Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Apr 22, 2015

01-2013-0973-0500 (E.E.O.C. Apr. 22, 2015)

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

,
Complainant,

v.

Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120130973

Agency No. 11-CO-CFO-NHT-33

DECISION
On December 21, 2012, Complainant filed an appeal from the Agency’s November 27, 2012,
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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND
Prior to August 14, 2011, the Agency’s Office of the Chief Financial Officer (OCFO) was
composed of four organizations: Office of Budget, Office of Financial Management Systems,
Office of Financial Policy & Operations, and Office of the Controller. The Office of Financial
Policy & Operations was composed of six divisions: (1) the Financial Policy Division; (2) the
Financial Internal Control Division; (3) the Financial Reporting Division; (4) the Financial
Analysis Division; (5) the Financial and Payroll Services; and (6) the Financial Services
Division.

On August 14, 2011, a reorganization of the OCFO occurred which abolished the Office of the
Controller. Thereafter, the Agency’s OCFO was composed of three organizations: Office of
Budget, Office of Financial Management Systems, and the Office of Financial Policy &
Operations. As a result of the reorganization, the six divisions in the Office of Financial
Policy & Operations underwent changes. The Financial Policy Division was renamed the
Financial Policy & Analysis Division. The Financial Internal Control Division was renamed
the Internal Control Division. The names of the Financial Reporting Division, the Financial &
Payroll Services Division, and Financial Services Division were unchanged. The Financial
Analysis Division was renamed the Travel and Purchase Card Program Division.
Additionally, the travel and purchase card functions, authorities, and personnel were
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transferred from the Financial Policy Division to the Travel and Purchase Card Program
Division.

At the time of the events giving rise to this complaint, Complainant was employed as Director
of the Financial Policy Division located in Washington, D.C. The Director of Financial Policy
and Operations was Complainant’s first level supervisor (S1). The Chief Financial Officer of
OCFO was Complainant’s second level supervisor (S2). After the reorganization,
Complainant became the Director of Travel and Purchase Card Program Division.

Complainant filed an EEO complaint dated October 12, 2011, alleging that the Agency
discriminated against her on the bases of race (Black/African-American) and in reprisal for
protected EEO activity from October 2010 through August 15, 2011, when her supervisor
created a hostile work environment when:

1. Her supervisor singled Complainant out in meetings;
2. Her supervisor stated that Complainant did not know her job;
3. Her supervisor conducted a reorganization to remove Complainant’s job
assignment in financial accounting policy;
4. Complainant’s Certified Public Accountant (CPA) credentials were adversely
affected by involuntary reassignment; and
5. Complainant’s supervisor made derogatory statements against African-
Americans and employees with disabilities.

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

The Agency’s final decision noted that Complainant claimed S2 was the supervisor that
subjected her to a hostile work environment. The final decision also noted that in her affidavit,
Complainant stated that she had not yet participated in EEO activity during the time period of
her complaint and that her prior EEO activity was not a factor in the issues of the complaint.
The Agency determined that Complainant had withdrawn retaliation as a basis of
discrimination and stated it would not be discussed in the Agency’s final decision. The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

On appeal, Complainant claims the Agency ignored the contradictory statements made by S1 in
her affidavit and in the EEO Counselor’s report.

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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. (November 9, 1999) (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”). We note that the EEO Counselor’s Report is not as
persuasive evidence as an affidavit because it is not actual statements by the witnesses and in
the instant case, therefore, we do not examine the statements of witnesses which were
summarized by the EEO Counselor in the EEO Counselor’s Report.
In the present case, Complainant claimed that she was subjected to disparate treatment when S2
conducted a reorganization to remove her job assignment in financial accounting policy.
Specifically, Complainant stated that prior to the reorganization her job title was Director for
Accounting Policy and Charge Card Operations and after the reorganization her job title was
changed to Director for the Travel Card and Purchase Card Division. Complainant maintained
that S2 was aware at the time of the reorganization that Complainant would be reassigned from
the OCFO to the Office of Administrative Services (OAS). Complainant claimed that S1
informed her that S2 was going to reorganize and remove Complainant from her Accounting
Policy Director position because S2 did not like her and did not believe she could perform her
job. Complainant claimed that the reassignment to OAS was not a demotion in grade;
however, she believed it was a downgrade in terms of reduced responsibilities and the new
position did not require CPA credentials and financial management or accounting experience.

