Ellan K.,1 Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

May 6, 2016

0120141637 (E.E.O.C. May. 6, 2016)

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

Ellan K.,1
Complainant,

v.

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

Appeal No. 0120141637

Hearing No. 410-2013-00077X

Agency No. 11-04-PBS-BT-03

DECISION

On April 2, 2014, Complainant filed an appeal concerning her equal employment opportunity
(EEO) complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq.2 Our review is de novo. For
the following reasons, the Commission AFFIRMS the Agency’s final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Secretary at the
Agency’s work facility in Atlanta. Complainant was working at the Agency under a contract
between the Agency and People Processing Information, Inc. (PPI). Complainant worked as a
PPI contractor employee from approximately December 2006 until October 19, 2009, the date
PPI terminated her employment with PPI.

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 the instant appeal prior to the Agency’s issuance of its final action
implementing the AJ’s finding of no discrimination. We shall consider this appeal timely filed.

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On January 28, 2010, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her race (African-American) and disability
(panic disorder) when on October 9, 2009, she was removed from her contract position with
the Agency.

The Agency dismissed the complaint on the grounds of failure to state a claim. The Agency
determined that Complainant was not employed by it but rather by PPI. Complainant
subsequently filed an appeal with the Commission. In our previous decision, Complainant v.
General Services Administration, EEOC Appeal No. 0120102242 (September 16, 2011), we
found that the Agency retained sufficient control over Complainant to qualify as a joint
employer. We reversed the Agency’s dismissal and remanded the complaint for further
processing.

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 timely requested a hearing
and the AJ held a hearing on January 23, 2014, and issued a decision on February 18, 2014.

The AJ found that no discrimination occurred. Complainant stated that she was directed in her
work on a day to day basis by the Director for Portfolio Management. Complainant stated that
she suffers from a panic and anxiety disorder which prevents her from performing major life
activities. Complainant asserted that she was pregnant in September 2009, and was out of
work for a week during which she suffered a miscarriage. The Director for Portfolio
Management stated that Complainant had continual job performance and behavior issues and
she provided this information to the Agency Contracting Officer, who in turn forwarded this
information to PPI. According to the Director, Complainant had an emotional outburst in the
office that caused some disruption.

The Chief of the Human Capital Management Branch stated that she informed the Director in
an e-mail dated September 7, 2009, of concerns she had regarding Complainant’s behavior.
The Chief asserted that her remarks were based on complaints she had received concerning
Complainant’s behavior over the years prior to Complainant’s removal. According to the
Chief, there was a concern about Complainant spending an inordinate amount of time at the
front desk, where she was considered loud and disruptive. The Chief asserted that
Complainant’s behavior was having a negative effect on the workgroup. The Chief cited one
incident where Complainant yelled at a coworker and she needed to come out of her office
because Complainant was being loud and abusive. The Chief noted that several interns
indicated Complainant spoke very negatively about the organization and management. The
Chief explained that she recommended to the Director that Complainant be removed from her
role but that she had no decision making power to that effect. According to the Chief, she had
witnessed the loud and rude behavior on Complainant’s part, and it had become common
knowledge that Complainant had made inappropriate comments about her and the Director.
Complainant allegedly referred to the Chief as a “bitch.”

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The AJ stated that the Director asserted that Complainant was having emotional outbursts and
angry, loud discussions on the phone at her cubicle. According to the Director, even in
general conversation, Complainant was loud and her language at times was very crude. The
AJ stated that the termination letter issued to Complainant indicated that her removal was based
on her disrespectful, crude and vulgar remarks regarding Agency management. The AJ noted
that a coworker testified that Complainant made her uncomfortable with her excessive use of
profanity. The AJ further noted that Complainant was replaced by another African-American
female.

The Agency subsequently issued a final action 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 the AJ was biased against her in his conduct of the
hearing. Complainant states that the AJ only included one of the Agency’s proposed
witnesses, decided to believe only one of her five witnesses, that being the witness who
testified to her excessive use of profanity. Complainant criticizes the AJ for questioning the
credibility of one of her witnesses. Complainant states that this witness was released by the
Agency shortly after she was and that she believes it was because she was Complainant’s
friend. Complainant argues that profanity was prevalent in the workplace, including among
the managers. According to Complainant, she was not approached about her language or
loudness except on one occasion when she was talking on the telephone to PPI. Complainant
states that her voice tended to become louder due to her anxiety issues. Complainant points
out that at no time did her performance reviews refer to misconduct and that she received an
“Exceeds Expectations” on her most recent performance evaluation. Complainant maintains
that she was not afforded an opportunity to improve her behavior. Complainant contends that
the Chief pursued a vendetta against her and negatively impacted the Director’s perception of
her.

In response, the Agency asserts that it and PPI had concerns with Complainant’s performance
and conduct over a long-term period. The Agency states that the Director and other Agency
personnel had communicated dissatisfaction with Complainant’s performance and conduct to
the Agency Contracting Officer and Contracting Officer Representative, who forwarded this
information to PPI personnel. The Agency maintains that Complainant’s performance and/or
conduct issues directly contributed to PPI’s determination of her unsuitability to continue
performing the contract for administrative support services at the Agency’s Atlanta office.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)

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(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

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). Complainant must initially establish a prima facie case by demonstrating
that he was subjected to an adverse employment action under circumstances that would support
an inference of discrimination. Furnco Constr. Corp. 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. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under each of the alleged bases. We shall assume arguendo that Complainant established she is
an individual with a disability covered by the Rehabilitation Act. The Agency stated that
Complainant was removed from her Secretary position under the contract between the Agency
and PPI on the basis of her rude and disruptive behavior. The Agency stated that
Complainant’s behavioral problems had been a cause for concern for a significant period of
time. We find that the Agency articulated a legitimate, nondiscriminatory reason for its
decision.

Complainant attempts to establish pretext by arguing that the Agency did not afford her the
opportunity to improve and that others also used profanity in the workplace. Upon review of
the record, we discern no evidence indicating that any individuals outside of Complainant’s
protected classes were as disruptive as Complainant yet did not receive similar discipline.
Complainant also has not shown that similarly situated individuals outside of her protected
classes were given more opportunity to improve prior to being removed from a position. The
record reveals that Complainant’s behavior created at times a disruptive atmosphere in the
office. Complainant also demonstrated an insufficient amount of respect for Agency
managerial officials. Complainant contends that the AJ was biased against her in the witnesses
he allowed to testify and how he assigned credibility to the witnesses who did testify. We
discern no impropriety in the manner in which the AJ conducted the hearing. Further, we

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observe no argument or evidence that persuasively contradicts the AJ’s credibility
determinations. We find that Complainant has failed to establish that the Agency’s explanation
as to why PPI removed her from her position with the Agency was pretext intended to hide
discriminatory intent.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 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. The requests 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 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 (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

May 6, 2016
Date