[Redacted], Nerissa S., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022004586 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nerissa S.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration (Ames Research Center), Agency. Appeal No. 2022004586 Agency No. NCN-21-ARC-00032 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 July 29, 2022, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Research Scientist at the Agency’s Ames Research Center in Moffett Field, California. On November 11, 2021, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases of race (Asian), national origin (Chinese), sex (female), disability (physical), and age (76), and in reprisal for prior protected EEO activity, when: 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. 2022004586 2 1. on May 13, 2021, Complainant was assigned duties for a Records Inventory Management task that were beyond the scope of her performance plan and position description; 2. on June 15, 2021, Complainant was pressured to sign her 2022 performance plan, despite her objections to the assignment of clerical/administrative duties; 3. on June 15, 2021, Complainant was told that if she did not execute her 2022 performance plan, she would be placed on a Forced Termination status and would be unable to collect her pension; 4. on June 16, 2021, the Agency’s Anti-Harassment Coordinator failed to address Complainant’s harassment allegations and did not take action on behalf of the Agency; and 5. from 2018 to the present, Complainant alleged dissatisfaction with the processing of her informal and formal complaints. The Agency accepted claims 1-4 for investigation but determined that claim 5 was not an actionable claim. The Agency noted that Complainant included a “spin off” claim in a prior EEO complaint, and it would only conduct a limited inquiry into her alleged dissatisfaction with the processing of the instant EEO complaint. Report of Investigation (ROI) at 1025-6. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). As an initial matter, the Agency dismissed claim 4 as a collateral attack on the Agency’s Anti-Harassment process. The Agency also noted that it previously informed Complainant that it would only address her allegations of dissatisfaction with the processing of the instant complaint (claim 5), such as not receiving a copy of the EEO Counselor’s Report prior to the filing of her formal complaint. The Agency determined that Complainant’s EEO complaint was properly processed, and that the Commission’s regulations require an EEO Counselor’s Report after the filing of a formal complaint.2 The Agency also concluded that Complainant failed to prove that she was subjected to discrimination as alleged. The instant appeal followed, and Complainant submitted a statement in support of her appeal.3 The Agency opposed Complainant’s appeal. 2 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the Agency’s determination regarding her dissatisfaction with the processing of her EEO complaint; as such, we will not address it in the instant decision. 3 In her appeal brief, Complainant raises other issues, such as being placed on absence without leave. However, these claims were included in another EEO complaint and are addressed separately in EEOC Appeal No. 2021004293. 2022004586 3 ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Dismissal (Claim 4) As an initial matter, Complainant challenges the Agency’s dismissal of claim 4 as a collateral attack. Complainant asserts that the Anti-Harassment Coordinator harassed her, instead of helping her, when she immediately dismissed Complainant’s allegation. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s proceeding, such as the grievance process, the workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep’t of Defense, EEOC Request No. 05931059 (July 15, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The Anti-Harassment Coordinator explained that she spoke with Complainant on or about June 16, 2021, and she noted that Complainant did not allege discrimination or harassment for the Records Inventory Management assignment, but that Complainant stated that she was “too important” for the assignment. ROI at 1181. The Anti-Harassment Coordinator subsequently informed Complainant that her allegation of harassment based on the assignment was a discrete act; and as such, it was beyond the scope of the harassment process and should be addressed with Human Resources. ROI at 1217. The proper forum for Complainant to have raised her complaints regarding the Anti-Harassment Coordinator was within the Agency’s internal anti- harassment process, and not the EEO process. Accordingly, we find that the Agency’s dismissal of claim 4 was appropriate. Disparate Treatment (Claims 1, 2, and 3) 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). 2022004586 4 She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on her age, disability, national origin, race, and sex, and in reprisal for prior protected EEO activity, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, Complainant’s Supervisor explained that Complainant was an available for new work (AFNW) employee whose work was not supported by the Agency’s projects or programs. The costs for AFNW employees were paid from the Division’s funds for operations. The Supervisor responded that he assigned Records Inventory Management to Complainant, and the duties were not beyond the scope of her performance plan or position description, which provides for other duties as assigned. ROI at 1092-3. The Division Chief further explained that they identified several tasks and assignments for Complainant, and the other staff members who were not covered by any Agency-level project funding, that were most appropriate for the employees. The Division Chief added that Complainant was assigned to support Records Inventory Management because she had written a lot of papers and publications, and since publications were part of the Division’s Records Inventory, they felt that Complainant could assist with the effort to establish a process for managing the inventory of these artifacts. ROI at 1112. Regarding claims 2 and 3, the Supervisor responded that Complainant’s allegations were completely untrue, and he denied telling Complainant that if she did not sign her performance plan that she would be placed on a “Forced Termination” status and unable to collect her pension. The Supervisor averred that there was no pressure for Complainant to sign her performance plan because it is considered established after a supervisor signed it. ROI at 1095-6. On appeal, Complainant asserts that the Supervisor and the Division Chief singled her out, and that she was treated differently as the lone female Asian Senior Research Scientist, while her male colleagues were treated more favorably. However, Complainant did not show that the proffered reasons are not worthy of belief and her bare assertions that management officials discriminated against her are insufficient to prove pretext or that their actions were discriminatory. 2022004586 5 In addition, the Assistant Division Chief of Operations, who was the lead on the Records Inventory Management task, averred that she recommended this task for unfunded staff. Senior management officials discussed the unfunded staff and projects, and they selected Complainant and another employee for the Records Inventory Management task. The Assistant Division Chief of Operations agreed that Complainant was a good fit for the assignment because she was a subject matter expert in program and project planning, and the duties were not beyond the scope of her position description. ROI at 1131-2. Complainant also accuses the Supervisor of a “pattern of chronic lies.” Complainant Appeal Brief at 3. However, Complainant did not request a hearing and she bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Here, Complainant provided no evidence that the Supervisor was not truthful, aside from her bare assertions. As such, we find that Complainant did not establish discrimination based on her age, disability, national origin, race, or sex, or in reprisal for prior protected EEO activity, for claims 1, 2, or 3. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on her age, disability, national origin, race, or sex, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that Complainant did not establish discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 2022004586 6 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022004586 7 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 March 22, 2023 Date