Assuming Complainant established a prima facie case of discrimination, we find the Agency
articulated legitimate, nondiscriminatory reasons for its actions. S2 stated that she made the
decision to reorganize OCFO in consultation with S1, the Director of Financial Management
Systems, and the Director of Budget (Person A). S2 stated that the OCFO was reorganized to
consolidate related duties to improve the effectiveness of operations. S2 noted the former
Administrator made the decision to create the OAS and to transfer the travel program to OAS
since the former Administrator wanted a centralized office to provide internal services to the
Agency. The record contains Agency Orders dated August 9, 2011, and August 12, 2011, that
identify organizational changes including the establishment of the OAS and the creation of the
Financial Policy and Analysis Division and the Travel and Purchase Card Program Division.
S2 stated that Complainant became the manager of the travel program because she was the only
manager who had the required expertise with the travel program.

S1 stated that the entire OCFO was reorganized and that all divisions in Washington, D.C.
were affected by the reorganization. S1 noted that the reorganization was implemented in
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anticipation of the Administrator’s creation of the OAS. S1 stated that S2 informed her that
after the OAS was created, the travel and purchase card group (including travel policy) would
move to the OAS. S1 explained that before the reorganization, Complainant was the Director
of the Financial Policy Division which included purchase and travel card policy and programs.
S1 asserted that after the separation of the financial policy and purchase programs from the
travel program, Complainant was left with a smaller workload. S1 stated this made sense
because prior to the separation, Complainant had too much work to perform and the change
allowed for a balancing of the workload. S1 confirmed that Complainant was the only one
with travel and purchase card (including travel policy) program knowledge and expertise.

The Director of Financial Management Systems stated that the transfer of the travel group to
OAS was logical because the OCFO would no longer be concerned with the travel program,
but with financial management.

The Chief of Staff, OCFO, stated that the reorganization accomplished changes across the
organization and affected approximately 87 employees. The Chief of Staff maintained that the
reorganization consolidated and streamlined budgetary functions and financial policy operations
and was part of creating a more customer focused efficient and effective organization.

In rebuttal, Complainant stated that she became the Director for Accounting Policy, which
included travel policy, in April 2007. Complainant stated that prior to this she had no
knowledge or experience with travel policy and relied on the two travel experts assigned to her
division who were both GS-14s. Complainant contended that when S2 made the reorganization
plans, these two staff members were at the Agency. Complainant also claimed that Person A
was well suited for the job as there were no specialized skills necessary to manage the travel
division. Complainant stated that Person A later requested to be assigned to the position.
Complainant stated that S2 used race as a factor because she did not want any African-
Americans in her organization.

Upon review, we find Complainant failed to show that the Agency’s articulated reasons for its
actions were a pretext for discrimination. The record reveals that prior to and after the
reorganization Complainant was a GS-15 Manager. The fact that there were two subordinate
GS-14 employees who had experience in the duties associated with the travel program does not
establish that those two individuals could have performed the managerial duties associated with
the new position. Moreover, Complainant does not dispute that she had the necessary
experience and expertise with the travel program. While Person A later requested to transfer
to the position, we find this does not constitute evidence that the Agency’s actions in assigning
Complainant to the position were based on discriminatory animus.

With regard to Complainant’s claim of harassment, Complainant claimed that: S2 singled her
out in meetings; S2 stated that Complainant did not know her job; S2 made derogatory
statements against African-Americans and employees with disabilities; S2 removed
Complainant’s job assignment in the financial accounting policy (discussed earlier in this
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decision); and stated that her Certified Public Accountant credentials were adversely affected
by involuntary reassignment.

With regard to issues (1) and (2), Complainant stated that on October 25, 2010, S2 conducted
a meeting with managers and staff wherein the managers were asked to introduce themselves
and provide brief statements regarding their responsibilities and duties. Complainant stated
that after the meeting, S1 told her that S2 stated that she could tell within the three minutes
Complainant spoke, that Complainant did not know what her job was. Complainant stated that
S1 also told her that S2 commented that Complainant probably had not done any substantial
work in the last 20 years.

