Tynisha H.,1 Complainant,v.Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120173037 (E.E.O.C. Dec. 4, 2018)

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

Tynisha H.,1
Complainant,

v.

Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.

Appeal No. 0120173037

Agency No. TVA20150020

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 17, 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 Project Manager,
Nuclear Organization, at the Agency’s Corporate Office in Chattanooga, Tennessee.

On March 9, 2015, Complainant filed an EEO complaint alleging that:

1. She was subjected to a hostile work environment by the Agency on the bases of race
(African American), sex (female), age (45) when: 2

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 Claims 1(c) and 1(e), are consolidated versions of Complainant’s Formal Complaint allegations
about the October 20, 2014 and December 17, 2014 PIP meetings.
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a. In June 2013, after she was denied the opportunity to fully apply her skills,
and denied resources and training,

b. On July 16, 2014, she was subjected to discriminatory, harassing and
intimidating statements regarding a voluntary reduction in force (“RIF”) offer,
during a meeting with her manager (“M2”), the Vice President, (“VP”), and a
Human Resources Representative (“H1”),

c. On October 20, 2014, during a meeting with H1 and M2, in which she was
placed on a Performance Improvement Plan (“PIP”):

i. M2 told her that: she did not communicate effectively with the team
and status reports had been requested more than one time, and,

ii. M2 accused her of: being unable to provide a schedule and budget for
projects when asked, providing an inaccurate forecast, and failing to
meet the expectations of a Nuclear Power Group Project Manager,

d. On December 8, 2014, M2 assumed a black male she was with was her
husband and asked for an introduction,

e. On December 17, 2014, during a PIP meeting:

i. M2 told her: to find another job in a different unit or she would be
terminated, that she could not have only one project assigned, that she
was a “marginal employee,” that no one at the site would allow her to
be his or her employee, and that she was not well-liked, therefore, she
needed to find another position,

ii. M2 questioned her about not meeting the schedule for the at Watt’s
Bar Nuclear Plant (“WBNP”),

iii. M2 questioned the format of Complainant’s status reports, stating her
reports were “confusing,” and,

iv. M2 coached her for not having a communication plan, even though
Complainant offered to provide one.

f. On December 17, 2014, she was told during a presentation that the project
management was lacking,

g. On January 9, 2015, during a Project Approval Board (“PAB”) presentation,
M2 stated that Complainant was there because she did not perform her job,
and
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h. On January 28, 2015, M2 told her no work was available even though other
project managers on M2’s team were getting new assignments.

2. She was subjected to disparate treatment on the bases of race (Black), sex (Female),
age (45) and reprisal (engaging in protected EEO activity) when on or about April 14,
2015, Complainant's employment was terminated based on poor performance under
her PIP.

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
FAD pursuant to 29 C.F.R. § 1614.110(b).

As a Project Manager, Complainant established the scope, budget, schedule for multiple ongoing
projects simultaneously. She obtained materials and monitored progress by conducting
occasional site visits, and maintaining communications with agency employees assigned to her
projects, vendors, and contractors site visits with plant workers assigned to the project, vendors,
and contractors. In the event a project got off track, Complainant created contingencies, which
were presented to the Project Approval Board (“PAB”). Complainant testified that she “was the
only female person of color” in Project Management working out of Corporate, and at the
nuclear facilities she visited.

In June 2013, Complainant’s manager was “M1” (female, white, age not specified). Complainant
alleged that M1 undermined her ability to succeed by denying her budget requests, and “singled
her out” by subjecting her to heightened criticism and a heavier work load than her coworkers.
Testimony from other project managers on Complainant’s team supports the characterization that
M1 created a toxic environment and “played favorites” when granting requests for funding or
resources. Complainant’s reprisal claim is based on her participation in an investigation
conducted by the Agency’s Employee Concern Program (“ECP”) about M1’s management style.

