Milissa H.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Sep 9, 2016

0120140534 (E.E.O.C. Sep. 9, 2016)

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

Milissa H.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.

Appeal No. 0120140534
Hearing No. 570-2009-00856X
Agency No. MINT090086F

DECISION

Complainant filed an appeal from the Agency’s October 18, 2013, final order 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Human Capital
Analyst, GS-14, in the Human Capital Strategies and Solutions Division (HCSSD) of the
Workforce Solutions Department (WSD) at the United States Mint Headquarters in
Washington, D.C. On January 30, 2009, Complainant filed an EEO complaint alleging that
the Agency subjected her to a hostile work environment and discriminated against her on the
bases of race (African-American), color (dark skinned), age (44 years old), and in reprisal for
prior protected EEO activity when: (1) on January 14, 2008, her manager (S2) demanded she
change the positive and harmonious relationship she maintained with the AFGE National Union
President; (2) on multiple occasions between July 2008 to February 2009, as a form of

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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harassment her manager denied, ignored, or delayed the approval of her requests for travel,
training, and site visits, thus, preventing her attendance; (3) on October 15, 2008, she learned
that she was not selected to be an advisor on the U.S. Mint Goalsharing Committee; (4) on
November 18, 2008, she learned her fiscal year (FY) 2008 performance appraisal for the
period ending September 30, 2008, was lowered to a rating of Highly Successful; (5) at a
meeting in October 2008 and June 2009, S2 verbally attacked her and, at such times, belittled
and demeaned her in front of her peers; (6) since January 2008, S2 has thwarted Complainant's
performance by giving her unrealistic deadlines and requests; (7) since January 2008, S2 has
subjected Complainant's work to higher scrutiny, given her too much work, purposely caused
unnecessary delays in her projects, subjected her to unwelcome criticism, denied her
developmental opportunities, and not credited her work; (8) since July 2009, S2 has had
Complainant performing her job as well as that of two other employees without providing
necessary assistance; and (9) since January 2008, S2 has intimidated Complainant by
subjecting her to a work environment where she discriminates and retaliates against department
employees because of their protected classifications and EEO activities.

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). Complainant timely requested a hearing.
After both parties submitted motions for a decision without a hearing, the AJ assigned to the
case issued a decision without a hearing on September 24, 2013. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions,
and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating
that a “decision on an appeal from an Agency’s final action shall be based on a de novo review
. . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative
judge’s determination to issue a decision without a hearing, and the decision itself, will both be
reviewed de novo). This essentially means that we should look at this case with fresh eyes. In
other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s
factual conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment
discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We must determine whether it was appropriate for
the AJ to have issued a decision without a hearing on this record. The Commission's
regulations allow an AJ to issue a decision without a hearing when he or she finds that there is
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no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after
the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure.
The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249.
The evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of 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 fact is "material" if it has the potential to affect
the outcome of the case.

If a case can only be resolved by weighing conflicting evidence, issuing a decision without
holding a hearing is not appropriate. In the context of an administrative proceeding, an AJ
may properly consider issuing a decision without holding a hearing only upon a determination
that the record has been adequately developed for summary disposition. See Petty v. Dep’t of
Def., EEOC Appeal No. 01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of
one party without holding a hearing unless he or she ensures that the party opposing the ruling
is given (1) ample notice of the proposal to issue a decision without a hearing, (2) a
comprehensive statement of the allegedly undisputed material facts, (3) the opportunity to
respond to such a statement, and (4) the chance to engage in discovery before responding, if
necessary. According to the Supreme Court, Rule 56 itself precludes summary judgment
“where the [party opposing summary judgment] has not had the opportunity to discover
information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the hearing
context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a
hearing. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for a decision without a
hearing).

