[Redacted], Alana W, 1 Complainant,v.Debra Steidel Wall, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2021004492 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alana W,1 Complainant, v. Debra Steidel Wall, Archivist of the United States, National Archives and Records Administration, Agency. Appeal No. 2021004492 Hearing No. 560-2019-00159X Agency No. 1809STL DECISION On August 8, 2021, 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 July 13, 2021, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-11, at the Agency’s National Personnel Records Center (NPRC) in Spanish Lake, Missouri. Complainant’s first-line supervisor was Supervisor 1 and her second-line supervisor was Supervisor 2. Complainant has prior EEO activity, the most recent of which is a complaint that was filed on January 4, 2017. Report of Investigation (ROI) at 22. 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 2021004492 Supervisors 1 and 2 were named as responsible management officials for the Agency in that complaint and were aware of Complainant’s prior EEO activity. Complainant had received a Fully Successful rating for the rating period of October 1, 2014 through September 30, 2015. ROI at 207. Complainant received a Fully Successful rating for the rating period of October 1, 2015 through September 30, 2016. ROI at 207. Complainant received a Fully Successful rating for the rating period of October 1, 2016 through September 30, 2017. ROI at 247. Complaint received a below Fully Successful summary rating at her mid-year progress review for the period October 1, 2017 through April 26, 2018. ROI at 241. Complainant received and signed a performance plan for the period of October 1, 2016 through September 30, 2017 that listed three critical elements. ROI at 221. Complainant's rating for the rating period of October 1, 2016 through September 30, 2017, was documented in a written performance appraisal that was provided to her. ROI at 247. The performance appraisal issued on November 30, 2017 rated Complainant's performance in FY 17 against the same three critical elements identified in Complainant's performance plan. Id. Supervisor 1 failed to sign the first page of the FY 17 performance appraisal, but signed the additional memo he prepared as part of the performance appraisal. ROI at 248. Complainant received and signed a performance plan for the period of October 1, 2017 through September 30, 2018 that listed five critical elements. ROI at 223. Complainant's summary rating for the mid-year progress review was documented in a written progress review that was provided to her. ROI at 241. The FY 18 mid-year progress review rated Complainant's performance through the first half of FY 18 against the same five critical elements identified in Complainant's performance plan. Id. Complainant made initial EEO contact on January 9, 2018. On February 22, 2018, Complainant filed an EEO complaint (with subsequent amendment on May 11, 2018) alleging that the Agency discriminated against her on the basis of reprisal (for prior protected EEO activity and the instant complaint) under Title VII of the Civil Rights Act of 1964 when: 1. On November 30, 2017, Complainant was rated “Fully Successful” instead of “Outstanding” on her performance appraisal for the rating period of October 1, 2016 to September 30, 2017; and 2. On April 30, 2018, Complainant learned during her Mid-year Progress Review that her Summary rating was below “Fully Successful.” The Agency accepted the complaint for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. 3 2021004492 The parties engaged in discovery. On February 18, 2020, Complainant and the Agency each timely filed a motion for summary judgment (Motion for Summary Judgment; [or MSJ]). On February 24, 2020, Complainant submitted her response to the Agency’s Motion for Summary Judgment (Complainant’s MSJ Response). On March 2, 2020, the Agency filed its response to Complainant’s Motion for Summary Judgment and reply to Complainant’s response to Agency’s Motion for Summary Judgment (Agency’s MSJ Response). Having reviewed all evidence contained in the record, the AJ assigned to the case found that there were no genuine issues of material fact for which a hearing would be necessary, and that summary judgment was appropriate. On June 14, 2021, the AJ issued a decision and order granting the Agency’s MSJ. The AJ found that Complainant established a prima facie case of retaliation.2 The AJ however also found that the Agency articulated legitimate non-retaliatory reasons for the challenged actions. Specifically, with respect to Complainant’s performance appraisal for the rating period of October 1, 2016 to September 30, 2017, the AJ noted Supervisor 1’s assertions that he rated Complainant Fully Successful based on her performance in the three Critical Elements outlined in her FY 2017 Performance Plan. See ROI at 247-48. Supervisor 1 explained that for Critical Element 1, he rated Complainant Highly Successful because she performed very well in her role as a PMRS Data Administrator; that for Critical Element 2, he rated her Fully Successful because she struggled with communication in the performance of her duties; and that for Critical Element 3, he rated her Minimally Satisfactory because the quality of the four (4) SOPs she submitted was subpar. ROI at 199, 249, and 251-52. With respect to Complainant’s FY 2018 Mid-Year Review, the AJ noted Supervisor 1’s statement that he rated Complainant Minimally Successful based on her performance in the five Critical Elements outlined in her FY 2018 Performance Plan. He explained that for Critical Element 1, he rated Complainant Minimally Satisfactory because some subtasks were produced late, some not produced or prepared at all, and there were ample errors in the quality of her product. 