Sometime in 2013, Complainant began reporting to another manager, “M2” (female, Caucasian,
age not specified). Complainant was assigned 5 projects under M2. The first three projects were
for the “nuclear wi-fi” project which entailed building infrastructure to implement wi-fi within
the Sequoyah (“SQN”), Watts Bar (“WBN”), and Brown’s Ferry (“BFN”) Nuclear Plants. The
nuclear wi-fi project had already been attempted by the engineering division, and subject to
challenges prior to its reassignment to Complainant. The other two projects were to resolve
security deficiencies at WBN and BFN, which, among other things, entailed installing additional
cameras and supporting equipment. One of Complainant’s fellow project managers described
M2 as having “very high expectations…she was kind of hard on everybody,” with similar
statements by other witnesses. Complainant alleges that M2 was especially hard on her because
M1 told her about the ECP investigation.

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On July 16, 2014, as part of an effort to downsize through a voluntary reduction in force (“RIF”),
M2 and a Human Resources Representative, “H1,” (male, Caucasian, 29), along with the Vice
President of Nuclear Projects (“VP”) (male, Caucasian, over 60) who was M2’s supervisor,
offered Complainant a benefits package in exchange for accepting a no-fault separation. Two
other Project Managers on M2’s team (male, Caucasian, age not specified; female, Caucasian,
age not specified) had accepted the same offer the day before. However, Complainant declined.
M2 told Complainant that her “performance had not met expectations.” VP told Complainant
that she was “not respected” by employees working on her projects.

On October 20, 2014, H1 and M2 met with Complainant and placed her on a Performance
Improvement Plan (“PIP”), for lack of improvement since their July 16, 2014 meeting. The PIP,
which was drafted using a standard Agency form, and in accordance with Agency policy,
provided Complainant with 90 days to “demonstrate immediate, significant, and ongoing
improvement,” or risk termination. The PIP identified two deficiencies: “occurrences where
[Complainant has] not taken ownership of the required responsibilities” and “[Complainant’s]
work requires more oversight and rework than what would be reasonable for the position.” To
address the deficiencies, the PIP listed nine (9) “Expectations,” including completion of the
nuclear wi-fi and security projects within proscribed deadlines, and regular status reports.

On December 17, 2014, during another PIP meeting, M2 informed Complainant that her
performance was “marginal” having previously notified Complainant at least three times during
their other biweekly PIP meetings, that she was not on track to meet the PIP Expectations. By the
end of the 90-day time frame, Complainant had not met most the PIP Expectations. While she
submitted budgets within the deadlines provided by the PIP, they were inaccurate. Also,
Complainant did not meet the deadlines for any of her projects.

Complainant contends that she completed the PIP requirements to the extent possible.
Complainant did not complete the Wi-Fi projects at SQN and WBN, but implemented the WBN
Contingency Plan prior to the December 31, 2014 deadline. As for SQN Wi-Fi, Complainant
states that the onsite workers opted to redirect her project resources to work on Harris Radio to
meet its December 31, 2014 deadline. She attributed the delay and incorrect calculations due to
resources being redirected to regulatory projects, which receive higher priority, and a delay in
completion of Harris Radio, which was initially slated to be completed on June 30, 2014, but was
not completed until December 24, 2014. Complainant states that the Wi-Fi projects could not be
properly estimated until Harris Radio was completed.

On January 12, 2015, M2 emailed VP, proposing that they provide Complainant with three
months to find another job, then give her a no-fault separation, because she failed to meet the PIP
requirements. Both H1 and VP agreed. H1 also explained that Complainant had pending
applications for positions within the Agency, and the delayed termination would give her an
opportunity to obtain a position internally. Complainant, apparently unaware of the Agency’s
decision to terminate her employment, continued to request Project Management work, only to
be repeatedly denied. On April 14, 2015, M2 provided Complainant with her Notice of
Termination, for failure to meet the expectations set within the PIP.
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In its FAD, the Agency 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”).

