the supervisor issued a non-
disciplinary Letter of Counseling to her, based on her leave requests.

The supervisor acknowledged issuing Complainant the Letter of Counseling based on her
disregard for the requirements outlined in the Agency’s leave policies and procedures.
Specifically, the supervisor stated that on numerous occasions, Complainant requested one type of
leave and then submitted her time card “with a different type of leave annotated without prior
discussion or approval.
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The supervisor stated that Complainant “would request a whole day of sick leave for illness, injury,
or incapacitation in advance of the actual sick leave date and in conjunction with her scheduled
day off as part of the Flexible Work Schedule program. As indicated in the letter of counseling, it
appeared that use of sick leave was for reason/uses other than that for which it is allowed [emphasis
in its original].”

Moreover, the supervisor stated that the Letter of Counseling had no impact on Complainant’s
salary, grade or other term of employment.

In allegation 24, Complainant alleged that she was retaliated against in a 2013 management inquiry
based on her EEO complaint.

The supervisor explained that Complainant’s letter to Headquarters was the initiator of the
management inquiry. Complainant sent an email to Headquarters “full of allegations regarding
[supervisor] and other personnel/managers at SRS.” The supervisor stated that she was instructed
to respond to Complainant’s allegation through an interview with the investigator “as did a number
of SRS employees.”

In allegation 25, Complainant asserted that beginning in April 2013, the supervisor placed her on
an “unofficial PIP” when she required her to meet with her weekly.

The supervisor explained that Complainant was not on PIP during the relevant period. The
supervisor stated, however, she and Complainant “had communication issues. I documented that
I wanted to work with [Complainant] as a way to improve communications and ensure we didn’t
have misunderstandings. [Complainant] refused to talk to me. There is no such thing as an
unofficial PIP.”

In allegation 26, Complainant alleged that in March 2013, the third-line supervisor agreed to attend
her performance review meeting with the supervisor. The third-line supervisor later changed her
mind and did not formally attend.

The Assistant Manager stated “initially, I agreed to attend the meeting, which is allowed if the
rating and reviewing managers and employee all agree. However, based on counsel from SRS
Chief Counsel, I decided not to play a direct role in the Progress Review because it could be
interpreted as being involved in the process. At that time, I was serving as her second line
supervisor review official.”

Further, the Assistant Manager stated that she made a decision to do the following steps: she
requested the supervisor to hold the progress review in her office at the conference table; that she
would sit outside her office with the door open so she could hear everything that was said between
the supervisor and Complainant; called security to have two plain clothed individuals positioned
outside her door; and asked Complainant to call for me if she felt her safety was in jeopardy during
the progress review. The Assistant Manager stated that the meeting “occurred and there were no
raised voices or any other problems.”
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In allegation 27, Complainant alleged that on December 5, 2012, she was required to attend an
individual training meeting with an outside consultant while others in the organization were not
required to participate in this meeting.

The supervisor explained that the Director sent out an email which directed all OSQA employees
to sign up for a 30-minute time slot with a presenter. The purpose of the individual meeting was
“to continue the cultural growth efforts and improve communications within the organization.
[Complainant] was not the only employee required to attend. Everyone in the organization met
with [presenter].”

Based on the evidence developed during the investigation, as described above, the AJ concluded
no discrimination was established. The Agency issued its final order adopting the AJ’s decision.

The instant appeal followed.

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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.

Disparate Treatment

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
14 0120172474

For complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did
not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed
to mask discrimination on any basis alleged.

Harassment

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 a protected basis – in this case, disability and/or retaliatory animus. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, the AJ found that the evidence of record did not establish
that Complainant was subjected to harassment based on disability and prior protected activity. We
determine that the AJ’s analysis that Complainant failed to prove her harassment claim was also
proper.

Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodations
to the known physical and mental limitations of an otherwise qualified individual with a disability
unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. §
1630.9. The Commission will assume without deciding that Complainant is a qualified individual
with a disability.

Here, Complainant claimed that management failed to provide her with a reasonable
accommodation. We find, however, that substantial record evidence supports the Agency’s
finding that Agency management initiated the process for accommodating Complainant within her
medical restrictions, but she did not provide the requested medical documentation. There is no
evidence of record to dispute this assertion.

15 0120172474

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding
no discrimination.4

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).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

4 Because we affirm the Agency’s final order implementing AJ’s finding of no discrimination
concerning claims 1, 2, 4, 5, 19 and 26, we find it unnecessary to unnecessary to address alternative
dismissal grounds. In addition, Complainant, on appeal, does not challenge the August 1, 2013
and November 8, 2013 partial dismissals issued by the agency regarding five other claims.
Therefore, we have not addressed these issues in our decision.

16 0120172474

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

December 20, 2018
Date