Maryland E.,1 Complainant,v.Robert L. Sumwalt, Chairman, National Transportation Safety Board, Agency.Download PDFEqual Employment Opportunity CommissionJul 3, 20180120161489 (E.E.O.C. Jul. 3, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maryland E.,1 Complainant, v. Robert L. Sumwalt, Chairman, National Transportation Safety Board, Agency. Appeal No. 0120161489 Agency No. NTSB201505 DECISION On March 18, 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 March 9, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-7 Staff Assistant teleworking from Arlington, Texas but assigned to the Agency’s Office of Aviation Safety (OAS) facility in Washington, D.C. She has been involved in prior EEO complaint activity since 2012, and had several prior complaints pending, some of which were against her first line supervisor (S1), at the time of the instant EEO complaint. S1 is OAS’ GS-14 Assistant Deputy Director for Administration and the person Complainant named as the discriminating official in this matter. The SES-level OAS Director was Complainant's second level supervisor, but he said he was not involved in the employment actions at issue. 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. 0120161489 2 On July 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. a. On a continuing basis Complainant’s Individual Development Plan (IDP) has been repeatedly rejected by her supervisor resulting in denied training opportunities and access to higher level duties and responsibilities. b. On May 14, 2015, Complainant’s supervisor issued a threat to withhold funding for Complainant’s approved participation in the NTSB 2015 Shadow Program until Complainant resubmitted her IDP. c. On May 1, 2015, Complainant learned that she was treated disparately as compared to others when her requested training was denied. d. On April 1, 2015, Complainant learned that her 2015 Performance Evaluation Plan (PEP) was revised based on outdated comments submitted with her 2014 PEP. e. On April 1, 2015, Complainant’s 2014 End-of-Year Performance Appraisal rating was lowered from "Outstanding" to "Excellent" resulting in a lowered performance award. After 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 decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Regarding Complainant’s reprisal claim, the Agency found that Complainant established a prima facie case on all issues in this complaint. According to the record, Complainant had participated in protected EEO activity and S1 admitted being aware of her participation. With respect to Claims 1a and 1c, the Agency found that Complainant did not establish a prima facie case of race or color discrimination because none of the individuals Complainant identified were similarly situated to her since they were not in the same or similar positions or grade levels and they did not report to S1. Further, the two employees who did report to S1 were not comparators because they did not make similar training requests. The Agency also found that Complainant did not provide any pretext arguments which would show that management's explanation for the rejection of Complainant’s IDP and denial of training were discriminatory or retaliatory. S1 explained that the Complainant's IDP was not approved because she requested university courses that were not in line with her goals of being a Highway Investigator. S1 also stated that she referred Complainant to HR officials to help her determine what training would be relevant, but Complainant resubmitted an IDP that still had the rejected courses. Complainant also added to the IDP a request for a non-competitive year-long detail assignment, but S1 explained that she could not approve Complainant’s request because details were competitive. 0120161489 3 S1 did make clear, however, that she would support Complainant in getting a detail if such opportunity arose. The Agency found that Complainant did not offer any contrary evidence and thus concluded that she had not been subjected to discrimination. Regarding Claim 1b, where Complainant alleged that S1 threatened to withhold funding for Complainant’s participation in the Shadow Program unless she resubmitted an IDP, the Agency found that Complainant established a prima facie case of reprisal but did not establish a prima facie case of race or sex discrimination. The record revealed that no one else under S1's supervision had applied to participate in the Shadow Program. Further, the Agency found that S1 had approved three Shadow assignments for Complainant and only asked Complainant for a revised IDP so that Complainant could qualify for travel funding. Even though the record reflects that Complainant did not submit a revised IDP, the record reveals that the Agency budgeted $4,500 to allow Complainant to travel to Washington, D.C. to participate in the program but Complainant voluntarily withdrew from the Program. Finally, in addition to S1’s denial that she threatened Complainant, the Agency’s review of the email exchange between S1 and Complainant about her IDP and the Shadow Program revealed no threats. The Agency concluded that S1’s actions were not a pretext for discrimination. As for Claim 1d, alleging that S1 improperly changed Complainant’s performance plan, the Agency found that Complainant established a prima facie case because S1 did not change the performance plans of the two White employees she supervised. The Agency found, however, that Complainant was not a victim of discrimination or reprisal. According to S1’s statement, Complainant had submitted comments to her 2014 plan and S1 decided to add them to Complainant’s 2015 plan believing that Complainant would be pleased. The Agency considered this a legitimate, nondiscriminatory reason that Complainant failed to prove was pretextual especially since she did not dispute that she made suggestions for the plan the prior year, or that the changes were based on Complainant's own suggestions. With respect to Claim 1e that S1 lowered Complainant’s performance appraisal, the Agency found that Complainant established a prima facie case because the two White comparators who also report to S1 received higher ratings than Complainant. The Agency found that Complainant received a rating of Outstanding in 2013 and a lower rating of Excellent in 2014. The Agency noted that the 2013 rating was comprised of two different parts: (1) five months with S1 who rated her Excellent for those five months; and (2) seven months where she worked in a different office under a different supervisor, for which she was rated Outstanding. Thus, S1 did not lower Sl’s rating of Complainant from 2013 to 2014, although her ultimate rating did decrease. The Agency determined that Complainant failed to contradict S1's explanation or present any evidence which would show her rating should have been higher. 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 0120161489 4 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 lawâ€). We find that even if Complainant established a prima facie case on all claims, Complainant failed to show she was discriminated against on any claim by a preponderance of the evidence. Regarding Claim 1a and 1c, Complainant has failed to show that S1’s explanation that she did not approve Complainant’s IDP because her requested university courses were not relevant to her career goal was a pretext for discrimination. We find that Complainant proffered no evidence demonstrating that S1 had approved irrelevant courses for any other employee and record evidence established that S1 earmarked more funding for Complainant than any other employee under her supervision. We also find that Complainant did not produce any evidence that S1 threatened to withhold funding for the Shadow Program if Complainant did not resubmit her IDP, as she contended in Claim 1b. Indeed, the record showed that even though Complainant did not submit a revised IDP, S1 still approved Complainant’s participation in the Shadow Program, set aside funding for it, and that Complainant’s nonparticipation occurred when Complainant withdrew from the program. Next, we concur with the Agency’s determination that, contrary to Complainant’s allegation in Claim 1d, S1 did not discriminate against Complainant when she added language originally suggested by Complainant in 2014 to Complainant’s 2015 performance evaluation. Finally, we find that, even though Complainant’s overall rating changed from Outstanding to Excellent, S1 gave Complainant the same rating for her OAS work in 2013 and 2014, and therefore we find no support for the contention that S1 engaged in discrimination or reprisal against Complainant when she gave her an overall rating of Excellent in 2014. Furthermore, Complainant has not shown that her rating was in any influenced by discrimination. CONCLUSION We AFFIRM the Agency’s decision finding no discrimination. 0120161489 5 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. 0120161489 6 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. 0120161489 7 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 July 3, 2018 Date Copy with citationCopy as parenthetical citation