Claim 1: Hostile Work Environment

It is well-settled that harassment based on an individual’s race, national origin, sex, religion,
color, and/or age is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986).
Although Complainant’s membership in protected classes is undisputed, she has not satisfied the
other elements of a prima facie case for a harassment/hostile work environment, which are
necessary for a finding of employer liability. To prove harassment, Complainant must establish
that she was subjected to conduct that was either so severe or so pervasive that a “reasonable
person” in Complainant’s position would have found the conduct to be hostile or abusive.
Complainant must also prove that the conduct was based on her membership in one or more
protected classes. Only if Complainant establishes both of those elements – hostility and motive
– will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No.
915.002 (Mar. 8, 1994).

Claim 1(a)

Claim 1(a) must be reviewed separately because it is not part of the pattern of harassment
presented in Complainant’s Claim 1 allegations. See Meaney v. Dep't of the Treasury, EEOC
Request No. 05940169 (Nov. 3, 1994). The alleged harasser in Claim 1(a), M1, is not named in
any of the other allegations in Claim 1. Also, the harassment Complainant describes took place
in 2013, under different circumstances than the remaining Claim 1 allegations, which occurred a
year later, after the reorganization and downsizing of Nuclear Operations.

While testimony by some of Complainant’s coworkers lends credence to her allegation that M1
was critical of Complainant, and may have treated her unfairly, there is no supporting evidence
to show that M1’s actions in Claim 1(a) occurred as alleged, let alone that they were “severe or
pervasive.” Also, aside from bald assertions, Complainant offers no evidence that M1’s alleged
actions were motivated by discrimination.
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Claims 1(b) – 1(h)

We have long held that a supervisor questioning a complainant about the performance of his or
her duties is a “common workplace occurrences” which, while sometimes unpleasant, do not
constitute harassment, even if done in a confrontational manner. See Agnus W. v. United States
Postal Serv., EEOC Appeal No. 0120160826 (Mar. 23, 2016) citing Carver v. United States
Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Unless it is reasonably established
that the common workplace occurrence was somehow abusive or offensive, and was taken in
order to harass the complainant on the basis of any of his or her protected classes, we do not find
such common workplace occurrences sufficiently severe or pervasive to rise to the level of a
hostile work environment or harassment as Complainant alleges. See Wolf v. United States
Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); see also Long v. Veterans
Administration, EEOC Appeal No. 01950169 (Aug. 14, 1997).

Also, consistent with the policy and practice of determining whether a complainant's harassment
allegations were sufficient to state a hostile or abusive work environment claim, the Commission
has repeatedly found that remarks or comments unaccompanied by a concrete agency action
usually are not a direct and personal deprivation sufficient to render an individual aggrieved for
purposes of Title VII. See, e.g., Backo v. United States Postal Serv., EEOC Request No.
05960227 (June 10, 1996) (finding a supervisor’s remarks on several occasions, unaccompanied
by any concrete action, were not sufficient to state a claim), see also Sarven v. United States
Postal Serv., EEOC Appeal No. 01A30103 (February 11, 2003) (finding an official discussion
concerning a complainant's behavior, which was not recorded in any personnel or supervisory
files, did not render the complainant aggrieved).

Claims 1(b), 1(c) and 1(e) describe meetings where Management discussed and questioned
Complainant about the performance of her job duties. Claim (h) also describes a “common
workplace occurrence,” as it involves M2’s managerial decision-making on how to assign work.
We do not find these “common workplace occurrences” sufficiently abusive or offensive, or
intended to harass Complainant based on her membership in a protected class.

