U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * BARBARA C,1 COMPLAINANT, v. TIMOTHY O. HORNE, ACTING ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION, AGENCY. Appeal No. 0120162358 Hearing No. 570-2014-01078X Agency No. GSA-13-CO-B-0056 August 31, 2017 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's August 26,2 2016, 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. 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 Complainant worked as a Supervisory Budget Analyst within the Office of the Chief Financial Officer, which is located at its headquarters in Washington, D.C. In a complaint filed on May 31, 2013 and subsequently amended, Complainant alleged that the Acting Budget Director, her second-line supervisor (S2), the Staff Accounts Division Director, her first-line supervisor between August 13, 2012 and June 3, 2013 (S1a), and the Acting Staff Accounts Division Director, her first-line supervisor between June 3, 2013 and January 2014 (S1b) discriminated against her as follows: 1. Complainant was subjected to disparate treatment based on race (African-American) and reprisal (contact with an EEO Counselor in February 2013 regarding denial of training opportunities to African-American employees) when: a. On May 24, 2013, she was removed from her supervisory budget analyst position and placed into a non-supervisory budget analyst position. b. In January, May, and June 2013, her requests for telework and for an alternative work schedule were denied. 2. Complainant was subjected to discrimination based on race (African-American) age (unspecified over forty), and reprisal (EEO activity described above) when she was not selected for the position of Financial Management Analyst in May 2013. 3. Complainant was retaliated against for the EEO activity described above when: a. She did not receive a final performance appraisal in December 2013. b. She was not assigned any duties or responsibilities since April 2013. Complainant is an African American female over forty. She averred that in January and February of 2013 she spoke out against what she believed to be discrimination against African-Americans in the awarding of training and career development opportunities. In particular, she stated that S1a had authorized tuition reimbursement for a white male pursuing a master's degree at Georgetown University but had refused to do the same for a black female employee who had requested tuition reimbursement so that she could take courses at Georgetown University. Investigative Report (IR) 126. Complainant also stated that she had contacted an EEO Counselor on February 14, 2013, regarding a letter of counseling S1a had issued to her. IR 86-87. Incident (1a): According to a standard form 50 notice of personnel action dated April 28, 2013, Complainant was reassigned from her supervisory Budget Analyst position to a non-supervisory Budget Analyst position. There was no change in her grade or pay. IR 229. Complainant averred that she did not know and was not told why S1a had made the decision to reassign her. IR 87-88. When asked about this issue, S1a replied that there were numerous problems with Complainant's performance, so much so that S1a felt it necessary to issue a letter of counseling on February 13, 2013. In that letter, S1a had expressed concerns about Complainant's capacity and commitment to meet the performance expectations of her position, noting that on several occasions, Complainant had disregarded her orders not to share confidential information with her staff.3 IR 101-02. In addition, S1a had cited numerous other concerns that led her to relieve Complainant of her supervisory role, including aggressive and confrontational behavior and multiple incidents of Complainant loudly and publicly berating her staff, criticizing them openly. S1a averred that this continued, unabated, even after she had issued the letter of counseling. IR 165-69. Incident (1b): Complainant averred that S1a denied requests for telework and an alternative work schedule (AWS) that she had made in January and May 2013, and that S1b denied a third telework/AWS request that she had made in June 2013. She stated that neither supervisor gave reasons for their disapprovals. According to S1a, Complainant went on a three-month detail to another division between January 27 and April 27, 2013. Complainant's detail supervisor approved her request to telework for the duration of the detail. IR 119-22, 172-73, 568. Upon her return, Complainant submitted a new proposed telework agreement. IR 298-99. According to S1a, this agreement was neither approved nor disapproved. Rather, it was under review. S1a averred that Complainant had resubmitted her telework agreement with modifications on May 9, 2013, and that she did not respond because she was overwhelmed with work. On May 20, 2013, S1a was informed that she would be transferred. She informed Complainant that she would have to raise the issues of telework and AWS with her new supervisor. IR 173-77, 300, 305. S1b averred that he took over on June 4, 2013, and that he would be on leave and out of the country from June 7 to June 25, 2013. He averred that while he did approve Complainant's request to telework between June 10 and June 12, 2013, he held off on approving a permanent telework arrangement because he was new to his position and wanted to be certain that his decision would not conflict with established telework policy. IR 574, 752. Incident (2): Complainant applied for the position of Financial Management Analyst that had been posted on April 24, 2013. She was among the applicants referred to a three-person review panel, who would interview the candidates and make their recommendations to the selecting official, S2. According to a series of emails dated June 7, 2013, the panelists (P1, P2, P3) interviewed the candidates and had unanimously recommended the Selectee for the position. Supplemental Investigative Report (SIR) 34-36. S2 averred that the panel had referred both Complainant and the Selectee but had recommended the Selectee. She also stated that she had made her decision to choose the Selectee in accordance with the panel's recommendation. SIR 23, ¶ 15. When asked to explain why the panel recommended the Selectee over Complainant, P2 responded that the Selectee's responses to the interview questions were far superior to the responses provided by the other interviewees. SIR 30-31, ¶¶ 23, 26. Incident (3a): Complainant averred that she was never issued a performance appraisal for FY 2013 and was not given a reason as to why. IR 123-24. In an email response dated October 23, 2013, to Complainant's inquiry regarding her performance appraisal, S1b informed Complainant that with the creation of a new division, peoples' job functions would be changing in the near future, and that he would not be doing performance evaluations for FY 2013. S1b asked Complainant to do her self-assessment of the work she did during the year. IR 130. Incident (3b): When asked by the EEO investigator what she meant when she said that she was not assigned any duties or responsibilities since she returned to S1a's division in April 2013, Complainant replied that she did not have an assigned work area of responsibility, and that she was only assigned a single project completing a memoranda of understanding for the working capital fund. She also averred that she had asked about her job responsibilities on numerous occasions but did not receive a response from S1a. IR 125-26. S1a averred that as a budget analyst, Complainant could be assigned to work in budget formulation and execution, financial management, developing, implementing, and evaluating budget policies, and other areas. S1a maintained that Complainant was performing the duties of her position, and that when Complainant returned at the conclusion of her detail, she was assigned to update the budget administration handbook. IR 523-24. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. However, because Complainant failed to comply with the AJ's discovery orders, the Agency filed a motion for sanctions. The AJ granted the Agency's motion, dismissed Complainant's hearing request, and remanded the complaint to the Agency for issuance of 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. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Dismissal of hearing request Complainant contends on appeal that the AJ erred in granting the Agency's motion for sanctions and, consequently, that the AJ's dismissal order should be overturned and the hearing allowed to move forward. Given the latitude that EEOC Regulation 29 C.F.R. § 1614.109 confers upon AJs to regulate the conduct of a hearing, a party seeing to challenge an AJ's ruling must show that the AJ abused her discretion in issuing that ruling. See Dona A. v. Social Security Administration, EEOC Appeal No. 0120150376 (March 29, 2017). The Commission has found abuse of discretion by an AJ under a variety of circumstances. See Frederick A. v. Dept. of the Navy, EEOC Appeal No. 0120140377 (June 15, 2016) (dismissing complaint where Complainant's partial response did not rise to the level of contumacious conduct); Madaris v. U. S. Postal Service, EEOC Appeal No. 0120131585 (Aug. 13, 2013) (taking testimony by telephone absent exigent circumstances or a joint request from the parties); Duckwiley v. General Services Admin., EEOC Appeal No. 0120103514 (Feb. 4, 2011) (excluding claim accepted for processing by the Agency and referred for investigation). In paragraph (10) of her order to compel discovery dated June 24, 2016, the AJ found that Complainant failed to comply with orders issued on February 25, April 29, and May 20, 2016. She determined that Complainant had refused to produce documents as requested or provide responsive answers to interrogatories as required, ultimately concluding that Complainant's failure to engage in discovery and follow her orders warranted sanctions. On the basis of that finding, the AJ granted the Agency's motion for sanctions and ordered that the complaint be dismissed from the hearing process and remanded to the Agency for the issuance of a final decision. The AJ's order demonstrates that she had given Complainant multiple opportunities to provide the information sought by the Agency in the discovery process, and that Complainant had not done so. While Complainant argues that she tried to comply with the AJ's orders and that the AJ should not have granted so harsh a sanction as dismissal, she has not presented any argument or evidence tending to show that the AJ had actually abused her discretion. Accordingly, we find that the AJ acted within the bounds of her regulatory authority to conduct the hearing when she granted the Agency's motion for sanctions and dismissed the hearing. Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie inquiry may be dispensed with in this case, however, since S1a, S1b, and S2 have articulated legitimate and nondiscriminatory reasons for each of the incidents at issue in the instant complaint. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). Regarding incident (1a), S1a stated that she had observed Complainant's performance as a Supervisory Budget Analyst for nearly a year, and that in her opinion, Complainant had not demonstrated that she had the skill sets to function in a supervisory capacity. As to incident (1b), the detail supervisor stated that he granted her request for telework during the three months that she was on a temporary detail to his division between January 27 and April 27, 2013, that her second telework request in May 2013 was pending review during the transition from S1a to S1b as Complainant's first-line supervisor, and that S1b had decided not to approve telework for Complainant indefinitely until he had a chance to review the Agency's telework policies. Concerning incident (2), S2 stated that she chose the Selectee on the basis of the recommendations made by the interview panelists that the Selectee was the superior candidate. With regard to incident (3a), S1b stated that because he began his tenure late in the fiscal year, he would not be doing the performance evaluations for FY 2013. With respect to incident (3b), S1a maintained that Complainant had been performing the assigned duties of the supervisory Budget Analyst position while under her supervision. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by S1a, S1b, and S2 are pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant may demonstrate pretext by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that S1a, S1b, and S2 had discriminated and retaliated against her in connection with incidents (1) through (3) above, Complainant replied that all of the actions taken against her had occurred after she had started to ask questions about educational opportunities for minorities and other issues. IR 88, 90, 124, 126. Beyond these assertions, however, she has not presented affidavits, declarations or unsworn statements from witnesses other than herself or documents which contradict the explanations given by S1a, S1b, and S2, or which call their veracity into question. With respect to incidents (1b) and (3a), while it is unclear from the record whether Complainant's request for telework and AWS was approved beyond June 25, 2013, or whether Complainant was ever provided with a performance appraisal for FY 2013, we find that Complainant has not established that unlawful considerations of Complainant's race or EEO activity played any role in S1a and S1b's actions or omissions in connection with those incidents. We therefore find, as did the Agency, that Complainant has not presented evidence sufficient to support the existence of an unlawful motive attributable to any of these officials in connection with the five incidents described in the complaint before us. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency's final decision finding that Complainant has not established that she was discriminated against as alleged. 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. 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 Director Office of Federal Operations Footnotes 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. 2 Complainant filed her appeal before the Agency issued its final decision (FAD). Although the Agency had issued the FAD on August 26, 2016, the Commission did not receive a copy of the decision until June 12, 2017. Now that the Agency's final decision has become part of the appeal file, we need not address its contention that Complainant's appeal was premature. 3 This letter of counseling was raised as a separate incident of discrimination in her formal complaint, but was dismissed by the Agency for failure to state a claim. IR 106-07. Complainant did not contest the Agency's decision in that regard.