[Redacted], Peggie T., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2023000174 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Peggie T.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Appeal No. 2023000174 Hearing No. 520-2021-00107X Agency No. GSA-20-R2-P-0085 DECISION On October 12, 2022, 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 October 6, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an ePM Program Coordinator, GS-1101-03, at the Agency’s Project Management Division, Public Buildings Service, Northeast and Caribbean Region in New York, New York. On January 14, 2020, Complainant requested a reassignment to a Smart Buildings Program Specialist position in the Buildings Operations Programs Branch. On January 23, 2020, Complainant’s second-line supervisor (Regional Commissioner) denied Complainant’s request, stating that management was not going to fill the position through a transfer or reassignment. Complainant requested additional reassignments in February, April, and July 2020. 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. 2023000174 2 However, Complainant was told to apply competitively for the positions, and that management could not offer her the requested reassignments. On June 1, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on March 11, 2020, Complainant learned that other employees were noncompetitively reassigned to positions while Complainant’s requests for reassignment were denied. 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 but subsequently withdrew the hearing request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the final decision, the Agency found that Complainant failed to establish a prima facie case of discrimination based on retaliation. Specifically, the Agency determined that Complainant failed to show that the management officials who denied the requests for reassignment were aware of Complainant’s prior EEO activity. The Agency also found that Complainant failed to show a causal connection between Complainant’s EEO activity and the denied reassignments. Additionally, the Agency determined that Complainant failed to show temporal proximity or that similarly situated employees were treated more favorably. The Agency concluded that the reassignments were management directed reassignments that were not initiated by the employee and among those employees, at least one had engaged in prior EEO activity. The Agency went on to explain that even if Complainant had established a prima facie case, management officials provided legitimate, nondiscriminatory explanations for denying the reassignment requests which Complainant failed to demonstrate were pretextual. As such, the Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS 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 Chapter 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 2023000174 3 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, Complainant must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty Affs. v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on reprisal for protected EEO activity, we find that the management officials articulated legitimate, nondiscriminatory reasons for their actions. Specifically, the record reveals that the Regional Commissioner affirmed a preference to use the competitive process to fill supervisor vacancies. Similarly, the Director of Facilities Management testified that, regarding Complainant’s requests in January and July 2020, Complainant was encouraged to utilize the competitive process. Complainant applied and interviewed in January 2020 but was not referred for a second interview. Ultimately, the Agency did not select a candidate for the January 2020 posting and cancelled the announcement following one round of interviews. The Director of Facilities Management affirmed that she was aware of Complainant’s subsequent reassignment requests and stated that she did not agree to assign Complainant into a vacant Smart Buildings Program Specialist position because Complainant was not selected through the competitive process. Finally, according to the Organizational Resources Program Manager, Complainant was informed about a need in the Organizational Resources Division as a Program Analyst. However, Complainant did not communicate an interest in the reassignment. We find that Complainant has not shown that the proffered reasons were pretext for discrimination. With respect to comparators, management officials explained that the employees that were reassigned did not request reassignments and that they were reassigned in response to the Agency’s need for their skills and abilities. Moreover, Complainant has not refuted the record evidence showing that the Agency utilized the competitive hiring process for each vacancy Complainant requested to fill and advertised the positions rather than filling them by reassignment. Complainant's bare assertions that management officials discriminated against Complainant are insufficient to prove pretext or that their actions were discriminatory. 2023000174 4 Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Accordingly, upon careful review of the Agency’s decision and the evidence of record, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected Complainant to unlawful retaliation as alleged. 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. 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: 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). 2023000174 5 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. 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