2 The AJ noted that the Agency originally accepted Complainant’s allegations as claims alleging harassment and reprisal. See ROI at 93, 95, 110, and 112. However, in her investigative affidavit, Complainant clarified, “The basis of my complaint was retaliation [sic], not harassment.” See ROI at 124. Complainant confirmed this at the Initial Conference. See Order on Initial Conference and Deadlines and Record Completion dated December 3, 2019, stating the issues to be adjudicated. Additionally, while Complainant mentions other bases for discrimination in her investigative affidavit, she did not request, and the AJ did not grant, an amendment of the instant complaint to include a basis other than retaliation. Therefore, for purposes of this decision, the AJ analyzed Complainant’s claims based on retaliation only. 4 2021004492 For Critical Element 2, he rated her Fully Successful because she met her duties on this element; for Critical Element 3, he did not rate her because she stated that the work would start after April 2018, by when the mid-year review period would be over; for Critical Element 4, he rated her Fully Successful because she met the standard for Fully Successful; and for Critical Element 5, he rated her Unacceptable because she prepared a project schedule that failed to address the three Change Requests that were assigned to her and she performed none of the subtasks associated with this element. ROI at 202. See also ROI at 223 and 249. The AJ found that Complainant failed to establish that the Agency’s articulated, legitimate non- retaliatory reasons were pretextual. According to the AJ, Complainant did not dispute that she did not coordinate communications [concerning data recommendation] with Supervisor 1 before contacting outside parties. She did not dispute that she submitted four draft Standard Operating Procedures (SOPs) to Supervisor 1 thirty minutes after the end of the last day of the rating period. She did not dispute that the SOPs she submitted to Supervisor 1 during the review period were not finalized. The AJ observed that Complainant also did not dispute that the products she submitted contained embedded pages and material copied from the web, with the information appearing hastily assembled. Complainant did not dispute that during the FY 2018 mid-year review period, for Critical Element 1, some of her subtasks were produced late, some were not produced or prepared at all, and that there were ample errors in her product. The AJ noted that Complainant did not dispute that for Critical Element 3, Supervisor 1 could not rate her performance because she had not started the work on which she was to be rated. Finally, with respect to Critical Element 5, the AJ observed that Complainant did not dispute that she did not deliver a task schedule until near the end of the second quarter of FY 2018, nor did the schedule address the three Case Record Guide (CRG) Change Request entries. She also did not dispute that she did not notify Supervisor 1 of her intentions towards concerning this task. The AJ stated that Complainant also did not dispute that during the FY 2018 mid-year progress review period; she did not take ownership of an assignment to update an existing performance metric measurement plan; she did not dispute that her coworker had to rewrite the updated measurement plan for her; and she did not dispute that Supervisor 1 assumed the responsibility for ensuring that the changes were executed. See ROI at 104-08, 201-03, and 224-31. The AJ noted Complainant’s contention that Supervisor 1 violated the Agency’s internal guidelines and her Union’s procedures for applying performance standards during the rating period. See Complainant’s MSJ at 7-11. The AJ found that Complainant’s allegation of a violation of the Agency’s guidelines and/or the Union’s procedures constituted a collateral attack on another process, including the negotiated grievance process. The AJ found Complainant’s argument unavailing, citing to Commission precedent that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. The AJ also noted Complainant’s contention that she was denied SOP training, Quantitively and Qualitive training, and Freedom of Information Act (“FOIA”) training. 