EEOC Appeal 2020001940

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joni M.,1
Complainant,
v.
Robert L. Sumwalt,
Chairman,
National Transportation Safety Board,
Agency.
Appeal No. 2020001940
Hearing No. 570-2017-01208X
Agency No. NTSB-2017-02
DECISION
On January 8, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s December 10, 2019 final action 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Chief Executive
Secretariat Division, GS-15, at the Agency’s National Transportation Safety Board in Washington
D.C.
On January 18, 2017, Complainant filed the instant formal complaint. Complainant claimed that
the Agency discriminated against her in reprisal for prior EEO activity (filing of several prior EEO
complaints) when, on or about October 2016, the Agency sabotaged Complainant’s job
applications by providing misleading information to recruiters, or by providing no reference at all.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ).
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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On November 12, 2019, the AJ issued a decision by summary judgment in favor of the Agency.
The Agency thereafter issued the instant final action implementing the AJ’s decision.
The instant appeal followed. Complainant did not submit a brief on appeal.
ANALYSIS AND FINDINGS
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).
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 failed to establish such a
dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a
reasonable fact-finder could not find in Complainant’s favor.
A claim of disparate treatment is examined under the three-party 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 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).
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.

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During the relevant period, Complainant was employed as the Director, NTSB Training Center,
GS-15, since 2018. Following an Agency realignment in October 2015 until 2018, Complainant
was the Chief, Executive Secretariat Division, GS-15. 	Complainant’s supervisor was the
Managing Director. From about July 2010 to October 2015, Complainant was the Chief, Safety
Recommendations and Quality Assurance Division, GS-15. 	From April 2013 to January 2015,
Complainant’s supervisor was the Deputy Managing Director.
From approximately January 2015 to October 2015, Complainant reported to the Director, Safety
Recommendations and Communication. Upon the Deputy Managing Director’s recommendation,
Complainant was selected for a May 2013-November 2013 detail to the Office of Rail, Pipeline,
and Hazardous Materials Investigation (RPH), reporting to the RPH Director.
Complainant was not having success obtaining a different GS-15 within the federal government
and decided to look for jobs outside of the federal government. In September or October 2016,
Complainant retained a recruiting firm to obtain job references. Complainant instructed her point
of contact (POC) to contact her supervisors for the preceding five years. At that time Complainant
did not notify any of her supervisors that she provided their names to the specialist or to expect a
call from the POC.
The Director, Safety Recommendations and Communication (SRV) stated that she was called
regarding Complainant but the POC did not leave her last name or the name of her firm’s name,
and did not state that she was seeking a job reference. 	Because Director, SRC did not know the
reason for the POC’s call, she sought guidance from the Human Resources (HR) Division. Per
HR’s guidance, Director, SRC returned the POC’s call, requested more information, and provided
a timeframe during which the Director, SRC was available for a discussion. The POC called the
Director, SRC again after normal business hours and outside of the timeframe the Director, SRC
informed POC she was available. 	In the POC’s second voicemail, she provided no new
information. The Director, SRC did not return the POC’s call a second time.
On October 12, 2016, the POC left a message on the Director of the Office of Railroad, Pipeline
and Hazardous Material Investigations’ voicemail in which she identified herself solely by her first
name and stated she was calling about Complainant . The POC, however, did not state she was
seeking a job reference. 	The Director contacted the Agency’s Office of Equal Employment
Opportunity, Diversity, and Inclusion and the Office of General Counsel to inquire whether there
was a reason someone would contact him regarding Complainant. Both offices were unaware of
any reason he would receive such a call. Because the Director did not know why the POC called,
he did not call her back.
On or around October 7, 2016, the POC called the Managing Director and spoke with his assistant.
The Managing Director was Complainant’s supervisor at the time. Because the POC provided her
only first name and no reason for her call, the Managing Director thought she was seeking an
employment verification. 	The supervisor’s assistant referred the call to the HR Officer. 	After
receiving the assistant’s email, the HR Officer called the POC.

