Vickey S.,1 Complainant,v.Emily W. Murphy, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120172366 (E.E.O.C. Nov. 6, 2018)

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

Vickey S.,1
Complainant,

v.

Emily W. Murphy,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120172366

Agency No. GSA12COOGPHRB19

DECISION

On June 23, 2017, 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
May 25, 2017 final decision concerning an 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

During the period at issue, Complainant worked as the Director, GS-15, at the Agency’s Central
Office Contracting Division in Washington, District of Columbia.

On March 22, 2012, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against her based on race (African-American), sex (female), color (black),
age (47), and in reprisal for prior protected EEO activity when:

1. on or about November 21, 2011, another employee was placed into
Complainant’s position as Director, Central Office Contracting Office;

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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2. on May 5, 2011, Complainant was involuntarily reassigned from her position as a
GS-15, Director, Central Office Contracting Division to 120-day detail in the
position of GS-15, Supervisory Contract Specialist;

3. from May 5, 2011 to present, Complainant did not receive a performance plan or
a performance appraisal for fiscal year (FY) 2011;

4. Complainant did not receive a performance plan or mid-year review for FY 2012;
and,

5. from May 2011 to present, Complainant was not included in office
communications.

The investigative record reflects the following salient events relating to the subject claim.

Claims 1 and 2

Complainant stated that she was informed by her supervisor, the Senior Procurement Executive
(Caucasian, white, male, over 40, unknown EEO activity) (hereinafter referred to as “S1”), the
Human Resources (“HR”) Executive, and the EEO Executive, that she was being detailed into
another non-managerial position because the Office of Inspector General was investigating her.
Complainant noted that she was never formally charged with any violation, and that she never
received any formal paperwork reassigning/detailing her. Complainant testified that the
reassignment/detail subjected her to a hostile work environment. She asserted that she was
isolated from everyone, and averred that nobody communicated with her. Complainant attested
that this reassignment has damaged her reputation and shamed her in front of her co-workers.
Complainant further argued that S1 discriminated against her when he detailed a Caucasian,
white, male, mid-50s, individual (hereinafter referred to as “C1”) in her former position.

S1 stated that Complainant was not reassigned, but detailed. S1 stated that in the spring 2011, he
was informed of a matter that had taken place involving Complainant while she was the Director
of Central Office Contracting Division. The matter involved Complainant’s role in selecting her
husband for a position within her division, and possible criminal activity conducted by
Complainant. That matter was reported to the Office of Inspector General, where Complainant
became the subject of an investigation.

Based on the seriousness of the matter, S1 determined it was best to detail Complainant to an
unclassified set of duties pending the outcome of the Inspector General investigation. S1 stated
that nothing regarding her pay or benefits changed. He noted that Complainant began to telework
full time since her detail began, and that he was unaware of any hostile work environment
claims. S1 stated that he has always remained courteous and respectful. S1 testified that he had
no control with the Inspector General’s investigation.
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S1 also stated that there was no Agency guideline or standard procedures or protocols when it
came to detailing employees who are subject of an Inspector General investigation. S1 denied
that the action was based on Complainant’s protected classes or prior EEO activity

S1 acknowledged detailing C1 as the Acting Director of the Central Office Contracting Division
in November 2011. He explained that temporary leadership was needed during the Inspector
General’s investigation. As of April 2012, the Central Office Contracting Division staff, duties,
and functions were transferred to the Office of Administrative Services at the Agency. At the
time, Complainant still remained on detail, and remained reporting to him under the Office of
Acquisition Policy. He noted that by April 2012, he had no responsibility over of the Central
Office Contracting Division.

Claims 3 and 4

Complainant stated that S1 did not provide her with her FY 2011, and FY 2012, evaluations or
performance plans due to the Inspector General Investigation. Complainant averred that the
Inspector General investigation is being used against her as the basis for her work performance
and that not being issued the FY 2011 and the FY 2012 performance plans or appraisals is a form
of harassment.

S1 stated that Complainant did receive a FY 2011 performance plan, but not a FY 2011
appraisal. S1 stated that because the Inspector General investigation concerned matters directly
related to Complainant’s duties, responsibilities, and other critical elements of Complainant’s
position as the Director of the Central Contracting Division, it would not have been possible for
him to appraise her performance for FY 2011. S1 stated that he therefore decided to hold
Complainant’s appraisal until after the Inspector General investigation was completed.

