EEOC Appeal 2020001902

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harriet J.,1
Complainant,
v.
Dan Brouillette,
Secretary,
Department of Energy,
Agency.
Appeal No. 2020001902
Hearing Nos. 570-2017-00787X
570-2017-01098X
570-2018-01101X
Agency Nos. 	16-0071-HQ-ME
17-0001-HQ-HC
17-0082-HQ-HC
DECISION
The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s December 12, 2019 final order concerning the three formal complaints which claimed
unlawful 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Program Analyst at the Agency’s Office of
the Chief Human Capital Officer’s (HC) Management and Performance (“M&P”) Shared Service
Center (SSC) Learning Branch in Washington, D.C.
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 filed three formal complaints on June 27, 2016 (“Complaint 1” - Agency No. 16-
0071-HO-ME), November 14, 2016 (“Complaint 2” - Agency No. 17-0082-HQ-HC), and June 30,
2017 (“Complaint 3” – Agency No. 17-0082-HQ-HC) respectively. The Agency consolidated the
formal complaints for processing.
Complainant claimed she was subjected to harassment/a hostile work environment based on race
(African-American), sex (female), age (over 40), and in reprisal for protected EEO activity (prior
EEO activity) when:
1. 	on March 16, 2016, Complainant was given twenty-four hours’ notice to travel to Oak
Ridge, Tennessee for training which could have been provided by twenty-two
employees at Headquarters, was not official and accredited training, and was not
instructed at the proper grade level (Complaint 1);
2. 	on February 26, 2016, Complainant’s email describing the required training for her to
demonstrate an expert knowledge of work, was not referenced when management
ordered her to attend the training in Oak Ridge, Tennessee (Complaint 1);
3. 	on September 8, 2016, Complainant was issued a Letter of Reprimand (Complaint 2);
4. 	on December 22, 2016, the Human Resources (HR) Specialist, also Complainant’s
supervisor, directed Complainant to submit a weekly report to her, “detailing
[Complainant’s] activities and accomplishments in the Work Group.” Complainant
asserts that on February 2, 2017, she participated in a telephone conference with her
supervisor and the Supervisory HR Specialist, in which Complainant expressed
concerns about the request for a weekly report (Complaint 3);
5. 	during the February 2, 2017 conference call, the supervisor informed Complainant that
the weekly activity report would be used to rate Complainant. 	Complainant further
asserts that as of February 2, 2017, she had not yet received a performance plan for
Fiscal Year 2017 (Complaint 3);
6. 	on February 21, 2017, the Supervisory HR Specialist issued Complainant a Notice of
Proposed Suspension for five days (Complaint 3); and
7. 	on April 12, 2017, the Director, HR Shared Service Center for Management and
Performance, issued a decision suspending Complainant for two days (Complaint 3).
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the AJ
consolidated the three formal complaints for processing. 	On June 19, 2019, the AJ issued a
decision without a hearing in favor of the Agency. The Agency thereafter issued the instant final
order implementing the AJ’s decision.

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The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine”
if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 	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. (as revised, August 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus. Here, however, Complainant failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he
must first establish a prima facie 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. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. 	See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. 	See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
The record developed during the investigation fully supports the AJ’s determination that the
responsible management officials articulated legitimate, non-discriminatory reasons for the actions
in dispute.
From June 2002 through October 2015, Complainant was employed as a Program Manager in
HC’s Office of Learning and Workforce Development. 	In October 2015, HC underwent a
reorganization and the M&P and Science and Energy Shared Service Centers merged.

