[Redacted], Ollie R., 1 Complainant,v.Wynn Coggins, Acting Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2019005940 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ollie R.,1 Complainant, v. Wynn Coggins, Acting Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2019005940 Agency Nos. 18-56-54; 19-56-65 DECISION On September 25, 2019, 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 August 23, 2019 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-12, in the Office of the Chief Financial Officer, Office of Procurement at the Agency’s campus in Alexandria, Virginia. Complainant has the condition of a herniated and degenerated disc in her back, which affects her ability to move. Complainant attested that some days are worse than others. As a result, the Agency granted Complainant the reasonable accommodation of episodic telework on April 26, 2017. 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. 2019005940 2 On June 19, 2018 (and subsequently amended), Complainant filed an EEO complaint (Agency No. 18-56-54) alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of disability (back) and in reprisal for prior protected EEO activity when: 1. since 2015, Complainant has been subjected to an unreasonable workload, berating comments from her supervisor, and multiple comments about her leave; 2. on March 7, 2018, Complainant’s supervisor disclosed confidential medical information and her reasonable accommodation to contractors; 3. on March 26, and June 5, 2018, Complainant was denied training; 4. on April 4, 2018, Complainant’s supervisor forwarded her sick leave request to the team; 5. on April 12, 2018, Complainant was removed from the role of Contract Specialist on the Patent Office Support Services (POSS) contract project; 6. Complainant has not been promoted to GS-13, full performance level for her position; 7. on October 17, 2018, Complainant received a Fully Successful rating for her Fiscal Year 2018 performance review; and 8. on October 31, 2018, Complainant became aware that a co-worker received a promotion she should have received; On March 4, 2019, Complainant filed another formal complaint (Agency No. 19-56-65) alleging that she was subjected to discrimination based on disability and in reprisal for prior protected EEO activity when: 9. since January 29, 2019, Complainant has not received notification that her training was approved. Promotion to GS-13 On May 3, 2017, Complainant and her supervisor, the Operations Chief (S1), agreed to a promotion plan that, if followed, would result in Complainant’s promotion to the GS-13 level. In this plan, Complainant was to “be assigned two (2) moderately sized, moderately complex re- competition assignments that she will manage independently through the pre-award and award phase.” Complainant then received two re-competes, a career coaching contract valued at five million dollars, and a broadband internet services contract valued at four million dollars. Complainant also began executing a POSS contract valued at $150 million in Fall 2017. Complainant claimed that she was working with a Contracting Officer (CO1) on the career coaching contract. When CO1 went on vacation, another Contracting Officer (CO2) took over from CO1 and provided conflicting instructions. As a result of this work, S1 said to Complainant, via email, that he was concerned Complainant did not fully understand her critical thinking responsibilities. Complainant cited this email, and several others, as examples of what she characterizes as snide comments about her work and her need to take leave in connection with her disability. 2019005940 3 Complainant also contended that S1 harassed her by publicly asking her team to rate her performance. However, none of the members of her team, including CO1, recalled this incident. S1 denied harassing or verbally berating Complainant. Complainant asserted that, prior to her removal from the POSS contract on April 12, 2018, she was not given a chance to succeed. Complainant explained that she had difficulty working on the POSS contract because she was using use-or-lose leave, dealing with chronic back pain, and recovering from back surgeries. Complainant protested that she fell behind on the POSS contract because S1 would not permit other employees to back her up. On December 20, 2017, S1 asked Complainant to schedule a meeting for the POSS contract on December 21, 2017, even though he had already approved her leave for that day. S1 ultimately said the meeting could wait until Complainant returned to the office. On March 28, 2018, Complainant met with a Small Business Specialist (SBS1) to discuss the results of the meeting with S1. SBS1 was concerned that there was only one vendor, and suggested that Complainant open the contract up for competition, but that would have resulted in a delay awarding the new contract. Complainant suggested that the current contract be extended six months. According to Complainant, S1 was not satisfied with Complainant’s explanation that she did not have sufficient time to work on the contract and, on April 12, 2018, removed Complainant from the POSS contract. S1 said that the contract was behind schedule, the critical path was not managed