Sherill S.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

May 23, 2019

0120180507 (E.E.O.C. May. 23, 2019)

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

Sherill S.,1
Complainant,

v.

Linda McMahon,
Administrator,
Small Business Administration,
Agency.

Appeal No. 0120180507

Agency No. 0816047

DECISION

On November 22, 2017, 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
November 6, 2017, 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. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Business
Opportunity Specialist, GS-1101-14, at the Agency’s HUBZone in Washington, D.C. In
November 2016, Complainant was reassigned to the position of Business Forensics Analyst.

On July 8, 2016, Complainant informed the Deputy Associate Administrator (DAA) that she was
accepting the position of Senior Advisor, providing direct support to S1. After Complainant’s
email, DAA notified management officials that Complainant accepted the offer to transition out of
HUBZone, stating that the transition would be smoother for all concerned because they had
Complainant’s buy-in.

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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Complainant alleged that she later learned during a staff meeting that the position was only a 120-
day detail assignment. On August 2, 2016, Complainant requested to rescind her acceptance of
the offer to serve as Senior Advisor. DAA responded that Complainant was already slated to be
permanently realigned out of the HUBZone office and the decision had been made to move other
employees based on Complainant’s realignment. However, DAA informed Complainant that she
would provide Complainant with a list of GS-14 vacancies, as she was committed to making sure
Complainant realigned into something that Complainant wanted to do and felt was a good fit. In
the meantime, Complainant began performing a number of duties under a detail assignment
providing support for the Government Contracting and Business Development (GCBD) Office.

On August 16, 2016, DAA inquired in to whether Complainant had requested position descriptions
and what progress Complainant had made toward choosing a position. DAA included three
position descriptions and informed Complainant that she would be detailed for 120 days or more
until she was permanently reassigned to another position through a Management Directed
Reassignment. Ultimately, management decided to assign Complainant to help start up the Mentor
Protégé Program on August 22, 2016. However, after a conference call and email exchanges, the
Director of the Mentor Protégé Program informed DAA that the detail would not be a good fit due
to difficulties with meeting with Complainant and bringing her onboard.

On November 7, 2016, DAA emailed Complainant, noting that the email should be considered a
review of Complainant’s performance. DAA noted concerns about Complainant’s progress and
reiterated that as a GS-14 leader, Complainant should be more proactive in resolving issues and
challenges. DAA noted that Complainant had not attempted to schedule a meeting with her to
discuss the challenges or elevated her concerns to the Senior Executive Service (SES) leaders. In
response, Complainant asserted that it appeared to be an internal management issue and she could
only provide the information that she had received. Complainant asserted that she could not force
anyone to provide her information.

The Deputy Director (DD) in the Office of the HUBZone Program was Complainant’s official
rater. DD issued Complainants’ Fiscal Year 2016 performance review and rated her as “Level 4,”
with Level 5 being the highest possible rating. DD did not rate Complainant on work she
performed in August and September 2016. Complainant disputed this rating. DD explained that
Complainant’s drop from a 5 to a 4 from 2015 to 2016 was due to a more conservative stance on
performance evaluations, which was mandated across GCBD. DD noted that this resulted in a
more careful, thoughtful, look at what was being accomplished by employees. DD added that
Complainant also exhibited more above and beyond leadership in 2015. The HUBZone Director
reviewed the rating and did not modify it.

On November 10, 2016, DAA notified Complainant that based on Complainant’s performance and
reaction to DAA’s guidance, it was best to realign Complainant to a supervisory level that could
help coach Complainant and maintain daily contact because Complainant required closer
supervision. Complainant subsequently was reassigned as a Forensic Business Analyst in GCBD.

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On November 16, 2016, DAA emailed Complainant stating that to get acclimated to her new team,
“maybe we should do a regular schedule instead of [an Alternative Work Schedule (AWS)] starting
next pay period. This would put you in the office 1 more day.” DAA stated that this was just a
suggestion and no change was made to Complainant’s schedule.

In or around February 2017, Complainant alleged that DAA assigned her duties outside of her
position description. Among the duties, Complainant claimed that DAA assigned her control
correspondence duties which included going around to various personnel members to ask them
where various correspondence was located, which was an assignment that was already assigned to
a GS-12 employee. DAA explained that Complainant was not assigned anything outside of her
job description, as her job description included the phrase “other duties as assigned.” DAA further
noted that many employees had been shifted and asked to perform duties outside of their day-to-
day responsibilities.