We agree with the Agency and AJ in concluding that the record is devoid of evidence that S2
was motivated by discriminatory animus or that the alleged employment actions by S2 amount
to a hostile work environment. Specifically, with respect to S2’s interference with
Complainant’s relationship with the union president (U1), the undisputed record shows that S2
did counsel Complainant (as well as her supervisor (S1)) to be mindful of her role as a United
States Mint management representative when interacting with U1, and that she deemed some of
Complainant’s interactions with U1 to be inappropriate. We also find the record devoid of
evidence to support Complainant’s bare assertion that the Agency’s legitimate explanation is
pretext for discrimination. Contrary to Complainant’s assertion that she was treated less
favorably compared to similarly situated employees, the record shows that S2’s actions and
directions on the subject of U1 were direct reactions to issues specific to Complainant. The
record shows that S2’s demand that Complainant cease her harmonious relationship with U1
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immediately followed the incident whereby U1 sent a concerning email to S2, expressing his
concern that Complainant was not allowed to attend the full length of the Manufacturer
Certification and Apprentice Program (MCAP) meeting. The undisputed record also shows that
S2 was frustrated to learn that Complainant had sent flowers to U1 when he was hospitalized.
S2 found Complainant’s individual actions inappropriate given Complainant’s role in the
MCAP Advisory Committee and as an Agency employee, and thus her requests to limit this
relationship with U1 were specific to Complainant. The record also shows that S2 requested
that other employees interact with U1 in a reserved and cautious manner.

With respect to Complainant’s allegation that she was denied travel and training opportunities,
we agree with the Agency and AJ that the record is devoid of evidence of discriminatory or
retaliatory animus. In addition, we find insufficient evidence that S2’s explanations were
pretext. Specifically, with regard to the request for training on July 15, 2008, the undisputed
record shows that S2 did not receive this request until July 2, 2008, but was out of the office
from July 3 through 7, and then intermittently through Friday, July 11, 2008. When S2
returned to the office on July 14, 2008, she approved the request. Unfortunately, at that time,
it was too late for Complainant to make the necessary travel arrangements. However, there is
no evidence to suggest that S2’s delay in focusing on the request was motivated by any
unlawful animus.

With regard to Complainant’s requested site visit in July 2008, the undisputed record shows
that S2 was concerned that this trip would cause Complainant to be out of the office for too
long. With respect to Complainant’s request to travel to Massachusetts for a training course
in August 2008, the record is somewhat unclear. S1 stated that he denied this request because
he did not believe it was the “most appropriate course to take at that time.” However, the
record indicates that S1 did approve this course electronically. S2 states that she does not
recall receiving this request and admits that she might have overlooked it.

In support of her argument that these delays were discriminatory, Complainant argues that S2
approved a travel request from a Caucasian employee (C1) within days of the request. The
documentary evidence shows that C1 submitted her request on September 30, 2008, and S2
approved the request on October 3, 2008. However, that same record shows a separate
request submitted by C1 on September 30, 2008, and S2 did not approve this request until
October, 17, 2008. This time lapse between request and approval is in line with S2’s
approvals of Complainant’s requests, and demonstrates that these employees were treated in a
similar fashion.

Finally, regarding Complainant’s request to attend a course in February 2009, the undisputed
record shows that S2 was on a detail at the time of this request and was not involved. Instead,
the then acting Manager (S3) received the request and could not make the decision until she
reviewed Complainant’s Individual Development Plan (IDP). Complainant asserts that S3 had
access to her EEO activity and claims and therefore must have had knowledge about any prior
protected activity. However, mere access to information that Complainant has engaged in
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protected activity does not necessitate a finding that S3’s delay in approving her request was
based on discriminatory or retaliatory reasons.

The undisputed record shows that S3, working temporarily in a new position for S2, could not
make the decision to approve the request until she reviewed Complainant’s IDP. Additionally,
the undisputed record shows that S3 did not receive the appropriate documents until February
2, 2009, and after reviewing the file, approved the course on February 5, 2009 (one day before
the course began). Moreover, S3 offered to care for Complainant’s dog so that Complainant
could attend the course despite the late notice, but Complainant declined. We agree with the
Agency and AJ that even assuming, for the sake of argument, that S3 was aware of
Complainant’s protected activity, the record is devoid of evidence of discriminatory or
retaliatory animus.

With respect to the allegation that S2 failed to select Complainant to serve on the Goalsharing
Committee, the undisputed record shows that Complainant never asked to be nominated and S2
did not know that Complainant wanted to serve on the committee. Complainant asserts that
she was the “subject matter expert” for Pulse-check surveys2 and therefore should have been
the individual nominated to the committee instead of C1. Complainant also notes that she
provided significant assistance to C1 on the Pulse-check surveys.

