Isabelle G.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Food and Nutrition Service), Agency.

Equal Employment Opportunity Commission

Feb 6, 2019

0120172588 (E.E.O.C. Feb. 6, 2019)

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

Isabelle G.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Food and Nutrition Service),
Agency.

Appeal No. 0120172588

Hearing No. 410-2015-00405X

Agency No. FNCD-2014-00794

DECISION

On July 19, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 25, 2017 final order concerning an equal employment opportunity (EEO)
complaint claiming 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

During the period at issue, Complainant worked as a Deputy Regional Administrator (DRA) at
the Agency’s Southeastern Region, 0340-15, at the Agency’s Food and Nutrition Service in
Atlanta, Georgia.

On September 29, 2014, Complainant filed the instant formal complaint. Complainant claimed
that she was subjected to harassment and a hostile work environment based on race (Caucasian),
sex (female), and in reprisal for prior EEO activity when:

1. in on December 9, 2014, her supervisor issued her a Letter of Counseling;

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 October 29, 2014, her supervisor issued her a “Superior” rating on her annual
performance evaluation and made negative verbal comments to her;

3. in or around mid-August 2014, her supervisor removed some of her duties and
reassigned them to a temporary GS-14 Staff Assistant/Special Assistant, including
training and coordination of manager performance plans, and planning of the annual
meeting regarding manager workload;

4. in July 2014 and August 2014, her requests for compensatory time were denied;

5. on July 11, 2014, she was denied a detail opportunity;

6. on July 8, 2014, her supervisor changed her work schedule from maxi-flex to fixed;

7. on several dates, she was subjected to various acts of harassment, including but not
limited to:

a. in February 2014, her supervisor voiced disagreement and anger toward her
concerning a vacancy selection;
b. on February 26, 2014, her supervisor expressed disappointment in her role as
the Deputy Regional Administrator and stated that she had not met
expectations with regard to a successful leadership transition;
c. in February 2014, she was told that she exerted too much influence in the
region;
d. on March 14, 2014, her second line supervisor dismissed her concerns
regarding her supervisor;
e. on March 31, 2014, her supervisor stated they were “not in sync,” admitted to
planting comments about her among the management team, and threatened to
remove her duties related to the selection process and awards panels;
f. in March 2014, she was accused of demonstrating preferential treatment
toward a specific employee;
g. on April 2, 2014, she learned that her supervisor believed that she had
improperly influenced a selection process;
h. on April 4, 2014, she was told that she needed to adjust to a new and different
type of management style;
i. on May 4, 2014, her supervisor expressed surprise at her request for credit
hours and told her “I don’t watch the clock; why should you?;”
j. on May 5, 2014, during her mid-year review, her supervisor attempted to
coerce her into signing a “manager’s contract” and became visibly hostile and
aggressive when she refused to do so;
k. in June 2014 and again on December 10, 2014, her supervisor announced his
intent to permanently recruit for the GS-14 Staff Assistant/Special Assistant
position, to which he had reassigned some of her duties;
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l. on August 14, 2014, her supervisor stated that she has been attempting to
“crash his plane” and reiterated disappointment in her role as his Deputy
Regional Administrator;
m. in September 2014, her supervisor spoke angrily to her regarding a Program
Specialist selection;
n. in September 2014, her supervisor delayed approval of her holiday leave
request and upon approval, told her “OK, you can plan to be off this year, but
don’t expect it next year;”
o. in September 2014, her second line supervisor publicly announced to the
management team that there was “tension” between her and her first line
supervisor;
p. on unspecified dates, she was excluded from meetings; and

8. on October 30, 2015, she received a “Fully Successful” performance appraisal.2

After an investigation, Complainant was provided a copy of the investigative file, and requested
a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for
a Decision Without a Hearing. On May 12, 2017, the AJ issued a decision by summary
judgment in favor of the Agency.

The AJ found the following pertinent undisputed facts were established during the investigation
of the complaint:

Regarding claim 1, Complainant asserted that on December 9, 2014, her supervisor issued her a
Letter of Counseling.