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As a result of that reorganization, Complainant was reassigned to a Program Analyst position in
the M&P Shared Service Center Learning Branch.
On November 15, 	2015, the Supervisory HR 	Specialist became Complainant’s first-line
supervisor. 	The supervisor’s primary duty location was Cincinnati, Ohio. 	She had no prior
supervisory experience.
During the week of November 16, 2015, Complainant notified the supervisor that she was not
happy with her reassignment to the M&P SSC Learning Branch and that she had filed an EEO
complaint related to her reassignment. 	The supervisor was not involved in Complainant’s
reassignment and was not named as a responsible management official by Complainant in the
reassignment complaint. However, in January 2016, the supervisor learned that Complainant had
identified her as a witness in the complaint.
On December 16, 2015, Complainant stated in an email to the supervisor that her duties in the
Learning Branch involved duties that, “I have never held, I do not qualify to perform and am
unfamiliar with.” Complainant also stated that she had not been provided training to perform the
tasks, which she identified as clerical in nature, or training commensurate with her grade level of
GS-14.
In an email dated February 23, 2016, the supervisor directed each member of her staff, including
Complainant, to reserve March 15 and 16, 2016 for Corporate Human Resource Information
System (CHRIS) training in Washington, D.C. to pull reports from organizations, and how to
obligate funds, which were all essential functions for Learning Branch personnel.
Sometime between February 23 and February 26, 2016, the supervisor and Complainant met in
Washington D.C. and discussed the supervisor’s CHRIS Workflow Training requirement. 	The
supervisor’s February 25, 2018 handwritten notes from this meeting indicate, inter alia, that
“[Complainant] will attend CHRIS [training], but will not be satisfied.”
On February 26, 2016, Complainant responded to the supervisor’s direction to attend CHRIS
training by stating, “at my grade level, I am expected to demonstrate an expert knowledge of work
assigned to me. To accomplish that expectation, I will need the following and specific training to
address CHRIS workflow responsibilities before participating in training to process training
request.” Complainant then outlined the issues she believed needed to be addressed in her training.
The supervisor did not reply to this email, but on the same day she forwarded Complainant’s email
about the CHRIS Workflow training to the HR Specialist, also CHRIS Workflow Training
Instructor, requested that she cover additional topics. The HR Specialist responded that she would
add information to the beginning of the course, to specifically address Complainant’s concerns.
During a March 2, 2016 staff meeting, the supervisor again discussed the March 15, 2016, CHRIS
Workflow Training with her staff, including Complainant.

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On March 15, 2016, the day of the CHRIS Workflow Training, the supervisor emailed her staff,
including Complainant, the following: “Enjoy the training today and say hi to [a named HR
Specialist] for me.”
Regarding claims 1 and 2, Complainant asserted that on March 16, 2016, Complainant was given
twenty-four hours’ notice to travel to Oak Ridge, Tennessee for training which could have been
provided by employees at Headquarters, was not official and accredited training, and was not
instructed at the proper grade level, and on February 26, 2016, Complainant’s email describing the
required training for her to demonstrate an expert knowledge of work, was not referenced when
management ordered her to attend the training in Oak Ridge, Tennessee.
The supervisor (Caucasian, female, over 40) stated at that time she wanted her entire staff to attend
CHRIS training because several employees “who had not had familiarity with that system and
there were some that were. But I felt that they all needed to have the opportunity to receive the
training because it was imperative to what we were doing in the Learning Branch…they were
going to learn how to process a training request, how to pull a report from - - how to query CHRIS
to pull reports from organizations, how to obligate funds.”
Complainant did not attend the March 15 and 16, 2016 training as directed. When her supervisor
learned Complainant did not attend, she directed Complainant to attend the same training in Oak
Ridge, Tennessee on March 18, 2016. The supervisor stated, however, that Complainant informed
her that she could not travel to the training in Oak Ridge “because it was too short of
notice…because it was within 24 hours. She had to plan for the travel.” The supervisor noted that
Complainant stated that she had “childcare and eldercare responsibilities.” Complainant did not
attend CHRIS Workflow training in 2016.
Regarding claim 3, Complainant alleged that on September 8, 2016, Complainant was issued a
Letter of Reprimand.
On December 14, 2015, a named employee (Employee 1), who was a member of the supervisor’s
staff responsible for signing and approving administrative access to the CHRIS Workflow system,
asked the Learning & Development Branch staff, including Complainant, to submit a CHRIS
Workflow form by December 18, 2015. However, as of January 20, 2016, Complainant had not
completed the form. On January 20, 2016, the supervisor followed up and directed Complainant
twice to complete the CHRIS Workflow Training Approver form. 	By March 24, 2016,
Complainant had still not complied with this direction.
On November 30, 2015, another staff member of the supervisor’s staff (Employee 2) informed
Complainant that she was required to complete the Government Purchase Card (GPC) application
and two online training sessions in order to receive a GPC card. By January 27, 2016, Complainant
still had not completed the GPC training. 	On January 28, 2016, the supervisor directed
Complainant to complete the GPC training by the close of business. 	By March 24, 2016,
Complainant had not complied with this direction.

