Kendrick B.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Dec 26, 2019

2019000793 (E.E.O.C. Dec. 26, 2019)

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

Kendrick B.,1
Complainant,

v.

Linda McMahon,
Administrator,
Small Business Administration,
Agency.

Appeal No. 2019000793

Hearing No. 570-2015-00111X

Agency No. 0913057

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 27, 2018
final order concerning an equal employment opportunity (EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Management and Program Analyst, GS-13,
at the Agency’s Organizational Effectiveness Division, Office of Human Resources Solution of
Strategy/Policy and Accountability Division in Washington, D.C.

On February 3, 2014, Complainant filed a formal EEO complaint claiming that the Agency
discriminated against and subjected her to a discriminatory harassment in reprisal for prior
protected EEO activity when, on August 9, 2013, Complainant’s supervisor proposed that she be
removed from her position as a Management and Program Analyst, GG-0343-13, in the Office of
Human Resources Solutions, Strategy, Policy and Accountability Division and the federal
service.

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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After an investigation of the accepted claim, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The Agency submitted a Motion for a Finding of No Discrimination
Without a Hearing (“Agency’s Motion”). Complainant responded to the Agency’s Motion. On
July 9, 2018, the AJ issued a decision by summary judgment, over Complainant’s objection, in
favor of the Agency.

On August 27, 2018, the Agency subsequently issued a final order adopting the AJ’s finding of
no discrimination.

The instant appeal followed. On appeal, Complainant argues that the AJ’s decision omitted
important facts and other evidence which she submitted. The crux of Complainant’s argument
focuses upon the AJ not making reference to, or otherwise indicating, that Complainant
submitted an Opposition to the Agency’s Motion, an Update to her Opposition to the Agency’s
Motion (with exhibits), and an Opposition to the Agency’s Motion to Strike her Update.
Complainant further argues that the decision failed to include a statement from the Deputy Chief
Human Capital Officer (“DCHCO”) who considered that there was a “possible technical
explanation for the quality of [Complainant’s] performance.” Complainant also argues that the
decision did not include the reasons she submitted, in a November 13, 2012 letter, explaining
why she believed that her performance-based removal was unlawful and unwarranted.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision
without a hearing regulation follows the summary judgment procedure from federal court. Fed.
R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge
determines no genuine issue of material fact exists under the legal and evidentiary standards.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment
motion, the judge is to determine whether there are genuine issues for trial, as opposed to
weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the
non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s
favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for
the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the
outcome of a case.

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence
and must further establish that such facts are material under applicable law. Here, Complainant
has failed to point with any specificity to particular evidence in the investigative file or other
evidence of record that indicates such a dispute.

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For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

Preliminary Matter – Complainant’s Submissions

As an initial matter, we acknowledge that the AJ does not indicate in the procedural history
section of the decision that Complainant filed an Opposition to the Agency’s Motion, an Update
to her Opposition to the Agency’s Motion (with exhibits), and an Opposition to the Agency’s
Motion to Strike her Update. However, all documents except Complainant’s Update are included
in the record. However, even with this omission, we find that that the record is abundantly
sufficient for review on the merits.

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail,
he or she must first establish a prima facie case of discrimination by presenting facts that, if
unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited
consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S.
at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the
agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has
met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St.
Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

The AJ properly determined that the Agency provided legitimate, non-discriminatory reasons for
proposing Complainant’s removal from the Agency.

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Complainant testified that she believed that her supervisor (“S1”) issued her the proposed notice
of removal to “bully” and “intimidate” her and to discourage her from seeking reasonable
accommodations.2 Specifically, Complainant explained that S1 “never fully accepted [her] full-
time telework status.”

S1 stated that she supervised Complainant from July 2010 through December 2013. S1
explained that Complainant “failed to meet expectations each year” and she received “very little,
to no useable work product” from Complainant. S1 acknowledged that Complainant
encountered technical issues/glitches with the work equipment (voice recognition software) she
used as part of her reasonable accommodation. S1 explained, however, that she worked with
Complainant and the help desk to ensure that Complainant’s issues were resolved.

