U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jenna P.,1
Complainant,
v.
Robert M. Lightfoot Jr.,
Acting Administrator,
National Aeronautics and Space Administration
(Langley Research Center),
Agency.
Appeal No. 0120150180
Hearing No. 430-2012-00290X
Agency No. NCN-11-LARC-00077
DECISION
The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 24, 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. 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 Human Resources
(HR) Specialist in the Agency’s Human Resources Staffing and Classification Branch, Office
of Human Capital Management, at Langley Research Center in Hampton, Virginia.
Complainant was selected in early 2010 for a temporary promotion to a GS-14 Lead HR
Specialist position. The position had a “not to exceed” date, but was extended twice. The job
announcement for the position did not indicate that the position could be converted to a
permanent position. Complainant and another Lead HR Specialist (LHR1) reported to the
Branch Chief (S1-1). While in the temporary position, Complainant served as the Project
Manager for the Electronic Position Description System (ePDS). The project’s deadline was
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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extended to January 30, 2011. In May 2011, Complainant indicated that the project was 83.4
percent completed, but that “for the most part, we’re done.”
In June 2011, a few GS-13 HR Specialists reported to managers that they were confused by the
structure in S1-1’s branch and that they did not believe there was sufficient work for two GS-
14 Leads. Some of the HR Specialists were classification specialists and believed that
Complainant was not performing duties on the GS-14 level. Based on these concerns and the
passing of the ePDS project deadline, the Office of Human Capital Management Deputy
Director (S2) and Director (S3) instructed S1-1 to provide written justification for two GS-14
Leads in the branch. S1-1 did not submit anything to justify further extension of
Complainant’s temporary promotion or to justify converting the temporary promotion to a
permanent GS-14 Team Lead.
In the summer of 2011, several GS-13 HR Specialists alleged that S1-1 showed favoritism
towards Complainant. The Office of Chief Counsel was asked to conduct an investigation.
The Attorney-Investigator interviewed everyone in the staffing group. Based on the
interviews, the Attorney decided to monitor S1-1’s and Complainant’s computers in August
2011. On August 18, 2011, the Attorney decided to monitor Complainant’s internet usage.
The monitoring of Complainant’s government-issued computer revealed that she had mortgage
applications from third parties on her hard drive. The mortgage applications contained
personally identifiable information and were related to Complainant’s outside employment as a
notary. Additionally, the monitoring uncovered documents related to Complainant’s outside
employment as an instructor at DeVry Online University, which indicated that Complainant
may have been working outside the Agency while on the Agency’s payroll. The Attorney
reviewed the material on Complainant’s computer and informed S3 that a removal action could
be supported for misconduct. S3 reviewed the information and ultimately decided to issue
Complainant a 30-day suspension instead.
S1-1 completed performance evaluations for the 2011 rating period and made bonus
recommendations for her subordinates. S1-1 rated Complainant as “Distinguished (5),” the
highest possible rating. S1 rated LHR1 as “Accomplished (4),” one level lower than
Distinguished. Employees who earn a “5” rating receive a performance bonus between 1.6
and 3.0 percent of their salary while employees who earn a “4” rating receive a performance
bonus of 0.6 and 1.5 percent of their salary. S1-1 recommended that Complainant receive a
performance bonus of $2,750.00 and that LHR1 receive $1,700.00. S3 was responsible for
setting awards, and he considered supervisory recommendations and the total award budget for
the office. S3 additionally reviewed employee accomplishments in both branches and their
impact on the office as a whole. S3 believed that the other branch had a better year and a
more significant impact on the office’s mission than S1-1’s branch. The total amount of
awards recommended exceeded the office’s awards budget. As a result, S3 made adjustments
to the recommended awards. S2 informed S3 that Complainant’s primary responsibility as the
Temporary Lead HR Specialist had been the ePDS project, and that it was only 90 percent
completed by the deadline. S2 had rated S1-1 as “Accomplished” in part because projects
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were incomplete. By contrast, S2 had rated the other branch’s supervisor (S1-2) as
“Distinguished.”
S3 set employee awards for employees in S1-1’s branch lower than the recommended amounts,
and set the award for an employee in S1-2’s branch higher than the recommended amount. S3
set Complainant’s award at $1,600.00, the lowest possible award for her “Distinguished”
rating. S3 considered Complainant’s delayed work on ePDS project and information from
trained classifiers who told him that Complainant had been performing GS-13 level work while
in her temporary GS-14 position. S3 believed that it would be unfair to set Complainant’s
award at a higher percentage of her GS-14 salary when she was doing the same work as GS-
13s.
