Miguelina S.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Sep 25, 2018

0120161704 (E.E.O.C. Sep. 25, 2018)

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

Miguelina S.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120161704

Agency No. 15-0117-AL

DECISION

On April 26, 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 25, 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 an Accountant, NQ-
02, in the Office of Field Financial Management (OFFM), National Nuclear Security
Administration (NNSA), located in Albuquerque, New Mexico. During the relevant time,
Complainant’s first line supervisor (Person A) was the Deputy Director, OFFM.2 Complainant’s
second level supervisor (Person B) was the Field Chief Financial Officer/Director, OFFM.

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’s prior first level supervisor retired in November 2014, who apparently reported
to Person A. Thereafter, the Agency noted that Person A became Complainant’s first level
supervisor. The Agency stated this explains why Complainant referred to Person A as both her
first and second level supervisor. The Agency’s final decision refers to Person A as
Complainant’s first level supervisor and Person B as Complainant’s second level supervisor.
0120161704

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On June 19, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (pregnancy) and in reprisal for prior protected EEO activity. The
Agency accepted the following issues for investigation:

1. On December 8, 2014, Person A yelled at her over the course of the meeting
when she met to determine how to be promoted to NQ-03;
2. On February 5, 2015, Person A issued her a Notice of Reprimand;
3. In February or March 2015, Person A stated Complainant had taken off a lot of
time from work;
4. In March 2015, Person B never acknowledged her email notice to him, never
spoke to her, and never communicated with her prior to her departure from the
Agency;
5. On February 19, 2015, Complainant was denied a career ladder promotion to NQ-
03;
6. On March 12, 2015, Complainant was notified she was not selected or referred for
consideration for an accountant position, 15-0075-NNSA;
7. On April 15, 2015, Complainant was notified she was referred but not selected for
an accountant position, 15-0028-GOV3; and
8. As of the April 17, 2015 pay period, Complainant received lower pay
compensation than other NQ-03 Budget Analysts in her work group, was assigned
the same work as the NQ-03 Budget Analysts, denied the opportunity to be
promoted to NQ-03, and repeatedly told maternity leave was the reason she had
not been at NNSA long enough to receive a promotion.

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). 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.

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
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”).

3 The Agency notes the vacancy announcement should be 15-0028-GOV and not 15-0020-GOV
as was initially listed.
0120161704

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We note that on appeal Complainant does not challenge the definition of the claims in her
complaint as determined by the Agency. Additionally, we note Complainant does not challenge
the Agency’s finding of no discrimination regarding claim (7). Moreover, we note on appeal
Complainant names a new comparative for the first time that was not identified during the
investigation and provides information regarding the comparative’s pay history. At the outset,
we note that as a general rule, no new evidence will be considered on appeal unless there is an
affirmative showing that the evidence was not reasonably available previously. See Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch.
9, § VI.A.3 (Aug. 5, 2015). Because Complainant did not make such a showing, we decline to
consider the evidence she submitted on appeal that was not part of the record when the Agency
made its decision. After a review of the record in its entirety, it is the decision of the Equal
Employment Opportunity Commission to affirm the Agency’s final decision because the
preponderance of the evidence of record does not establish that discrimination or harassment
occurred.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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

September 25, 2018
Date