S1 explained that prior to issuing the proposed notice of removal, she placed Complainant on a
Performance Improvement Plan (“PIP”) in early 2012 because Complainant received a Level 1
rating (failure to meet expectations) at the end of 2011. S1 further explained that she suspended
the PIP midway because Complainant was out of the office on medical leave and when
Complainant returned to the office, she had instructions from her physician that she be assigned
light duty work.

In February 2013, S1 placed Complainant on a new PIP after Complainant received a Level 1
rating for fiscal year 2012. While on the new PIP, S1 explained that she paired Complainant
with another co-worker who was a subject expert, to assist Complainant with completing her
assignments. S1 further explained that she assigned Complainant two projects (an employee
training and development assessment, and a work life wellness program assessment) to complete
during the new PIP period. S1 clarified that these projects did not have to be completed
simultaneously, that they were “self-contained,” and that they could be completed remotely.

However, S1 explained that she received complaints about Complainant “badger[ing]” customers
she worked with to obtain data for the employee training and development assessment.
Specifically, S1 stated that Complainant would call fifteen times daily, and would send repeated
e-mails for the same data. S1 explained that Complainant worked on this project for five weeks,
but her report was “unusable” because Complainant did not incorporate S1’s comments to her
drafts.

Regarding the work life wellness program assessment assignment, S1 explained that
Complainant was required to collect and analyze data, generate a report, and conduct an out
briefing. S1 further explained that Complainant struggled with this assignment. S1 stated that
she instructed Complainant to draft an email to request information needed from a program
manager, but S1explained that she could only use “one or two sentences out of the a two-page
memo” Complainant submitted.

2 The record indicates that Complainant has erosive osteoarthropathy which causes pain in her
fingers, hands, and wrists. However, we note that Complainant does not raise disability as a
basis in her formal complaint.
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S1 also stated that Complainant could collect the data from the internet, but she had difficulty
collecting data from colleagues as well as applying and analyzing the data she collected. As a
result, S1 explained that Complainant’s report for this project “required serious reworking.”

Consequently, S1 stated that at the end of the PIP period, she decided, after consulting with a
Human Resources Specialist, to issue Complainant the notice of proposed removal. S1
explained that she made this decision because she did not see any “logical thinking” from
Complainant, “positive interactions” between Complainant and her customers, or “written work
products that were of any value to anyone.” S1 also acknowledged that she considered
alternative actions before issuing the proposed notice of removal. S1 explained that even before
she placed Complainant on a PIP, she considered reassigning her to another division. However,
S1 stated that the Agency had left the reassignment search open for several months and did not
come up with a position for Complainant. S1 also explained that she considered demoting
Complainant because Complainant’s work performance was consistent with a GS-5, but there
were no GS-5 Management Program Analyst positions available.

The DCHCO was the deciding official who determined that the notice of proposed removal
should be rescinded. The DCHCO explained that he considered Complainant’s written and oral
responses to the proposed removal and determined that there was “circumstantial evidence” to
support that Complainant had “difficulty working independently, solving routine problems, and
[her] work products demonstrated neither little to no analysis nor flow of thought to logical
process.” The DCHCO further stated that:

[t]echnical information was not presented in a usable manner, findings presented
were often unrelated to the aspect of the assessments being evaluated and/or
findings presented were often unrelated to the aspect of the assessments.
Furthermore, the statements that were made in work product were not based on
fact or were in conflict with the data provided. I also found that despite feedback
relating to her work product, final work products contained track changes,
revisions and notes along with typographical errors resulting in deadlines being
extended and work product being reworked by other employees to meet
established deadlines of the Agency. I also noted missed deadlines on work
products after extension had been provide.

However, the DCHCO decided to rescind the proposed removal and grant Complainant’s request
for reassignment after considering Complainant’s written and oral responses to the proposed
removal. The DCHCO clarified that there was evidence that Complainant’s work product was
“unacceptable,” but the technical explanation for the quality of her performance was a
“mitigating factor.”3 The DCHCO testified that he reassigned Complainant to the Training and
Development division as a Training Specialist, GS-13.

3 We note that the AJ included the DCHCO’s determination that there was a “possible technical
explanation for the quality of [Complainant’s] performance” as an undisputed material fact in her
decision.
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A fiscal year 2011 performance evaluation covering the period October 1, 2010 through
September 30, 2011, indicates that Complainant received a Level 1, fails to meet expectations
rating.

