Franchesca V.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 20, 2018

0120170350 (E.E.O.C. Nov. 20, 2018)

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

Franchesca V.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120170350
Agency No. DOE160003HQME

DECISION

On October 22, 2016, 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
September 28, 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.

ISSUES PRESENTED

Whether Complainant established that she was subjected to discrimination because of her race,
color, sex, and/or age when she was assigned a new position description.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Resources
Specialist, GS-201-14, at the Agency’s Department of Energy facility in Washington D.C. On
November 5, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of race (African-American), sex (female), color (brown), and age (66)

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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when she was assigned a new position description, effective October 4, 2015, reflecting unfamiliar
duties typically performed below her grade level.

The Agency explained that Complainant was assigned to a new position description due to a
reorganization; and that Complainant failed to participate in a redesign survey completed by other
employees allowing them to identify preferred positions within the new organizational design.

From June 2002 - October 5, 2015, Complainant was a Program Analyst in the Office of Training
and Human Resource Development, GS-343-14. Complainant's first level supervisor, S1, was the
Director, Learning Division, GS-343-14, Office of Learning and Workforce Development,
Learning Division. Her second level supervisor, S2, was the Chief Learning Officer/Director of
the Office of Learning and Workforce Development, SES-340.

On June 25, 2015, S2 sent an e-mail message to Complainant, advising her that due to a redesign
of the Office, she would be, tentatively, placed in a Management Analyst position in another
Learning Branch. The Agency explained that in June 2015, it asked employees affected by the
reorganization to complete a redesign survey and to indicate where they wished to work within the
new organization. S1 attested that Complainant was the only employee who did not partially or
fully participate in the survey. The record showed that of 34 employees asked to participate in
the survey, eight (including Complainant) did not select a placement preference. Recognizing that
Complainant “did not participate” in the survey, S2 asked Complainant on three occasions if she
“would be interested in [s]upervising one of the Shared Service Centers . . . .” Complainant replied
that she did to want to be a supervisor.

Complainant stated that on September 29, 2015, she told S1 that the major duties in the new
position were below the Grade 14 performance level, and that she was unfamiliar with her newly
assigned duties which she described as support to the training function.

S2 stated that he placed Complainant in the organization that had the greatest need for resources,
and that the new position was reviewed and classified at the GS-14 level. Complainant, he stated,
was offered on the job and formal training for the new position. Finally, he maintained that
Complainant’s new position was appropriately classified at the GS-14 level.

Complainant asserted that early in S1’s tenure as Division Director (beginning February 2015), he
raised discussions with Complainant about her eligibility for retirement.

The Branch Chief, (S4) attested that Complainant managed “complex learning and workforce
development programs.” S4 believed that Complainant’s allegations had validity, because on
numerous occasions, statements were made indicating the Agency “needed to reduce headcount,”
and because “there were other management options available.” S4 attested that the Agency
“frequently disseminated headcount reduction information in town hall meetings, e-bulletins, etc.,
especially when announcing and socializing the change in service industry, and how the new model
would reduce costs, which included employee salaries.”
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According to S4, by 2018, the Agency anticipated to draw-down its size from 34 to 18 staff
members. S4 attested that the Agency sought to reduce its employee size by “targeting the senior
employees” and offering buy-outs.

Complainant asserted that the Agency took these actions against her because of her race, color,
sex and age, as evidenced by the fact that she was the oldest employee on the staff. Complainant
attested the Agency tried to eliminate her from the workforce through the reassignment; and that
the Agency invited her to participate in a buy-out.

S2 attested that he treated Complainant the same as he treated other employees. The Agency
indicated that the buy-out was offered to employees but that Complainant was not specifically
targeted or asked to take that option.

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. In accordance with Complainant’s request, the
Agency issued 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. The
Agency contends that it treated Complainant in the same manner as it treated all other similarly
situated employees. The Agency further argues that there are legitimate, non-discriminatory
reasons for its actions and that these reasons are not pretextual.

CONTENTIONS ON APPEAL

Among other things, Complainant contends that the Agency’s decision to reassign and redesign
her position was an effort to harass her, force her to retire, and discriminate against her based on
her race, gender and age.

The Agency, in pertinent part, maintains that its FAD should be affirmed.

STANDARD OF REVIEW

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”).

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ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a complainant must satisfy the evidentiary scheme
fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A
complainant must initially establish a prima facie case by demonstrating that he or 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, 441 U.S. at 804
n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of race, color, sex, and age
discrimination; we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. The Agency explained that Complainant was assigned to a new position due to a
reorganization that affected everyone. Complainant, however, was the only employee who did not
fully or partially participate in the redesign survey which allowed employees to identify a preferred
position within the new organizational design. Consequently, she ended up with a position that
she felt was less than desirable.

Complainant offered no persuasive evidence of pretext or that she was discriminated against due
to her race, color, sex and/or age. We note in this regard that she was even offered a supervisory
position, but declined. We do not find this to be indicative of discriminatory animus. Additionally,
Complainant provided no objective evidence that the duties set out in her new position description
were other than those appropriately classified and expected to be performed at the GS-14 level.

In an effort to show pretext, Complainant asserts she was denied a desk audit of her new duties,
and that her that age accounted for the reassignment decision, as evidenced by the fact that she
was the oldest employee on staff. She also noted that the Agency offered voluntary retirement
programs as incentives for older employees to leave the Agency. We find no evidence, however,
that Complainant was treated differently than any other employee with regard to the buy-out
incentives nor is there evidence that she was specifically targeted or asked to take that option.
Complainant stated that other individuals received better treatment than she did; however,
Complainant failed to identify any similarly situated individuals who were treated more favorably
than she was, as she identified individuals who completed the redesign survey in which she failed
to participate.

Additionally, S4’s statements regarding management’s headcount reduction comments did not
include evidence that those comments were directed specifically at Complainant. We would first
note that, according to S4, management was upfront about its desires to reduce its overall
headcount. S4 stated that the Agency frequently disseminated headcount reduction information in
town hall meetings, and e-bulletins.
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Likewise, S4 stated the Agency anticipated to draw-down its size from 34 to 18 staff members.
Although S4 believed that the Agency was “targeting” its senior employees, there is no evidence
that this was somehow a proxy for age discrimination. The record indicates that both younger and
older employees were reassigned due to the reorganization, and the buy-outs were offered to all
employees. Complainant has not established that in this case that retirement related comments nor
financial incentives were intended to be a proxy for age based animus. See Hazen Paper Co. v.
Biggns, 507 U.S. 604, 613 (1993). As such, we find that Complainant failed to establish that she
was discriminated against based on her age as she alleged.

To the extent that S4 believed that there were other means by which the Agency could have
accomplished its goals, we note that employers have broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by a reviewing authority absent evidence
of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v.
Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997)

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s FAD because the preponderance of the
evidence in the record does not establish that discrimination occurred.

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.
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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’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 20, 2018
Date