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On March 8, 2016, the M&P SSC Branch Chief directed all M&P SSC employees, including
Complainant, to complete and submit a User ID Request Form for access to the Customer Relations
Management (CRM) tool to the Information Technology (IT) Specialist by March 10, 2016. The
same day, the supervisor reiterated this direction to each member of her staff, including
Complainant. 	On March 11, 2016, the M&P SSC Branch Chief repeated the direction to all
employees who had not submitted their User ID Request Forms for CRM access. On March 14,
2016, the supervisor reiterated the M&P SSC Branch Chief’s direction to Complainant and another
member of her staff as training was to begin soon. As of March 24, 2016, Complainant had not
submitted her User ID Request form.
Thereafter, the supervisor issued Complainant a Notice of Reprimand dated March 24, 2016, in
which she placed Complainant on notice with four specifications of Failure to Follow Instructions
as follows: (1) failure to complete the CHRIS Workflow form first requested by Employee 1; (2)
failure to complete the GPC requirements first requested by Employee 2; (3) failure to comply
with the supervisor’s direction to attend the CHRIS Workflow training on March 15-16, 2016 in
Washington D.C.; and (4) failure to comply with the M&P SSC Branch Chief’s direction to
complete a User ID Request Form for access to CRM, and failure to comply with follow-up
directives. The supervisor, however, was unable to serve Complainant with the reprimand because
Complainant was involved in a serious car accident requiring her to take extended medical leave.
On September 8, 2016, shortly after Complainant’s return to the office, the supervisor issued
Complainant the Letter of Reprimand for her repeated failure to follow instructions.
Regarding claim 4, Complainant alleged that on December 22, 2016, the Human Resources (HR)
Specialist, also Complainant’s supervisor, directed Complainant to submit a weekly report to her,
“detailing [Complainant’s] activities and accomplishments in the Work Group.” Complainant
asserts that on February 2, 2017, she participated in a telephone conference with her supervisor
and the Supervisory HR Specialist, in which Complainant expressed concerns about the request
for a weekly report.
In October 2016, the supervisor assigned Complainant to begin providing support to the Talent
Management Study Workgroup (TMS Workgroup) which the Acting Chief Learning Officer
managed. The supervisor remained Complainant’s supervisor as it was not a formal reassignment.
Complainant spent from 25% to 60% of her time supporting the TMS Workgroup. On December
22, 2016, the supervisor directed Complainant to generate weekly “status reports” identifying the
activities performed and/or completed during the week and the activities planned for the next
week.” The supervisor explained that in her organization, everyone “was completing a weekly
status report, and I felt that it was important for me to understand what [Complainant] was doing
on a pretty regular basis so that I could – I was held accountable for what she was doing. I was
her supervisor.”
The 	Supervisory 	HR 	Specialist, 	also 	Complainant’s 	second-line 	supervisor, 	conducted 	a
conference call on February 2, 2017 with Complainant and the supervisor to discuss the
supervisor’s weekly status report directions. 	He stated that his intention was “to have us all on
camera so that we could have more of a face-to-face discussion.