S1 acknowledged that Complainant did not receive a FY 2012 performance plan or mid-year
review, because she was in the detail, but stated that he would work with the HR Office to
establish an appropriate FY 2012 performance plan based on the circumstances.

Claim 5

Complainant stated that after her detail she was excluded from office communications. She noted
that she was excluded from Senior Staff Meetings and Senior communication emails.
Complainant alleged that the Inspector General’s investigation made everyone fearful to speak to
her, and that a colleague told Complainant that the Inspector General was tapping her phones,
and looking at her emails. Complainant asserted that the exclusion was a form of hostile work
environment, and made her job difficult.

S1 testified that Complainant had not been systematically excluded from emails and
communications. He stated that he and others in the Office of Acquisition Policy regularly
communicated with Complainant via email concerning work activities.
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S1 explained that prior to Complainant's detail to an unclassified set of duties, Complainant was
included in emails sent to directors. He averred that subsequent to her detail, she was not
included in these emails because Complainant was no longer performs the duties of a director
due to her detail. He explained that there is therefore no business-related reason to include
Complainant on these emails.

After an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing,
but subsequently withdrew her request. The AJ remanded the case to the Agency for the
issuance of a final Agency decision. The Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not raise any new contentions on appeal.

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 is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
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. See 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. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the 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. See St. Mary’s Honor
Center 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.
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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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

As the employer, the Agency has broad discretion to determine how best to manage its
operations and may make decisions, including personnel decisions, on any basis except a basis
that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An
employer is entitled to make its own business judgments. The reasonableness of the employer's
decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on
the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012
n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its
judgment for that of management officials who are familiar with the needs of their facility, and
who are in a better position to make decisions, unless other facts suggest that proscribed
considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer at 1048.

Even if we assume arguendo that Complainant established a prima facie case of discrimination,
the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1
received information that Complainant was the subject of an Inspector General investigation,
which had criminal components to the matter. Based on the sensitivity of the circumstances, he,
with aid of the HR and EEO office, determined that it was best to detail Complainant, without
change to her pay, grade, or benefits, to a non-supervisory, unclassified duties position pending
the Inspector General investigation (claim 2). S1 then placed C1 in Complainant’s former role,
not as a discriminatory action, but due to the need for temporary leadership (claim 1).

Regarding the performance plans and appraisals, S1 explained that it was not prudent for him to
provide Complainant with a performance appraisal for FY 2011, but that he had every intention
once the Inspector General investigation was completed (claim 3). Further, S1 testified that while
he did not provide Complainant with a performance plan or appraisal for FY 2012, it was not due
to her protected classes or EEO activity, but due to the Inspector General investigation (claim 4).
During the investigation, S1 noted that he would work with the HR Office to address her
concerns with the FY 2012 plan and appraisal.

Regarding Complainant’s allegations that she was discriminatorily excluded from office
communications, the record does not support her contentions (claim 5). While Complainant
argued that she used to receive much more communication, that would have been accurate based
on her prior role as a director.
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However, once she was detailed to a non-supervisory, unclassified position, it followed that there
was a reduced the amount of emails and other related communications received daily.
Additionally, as S1 stated, based on the investigation, it would not have made sense for
Complainant to be included on emails reserved for management level staff. Based on the record,
it is clear that S1’s actions were part of managing the situation considering the sensitivity of the
Inspector General investigation.

In sum, there is no evidence which suggests the Agency’s actions were based on discriminatory
animus. Complainant has not provided any evidence that suggests that the Agency's reasons were
pretext for discrimination or that discriminatory animus was involved.

Harassment

To the extent that Complainant also alleged that she was subjected to a discriminatory hostile
work environment as a result of the events discussed above, she 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 taken because of a protected basis – in this case, because of
her race, color, sex, or prior EEO activity. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

Here, Complainant has cited various incidents that she found to be adverse or disruptive to her.
However, as detailed above, Complainant has produced no evidence to establish that her race,
color, sex, or prior EEO activity was a factor in any of these actions. The record simply does not
show that the responsible Agency officials acted with discriminatory or retaliatory animus
towards Complainant.
CONCLUSION

Based on a thorough review of the record and the contentions on appeal we AFFIRM the
Agency’s finding of no discrimination.

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.
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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.
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.
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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

November 6, 2018
Date