well, and there was a lack of skills and abilities to keep the award from falling behind schedule. S1 reassigned the contract to CO1, who then extended the prior contract for six months. Complainant objected to her workload, stated that she had been assigned a total of 77 actions, “which is a full load and executing a Large Complex Re-compete.” Complainant argued that her workload was not normal, and others had a much lighter load. S1 disagreed that Complainant had an unreasonable workload, and said that Complainant had disobeyed his directive to work with her supervisor on the POSS contract’s pre-award and award phases. Instead, Complainant chose to work with CO1. During the process, S1 met with CO1, who said that Complainant lacked the knowledge and skill to work independently. S1 also spoke with SBS1, who said that Complainant did not seem to have a good understanding of the process. The Director of Procurement (Director) added that workload was difficult to assess “because specific procurement types can differ vastly as far as complexity and time to complete. Complainant’s team has high volume, but transaction count does not necessarily equate to complexity.” CO1 averred that S1 had suggested that he was concerned Complainant was unable to learn and coordinate with people in the office when she was out as frequently as she was. CO1 disagreed with that assertion, but also did not think Complainant had an unreasonable workload. CO1 also did not believe that S1 was setting Complainant up for failure. Rather, S1 was testing Complainant’s capabilities to determine her promotion capability. CO1 agreed that Complainant did not warrant a promotion to a GS-13 position. 2019005940 4 Ultimately, Complainant did not receive a promotion to the GS-13 level. S1 attested that Complainant did not warrant a promotion due to performance issues. Complainant noted that she received a performance rating of “Commendable” for the three years immediately prior. Complainant claimed that S1’s decision not to promote her was in contravention of the applicable union agreement which required promotion if an employee is “Fully Successful” or better. Complainant noted that she executed the career coaching and broadband internet services contract, but only had difficulty with the POSS contract. Complainant conceded, however, that the POSS contract was a prerequisite to her promotion. Complainant alleged that a male co-worker (CW1) was promoted to a GS-13 position. Complainant believed S1 promoted CW1 to spite her, and that there is no difference between her capabilities and those of CW1. S1 responded that he established a promotion plan for CW1, similar to the plan he established for Complainant, and CW1 met the elements identified in that plan. Further, CW1 “demonstrated independent thought and critical thinking skills as outlined in his plan whereas [Complainant] relied on continuous direction and guidance from the CO on problem- solving and identifying next steps.” Denial of Training Complainant asserted that she met with S1 on February 20, 2018, and the two agreed that she would take the Best Value Source Selection Using Tradeoffs class and the Source Selection class. On March 12, 2018, Complainant submitted a formal request to take the Best Value class on March 26 and 27, 2018. Complainant asserted that S1 disapproved her request without explanation and instructed her to take the class sometime after April 2018. Complainant also noted that S1 told her to take the Source Selection class before taking the Best Value class. Complainant said that the Source Selection class scheduled for April 16 through 20, 2018, was ultimately canceled and not offered again until September 2018. Because of this, Complainant believed that S1 was setting her up to fail because these classes would have helped her work on the POSS contract. Complainant also requested to take a different class, Service Contract Labor Standards Statute Overview, administered by the Internal Revenue Service (IRS). S1 denied Complainant’s request on the grounds it was only for IRS employees, but Complainant asserted that the class was available to other federal employees and believed S1’s decision was retaliation. Complainant alleged that she did not receive notification that her training was approved as of January 29, 2019. Complainant averred that she asked S1 whether she could take free training conducted by the Treasury Acquisition Institute (TAI), but S1 never responded. Several of her colleagues were approved to take the training. Complainant asserted that S1’s conduct constituted retaliation. In response, S1 said that Complainant failed to meet to discuss her Individual Development Plan (IDP) and associated training needs. Absent a final IDP, S1 could not approve training. Complainant’s coworkers had a final IDP and were, therefore, able to attend training. 