Claims 1(b) through 1(g), and throughout her testimony and submissions, Complainant
repeatedly alleges harassment based on remarks and comments she attributes to H1, M2, and VP.
In Claim 1(d), Complainant to felt singled out by M2, who made an unfounded assumption that
complainant was married to a man she was walking with because they were both black. In
Claims 1(f) and 1(g), M2 made negative comments in front of a group about Complainant’s
presentations. Further, VP, in Claim 1(b), and M2 in Claims 1(c) and 1(e), allegedly told
Complainant about team members not respecting or liking her, or not wanting to work for her,
and that she needed to get another job. These alleged comments all occurred over a span of
nearly 5 months, and none of them were accompanied by a concrete employment action. Further,
even with Claim 1(d), which explicitly references race, there is no evidence of discriminatory
motive. While these remarks and comments were tactless, hurtful, and caused embarrassment,
they are not indicative of a hostile work environment.

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Claim 2: Disparate Treatment - Termination

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). 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).

The Agency’s legitimate nondiscriminatory reason for terminating Complainant from her
position, as provided in the April 13, 2015 “Notice of Termination,” was she did not
“demonstrate immediate, significant, and on-going improvement in the areas identified in the
[October 20, 2014] PIP.” Complainant offers no evidence that she took steps to improve her
performance, such as utilizing the resources identified in the PIP, or making changes to her
communication and reporting style in response to feedback from M2 and VP. Rather,
Complainant appears to argue that she should not be held to the nine PIP Expectations because
“other project managers had projects that were behind schedule, over budget or their information
was not correct and they were not being held to the same standards.” Alternately, Complainant
argues that she met her obligations under the PIP, but events beyond her control prevented her
from fulfilling all nine PIP Expectations on time.

Complainant also contends that the PIP was pretext for discrimination because the nine
Expectations were impossible to fully accomplish. The Agency does not dispute her argument
that she was not allocated the necessary employees and resources to complete her projects on
schedule due to the Agency’s policy of prioritizing regulatory projects over economic revenue
projects. Complainant notes that two of her three project sites were already supporting two
regulatory projects each, in addition to her projects.
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Complainant clarifies that although the nuclear wi-fi project was a regulatory project, the budget
and schedule could not be finalized until the Harris Radio project, under the supervision of
another project manager, was completed. In December 2014, she became aware that the
employees assigned to her wi-fi project were working on the Harris Radio project instead.
Complainant’s former coworker, who had significantly more project management experience
and had since been promoted to a senior position, testified that he knew “for a fact” that the
nuclear wi-fi project “did not set [Complainant] up for success,” explaining that “it was taken
from engineering because they weren't structuring and scoping it correctly,” and would require
significant resources and leadership. As of March 2017, the nuclear wi-fi project was “still
struggling and been rescoped and modified and changed and now given to another organization
to address.”

Regardless, Complainant does not address the “areas [for improvement] identified in the PIP,”
which is also part of the Agency’s legitimate, nondiscriminatory reason. Complainant’s
colleagues and VP describe how she had a more “hands-off” approach to project management,
resulting in an overreliance on contractors, and a communication style with fewer site visits, i.e.,
the “areas for improvement” identified in the PIP. Specifically, fewer site visits impeded her
accuracy with monitoring projects. For instance, VP testifies that the feedback he received from
employees working on the nuclear wi-fi project significantly diverged from Complainant’s
response about the status of the project. As for events beyond her control, Complainant explains
that she missed the October 31, 2014 deadline provided in the PIP to submit a weekly
construction schedule, and submitted reports with inaccurate forecasts, because the vendor the
Agency uses to generate schedules did not have a scheduler available and did not hire one until
November 2014, and the vendor’s “[cost estimates] are never accurate, never. They’re all plus
and minus forty percent.” However, the record supports that when a scheduler is not available,
the project manager is still responsible for creating the construction schedule and submitting an
accurate budget. Complainant has not presented evidence that other project managers submitted
schedules after they were due and reports to M2 that were based on cost estimates they knew
were likely to be inaccurate by 40 percent.

Although Complainant has shown that some elements of the PIP were likely difficult to achieve
within the stated deadline, she has not proven, by a preponderance of the evidence, that the
Agency’s proffered legitimate non-discriminatory reasons for her termination were a pretext for
discrimination.

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 4, 2018
Date