Complainant stated that S1 also informed her of other instances where S2 singled Complainant
out for criticism in the presence of other senior executive managers. Complainant stated that
S1 had defended her; however S2 sharply criticized S1 for defending Complainant so S1
stopped defending Complainant. Complainant noted that S1 also told Complainant that in
another meeting, the Director of Financial Management Systems told S2 that Complainant was
well regarded by the staff in the Office of Financial Management Systems and that
Complainant had done an excellent job on the Billing and Accounts Receivable (BAAR) system
team project. Complainant stated that S1 told her that S2 became angry with the Director of
Financial Management Systems for defending Complainant. Complainant also stated that S1
told her that S2 singled Complainant out and treated her differently because of her race.
Complainant also noted that S2 told her that the Chief of Staff stated that she was concerned
with S2’s actions toward African-Americans and that the Chief of Staff called S2 a “racist
pig.”

Complainant claimed that during her mid-year performance evaluation with S1 on June 22,
2011, and at a follow-up meeting with S1 on June 23, 2011, she explained to S1 that she
believed S2 was racist and disliked her because of her race. Complainant stated that S1
responded she had come to that conclusion some time ago but felt powerless to do anything in
her Acting capacity. Complainant claimed that S1 told her she was waiting on a permanent
SES appointment and felt that once that was done she would be in a much stronger position.

In response, S2 stated that she attended a meeting in October 2010, with the senior OCFO
managers, but that she did not recall Complainant’s statements about her job duties, the length
of Complainant’s presentation, or how the presentation differed from the other managers in
attendance. S2 stated she did not recall telling S1 that Complainant did not know her job. S2
admitted that she had discussed with S1, Complainant’s slowness in completing assignments.
S2 stated she also discussed the performance of other managers in her group and named four
such managers.

In her affidavit, S1 stated that she attended the meeting of managers in October 2010, but did
not recall what Complainant said at the meeting or how it differed from the other managers in
attendance.

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S1 stated that during Complainant’s mid-year evaluation, she told Complainant that S2 thought
that Complainant was too slow and that the procurement for the accounting services took too
long. S1 stated that she thought Complainant’s staff was slow when creating policy. S1 noted
that during the mid-year appraisal process, she told Complainant that she had to improve her
project management skills. S1 explained that she thought as a performer, Complainant was
good, but that she did not manage her projects well. S1 stated to assist Complainant she
approved more management training for Complainant.

The record contains a copy of Complainant’s mid-year review indicating “although
[Complainant’s] personal performance was consistently excellent, her leadership, management,
supervision, and development of her staff did not consistently exceed expectations.” The
review noted Complainant was not always managing and reviewing the work of her staff to a
sufficient degree to prevent and detect errors before work products were delivered to outsiders.
The review recommended Complainant take project management training courses.

Complainant noted that the EEO Counselor’s report states that during Complainant’s mid-year
review, Complainant “told [S1] that she believed [S2] disliked her because of race. [S1] stated
she agreed with her.”

In her affidavit, S1 was asked about the meeting during the mid-year performance evaluation
when Complainant claimed that she told S1 that she thought S2 was racist and disliked her
because of her race and Complainant’s statement that S1 reached the same conclusion. S1
stated that she did not recall the meeting that way. Rather, S1 explained that Complainant
stated she was concerned that she was being discriminated against by S2. S1 stated that she
confirmed that S2 expressed concern about Complainant’s performance in response to the
slowness of the policy work. When asked if she thought that S2 was discriminating against
Complainant, S1 specifically said she did not and noted that S2 was critical towards everyone,
including S1. S1 stated that S2 “thinks she is smarter than everyone else,” but S1 did not
think that she was discriminating against Complainant. Additionally, S1 denied stating that she
felt powerless to do anything regarding S2’s actions since S1 was in an acting capacity and that
S1 was waiting on a permanent SES appointment and that once that was done S1 would be in a
much stronger position. S1 stated she did not see or hear anything that would make her think
that Complainant or others were subjected to harassment and discrimination.