The AJ found that the Regional Administrator (male, unknown race/prior protected activity) was
Complainant’s supervisor. The supervisor stated that on December 9, 2014, he issued
Complainant a Letter of Counseling for failure to follow procedures. Specifically, the supervisor
stated that Complainant had discussions with her subordinate employees regarding their annual
appraisals and obtained their signatures on the appraisal form prior to obtaining his signature as
the Reviewing Official.

The supervisor noted that on or around October 21, 2014, Complainant gave him the annual
appraisals of her employees which had been signed by both her and the employees. The
supervisor stated that the next day, October 22, 2014, he questioned Complainant by email
concerning why the employees had already signed the appraisals and, on October 28, 2014, he
shared his disappointment with Complainant for obtaining the employees’ signature before
discussing with him. The supervisor stated at that time Complainant did not acknowledge the
inappropriateness of her actions and merely indicated this was past practice with the previous
Regional Administrator.

2 The record reflects that race as a basis and claims 1, 3, and 7.k. were later amended to the
instant formal complaint.
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Further, the supervisor stated, “notwithstanding that it may well had been a past practice with
that Regional Administrator, she did not give me the courtesy of addressing it with me before the
fact, and she violated agency policy.” The supervisor stated that while the letter of counseling is
not considered a discipline, he wanted to place Complainant “on notice that her actions were
unacceptable. Since I had no success in her acknowledging the inappropriateness of her actions,
I issued the letter of counseling because I viewed it as the minimum action to correct her conduct
and promote the efficiency of the agency.”

Regarding claim 2, Complainant alleged that on October 29, 2014, her supervisor issued her a
“Superior” rating on her annual performance evaluation and made negative verbal comments to
her.

The supervisor acknowledged giving Complainant a “Superior” rating on her annual
performance evaluation. The supervisor also noted that he made verbal comments to
Complainant “which she [may] have perceived as negative in the context of her asking why she
did not receive ‘Outstanding’ performance rating of record. I was honest in my assessment of
her performance for the rating period. I shared my disappointment with her performance as
DRA and that my assessment of her performance was at the ‘Fully Successful’ level.”
Furthermore, the supervisor stated that his supervisor overruled his rating and asked him to rate
Complainant at the “Superior” level.

The Associate Administrator for Regional Operations and Support (female, unknown race/prior
protected activity) stated that during the relevant period she was Complainant’s second level
supervisor (Supervisor 2). Supervisor 2 stated that she had a discussion with Complainant
concerning her rating and, “I told her that the rating was fair because although she received an
Outstanding rating for mission results, leadership and communications reflected where she
needed improvement.”

Regarding claims 3 and 7.k., Complainant alleged that in or around mid-August 2014, her
supervisor removed some of her duties and reassigned them to a temporary GS-14 Staff
Assistant/Special Assistant, including training and coordination of manager performance plans,
and planning of the annual meeting regarding manager workload, and in June 2014 and again on
December 10, 2014, her supervisor announced his intent to permanently recruit for the GS-14
Staff Assistant/Special Assistant position, to which he had reassigned some of her duties.

The supervisor denied removing Complainant’s duties. The supervisor stated that the Special
Assistant “does not perform any duties that I believe a Deputy Regional Administrator (DRA)
should be performing. My Special Assistant’s duties are administrative in nature, she performs
administrative tasks for me, so that the DRA could be free to perform more strategic tasks.” The
supervisor stated that on numerous occasions, he told Complainant that he wanted her “to engage
in higher level duties and responsibilities - - I want her to be more strategically focused.”

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Regarding claim 4, Complainant claimed that in July 2014 and August 2014, her requests for
compensatory time were denied.

The supervisor acknowledged denying Complainant’s requests for compensatory time because
he could not determine when and for how long Complainant would be working which “was not a
reasonable business practice for the organization. I simply asked her to follow the policy by
requesting comp time in advance so I would have knowledge of the requirement and could make
an informed decision about the request.”

Regarding claim 5, Complainant asserted that on July 11, 2014, she was denied a detail
opportunity.

Supervisor 2 stated that Complainant was never denied a detail opportunity. Supervisor 2
explained there were two occasions in which Complainant was offered a detail but she declined.