5 2021004492 However, the AJ observed Supervisor 1’s statement that SOP training did not exist, and that Quantitively and Qualitive training were not required in the performance of Complainant’s duties. The AJ determined that Complainant produced no probative evidence to show otherwise. Additionally, with respect to the FOIA training, the AJ asserted that the record was undisputed that the training was a “Supervisors Freedom of Information Act” training; whereas, Complainant was not a Supervisor. See Complainant’s MSJ Exhibits 1-49 at 8. According to the AJ, the record was also undisputed that Complainant received a notice of “Withdrawal from Supervisors Freedom of Information Act (FOIA)” training on October 22, 2018, advising her that “You, your supervisor, or an administrator has removed you from the… training.” Id. The AJ found that Complainant failed to establish by preponderant evidence that she was removed from, or denied FOIA training by Supervisor 1 and/or Supervisor 2. In any event, asserted the AJ, the removal from the FOIA training, which occurred on October 22, 2018, was beyond the scope of the accepted issues in this complaint. The AJ noted Complainant’s contention that she “filed this case because my Annual Appraisal/Rating was lowered for the first time in 28 years.” Complainant’s MSJ, pp. 2, 14. The AJ noted that the record was however undisputed that Complainant received a rating of Fully Successful on her FY 2015 and FY 2016 Performance Appraisals, which was the same rating she received on the FY 2017 Performance Appraisal at issue. Additionally, asserted the AJ, she offered no preponderant evidence to show that her performance in FY 2017 exceeded her performance in FY 2015 and/or FY 2016 such that her performance in FY 2017 should have been rated higher, and/or such that a retaliatory animus could be inferred from the actions of Supervisor 1, Supervisor 2, and/or any other management official concerning the performance appraisal and mid-year progress review at issue. The AJ found that Complainant wholly failed to proffer probative evidence linking the challenged actions to her EEO activity. Notably, asserted the AJ, Supervisor 1 worked with the Agency’s Human Resources Specialists (HR Specialist[s]) in drafting Complainant’s FY 2018 Performance Plan, which was determined to line up perfectly with her Position Description. ROI at 233. The AJ also noted an HR Specialist’s statement that “[Complainant] has repeatedly struggled [with her performance]; therefore, as her supervisor, [Supervisor 1] was fulfilling [his] duty/obligation to her by making her performance plan as clear as possible.” ROI at 238. See also ROI at 213-20 for Complainant’s Position Description (PD). The AJ found that Supervisor 1’s actions in providing detailed expectations to Complainant at the beginning of the rating period, including a specific description of the work she was required to perform, how the work should be performed, the timeliness and quality of each respective subtasks, the need to provide proactive notification as to project status, and the expected outcomes, was not unreasonable. Additionally, the AJ found, based on the facts, that Supervisor 1 was not motivated by a retaliatory animus when he rated Complainant’s performance against the work expectations that were detailed in her Performance Plan. 6 2021004492 The AJ concluded that Complainant failed to present any probative evidence linking the challenged actions to her prior EEO activity. Moreover, asserted the AJ, she failed to establish that any similarly situated employee was treated more favorably during the relevant time. Citing to Commission precedent, the AJ stated that Complainant’s own statements of belief that the challenged actions were taken because of her EEO activity, no matter how genuinely held, are not proof and cannot withstand legal scrutiny. 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. This appeal followed. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates her allegations and disagrees with the AJ’s decision. She contends that the AJ misunderstood the issues, arguing that the AJ failed to consider her claims of disparate treatment. According to Complainant, an email she sent went unread for two months, her EEO time was mentioned in a previous performance appraisal, Family Medical Leave Act paperwork was improperly processed, she was given documents with errors in them, and she was penalized for poorly written communications. Complainant also argues that the AJ’s decision was based on missing material and direct evidence, including an incomplete ROI. According to her, there were two versions of the ROI, one with 492 pages and the other - a “redacted” version - with 1222 pages. She alleges that the AJ did not address the Agency’s policies and procedures in her decision, and that the Agency violated internal guidelines and Union procedures used for applying performance standards during the rating period. In response, the Agency opposes Complainant’s appeal, asserting that there was no misunderstanding or mischaracterization of the issues. The Agency expresses agreement with the AJ’s decision, asserting that Complainant should have raised her disagreement with the issues as articulated during the investigation. The Agency also states that Complainant could have raised any concerns about the completeness of the ROI throughout the hearing process but she did not. Nor did she mention or provide the alleged 1222 pages ROI that was longer than the original version. The Agency asserts that it would have been inappropriate for the AJ to consider Complainant’s allegations that were extraneous to her retaliation claims. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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- 7 2021004492 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 8 2021004492 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 9 2021004492 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 October 17, 2022 Date