2020001902	7
Unfortunately, [Complainant] - - I don’t know if she didn’t have a camera that worked. Maybe
something happened on her end. So she didn’t have her camera up and operational.”
The Supervisory HR Specialist stated that he tried multiple times to, I guess, encourage
[Complainant] that this status report was a very necessary thing and it would be used for good. It
would capture all of the great things she was doing for [John Walsh’s] team and ultimately end up
in performance appraisal. It could end up, you know, boosting her ratings perhaps if her rating
official - - which was [supervisor] - - was made aware of all of the great things she was doing.
And [Complainant] was very resistant to providing the status report and on 	multiple occasions
circled back to - - it’s not in my interest to do this. I’m not going to provide this status report for
you. So close to the end of the meeting, I was just trying to, you know, convince her by telling her
all of the positive things, you know, that the status report would help us with, both management
and [Complainant].”
Further, the Supervisory HR Specialist noted that Complainant was adamant about not providing
the weekly status report “so, at that time, at the very end of the meeting, I gave her an instruction
to provide the status report, and I asked her if she was aware and understand the instruction…she
said ‘yes.’ And [she] didn’t have much else to say beyond that.”
On February 3, 2016, Complainant informed the supervisor and the Supervisory HR Specialist that
she determined it was not in her best interest to comply with their weekly status report direction.
On February 4, 2017, the Supervisor HR Specialist responded to Complainant summarizing the
directions he gave her during the February 2, 2017 conference call and giving Complainant until
February 6, 2017 to comply with the directions.
Regarding claim 5, Complainant claimed that during the February 2, 2017 conference call, the
supervisor informed Complainant that the weekly activity report would be used to rate
Complainant. Complainant further asserts that as of February 2, 2017, she had not yet received a
performance plan for Fiscal Year 2017. However, the evidence shows that no Agency personnel
in HC had received a new performance plan, as HC management was working to develop
standardized critical elements. 	HC employees began receiving the performance plans in June
2017.
Regarding claim 6, Complainant asserted that on February 21, 2017, the Supervisory HR Specialist
issued Complainant a Notice of Proposed Suspension for five days.
The record contains a copy of the Notice of Proposed 5-Day Suspension in which the Supervisory
HR Specialist placed Complainant on notice that he was proposing to suspend her without pay
from her position for five days for failure to follow instructions. Specifically, the Supervisor HR
Specialist stated that he and the supervisor “have given you specific instructions to provide a
weekly status report, provided you the format to use, and you still failed to follow those
instructions. To date, neither [supervisor] nor I have received a response from you and a status
report has not been provided in the format required.”

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Further, the Supervisory HR Specialist noted that Complainant was in violation of the 5 CFR
735.203 which states “’an employee shall not engage in criminal, infamous, dishonest, immoral,
or notoriously disgraceful conduct, or other conduct prejudicial to the Government.’ 	A basic
principal in my organization is that when a supervisor gives an employee instructions relating to
their performance of the employee’s duties, the employee must follow such. It is not your place
to dictate to your management chain what you will, or will not do concerning her work
assignment(s). Your failure to follow these repeated instructions is prejudicial to the Government
and does not promote the efficiency of Federal Service.”
Regarding claim 7, Complainant alleged that on April 12, 2017, the Director, HR Shared Service
Center for Management and Performance, issued a decision suspending Complainant for two days.
The record contains a copy of the Director’s Notice of Decision regarding the Notice of Proposed
5-Day Suspension in which he considered all of the evidence provided, including the Douglas
Factors and other elements of the record established in this case “I find sufficient evidence to
mitigate the Proposed Five (5) Day Suspension from five to two days and that your suspension
occur on non-work days (weekend) in an effort to avoid any monetary impact. I have determine
this to be the best course of action and is necessary to correct your conduct and to promote the
efficiency of the Federal Service.”
After careful consideration of all Complainant’s allegations and the evidence of record, there is
undisputed evidence to fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond
her bare assertions, Complainant has simply provided no evidence to support her claim that her
treatment was the result of her race, sex, age or prior protected activity. We note that Complainant
provided no arguments on appeal. Moreover, a case of discriminatory hostile work environment is
precluded based on our findings that Complainant failed to establish that any of the actions taken
by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC
Appeal No. 019982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment
finding no discrimination was established.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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

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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, 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. 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
October 14, 2020
Date