Teresa W.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120172958 (E.E.O.C. Dec. 11, 2018)

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

Teresa W.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120172958

Agency No. 54201700056

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”), pursuant to 29 C.F.R. § 1614.403(a), from the August 23, 2017 Final Agency
Decision (“FAD”) 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Contract Specialist (Branch Chief), GS-14, within the Agency’s Acquisition and Grants Office
(“AGO”) in Silver Spring, Maryland.

On January 30, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), age (56), and reprisal
(engaging in prior protected activity) when she received a performance appraisal (“PA”) rating
for Fiscal Year 2016 (“FY 2016”) that she believed did not accurately reflect her actual
performance.

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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After investigating her complaint, 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”). When Complainant did not request a hearing within the time frame provided in 29
C.F.R. § 1614.108(f), the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

The Agency’s investigation into the complaint established that Complainant began working in
AGO in 2012. AGO provides acquisition and financial assistance from various locations to
clients within the Agency. The AGO Director is the Senior Bureau Procurement Official for the
Agency, and, among other things, oversees the Strategic Sourcing Acquisition Division
(“SSAD”). In January 2014, Complainant was promoted to the position of Branch Chief for the
Enterprise Operations Branch (“ENT”), one of five branches within SSAD. The SSAD Deputy
Director (White/Caucasian, 41, prior EEO activity as a management witness) was Complainant’s
first level supervisor (“S1”), and the SSAD Division Director (Caucasian, 40, prior EEO activity
as a management witness and representative) was her second level supervisor (“S2”).2

As Branch Chief for ENT, Complainant was responsible for developing, independently
negotiating, and administering of complex contracts, such as long range procurement programs,
while ensuring that she and her direct reports maintained compliance with federal contract law
and policies. Throughout the relevant time frame, Complainant supervised two to three federal
employees and two to four contract employees. Her performance was evaluated based on four
Performance Elements, which were scored on a scale of 1 to 5: (1) Customer Service, (2)
Acquisition Planning, (3) Acquisition Management and (4) Leadership/Management. S1 was her
rating official, with S2 as her approving official.

For FY 2014, Complainant’s performance appraisal reflected an overall score of 4, scoring a 5
for Customer Service, and a 4 on the other three Performance Elements. Complainant’s FY 2015
appraisal reflected a decreased overall score of 3, with a 4 for Customer Service, and 3 on her
other three Performance Elements. Complainant attributed her lowered FY 2015 appraisal to S1
and S2 retaliating against her for engaging in whistleblower activity.3 For the FY 2016 appraisal
at issue in the instant complaint, Complainant experienced yet another decrease in her rating.

2 In September 2016, due to a reorganization S1 became Complainant’s second level supervisor.
However, she was still Complainant’s rating official during the relevant time frame.

3 All references to whistleblower activity are for background purposes only, as the Commission
has previously held that whistleblower activities are generally outside the purview of the EEO
process. See Giannu v. Dep’t of Housing & Urban Devel., EEOC Request No. 05880911 (Feb.
13, 1989). There is no indication that Complainant’s whistleblower activity involved allegations
of employment discrimination. Moreover, we have not considered Complainant’s whistleblower
activity in her reprisal allegation, because the Commission does not have jurisdiction over
Whistleblower Protection Act claims. See Reavill v. Dep’t of the Navy, EEOC Appeal No.
05950174 (July 19, 1996).
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While she maintained a 4 in Customer Service, Complainant scored a 3 in Acquisition Planning
and Acquisition Management, and a 2 for Leadership/Management.

Sometime during FY 2015, Complainant notified the Agency’s Inspector General (“IG”) and
spoke with Federal Auditors about allegations that S1 and S2 engaged in fraudulent contract
activity. Specifically, Complainant alleged that S1 and S2 hired contract employees through a
“favored” agency (“Contractor”), even though she notified them that the Contractor invoiced the
Agency for hours its employees did not work, and provided contract employees that did not have
the commensurate training and skill set required for the level of the positions they were assigned
to and compensated for. After the IG’s investigation started, Complainant alleges that S1 and S2
stopped providing her with positive feedback, and she received the lowered PA.

On January 12, 2016, S1 met with Complainant about a complaint she received from the
Contractor’s Program Manager (“PM”) in November 23, 2015, which she had investigated by
contacting former and current contract and federal ENT employees. Additionally, S1 presented
Complainant with an anonymous complaint about Complainant’s leadership that she received on
January 6, 2016. Complainant responded that she was “not surprised… because she has been
vocal whenever she has identified a lack of performance by the contractors” it caused her to
become a “target” for complaints. However, Complainant categorically denied acting
inappropriate or unprofessional. Instead she questioned S1’s motivation for calling the meeting,
asking if it was intended as a “shot across the bow” in response to her prior reporting of concerns
over contractors. S1 emphasized that the purpose of the meeting was solely to address the
complaints. On March 27, 2016, S1 met with Complainant again, then issued a memorandum
entitled “Documentation of Complaint Findings” on March 29, 2016.

During their April 28, 2016 mid-year review meeting, S1 discussed and provided a detailed write
up regarding the findings. While Complainant’s “performance has been at a Level 3 or better” on
elements 1 through 3, S1 determined that for the Element of Leadership and Management.
[Complainant’s] leadership has resulted in inefficient use of resources and adversely affected the
morale, productivity, and effectiveness of her branch.” S1 counseled Complainant and required
her to complete coursework on teambuilding or communication skills by the end of May 2016.
She also warned Complainant that continued complaints of inappropriate behavior could result in
a Performance Improvement Plan (“PIP”) or disciplinary action in the form of a letter of
reprimand.