Regarding claim 6, Complainant claimed that on July 8, 2014, her supervisor changed her work
schedule from maxi-flex to fixed.

The supervisor stated as Complainant’s supervisor, he can make changes to a work schedule that
meets the needs of the organization. Specifically, the supervisor stated that he expected that at
least one of the senior leadership be in the office to provide leadership “unless it’s not feasible or
reasonable in circumstances such as leave or business travel that cannot be rearranged. I
changed [Complainant’s] to a fixed work schedule to ensure that I know when she will be in the
office. We, as Regional Administrator and Deputy Regional Administrator, are the most senior
leaders in this organization and we should be here to support and serve our staff during business
hours.”

The supervisor stated during the relevant period, Complainant’s maxi-flex did not assure
coverage expected in the front office. For instance, the supervisor stated that Complainant would
often send emails indicating she was flexing her schedule which did not give me a comfort level
that this expectation was being met. I shared with [Complainant] my expectations often and she
would deflect my comments and share how it was done before my arrival and there were other
managers in the office – none of which met my [criteria] of RA or DRA coverage.”

Regarding claim 7.a., Complainant alleged that in February 2014, her supervisor voiced
disagreement and anger toward her concerning a vacancy selection. The supervisor explained,
however, that in making the transition into his job as the Regional Administrator, he had a
discussion with Complainant regarding a candidate for a GS-14 Regional Public Affairs (PA)
Director after the candidate shared her concerns with him. Specifically, the supervisor stated that
the candidate had been permanently assigned and performing the Regional RA Director GS-13
position for approximately six years. The supervisor further stated not only the Regional RA
Director was not selected, she was not even considered in the final rounds of the selection
process.

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Further, the supervisor explained to Complainant “that we were the only region in which the
[Regional PA Director] had not been selected for the promotion and asked her for more details
about the process as [candidate] informed me she was contemplating her administrative options.
I knew this would fall squarely on my shoulders if a complaint was filed and it didn’t look good
on the surface.” The supervisor stated that Complainant had been involved in the selection
process and told him that it was a fair process. The supervisor stated he merely wanted to
understand what questions she may have asked the panel who provided her a list of the second
and final round of interviews as she made the final selection. Moreover, the supervisor stated
that he subsequently concurred with the decision and “made some changes that would help us
move forward as an organization but it should have been much easier to get the required
information from my DRA and not have to bring others into that conversation.”

Regarding claim 7.b., Complainant alleged that on February 26, 2014, her supervisor expressed
disappointment in her role as the Deputy Regional Administrator and stated that she had not met
expectations with regard to a successful leadership transition.

The supervisor stated that during the relevant period, he had been in his job a little over a month
and Complainant “had not transitioned me, and voice my disappointment in her actions as the
DRA. I told her she was not meeting my expectations, in that she was not giving me information
on what was going on so that I could make informed decisions.”

Further, the supervisor stated that Complainant shared his disappointment in not being able to
compete for the Regional Administrator position and he understood her disappointment “but we
all have to move on. Her actions indicate she never has and it showed as she continuously
demonstrated blatant disregard for performing key parts of her job such as supporting her
supervisor and ensuring he has the information required to make good, informed decisions.”

Regarding claim 7.c., Complainant claimed that in February 2014, she was told that she exerted
too much influence in the region. The supervisor explained that based on the feedback he
received from the staff, that the office was exerting too much influence and “that we need to
change our approach because the perception from staff is [Complainant] was too involved in the
lower level. I shared that we need to have the option of being a second level review; therefore,
she needed to stop becoming personally engaged in matters at the initial stage.”

Regarding claims 7.d. and 7.h, Complainant alleged that on March 14, 2014, her second line
supervisor dismissed her concerns regarding her supervisor and on April 4, 2014, she was told
that she needed to adjust to a new and different type of management style.

Supervisor 2 stated that there were serious issues between Complainant and the supervisor “has
more impact than any duty.” Supervisor 2 stated that a consultant worked with Complainant and
the supervisor and “I also made myself available to the management team. It was clear that we
needed to change the culture.”

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Further, Supervisor 2 explained that the supervisor “wants to be directly involved in the decision
making. He projects himself as being more personally accountable for everything that happens
or fails to happen in his region.”