A fiscal year 2012 performance evaluation covering the period October 1, 2011 through
September 30, 2012 which indicates that Complainant received a Level 1, fails to meet
expectations rating. In the remarks section, S1 explains that Complainant did not produce an
acceptable volume of work and the work she produced was not submitted by deadlines. S1
further explains that Complainant lacked “personal responsibility and accountability in most
work assignments,” Complainant required “constant guidance,” and Complainant had “difficulty
in preparing material in a well-organized, logical, precise, and concise manner.”

The record also includes a copy of Complainant’s PIP, dated February 12, 2013. The PIP
explains that Complainant currently had unacceptable performance for Critical Elements 1
(Program Specific), 2 (Customer Satisfaction), and 3 (Written Material) which were included in
her performance plan. The PIP explains that Complainant had 60 days4 to show improvement by
completing two projects – a employee training and development assessment and a work life
wellness program assessment. The PIP indicates that Complainant was assigned a subject matter
expert for assistance for each project. The PIP also notifies Complainant that if her performance
did not improve within the designated period, she could be reassigned, demoted, or removed
from federal service for unacceptable performance.

The record includes weekly performance counseling reports from February 20, 2013 – June 5,
2013 May 2013 where S1 explains Complainant’s work performance and work performance
deficiencies.

On August 9, 2013, S1 issued a notice of proposed removal because Complainant failed to
demonstrate a minimally successful level of performance during her PIP which covered a period
of 107 days. Specifically, the notice provides detailed examples of how Complainant’s
performance on the employee training and development assessment and the work life wellness
program assessment failed to meet the minimally acceptable standards for all three Critical
Elements.

The record includes a copy of Complainant’s September 9, 2013 response to S1’s notice of
proposed removal. The response indicates that Complainant, through counsel, argued that the
notice was unwarranted and unlawful because (1) the Agency failed to provide Complainant with
the correct minimally acceptable performance standards for Critical Element 1 and provided
Complainant with invalid performance standards for Critical Elements 2 and 3, (2) the Agency
failed to provide Complainant with reasonable accommodations, and (3) Complainant’s

4 The record indicates Complainant’s PIP was extended on May 8, 2013 and May 21, 2013 and
covered a total of 107 days.
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performance during the PIP met the Level 2 (minimally acceptable) standard of acceptability for
all three Critical Elements.

In a letter, dated December 4, 2013, the DCHO stated that he considered Complainant’s response
and oral reply to the proposed notice of removal and took into consideration the “possible
explanation for the quality of [Complainant’s] performance.” The DCHO explained that he was
rescinding the proposed action and granting Complainant’s request for reassignment. The
DCHO stated that Complainant would be reassigned to the Organizational Effectiveness
Division as a Human Resources Specialist, GS-13, effective December 15, 2013. The DCHO
further stated that he decided to change Complainant’s fiscal year 2012 performance evaluation
to reflect an overall rating of meets expectation.

The record indicates that on January 28, 2014, the DCHCO rejected S1’s rating for
Complainant’s fiscal year 2013 performance evaluation covering the period October 31, 2012
through September 30, 2013 and changed Complainant’s rating to a Level 3. The DCHCO
stated on the evaluation that “based on the consideration for the possible technical explanation
for the quality of your performance, I am changing the ratings under each element to a Level 3
(Meets Expectations”) for an overall rating of a Level 3 (“Meets Expectations”) for FY 2013
Performance Year.

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on Complainant’s reprisal for prior protected activity.

Harassment

To the extent that Complainant alleged that the claim raised in the formal complaint constituted
discriminatory harassment, Complainant must establish that she was subjected to conduct that
was either so severe or so pervasive that a “reasonable person” in Complainant’s position would
have found the conduct to be hostile or abusive. Complainant must also prove that the conduct
was taken because of her protected basis – in this case, her reprisal for prior protected EEO
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.

Here, as we have already concluded, Complainant simply has provided inadequate evidence to
support her claim that her treatment was the result of her reprisal for prior protected EEO
activity. A case of harassment is precluded based on our findings that Complainant failed to
establish that any of the actions taken by the agency were motivated by her protected bases. See
Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED.

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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.
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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

December 26, 2019
Date