On September 15, 2011, S2 and S3 informed Complainant that there was no work-related
justification to support extending her temporary promotion or to make the promotion
permanent. Complainant asked if she could receive “retained pay” or the “highest previous
rate” of pay when she returned to her GS-13 position. Management officials asked an HR
Specialist to look into whether other employees in the office had been granted retained pay.
The HR Specialist determined that it had not been done before. The HR Specialist performed
the search again at S2’s request, and the HR Specialist again determined that no other
employee received retained pay when a temporary promotion ended. As a result, S3 informed
Complainant that he would not authorize retained pay.
On October 4, 2011, Complainant sent an email with the subject “Action Items for Lead.” In
the email, Complainant identified a list of critical elements she claimed that she handled as
Lead in addition to her day-to-day functions. Two classification specialists reviewed the email
and agreed that the listed duties were not “Lead” duties.
On November 17, 2011, S2 issued Complainant a Notice of Proposed 30-Day Suspension for
Misuse of Position and Misuse of Government Resources. The Notice cited the administrative
review of Complainant’s computer that revealed that Complainant had engaged in “what
appears to be a pattern of ensuring an opportunity for your friends to become federal
employees without competing.” Further, the Notice stated that Complainant had documents
related to outside employment and personally identifiable information of third parties on her
government-issued computer. On December 1, 2011, Complainant emailed a rebuttal to the
Notice. Complainant met with the Director. During that meeting, Complainant admitted that
she had misused her government computer.
On December 20, 2011, the Deputy Director of the Langley Research Center issued a Decision
on the Notice of Proposed Suspension. The Deputy Director determined that Complainant had
engaged in misconduct, but mitigated the suspension down to 14 days based on Complainant’s
work performance and lack of disciplinary history. Subsequently, in January 2012, S1-1 was
demoted two grades. Management determined that S1-1 had engaged in favoritism and that
Complainant had been giving S1-1 rides to and from work at least two times a week for
approximately two and a half years. S1-1 later left the Agency.
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Around the end of December 2011, one of the HR specialists retired. S2 began redistributing
service organizations among the remaining specialists. At the same time, S2 reassigned the
office’s (OCHM) servicing duties from Complainant to LHR1. S2 determined that the duties
should be handled by a GS-14. The duties were later reassigned to a branch supervisor.
On October 18, 2011 (and amended on February 16, 2012), Complainant filed a formal
complaint alleging that the Agency discriminated against her on the bases of race (African-
American), sex (female), and in reprisal for prior protected EEO activity when:
1. Despite a rating of “Distinguished,” Complainant’s performance award was
considerably lower than similarly-situated co-workers for the performance period
from May 1, 2010 to April 30, 2011;
2. Complainant’s request to extend her temporary promotion to GS-14 as Temporary
Team Lead and Project Manager for the ePDS Classification Project 2010 was
allowed to expire on September 30, 2011;
3. Complainant’s request to retain GS-14 pay was denied on September 30, 2011, in
retaliation for her participation in the instant complaint;
4. On September 28, 2011, the Agency monitored her government-issued computer
and retrieved documents dating from 2004 through 2010;
5. On November 17, 2011, Complainant was placed on administrative leave for five
hours for “Misuse of Position” and “Misuse of Government Resources,” which
resulted in her suspension from the Agency for 14 days, effective January 8 through
21, 2012; and
6. On December 20, 2011, Complainant learned that she would no longer serve as the
specialist for the Office of Human Capital Management.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 held a hearing on July 30 and 31, 2014, and subsequently issued
a decision on August 28, 2014.
2 The Agency dismissed an additional claim for failure to state a claim pursuant to 29 C.F.R.
§ 1614.107(a)(1). Complainant raised no challenges to the Agency’s dismissal before the AJ
or on appeal; therefore, the Commission will not address it in this decision. Additionally,
Complainant withdrew an additional claim while the matter was before the AJ.
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In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (1), S3 testified that he
could not accept all the award recommendations by the supervisors because the total amount
exceeded the award budget. S3 testified that he considered a number of factors when he set
Complainant’s award amount. S3 discussed Complainant’s performance contributions with S2
who told him that Complainant did not complete the ePDS project as expected. Further, S3
had concerns about the level of work that Complainant had been performing as trained
classifiers had told him that Complainant had been performing GS-13 level work while in her
temporary position as a GS-14. Additionally, S1-1 had provided no feedback to show that
Complainant was performing GS-14 level work. Thus, S3 thought it would be unfair to set
Complainant’s award at a higher percentage of her GS-14 salary when she was doing the same
work as GS-13s.
With respect to claims (2) and (3), S2 and S3 testified that they had no documentation that
Complainant was performing GS-14 duties or that two GS-14s were necessary when
Complainant’s temporary promotion was set to expire in September 2011. They had instructed
S1-1 to provide documentation in support, but she failed to submit any. Both testified that they
did not rely on an employee’s self-assessment of her own grade level, that they rely on the
supervisor to provide information, and S1-1 never provided it.