Additionally, S1 stated she told S2 that Complainant indicated her workload was too much, she
was getting ill, and she asked for compensatory time to work on the weekend and to hire
another staff person to support her. S1 stated that she told Complainant not to work on the
weekend. S1 noted that S2 responded that Complainant’s workload could be reduced by
having her do the Travel and Purchase cards and not the policy work. S1 stated that she
initially thought S2’s response was the result of dislike of Complainant due to work; however,
S1 stated her perception of the conversation changed. Specifically, S1 stated she had the same
conversation about S1 being sick with S2 and S2 had the same reaction in that S2 stated she
had never been sick and claimed she deserved sympathy because she had to put up with other
people being ill. S1 noted that S2 spoke about her annual leave and stated she would rather
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lose the leave as opposed to donating it to another person for sick leave. S1 stated that she did
not believe S2’s feelings have anything to do with race and had to do with S2 being
“unsympathetic and uncaring.”

The Director of Financial Management Systems noted that during a conversation S2 stated that
Complainant did not know what she was doing and was not doing a good job. The Director of
Financial Management Systems told S2 that the Director’s staff members told her that
Complainant did a good job on the BAAR project and they were pleased with her work. In
response, S2 stated that the Director of Financial Management Systems did not know all that
was going on and the Director responded that S2 was right. The Director of Financial
Management Systems acknowledged that her staff had complaints about Complainant’s staff
and noted that Complainant’s staff had a reputation for not completing work in a timely manner
and generally not knowing their jobs. The Director of Financial Management Systems stated
that S2 had high expectations of her staff and did not hesitate to make employees aware of her
dissatisfaction with unacceptable work. The Director of Financial Management Systems stated
that S2 was critical of everyone.

With regard to issue (4), Complainant claimed that as a result of the reorganization and her
assignment as the Director of the Travel and Purchase Card Program Division she and four
members of her team were moved to the OAS. Complainant stated the reassignment adversely
affected her ability to maintain her CPA credentials because her new assignment did not
require accounting skills. Complainant maintained that by not using her accounting expertise,
she would not be able to maintain her skill in accounting practices and procedures.
Complainant claimed that because accounting was not critical to her duties, the Agency would
not support or pay for continuing education to maintain her CPA certification.

S2 stated she had no information regarding Complainant’s claim that her CPA credentials were
adversely affected by the reorganization.

S1 stated that Complainant’s license was not adversely affected by her move to the OAS. S1
noted that one can maintain a CPA license/certification credential while employed in any line
of work. S1 stated that while Complainant was working in program management of travel
policy and purchase and travel cards for a large federal agency, and this was professional
financial-related work suitable for a CPA, a CPA was not required for her work, but a CPA
was also not required for her previous work on financial policy. S1 stated that she was not
aware of Complainant being in any roles that required CPA certification.

With regard to issue (5), Complainant alleged that S1 had informed her that S2 had made
derogatory statements about African-American and disabled employees on a number of
occasions. Specifically, Complainant stated that when S2 first met Person B (African-
American) who was the Acting Director for the Internal Control Division, S2 stated that he
was not a candidate for the job permanently. Complainant also stated that S2 did not permit
Person B to attend staff meetings when he was acting for S1.

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Complainant claimed S2 also made the comment that there were not many Black CPAs in the
United States.

Complainant stated that during a discussion with the Director of Financial Management
Systems about an employee’s performance, S2 asked if the employee was Black and then made
a comment about upward mobility programs.

Complainant claimed that S2 stated she was not going to send any employees to the Blacks in
Government (BIG) Conference because it was just one big party. Complainant stated that
during a discussion about where to place an African-American employee (Person C) who had
been demoted S2 stated she did not want the employee to report to Complainant because the
employee could get Complainant on her side and they might then be faced with a class action
lawsuit. Complainant also noted that S2 proposed that employees working under a GS-15
African-American employee should be moved to S2’s office and the African-American
employee should report to a White employee with less experience.

Complainant stated that when S2 met an employee (Person D) with an obvious physical
disability she commented that the employee was “funny looking” and that “only the
government hire[s] people like that.”

