[Redacted], Tammi W. 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Patent and Trademark Office), Agency.

Equal Employment Opportunity Commission

Mar 30, 2021

Appeal No. 2020002847 (E.E.O.C. Mar. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tammi W.1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Patent and Trademark Office), Agency. Appeal No. 2020002847 Hearing Nos. 570-2018-00365X, 570-2018-01083X Agency Nos. 17-56-30, 17-56-105 DECISION On March 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 25, 2020 final order concerning her equal employment opportunity (EEO) complaints 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources Specialist, GS-0201-14, at the Agency’s Office of Human Resources (OHR) facility in Alexandria, Virginia. Agency No. 17-56-30, Hearing No. 570-2018-00365X On February 22, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of disability (mental and physical) and reprisal for prior protected EEO activity when: 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. 2020002847 2 1. on or about November 2, 2016, the Agency changed Complainant’s appointment from a Permanent Career Conditional, eligible for conversation to the Competitive Service after 60 days, and changed her appointment to a Term appointment, not to exceed October 5, 2017, and encouraged her to resign; 2. Since on or about September 2016 and ongoing, Complainant’s first- and second- line supervisors have allegedly subjected Complainant to unreasonable scrutiny and shifting performance standards; 3. since on or about September 2016 and ongoing, the Agency alleged failed to provide Complainant with the training, resources, and materials to perform her job adequately; 4. Since on or about September 2016 and ongoing, Complainant has been subject to an improper performance appraisal plan (PAP); 5. or about September 8, September 19, and September 23, 2016, Complainant was improperly admonished; 6. on or about September 27 and September 30, 2016, the Agency allowed Complainant’s staff to mock and humiliate her and took no action to stop it; 7. on or about October 17 and November 29, 2016 Complainant was improperly required to take leave and/or asked for inappropriate documentation and provided incorrect information about her leave balances; 8. on or about October 21, 2016, Complainant’s supervisor subjected Complainant to inappropriate remarks that related to Complainant’s disability, despite knowing of Complainant’s disability; 9. on or about November 10, 2016, Complainant was unduly scrutinized for missing training despite having a valid reason for her absence; 10. on or about October 27, November 9, November 10, November 16, 2016, Complainant has been berated, intimidated and accused of poor performance in connection with her job duties; 11. on or about November 18, 2016, the Agency de-provisioned Complainant’s email account and deprived her of access to the workplace; Complainant continues to lack access to the Employee Relations shared drive; 12. on or about December 8, 2016, December 18, 2016, and January 2017, the Agency denied Complainant’s request for a reasonable accommodation in the form of telework; 2020002847 3 13. on or about December 12, 2016, Complainant had her office relocated to a smaller, less desirable place and was stripped of her supervisory duties and denied access to the second floor of the Elizabeth Townhouse or employees who had offices there; 14. on December 14, 2016, her supervisor’s actions “ostracized” her and “undermined” her Authority; 15. on or about January 11, 2017, Complainant learned she had not been selection for the position of General Attorney, GS-0905-15, under Vacancy Announcement OGC-2017-0001; 16. on or about April 20, 2017, the Director of Human Resources allegedly chastised Complainant for committing a “security violation” on a SF-182 training request form when Complainant was merely following the form’s instructions’ 17. on or about April 24, 2017, Complainant’s request to attend training at the Eisenhower School was denied, despite there being no additional cost to the Agency. Agency No. 17-56-105, Hearing No. 570-2018-01083X On November 21, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of disability (mental and physical) and reprisal for prior protected EEO activity when: 1. on or about August 29, 2017, Complainant learned she was falsely accused of fabricating information; 2. on or about August 29, 2017, Complainant learned that the Agency’s Chief Administrative Officer (CAO) and Deputy CAO wanted her removed from the Agency and that the Deputy Director of the Office of Human Resources (OHR) was drafting a notice of proposed removal from federal service; 3. on or about September 7, 2017, Complainant learned she would be reporting to the Director of OHR and receiving assignments from a manager in OHR’s Workforce Relations Division, despite Complainant’s allegations that those individuals had previously harassed, discriminated against and retaliated against her; 4. on or about September 7, 2017, Complainant learned she was denied access to information she needed to complete her work assignments; 2020002847 4 5. on or about November 1, 2017, Complainant received a fiscal year 2017 rating of fully successful; and, 6. on or about November 1, 2017, Complainant was informed she owed a debt to the Agency.” After its investigation into the complaints, the Agency provided Complainant with a copy of the report of investigations and notices of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing in both complaints. During the hearing stage, the complaints were consolidated for one decision. The Agency submitted a motion for a decision without a hearing on the consolidated complaints. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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-110), at Chap. 9, § VI.B. (as revised, August 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. On appeal, Complainant submitted several related documents but did not provide any appellate brief arguing why summary judgment was inappropriate. In this matter, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder 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 adopting the AJ’s decision. 2020002847 5 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). 2020002847 6 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 March 30, 2021 Date