On September 28, 2016 (and later amended), Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (African-American), sex (female), color
(Black), disability (mental and physical), age (49), and in reprisal for prior protected EEO activity
when:

1. On November 16, 2016, Complainant was requested to do a regular work schedule
instead of an Alternative Work Schedule (AWS);

2. On or about November 10, 2016, Complainant was informed that she would be
realigned to receive supervision on a daily basis which resulted in a reassignment
to the position of Business Forensic Analyst, GS-1101-14;

3. On November 7, 2016, management made a threatening comment in an effort to
get Complainant to leave the Agency when the statement “if she decides to get
another job or leave” was stated to another employee;

4. On July 27, 2016, Complainant became aware that her original position,
Supervisory Business Opportunity Specialist, S-14, in HUBZone was no longer
available;

5. On July 27, 2016, Complainant became aware that the Senior Advisor, GS-14,
position in Government Contracting and Business Development (GCBD) that was
offered to her was a 120-day detail assignment and not a permanent position;

6. On November 3, 2016, Complainant received a level 4 performance rating and
management failed to address Complainant’s statement of dispute; and

7. In or around February 2017, Complainant was assigned to duties outside of her
normal position description.

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At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

In the FAD, the Agency determined that management had articulated legitimate,
nondiscriminatory reasons for its actions. With respect to claim (1), there was no indication in the
record that Complainant’s work schedule changed and S1 never approached Complainant with the
request again. Moreover, the Agency found credence in S1’s explanation that she suggested a
temporary change in the schedule until Complainant could get acclimated with the duties of her
new position.

Regarding claim (2), the Agency explained that Complainant was realigned to meet the needs of
the mission and Complainant accepted a detail to serve in the Special Advisor position. The
Agency noted that numerous employees were realigned. As for claims (4) and (5), Complainant
was asked to serve in a detail capacity due to understaffing. Complainant emailed S1 indicating
that she no longer wanted to serve in the Special Advisor detail and S1 advised Complainant to
review other GS-14 vacancies to decide which vacancy she wanted to assume outside of
HUBZone.

Regarding claim (6), Complainant’s former first-level supervisor asserted that Complainant’s
performance warranted a lower rating because Complainant had exhibited greater leadership in
2015 versus 2016 when streamlining the program’s certification and continuing eligibility process.
In terms of the assignment of duties outside of Complainant’s normal position description, S1 did
not recall assigning Complainant outside of her job description but noted that Complainant’s job
description required her to complete “other duties as assigned.”

Finally, in evaluating Complainant’s hostile work environment claim, the Agency found that
Complainant failed to establish that the alleged incidents occurred because of her protected classes.
Not only did management articulate legitimate, nondiscriminatory reasons for their actions, but
the actions complained of were not sufficiently severe or pervasive to establish a hostile work
environment. Moreover, regarding claim (3) specifically, there was no showing within the record
that if the comment was made as alleged, that it was based on any of Complainant’s protected
classes. Accordingly, the Agency found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant maintains that she was wrongfully removed from her supervisory position
and demoted. Complainant asserts that she was deceived into accepting the Special Advisor
position while S1 knew that the position was not permanent, and management wanted Complainant
moved into the “8(a) program.”
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Complainant contends that her former position remains vacant; reorganization never took place
within the office; and, despite S1’s assertion that Complainant was needed to fill a critical position,
Complainant has not performed critical duties. Complainant claims that management failed to
respond to her dispute of the 2016 ratings and Complainant denies that she was not proactive as
S1 alleged. Complainant further asserts that the EEO Investigator failed to interview all requested
witnesses. Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

As an initial matter, the Commission will address Complainant’s contentions on appeal that the
investigation was incomplete because all of her suggested witnesses were not interviewed. Upon
review of the entire record, the Commission is not persuaded that the investigation into
Complainant's complaint was improper or incomplete. Complainant failed to request a hearing, a
process which would have afforded her the opportunity to conduct discovery and to cure alleged
defects in the record. Thus, despite the above referenced arguments, the Commission determines
that the investigation was properly and adequately conducted

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 parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Disparate Treatment

With respect to the discrete acts alleged, to prevail in a disparate treatment claim, 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 a
particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
the alleged bases, we find that the Agency proffered legitimate, nondiscriminatory reasons for its
actions.
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With respect to claim (1), S1 affirmed that she asked Complainant to consider changing her AWS
to acclimate to the realignment, but never mentioned it again after making the initial suggestion.
ROI, at 263-264. Likewise, Complainant acknowledged that S1 never asked her to adjust her
AWS again after speaking with S1’s manager about the request. Id. at 180.