Regarding claims 7.e. and 7.g., Complainant asserted that on March 31, 2014, her supervisor
stated they were “not in sync,” admitted to planting comments about her among the management
team, and threatened to remove her duties related to the selection process and awards panels and
on April 2, 2014, she learned that her supervisor believed that she had improperly influenced a
selection process.

The supervisor stated that he did tell Complainant that they were “not in sync.” The supervisor
stated that Complainant had been in the Deputy Regional Administrator role for eight years, and
each time he asked her “why we were doing something a certain way or why we did it at all, she
viewed it as personal criticism and/or me questioning or challenging her. No matter what I asked
or how I asked it, she seemed to take my seeking to understand as a personal affront…I have
both a right and a responsibility to make changes that I deem appropriate to improve the
efficiency and effectiveness of the region.”

Further, the supervisor stated at that time, he met with the directors and shared different
information related to feedback from meetings with their branches. The supervisor stated that he
met with Complainant and she “asked if she could give me some feedback. I said “sure,’ and she
repeated some of the things I had shared with the Directors…no negative statements were made
and no action was taken against the person who passed on the information to [Complainant].”

Complainant asserted that the supervisor threatened to remove her duties related to the selection
process and awards panels. The supervisor stated that he explained to Complainant “that if she
was part of the panel, she was too involved from beginning to end. I told her that I did not want
our office to be placed in that situation. I did not threaten her and I didn’t remove her duties. I
just asked her to adjust the timing in which she would engage in those duties.” Furthermore, the
supervisor informed Complainant that he did not want the Deputy Regional Administrator be
involved in employment decisions below GS-14 grade Branch Chief and GS-15 level.

Regarding claim 7.f., Complainant claimed that in March 2014, she was accused of
demonstrating preferential treatment toward a specific employee. The supervisor stated that
Complainant was “untruthful in her claim that I accused her of demonstrating preferential
treatment towards an employee.” The supervisor state that during one of his All Employee
Meetings, he passed out index cards to staff and asked them “to write down three things that
were working well, three things that were not working well, one thing they would change, and
one thing they would not touch. Among the comments, some staff indicated [Complainant] had
navigated [named employee] from a GS-8 Secretary to GS-13 in record time.”

The supervisor explained while that he did not accuse Complainant, he merely shared with her
what had been provided on the index cards.
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The supervisor stated “I made it clear these are just perceptions and it doesn’t make it true so I
don’t plan to do anything about those comments but I do want to work with the leadership team
to alleviate negative [perceptions] of staff particularly if it’s trending.”

Regarding claim 7.i., Complainant asserted that on May 4, 2014, her supervisor expressed
surprise that at her request for credit hours and told her “I don’t watch the clock; why should
you?”

The supervisor acknowledged expressing surprise that Complainant “would say I don’t work for
free when I asked about her request for compensatory time for routine tasks that ran beyond her
40 hour work week. In my experience individuals (at that level) would make adjustments to
their schedule and ensure their time and attendance is accurately reflected. All of which is
worked in conjunction with their supervisor…I expressed that unfortunately people at her level
and performing in her position would probably work beyond their 40 hours on a routine basis.
However, if that poses a problem for her, we can work together to try to manage how often she
works beyond her normal tour or duty because I’m not going to approve compensatory time
unless it’s either special circumstances or travel related.”

Regarding claim 7.j., Complainant claimed that on May 5, 2014, during her mid-year review, her
supervisor attempted to coerce her into signing a “manager’s contract” and became visibly
hostile and aggressive when she refused to do so.

The supervisor denied attempting to coerce Complainant into signing the document and “her
claim that I became angry is equally without foundation.” The supervisor stated that as
Complainant’s supervisor “all I would need to do is simply document that he employee refused
to sign and secure the signature of a witness. The point is to ensure the person has knowledge of
the expectations. Accordingly, no action was taken or implied against her. For the record, I did
not ask her to sign the document.”

Regarding claim 7.l., Complainant alleged that on August 14, 2014, her supervisor stated that she
has been attempting to “crash his plane” and reiterated disappointment in her role as his Deputy
Regional Administrator.

