2020001126•EEOC Appeal 2020001126
Gesamter Gesetzestext
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlene S.,1 Complainant, v. Dale Cabaniss, Director, Office of Personnel Management, Agency. Appeal No. 2020001126 Hearing No. 530-2019-00051X Agency No. 2018038 DECISION On November 25, 2019, 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 21, 2019, 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 Agency’s final order. ISSUES PRESENTED Whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not subjected to retaliatory harassment as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Legal Administration Specialist, GS-9/10 at the Agency’s Retirement Benefits (RB) Branch in Washington, District of Columbia. On June 13, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII 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.
2020001126 2 of the Civil Rights Act of 1964 when, on May 10, 2018, the Agency denied Complainant opportunities to train new employees. 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 AJ. Complainant timely requested a hearing. On September 10, 2019, in a Notice of Intent to Issue Summary Judgement, the AJ assigned to the case informed the parties that he had determined the case may be appropriate for summary judgment in favor of the Agency. The AJ provided the parties until September 25, 2019, to respond in writing to the Notice and/or to oppose summary judgment. The AJ informed the parties that unless a party demonstrated that there was a genuine issue of material fact or credibility in dispute, no hearing would be held in this matter. Complainant responded to the Notice. The Agency did not. The AJ reviewed the submissions along with the entire record for the case. Complainant alleged that the Agency subjected her to reprisal when it denied her the opportunity to train a new employee in retaliation for filing numerous EEO complaints between 2007 and 2015. She alleged that her supervisors were well aware of her prior EEO complaints because they were named in previous complaints. Complainant testified that she discovered an employee who did not currently work in the office was given the opportunity to return and train employees. She noted that she has been asking to conduct training for quite some time, and has not been given the opportunity. She indicated that she currently processes the action for which she would have been training staff on, and has made requests to conduct the training since 2015. Complainant stated that she is an expert in the work she is currently doing. She indicated that she has expressed her interest in conducting training to management. Complainant stated that she has been denied a better opportunity for advancement because conducting training will give her a higher performance rating. She indicated that she has been hindered from applying for a higher level position because she has not been allowed to conduct training. She stated that training is noted in her Position Description (PD), but management adds "No basis" in that section because they have not allowed her the opportunity. She asserted that she has been asked to create a plan for conducting training when no one else has been asked to provide such a plan. Complainant stated her belief that her prior EEO activity is a factor because there are others who have been given the opportunity to train who have not filed EEO complaints. Complainant stated that she feels harassed because of being denied an opportunity to conduct training. She noted that if she sends an email and includes upper level management, she will receive a very hostile email in response. She noted that other staff can send emails and include upper management without receiving a hostile response.
2020001126 3 She indicated that she has reported the incidents of harassment on several occasions to upper management including the Associate Director, the Deputy Associate Director, and the Deputy Assistant Director. Complainant stated that she has suffered "substantial emotional stress and trauma." Complainant’s first-line supervisor (S1) stated that Complainant was not denied an opportunity to train. She recalled that earlier in 2018, Complainant was offered the opportunity to provide training on Government Claims/Levies, but she declined the offer. S1 stated that since Complainant processes the work and emphasizes she is a Subject Matter Expert (SME), S1 offered Complainant the first opportunity to train three new Legal Administrative Specialists (LASs). S1 stated that Complainant was also offered an opportunity in 2017 to train an LAS on the Cancellation/Suspension forms “RI 79-9's.” Regarding Complainant's allegation of having been asked to write a lesson plan prior to conducting training, S1 stated that the standard is to incorporate the Standard of Procedures (SOPs) in the lesson plans, and add different scenarios for presentation. She stated that if there is a one-on-one situation, this can be incorporated, but shadowing is important for the one-on-one. S1 testified that the LASs in RB work on other assignments, noting that those staff members have more experiences with the diversity of work. She stated that Complainant works on two areas. She stated that Complainant currently teleworks two days a week and works in the union office two days a week. She stated that they can review Complainant’s schedule if an opportunity arises and Complainant can adjust her schedule to work five days a week for several months in RB. The Group Chief (GC) provided supporting testimony. She stated that Complainant is not well versed in all aspects of the Federal Employees Health (FEHB) program, and would need to become proficient with the various workloads prior to training others. She added that when Complainant became proficient with the policies, procedures, and regulations governing the FEHB, Complainant's manager would make the ultimate decision to consider her if there is a need for training. Regarding Complainant’s harassment allegations, S1 asserted that Complainant has complained for about four years that the previous Manager aligned the team to harass her. S1 stated that she does not know the specifics of the case. Complainant stated that GC’s statements were untrue, asserting that management used her model to provide training to others. She affirmed that she was offered the opportunity, and that she did conduct training in early 2018. She stated that S1 did not offer her an opportunity to train two new LASs. She recalled that S1 promised to respond regarding her request to train, but never did. The AJ confirmed that Complainant was unable to establish a prima facie case of reprisal. He explained that Complainant was able to show that she engaged in a protected activity, filing EEO complaints. However, Complainant had not provided evidence that there is a nexus between those complaints and the Agency’s actions.
