EEOC Appeal 2020001126

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.

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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.

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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.

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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

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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.

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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.

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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.

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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
September 16, 2020
Date