As for claims (2), (4), and (5) management officials stressed that Complainant was realigned based
on the needs of the mission. DD stated that he had made recommendations in the past for
restructuring redundant positions and the HUBZone Director affirmed that she could spare
Complainant’s position to allow her to go to the GCBD) office. ROI, at 224, 318-319. He noted
that since Complainant left HUBZone, he had “dual-hatted,” which resulted in efficiencies such
as more integration between administrative support and program operations. Id. at 320. He
stressed that if the Agency were to reorganize, Complainant’s position would be eliminated, but
that the position remains on the books to avoid having to go through a full reorganization. Id. at
321. Despite HUBZone’s redundancies, there was a need for Complainant’s experience and
background in GCBD. Id. S1 explained that multiple employees, including Complainant, were
detailed or covering multiple functions because they were understaffed with 30 vacancies. ROI,
Ex. D-7, at 1. She asserted that Complainant was asked to go on detail to cover workload and skill
gaps. Id. S1 stated that there were no gaps in HUBZone, as they could give up a GS-14 without
negative impact. ROI, at 251-252. Management officials asserted that the Agency was continuing
to consolidate all the certifications, which affected other areas and not just HUBZone. Id. at 231.

As to Complainant learning that the Senior Advisor position was a 120-day detail assignment and
not a permanent position, DAA stated that the position was initially a detail because the permanent
position that Complainant was to be moved into was encumbered. ROI, at 246-247. DAA stressed
that she knew the incumbent would leave following the election. Id. at 248-49. The goal was to
put Complainant in the Special Advisor position permanently, but once she accepted and declined
the position, Complainant was asked to support DAA for a 120-detail, followed by a vacant GS-
14 position of Complainant’s choice. Ex. D-7, at 7. DAA denied making any threatening
comments to get Complainant to leave the Agency as alleged in claim (3). Complainant presented
no corroborating evidence regarding this claim. ROI, at 257.

In terms of the additional supervision, DAA affirmed that she determined that Complainant needed
additional supervision because Complainant had not been proactive in her role as support for DAA
and could not provide feedback when asked. ROI, at 259-260. DAA stated that she found it
difficult to supervise Complainant and stay up with Complainant for updates on her day-to-day
tasks, adding that she did not hear from Complainant if she was travelling or did not initiate
contact. Ex. D-7, at 1. DAA asserted that she was unable to identify how Complainant spent her
workday and Complainant’s communications led her to believe that Complainant required more
hands-on supervision. Id.

As for Complainant’s performance rating claim, the DD affirmed that he issued Complainant a
lower performance appraisal rating in 2016 than he had issued Complainant in 2015. ROI, at 325.

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He explained that in addition to the office taking a more conservative approach to performance
evaluations in 2016, Complainant did not demonstrate the same level of progressive support to
bring streamlining to fruition like she had done in the prior year. Id.at 326-327. For example, DD
asserted that he had to explain things and provide counsel to Complainant’s staff. Id. He stressed
that Complainant exhibited stronger leadership and human resource skills while streamlining the
HUBZone program’s certification and continuing eligibility processes in the prior year. Id. The
HUBZone Director affirmed that as the rating official, she had a few questions about the
performance appraisal, which DD clarified, and she went on to approve the rating. Id. at 228.

Regarding Complainant’s allegation that she was assigned duties outside of her normal position
description, which Complainant stated she did not protest, DAA did not recall Complainant being
assigned duties outside of her position description. ROI, at 197, 268. She affirmed, however, that
Complainant’s position description required her to perform “other duties as assigned.” Id. DAA
denied knowledge of management making the statement, “if she decides to get another job or
leave.”

Complainant now bears the burden of establishing that the Agency's stated reasons are merely a
pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6,
1996). Complainant can do this directly by showing that the Agency's proffered explanation is
unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of
the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the
basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result,
the Commission finds that Complainant has not established that she was subjected to
discrimination or reprisal as alleged.

Furthermore, to the extent that Complainant claims that the alleged incidents constitute a claim of
harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by Agency management were
motivated by discriminatory or retaliatory animus on any of her alleged bases. See Oakley v. U.S.
Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

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 that she was discriminated against as alleged.

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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)
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.
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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

May 23, 2019
Date