Regarding claims (4) and (5), the AJ determined that the record showed that during an
investigation into allegations of misconduct, the investigator made the decision to monitor
Complainant’s computer. The Agency stated that the proposal of the 30-day suspension was
not too severe. Complainant admitted to misusing her government-issued computer. Further,
the investigation uncovered that Complainant had recommended, in her official capacity,
several friends and family members for employment or related benefits and provided assistance
with setting one friend’s pay. The AJ noted that the investigation was initiated before
Complainant engaged in EEO activity and was ongoing for several weeks.
Finally, as to claim (6), the Agency explained the HR duties for OHCM were unique and
difficult. Essentially, the duties involved servicing HR needs for other employees in OHCM.
S2 decided that the duties should be performed by a GS-14. Further, the record showed that
the duties were eventually assigned to a branch chief.
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 had not been subjected to
discrimination or reprisal as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that she was treated differently than white employees whose
temporary promotions were extended until they were ultimately made permanent.
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Additionally, Complainant argues that the Agency officials’ gave contradictory testimony
regarding her award. Further, Complainant argues that the investigator did not follow Agency
procedures when monitoring her computer and that entire proceeding involved retaliation.
Further, Complainant contends that S2’s explanation for reassigning her OHCM servicing
responsibilities was false and contradictory. Complainant alleges that the AJ seemed to agree
with the Agency’s explanations for its actions “even when it defied any common sense” or was
unsupported by the record. Accordingly, Complainant requests that the Commission reverse
the final order. The Agency submitted a brief in opposition to Complainant’s appeal in which
it requests that the Commission affirm its final order and the decision of the AJ.
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. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether 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. See 29 C.F.R.
§ 1614.405(a).
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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at
§ VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Disparate Treatment
To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993).
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Upon review, the Commission finds that assuming arguendo that Complainant established a
prima facie case of discrimination and reprisal, substantial record evidence shows that Agency
officials articulated legitimate, nondiscriminatory reasons for their actions. More specifically,
as to claim (1), S3 testified that he set all the awards and he was concerned after hearing
feedback from trained classifiers that there was not enough GS-14 level work and Complainant
had actually been performing GS-13 level work. Hr’g Tr., at 497-98. Additionally, S3
received feedback from S2 regarding Complainant’s performance on the ePDS. Id. at 498.
Based on the performance of other branches, Complainant’s performance on the ePDS project,
and his concerns about the level of work she performed, S3 set Complainant’s award lower
than what S1-1 recommended. Id. at 537.
With respect to claim (2), S3 testified that he decided not to extend Complainant’s temporary
promotion because he had no documentation to support extending it. Hr’g Tr., at 490, 510.
Additionally, S3 testified that he could find no support or justification for converting the
position to permanent. Id. at 491. Regarding claim (3), S3 testified that he was open to
granting Complainant retained pay, but management researched the matter and could find no
other instances of employees receiving it after returning to their previous positions from a
temporary promotion. Id. at 495-97. S3 decided not to grant Complainant retained pay
because he did not want to set a new precedent. Id. at 497.
As to claims (4) and (5), the investigator monitored Complainant’s computer and internet usage
as part of an administrative inquiry into the staffing branch. Hr’g Tr., at 315-16. The inquiry
and monitoring revealed documents related to Complainant’s outside employment, mortgage
documents with personally identifiable information of other parties, evidence that Complainant
used her position to inappropriately assist friends and family members, and documents
indicating that Complainant was performing outside work during her working hours. Id. at
317-18, 22; ROI, Ex. 47. As a result, management issued Complainant a Notice of Proposed
Suspension for 30 days for misuse of position and misuse of government resources, and placed
on her on administrative leave for the remainder of her workday. ROI, Ex. 55. The Deputy
Director of the Langley Research Center ultimately issued a Decision on Notice of Proposed
Suspension mitigating the suspension down to 14 days. ROI, Ex. 59.
Finally, with respect to claim (6), S2 testified that after an HR Specialist retired, management
redistributed the service organizations across the remaining specialists. Hr’g Tr., at 384. S2
testified that management determined that OHCM servicing duties were unique and that the
responsibility should be handled by a GS-14 specialist. Id. at 385. Complainant had returned
to her prior position and the duties were reassigned to LHR1 and eventually reassigned to a
branch chief. Id.
The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation for its actions was a
pretext for discrimination or reprisal. The record and the facts gleaned at the hearing fail to
disclose any evidence purporting to show the Agency's actions were pretext for discriminatory
or retaliatory animus.
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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 final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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 23, 2017
Date