The undisputed record does show that Complainant provided assistance to C1 on the Pulse-
check survey portion of her role on the committee. However, while Complainant had
knowledge about the survey questions and responses, it was the response rate that was
considered as a measure for the Goalsharing Committee. In addition, at the time S2 selected
C1 for the committee, the Pulse-check survey was not, and had never been, a measure for the
Goalsharing program. In other words, at the time she made her selection, S2 could not have
disregarded Complainant’s knowledge of the survey when this measurement of employee
satisfaction was not something that had ever been considered by the committee. While the
survey response rate ultimately was adopted as one of four measures used by the Goalsharing
Committee, C1 had valuable experience and perspective to offer on the other measures. The
undisputed record shows that C1 had significant experience in both preparing and
implementing performance management policy, she was engaged in metrics and metrics
analysis, and she had significant work time to devote to the project. The undisputed record
also established that Complainant was actively engaged in many other WSD projects at the
time, and C1 had more capacity to take on the role of Goalsharing Committee member.

With respect to the reduction in Complainant’s performance appraisal, we agree with the
Agency and AJ that the record is devoid of evidence to establish that S2’s legitimate, non-
discriminatory reason for the attempt to lower Complainant’s appraisal was pretext or
motivated by discriminatory or retaliatory motives. Specifically, Complainant asserts that S2’s

2 A Pulse-check survey is an anonymous semi-annual Agency-wide survey that addresses
employee satisfaction in such areas as leadership, management, and work environment.

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recommendation to S1 that she be rated as “Meets,” instead of “Exceeds,” in the area of
“Develops Collaborative Relationships” constituted unlawful discrimination and reprisal.
However, the record is devoid of evidence to support Complainant’s assertion that S2’s
direction to S1 was “intimidating, demanding and coercing.” The undisputed record shows
that S2 told S1 that she believed Complainant has not collaborated well with her on more than
one occasion. S2 explained that Complainant had, among other things, acted outside of her
chain of command on several occasions, inappropriately declined a meeting request S2 had sent
her, and spoken disrespectfully to her in meetings and in emails. The record also shows that
S2 did not intend to lower Complainant’s entire performance rating. S2 took issue with one
criterion, and agreed with S1 on the rating of “Exceeds” on all of the other criteria. In
addition, S2 did relent, after being advised that she had overstepped her role as reviewing
official. Thus, Complainant received the higher rating originally proposed by S1, and her
performance review stands as “Exceptional.” We agree with the Agency and AJ that although
it appears that S2 and Complainant had a difficult working relationship, the record is devoid of
evidence that the conflicts between them were due discriminatory or retaliatory animus toward
Complainant.

With respect to Complainant’s claims of harassment and reprisal, we agree with the Agency
and AJ that the record is devoid of evidence of retaliatory animus. Complainant asserts that S2
spoke to her in an offensive manner in meetings and in front of colleagues. The record
supports the conclusion that S2 had a very direct approach to expressing her opinions on work
issues, and her communication style was not always well received. However, without more,
such management style does not constitute unlawful discrimination or harassment.

Complainant also asserts that S2 assigned her unrealistic assignments, workloads, and
deadlines, and offered her little assistance. We agree with the Agency and AJ that the record
is devoid of evidence to support this allegation. The record shows that Complainant received
the highest annual performance rating for 2008, 2009, and 2010, which contradicts the
assertion S2’s demands were unrealistic or retaliatory.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the final action by the Agency
which adopts the AJ’s summary judgment decision.3

3 We note that Complainant attaches three Exhibits (i.e., S2’s 2009 deposition, a January 2009
email between S1 and S3, and S1’s affidavit related to a 2013 appeal) that are not included in
the ROI or the parties’ previous submissions. It is well established that no new evidence will
be considered on appeal unless there is an affirmative showing that the evidence was not
reasonably available prior to or during the investigation or during the hearing process. EEO
MD-110, Ch. 9, § VI.A Complainant has not proffered an explanation for why such exhibits
were not previously available. In addition, nothing in these exhibits support the conclusion
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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”

that the AJ erred in finding the record devoid of discriminatory or retaliatory animus on the
part of any responsible management official.
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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 9, 2016
Date