Complainant claimed that S2 had been provided two letters that employees had submitted
claiming discrimination by S2 and other Agency managers and had shared the letters with her
direct reports.

Complainant stated that S2 commented that she did not want an Asian employee (Person E) to
be an Acting Director even though the Director of Financial Management Systems spoke
highly of the employee.

Complainant claimed that once when Person F had an African-American man in the Budget
Office deliver something to S2, Person F stated that S2 told her to never send that man to her
office again.

Complainant explained that S2 did not make any of these disparaging statements to her and she
only learned of them, and the other statements S2 made about other minority employees, from
S1.

S2 stated that she did not make derogatory statements about African-Americans or employees
with disabilities to S1. S2 stated she never made the comment to Person F that Complainant
alleged. S2 stated she did tell Person F that if she sent her staff to answer questions rather
than attending herself, the staff should be able to answer the questions. S2 denied stating that
there were not many Black CPAs in the United States.

S2 denied making the statement regarding Person B’s chances for being selected for the
permanent Director’s position. Rather, S2 stated that Person B did an excellent job as the
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Acting Director. S2 stated that when he asked S1 if Person B was going to apply for the
position, S1 informed S2 that Person B did not want to be a manager.

S2 stated she did not recall stating that employees could not attend the BIG conference because
it was one big party and that S2 was not going to pay for someone to go on a weeklong party.
S2 stated she did not recall making the comment that placing Person C under the supervision of
Complainant was “a bad idea” because the employee could get Complainant on her side and
they might then be faced with a class action lawsuit.

In her affidavit, S1 stated she did not hear S2 make derogatory comments about minorities or
individuals with disabilities. S1 stated she did hear S2 make the statement that Person B was
not a candidate for the permanent Director position. S1 responded to S2 saying that Person B
did a good job as a Program Manager while Acting. S1 stated she believed that S2’s opinion
of the staff was heavily influenced by Person A, who had been Acting CFO prior to S2’s
arrival. S1 heard Person A make remarks about Complainant’s work being slow and about
Person B not being a good performer in front of S2. S1 clarified that S2 agreed that Person B
had done a good job of managing the program while acting, but she believed he did not have
the technical skills to do the financial work of the position. S1 noted Person B did not apply
for the Director position. With regard to Complainant’s contention that S2 did not want
Person B to attend a staff meeting for S1, S1 stated that he was not asked to attend the staff
meeting because S2 was covering information not related to S1’s department so there was no
need for him to be there.

S1 stated she was not aware of S2 making any statements about Person E being proposed as an
Acting Director in the Division of Financial Integrity. S1 stated she did not tell Complainant
that the Chief of Staff referred to S2 as racist. S1 acknowledged that S2 had commented that
certain employees, both White and minorities, act and dress in a more professional manner
than others.

S1 confirmed that two memos were sent to the former Administrator that included allegations
of discrimination committed by S2 against Agency employees. S1 acknowledged that S2
shared the memos at one of her CFO meetings. S1 stated this was done to ensure that
managers followed EEO practices. S1 stated that since the memos were sent anonymously to
the Administrator and expressed concerns about the CFO engaging in discriminatory actions,
S2 wanted the managers to discuss it at the meeting to determine if there were concerns
amongst the staff.

In a supplemental affidavit, S1 stated that during a planning meeting, the senior management
team was discussing where to place Person C, who had been demoted from SES to a GS-15.
S1 stated that she did hear S2 state that it would be a bad idea to place Person C with
Complainant because Person C could get Complainant on her side, and they might be faced
with a class action law suit. Thus, despite S2’s contention that she did not recall making this
comment, we find the comment as alleged was made by S2. This comment, by itself, however
is insufficient to establish a discriminatory hostile work environment.
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In her affidavit, the Chief of Staff stated she did not hear S2 make derogatory or offensive
comments about minorities. The Chief of Staff also denied stating that S2 was a “racist pig.”

With regard to Complainant’s harassment claim, we find Complainant failed to prove by a
preponderance of evidence that she was subjected to harassment. Specifically, we find that
Complainant failed to establish that any of the Agency’s actions were motivated by
discrimination or in reprisal for her protected EEO activity.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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).
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
April 22, 2015