On May 10, 2016, Complainant initiated contact with an EEO Counselor, alleging that S1 and S2
subjected her to a hostile work environment.4 Among the 10 claims of harassment was the
lowered score on her FY 2015 appraisal and the training mandated in her FY 2016 mid-year
review. Both S1 and S2 became aware of Complainant’s EEO activity shortly afterward, when
the EEO Counselor contacted them for an interview.

4 This is not the complaint at issue on appeal. Rather, it is an earlier complaint identified as
Agency No. 54201600182. See also, EEOC Hearing No. 531201700165X (May 7, 2018) (Order
of dismissal in response to Complainant’s request to withdraw her complaint).
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In June 2016, S1 declined Complainant’s request to resolve the matter through mediation, and
instead provided Complainant with the proper venue for raising whistleblower retaliation claims.
On July 26, 2016, Complainant filed her formal EEO complaint, which the Agency accepted for
investigation. On October 18, 2016 and October 24, 2016, the EEO Investigator obtained
statements from S1 and S2 responding Complainant’s specific allegations in her hostile work
environment complaint. Less than a month later, on November 10, 2016, S1 and S2 met with
Complainant and issued her FY 2016 appraisal.

As Complainant scored lower than a 3 on Leadership/Management for her FY 2016 PA, S1
provided an extensive, detailed write up explaining Complainant’s score of 2. S1 references their
meetings in March and April 2016, and provided “focus areas” for Complainant to improve, such
as establishing a “team environment” incorporating both federal employees and contractors.
S1’s write up noted that Complainant received positive comments for customer service, and that
she demonstrated a solid performance and successful decrease in acquisition request inventory.
Complainant alleges that the other Branch Managers, who were white, completed fewer
assignments, yet scored higher than she did on the same elements and that S1 and S2 were
retaliating against her for her whistleblowing activity and related EEO complaint.

Based on the evidence gathered during the investigation, the FAD concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal
followed.

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”).

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade
the fact finder by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

For purposes of establishing pretext, comparative evidence relating to other employees is
considered relevant when they are “similarly situated.” See Anderson v. Dep’t of Treasury,
EEOC Appeal No. 01A22092 (Mar. 13, 2003). In other words, all relevant aspects of the
employees' work situation are identical or nearly identical, i.e., the employees report to the same
supervisor, perform the same job function, work during the same time periods, and, in instances
where the Agency is responding to “problem conduct” (e.g. complaints by contract employees),
engaged in the same conduct. See Stewart v. Dep’t of Defense, EEOC Appeal No. 01A02890
(Jun. 27, 2001); Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13,
2000); See Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration
denied, EEOC Request No. 05A20020 (Dec. 28, 2002).

Here, the Agency’s legitimate non-discriminatory reason for its action is that Complainant’s FY
2016 appraisal is consistent with her performance during FY 2016. The Agency provides
evidence that the other SSAD Branch Chiefs oversaw different types of SSAD projects, which
necessarily took longer than some of Complainant’s acquisition assignments. Therefore, the
Agency had a legitimate non-discriminatory reason for scoring other Branch Chiefs higher than
Complainant on Performance Elements 2 and 3, using metrics that were not based on completion
rate. Even if the other SSAD Branch Chiefs could be presented as comparators, Complainant
does not dispute that the turnover and reassignment requests by contract employees specific to
her branch.

S1 provided ample evidence to support that she had a legitimate non-discriminatory reason for
decreasing Complainant’s Management/Leadership rating to 2. During FY 2016, S1 received
multiple allegations that Complainant acted unprofessionally toward contract employees. We
note that in late January 2016, after S1’s meeting with Complainant about her conduct with
contract employees, both remaining ENT contract employees resigned, citing the work
environment caused by Complainant. After consulting a Labor Relations Specialist, S1 obtained
written statements from both contractor employees. The evidence reflects that S1 had valid
concerns regarding Complainant’s Leadership/Management.
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In her March 29, 2016 Memorandum, S1 stated that “all” of the contractor and federal
employees she interviewed indicated that they felt Complainant’s manner of communication to
be “demeaning, condescending, and belittling in their view intended to instill fear of losing their
jobs.” They also alleged deficiencies in Complainant’s leadership by failing to provide guidance.
Complainant does not dispute the high turnover of contract employees – supporting S1’s
rationale that Complainant required training in interpersonal and team building skills, and, as this
was a key aspect of Performance Element 4, a lowered score on her FY 2016 PA.

On appeal Complainant does not offer evidence to support her assertions of discriminatory
motive, but rather lists multiple allegations from her prior EEO complaint. Even considering her
past allegations as background information only, Complainant’s response does not refute the
Agency’s legitimate non-discriminatory reasons for the matter at hand – the rating on her FY
2016 performance appraisal. Similarly, Complainant does not provide support for her alternate
argument, that she was “set up for failure” by S1 and S2, as the FY 2016 appraisal is based on
her performance after one of her senior employees was reassigned to another branch, which does
not address the matter of Leadership/Management. legitimate non-discriminatory reason
provided by the Agency.

New Allegations Raised on Appeal

On appeal, Complainant alleges that the Agency has been retaliating against her for engaging in
EEO activity by “blacklisting” her for internal employment opportunities. By Complainant’s
account, since engaging in protected EEO activity, she “applied for a number of reassignment
opportunity notices and internal [positions] for which [she] was either qualified or
overqualified…. [yet she did not] receive a response of any kind.” Because these new claims
were not raised in Complainant’s formal complaint, they will not be adjudicated in this decision.
If Complainant wishes to pursue these new claims in an EEO complaint, then she must contact
an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv.,
EEOC Appeal No. 0120031342 (Apr. 24, 2003).

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 finding that Complainant failed to
prove discrimination as alleged.

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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. 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.
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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

December 11, 2018
Date