2020001126 4 The AJ stated that Complainant was unable to show that the Agency actions were materially adverse or that they would reasonably deter the use of the EEO process. He explained that although Complainant is knowledgeable in the office work and it may be a good idea for a seasoned LAS to train newer Specialists, supervisors have wide latitude to determine training options for the Agency’s staff as part of their management duties. The AJ found that as such, the evidence did not support Complainant’s allegation of illegal discrimination based on reprisal. The AJ entered Summary Judgment in favor of the Agency on September 30, 2019. The Agency subsequently issued a final order (FAO) adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that errors exist in the AJ’s decision. She asserts that the AJ failed to recognize that Complainant was excluded from opportunities to train not one but several new employees. She states that the Agency hurriedly scheduled trainings, of which she was unaware, prior to the AJ hearing in order to misrepresent the facts. Complainant provided a sequence of emails regarding the allegedly abruptly scheduled trainings as evidence of the Agency’s retaliation. Complainant contends that she is more seasoned than other employees selected for training opportunities. She requests that the Commission reconsider the AJ’s decision. In its Appeal Brief, the Agency argues that Complainant has provided no new evidence or argument to support her assertions that the FAO fully implementing the AJ’s decision was incorrect. The Agency asserts that Complainant failed to establish a prima facie case of retaliatory harassment; she failed to show a nexus between the Agency’s alleged actions and her prior EEO activity; and Complainant’s arguments are insufficient to warrant overturning the FAO. The Agency contends that Complainant took issue with its characterization of the opportunities she was provided and sought to introduce new materials on appeal. The Agency requests that the Commission affirm the FAO in its entirety. STANDARD OF REVIEW 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. (Nov. 9, 1999) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis – including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal
2020001126 5 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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant contended that errors exist in the AJ’s decision, asserting that the AJ failed to recognize that Complainant was excluded from opportunities to train not one but several new employees. She stated that the Agency hurriedly scheduled trainings, of which she was unaware, prior to the AJ hearing in order to misrepresent the facts. Complainant also contended that she is more seasoned than other employees selected for training opportunities. Yet, Complainant presented no evidence to support her assertions that she was denied opportunities to train new employees, that trainings were “hurriedly scheduled” prior to the hearing or how she was more “seasoned” than those employees selected for training. Moreover, a mere recitation that there is a factual dispute is insufficient. The party opposing summary judgment must identify the disputed facts in the record with specificity or demonstrate that there is a dispute by producing affidavits or records that tend to disprove the facts asserted by the moving party.
2020001126 6 In addition, the non-moving party must explain how the facts in dispute material under the legal principles applicable to the case. 29 C.F.R. § 1614.109(g)(2); Celotex, 477 U.S. at 322-324; Patton v. U.S. Postal Service, EEOC Request No. 05930055 (July 1, 1993) (summary judgment proper where complainant made only a general pleading that his job performance was good but set forth no specific facts regarding his performance and identified no specific inadequacies in the investigation). Determination on the Merits With respect to the merits of her claim, we analyze a case of disparate treatment under the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. With respect to establishing a prima facie case of reprisal, Complainant must show that (1) she engaged in prior protected activity; (2) the agency official who took the adverse employment action was aware of the protected activity; (3) she was subsequently disadvantaged by an adverse employment action or adverse treatment; and (4) there is a causal link between the protected activity and adverse action/treatment. Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). The record reflects that Complainant did engage in prior EEO activity; and that she meets the requisite elements to establish a prima facie case of reprisal. Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on 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, 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 Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). Here, S1 testified that the LASs in RB work on other assignments, noting that those staff members have more experiences with the diversity of work while Complainant only works on two areas. The GC also stated that Complainant is not well versed in all aspects of the FEHB program and would need to become proficient with the various workloads prior to training others. Complainant attempted to show pretext, stating her belief that her prior EEO activity is a factor because there are others who have been given the opportunity to train who have not filed EEO complaints. Yet, she failed to identify who these employees were, the circumstances under which these employees were allowed to train new employees, or how those circumstances were similar to her particular situation.
2020001126 7 Complainant also provided a sequence of emails regarding allegedly abruptly scheduled trainings as evidence of the Agency’s retaliation. Complainant indicated that those emails show management’s attempt to cover their tracks for not affording Complainant past training opportunities. However, Complainant failed to show a nexus between the emails and her prior EEO activity. Nor do the emails evidence adverse treatment based on retaliation. Rather, the emails indicate that management offered Complainant the opportunity to train others. Moreover, there is no evidence that the emails were used by the Agency to misrepresent the facts of the instant complaint as contended by Complainant. For example, Complainant presented no evidence demonstrating that but for the soon to be held AJ hearing, management would not have scheduled the training or included her name on that schedule. Complainant also failed to show how the “hurriedly” scheduled trainings were exactly the same level of trainings to new employees that management previously denied her the opportunity to provide. Besides, S1 explained, and Complainant affirmed, that she was indeed offered the opportunity, and that she conducted training in early 2018. S1 also stated, and Complainant did not dispute, that earlier in 2018, Complainant was offered the opportunity to provide training on Government Claims/Levies but she declined the offer. Complainant alleged that she feels harassed because of being denied an opportunity to conduct training, noting that if she sends an email and includes upper level management, she will receive a very hostile email in response; and that other staff can send emails and include upper management without receiving a hostile response. These statements, however, are conclusory and unsupported by any evidence. For example, Complainant did not present any emails that contained a “hostile” response from management to her. Based on the undisputed facts as presented in the instant complaint, Complainant has not met her burden of showing by preponderant evidence that she was discriminated against when she was denied the opportunity to train new employees. Rather, the evidence shows that Complainant lacked the requisite expertise to provide the level of training needed at the time. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision finding no retaliatory harassment; and the Agency’s final order fully implementing that decision.
2020001126 8 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.
2020001126 9 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 September 16, 2020 Date
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