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At the time, the HR Officer believed that the POC was seeking to verify Complainant’s
employment with the Agency, which is an HR function.
On October 7, 2016, the HR Officer emailed Complainant to verify the POC had permission to
request information regarding her employment. 	The HR Officer also informed the POC she
needed a signed release from Complainant before disclosing information about Complainant. On
October 24, 2016, the POC submitted Complainant’s signed release to the HR Director.
On November 2, 2016, the HR Officer used the reference check form to verify Complainant’s
employment. 	Once the HR Officer realized that the POC was seeking a job reference, she
forwarded the reference form to Complainant’s supervisor on November 3, 2016.
On November 4, 2016, the supervisor emailed Complainant informing her that he had been asked
for a job reference and asking whether she would like him to highlight any skills. Complainant
did not respond to the email. 	Further, the supervisor inquired how he should respond to the
reference request during a meeting with Complainant at which he showed her the reference check
form. Complainant stated that because she applied to numerous positions, she did not know for
which positions she may need the reference. The supervisor completed the reference check form
and provided it to the HR Director, who forwarded it to the POC on December 1, 2016. On the
form, the supervisor stated that Complainant was the Executive Secretariat as a short-hand for her
full title. 	The supervisor stated that this responses to the reference check form were an honest
assessment of Complainant’s performance.
The Executive Director, Investigations and Recommendations provided the POC a reference for
Complainant over the telephone on October 14, 2016. The POC completed the reference check
form based on the information the Executive Director provided her and he did not review or sign
the completed form. At that time, the POC did not ask the Executive Director any of the questions
on pages 2 or 3 of the form. 	The Executive noted that he informed the POC that he believed
Complainant’s greatest strength was that she was detailed-oriented. 	He was unable to answer
further questions because he was no longer Complainant’s supervisor.
In her decision, the AJ stated although Complainant was not required to prove the references
caused her non-selection, she was required to show that Agency managers “either refused to
provide a job reference or provided an unjustified negative one [emphasis in its original].” She
further noted that those who did not respond to the POC’s calls did not know she was seeking a
reference and “thus, did not refuse to provide a reference. The managers who provided a reference
did not provide objectively negative references and Complainant has not demonstrated that the
information contained in those references were unjustified.”
Further, the AJ noted that while Complainant hired a “reference” retained by a recruiting firm to
“get an accurate read” on what her former supervisors might say if contacted by a prospective
employer or recruiting firm in the future…”she purposely did not inform any of the supervisors
that they should expect to be contacted for a reference, because, as she put it, she wanted to know
what they would say if they were ‘contacted cold’…in the lack of notice or prior authorization

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from Complainant and the vague nature of the contacts from [POC], it is not surprising that some
of those contacted did not respond or did not follow through after initial attempts to respond.”
The AJ further noted that the recruiting firm was not a potential future employer “but was
performing research on Complainant’s behalf to determine what her former supervisors might say
to prospective employees in the future. Nothing any of Complainant’s former supervisors said or
declined to say had a materially adverse bearing on an actual application for employment, nor
could the Agency’s collective response be viewed as likely to deter a reasonable person from
participating in EEO activity.”
According to Complainant’s supervisor, he stated that while his assistant referred the POC’s call
to HR, he assumed it was an employment check. He further stated that “because it was just a first
name and there was no other information and no details specifically as to what the call was about,
and since I believe it would be PPL personal private information, that I was either not privileged
to or certainly could not reveal, that would be something that HR would have to deal with.”2
Complainant asserted that the supervisor misrepresented Complainant’s position and stated that
she serves as the Executive Secretariat when in reality she serves as the Executive Secretariat’s
Division Chief. The supervisor explained that he does not have a copy of the form, but “I more
likely stated that she was the ‘Executive Secretariat.’ In my view, the term ‘executive secretariat’
implies that she was the division chief.”
The HR Officer asserted that after she received the request from POC, she contacted Complainant
to verify that this was a legitimate request. 	She stated that she does not recall getting anything
from Complainant “so, I went to [POC] and told her I needed authorization from the person before
I provided verification. A week or so later, she gave me [Complainant’s] authorization. If I had
known it was for a reference check and not an employment verification, I might have handled it
differently but I still needed to know if [POC] had authorization to contact the Agency on
[Complainant’s] behalf.”
Complainant asserted that the POC reached out to the HR Officer several times, including
November 22, 2016, but that the HR Officer never responded to her messages or emails. However,
the HR Officer asserted that she responded to the POC and that they had corresponded. The HR
Officer stated that once she received Complainant’s authorization, she verified the employee
information “out of the HR database and reached out to [Complainant’s supervisor] when I realized
it was for a reference and not an employee verification.”
Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions.
2 The PPL abbreviation is not identified in the record.

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Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were
a pretext designed to mask discrimination. Beyond her bare assertions, Complainant has simply
provided no evidence to support her claim that her treatment was the result of her prior protected
activity.
CONCLUSION
We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment,
finding 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.
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).

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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
September 16, 2020
Date