Glenna O.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Jan 9, 2018

0120152013 (E.E.O.C. Jan. 9, 2018)

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

Glenna O.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120152013

Hearing No. 570-2012-00898X

Agency No. DEA-2011-00165

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated April 21, 2015, finding no discrimination
regarding her 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,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In her complaint, filed on April 4, 2011, Complainant alleged discrimination based on race
(African American) and sex (female) when:

(1) From July 2009 through November 4, 2010, she was subjected to a hostile work
environment and disparate treatment by her Division Chief including the lack of
recognition for work and achievements, denial of performance awards, negative
comments about her work performance and abilities, and restriction of duties and access
to Agency senior staff; and

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.
0120152013

2
(2) On November 4, 2010, she learned that an identified employee was promoted to grade 14
and she was not afforded the same opportunity for potential promotion to the GS-14
level.

The record indicates that at the conclusion of the investigation, Complainant requested a hearing
before an Equal Employment Opportunity Commission Administrative Judge (AJ). On March 7,
2015, the AJ, after a hearing, issued a decision finding no discrimination, which was
implemented by the Agency in its final order.

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) (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).

In this case, assuming arguendo that Complainant had established a prima facie case of
discrimination, the AJ determined that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. The record indicates that on May 13, 1991, Complainant began
her employment at the Agency as a Public Affairs Clerk, GS-3, the Office of Congressional and
Public Affairs, Communications Section, the Audio Visual (AV) Unit. At the relevant time,
Complainant was an AV Specialist GS-13. She claimed that she was harassed by the Division
Chief of the Office of Congressional and Public Affairs, who was her then fourth level
supervisor (S4). The record indicates that S4 served as Division Chief from February 2005, to
the time when she took extended leave starting August 1, 2011, and her subsequent retirement on
September 29, 2011.

On appeal, Complainant contends that the Agency failed to make S4 available for the hearing.
The Agency indicates that S4 subsequently retired from the Agency and lives in Turkey and it
did not have control over her. The Agency notes that in January 2011, S4 was interviewed by
the EEO Counselor and her statement was included in the EEO Counselor’s report. During the
interview, S4 stated that at the relevant time: S4 did not have day-to-day contact with
Complainant; S4 was not aware of her daily operations; S4 denied treating Complainant harshly
or discriminating against her; and S4 did not deny a manager to conduct a desk audit. Upon
review, we note that other managerial officials were available and testified concerning the
0120152013

3
alleged incidents during the hearing. Furthermore, we find S4 was realistically unavailable for
testimony. We find the investigation was adequate and no error by the AJ.

Regarding claim (1), Complainant indicated that from July 2009, through November 4, 2010, S4
failed to recognize and made negative comments about her work and achievements, denied
performance awards, and restricted her duties and access to her senior staff. The AJ indicated
that Complainant was not given performance awards during the relevant time because her then
supervisor (S1) did not nominate her for such awards. S1, a Supervisory AV Specialist, AV
Unit, was Complainant’s supervisor from 2005 to 2010. The AJ noted that a Human Resource
(HR) Chief’s testimony and the record evidence made it clear that the Agency’s process for
performance awards required nomination by the employee’s supervisor.

The AJ stated that S1 testified that since S4’s arrival as a Division Chief in February 2005, S4
only met with section chiefs, not with staff, which made it more difficult to do the job.
Complainant confirmed the foregoing statement and indicated that due to S4’s strict chain of
command management style, the work environment became more hectic and caused delay
finishing her work and miscommunication of information. S1 testified that when she requested
to meet with S4, she was not given a meeting with S4; instead she had to meet with S4’s
assistant. S4’s assistant confirmed that S4 implemented a strict management style and only GS-
15 section chiefs participated in most meetings with S4 and that it was common for work product
to go up and down the chain of command with revisions. Prior to S4’s arrival, noted the AJ,
management practiced a more casual style of management wherein all levels of employees
worked together to accomplish the Agency’s work objective.

The AJ also stated that Complainant and her coworker (C1) testified that S4 was upset with them
when they objected to a Spike TV project which S4 wanted to implement. The AJ indicated that
there was no dispute that S4 subsequently did not change their performance rating. Furthermore,
although S4 did change duty hours for all AV unit employees who were in alternative work
schedules, of which both Complainant and C1 participated, C1’s hours were later changed back
to his original hours per C1’s request. Complainant did not ask for her hours to be changed back.
The AJ indicated that Complainant testified that S4 did not make negative comments to her and
that she never had daily interaction with S4.

Regarding claim (2), a HR Specialist testified that in July 2010, a Communication Section Chief
requested a desk audit to upgrade the identified individual (S2), who was then an AV Specialist,
GS-13 to Public Affairs since S2 was assigned to the Public Affairs Section working on the
media relations instead of working in the AV Unit. The Acting Chief of Public Affairs testified
that at the relevant time, management decided that S2 would work with S4 in Public Affairs area
while assisting the AV Unit due to a staff shortage in the Public Affairs. Management noted that
S2 had experience with both Public Affairs and the AV work and had excellent editing skills.

In September 2010, the desk audit resulted in S2’s position being reclassified and S2’s position
was upgraded to Public Affairs Specialist, GS-14. The HR Specialist stated that only a
supervisor could request an audit and the Communication Section Chief was S2’s supervisor at
0120152013

4
the relevant time. The HR Specialist also stated that S4 did not take any part concerning S2’s
desk audit or anyone’s desk audit. S1 testified that she never requested a desk audit for
Complainant at the relevant time.

S2 indicated that the Office of Congressional and Public Affairs was subsequently reorganized in
November 2010, and the AV Unit was moved from the Public Affairs Section to the
Communication Section. As a result, stated S2, S2 was assigned to the AV Unit as the Unit
Chief on November 15, 2010, and became Complainant’s supervisor.

On appeal, Complainant contends that the Agency failed to amend her complaint to add the
denial of a desk audit in reprisal for prior EEO activity. The record indicates that Complainant
requested the AJ allow this amendment after the prehearing conference on November 6, 2014.
The AJ denied Complainant’s November 6, 2014 request to amend her complaint due to its
untimeliness. Specifically, the AJ noted that Complainant did not object to the Agency’s
framing of its accepted issues as she was notified to do so in the Agency’s September 29, 2011
acceptance letter, and she also did not make any motions for amendment upon receipt of the AJ’s
acknowledgement order and other orders prior to the prehearing conference. Upon review, we
find the AJ’s foregoing decision to deny the amendment to be proper.

The AJ stated and we agree that Complainant failed to show that the Agency’s acts were based
on her race or sex or that she was subjected to a hostile work environment as alleged. Upon
review, we find that Complainant failed to show that she was treated less favorably than a
similarly situated employee under similar circumstances or that the Agency’s reasons for its
actions were a pretext for discrimination. It appears that Complainant was dissatisfied with S4’s
managerial style of which all AV unit employees were subjected to. Upon review, we find that
the AJ’s factual findings of no discriminatory intent are supported by substantial evidence in the
record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, the Agency’s final order finding of no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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:
0120152013

5

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.

0120152013

6
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

January 9, 2018
Date