2019005940 5 Disclosure of Confidential Medical Information The record demonstrates that Complainant emailed S1 on March 7, 2018, to tell him that she would be teleworking that day. Specifically, Complainant said, “[d]ue to the chronic back pain I’m currently experiencing, I’ll use the approved Reasonable Accommodations for today.” S1 copied two contractors on a response, saying, “I am sorry to hear you continue to have back issues. . . .” S1 stated that the intent behind his email response was to alert Complainant's team members about her schedule for workload and meeting coverage purposes. S1 subsequently accepted responsibility for releasing Complainant’s medical information to the contracting personnel. Complainant also referred to an auto-generated WebTA email S1 forwarded to her team on April 9, 2018. The email indicated that Complainant submitted a request for sick leave and the dates for which she sought sick leave, but nothing more. Performance Reviews In her affidavit, Complainant argued point-by-point her disagreement with S1’s assessment of her performance and asserted that S1’s actions, as detailed in her complaint, resulted in her being unable to perform fully to expectations. Complainant contended that S1 did so as reprisal against her for seeking reasonable accommodations. S1 explained Complainant’s work on the POSS contract demonstrated that she did not possess all the skills and expertise necessary to obtain top marks on the performance review and that she had room for improvement. At the conclusion of the investigation of the consolidated complaints, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that management articulated legitimate, non-discriminatory reasons for its actions. The Agency then concluded that Complainant failed to demonstrate that those explanations were pretext. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment. The Agency, however, found that S1 unlawfully disclosed Complainant’s confidential medical information. The Agency concluded that S1’s email to the two contractors, in Claim (2) was a direct violation of the Rehabilitation Act, but his email regarding Complainant going on sick leave, in Claim (4), was not. That email simply disclosed that Complainant was taking sick leave without any further details, which did not constitute a violation. To remedy the violation, the Agency awarded Complainant $2,000 in non-pecuniary compensatory damages. In addition, the Agency ordered EEO training regarding confidential medical information to all supervisors within the Office of Procurement; to consider disciplining S1; and to post a notice. The instant appeal followed. 2019005940 6 CONTENTIONS ON APPEAL On appeal, Complainant argues that the investigation was incomplete and a witness who would support her case was not included. Further, Complainant asserts that she is appealing the Agency’s final decision solely as to her promotion to the GS-13 level, and as to the rating on her 2018 performance appraisal. Complainant contends that the evidence shows that she was not treated fairly or properly evaluated. Accordingly, Complainant requests that the Commission reverse the final decision as to those matters. 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”). As an initial matter, Complainant claims on appeal that the investigation was inadequate and incomplete as witnesses who would support her complaint were not included. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Complainant failed to request a hearing, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. In addition, we note that Complainant does not appeal the Agency’s determinations regarding her allegations that S1 unlawfully disclosed her confidential medical information, nor does she appeal the Agency’s compensatory damages award. Accordingly, we find no basis to disturb the Agency’s decision and award in that regard. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2019005940 7 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). As more fully detailed above, S1 provided legitimate, non-discriminatory reasons for his actions. The record establishes that Complainant sought to be promoted, and that in order to be promoted, she needed to adequately complete several contracts, including the POSS contract. Several of the Agency’s employees, including CO1 and SBS1, indicated that Complainant was unable to satisfactorily perform the POSS contract. As a result, S1 did not believe that Complainant demonstrated that she was ready to be promoted. Conversely, CW1 adequately performed all of the elements of his promotion plan and demonstrated his abilities for the GS-13 level. S1 also explained that Complainant’s performance in the course of the POSS contract contributed to her performance evaluation for 2018. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry her burden here. Upon review of the record, we find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanations for its actions were pretext intended to mask discriminatory or retaliatory motivation. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant claims that the alleged incidents constitute a claim of harassment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency management were motivated by discriminatory or retaliatory animus on any of her alleged bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2019005940 8 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. 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). 2019005940 9 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 February 22, 2021 Date