The supervisor stated that on August 14, 2014, he stopped by Complainant’s office to ask about
the Human Resource Liaison’s new work schedule because he was contemplating moving the
HR Liaison from an office in their division to an office in the Financial Management area. The
supervisor stated at that time the HR Liaison was planning to telework 3 days a week and “given
that schedule, we could not justify a private office so I was going to use that office for my special
assistant.”

Further, the supervisor stated that Complainant later stopped by his office that day and she
pleaded with him not to move the HR Liaison because it was “just one more move that would
further minimize her role as the DRA.
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I informed her that was not my intent nor has it ever been. I simply need her to step up and
perform as my deputy because I cannot do all that’s required alone…I stated I’m ready for her to
show up as my deputy but I need her fully on-board – not one foot on and one foot off or when
it’s convenient. I went on to talk about some of her tactics with the leadership team which I
characterized as her trying to crash my plane before I could get altitude.”

Further, the supervisor stated that instead of trying to understand where he was coming from,
Complainant “would openly accuse me of creating a wedge between employees and managers. I
shared examples of her having meetings about resources (specifically people and money) without
including me although I had shared my desire to be in those meetings until we are all in [sync].”

Regarding claim 7.m., Complainant claimed that in September 2014, her supervisor spoke
angrily to her regarding a Program Specialist selection.

The supervisor denied speaking to Complainant in an angry or hostile manner. The supervisor
stated that he informed his staff, including Complainant, that he was planning to develop the
team internally by giving them more opportunities to develop and grow. The supervisor stated
that he instructed the staff “to recruit using a developmental approach GS-09 target GS-12 level.
[Complainant] knew that and I couldn’t have been more clear.” The supervisor stated although
his intent was clear, “we ended up hiring external candidates instead of giving our internal
candidates an opportunity.”

Further, the supervisor stated that he spoke with Complainant and the panel to better understand
how that happened given my intent. I later called [Complainant] to inform her [that] I wanted
the FM positions be recruited internal only to ensure our folks had an opportunity for
development…this was very frustrating given [Complainant’s] knowledge of my commitment to
staff in open forums concerning my support and our (leadership team) responsibility for
developing staff. My Deputy is a GS-15 and she knew I wanted to develop internal candidates.”

Regarding claim 7.n., Complainant alleged that in September 2014, her supervisor delayed
approval of her holiday leave request and upon approval, told her “OK, you can plan to be off
this year, but don’t expect it next year.”

The supervisor explained there was no significant delay in granting Complainant’s leave request,
and he approved her request. The supervisor stated that he informed [Complainant] that I was
getting everyone at the GS-15 level to turn in their leave plans. She asked what the others leave
plans had to do with hers and she wasn’t going to be held hostage by their leave plans. I
approved her leave but I told her that next year she might not get leave at that time because I was
going to ensure we had at least one of the GS-15s provide leadership during the holidays so we
would need to work out a schedule. She then talked about that has never been a requirement. I
told her I have a different expectation for our office.”

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Regarding claim 7.o., Complainant asserted that in September 2014, her second line supervisor
publicly announced to the management team that there was “tension” between her and her first
line supervisor.

Supervisor 2 denied making the statement that there was “tension” between Complainant and the
supervisor.

Regarding claim 7.p., Complainant claimed that on unspecified dates, she was excluded from
meetings.

The supervisor denied excluding Complainant from meetings and the only exception was when
he started supervising the GS-15s, he asked Complainant to give him an opportunity to meet with
them “to start to get to know them and start to build a relationship with them. Once I felt we had
a chance to start down that path, then we would open up those meetings to her…bottom-line, she
has not been denied attendance to meetings; however, she has chosen not to attend most
meetings using the above as an excuse.”

Regarding claim 8, Complainant alleged that on October 30, 2015, she received a “Fully
Successful” performance appraisal. The record reflects that the supervisor determined that based
on Complainant’s overall performance, he gave her a “Fully Successful” rating.

Based on the foregoing evidence developed during the investigation, the AJ concluded that
Complainant had not established that she was discriminated against or subjected to unlawful
retaliation as alleged. The Agency issued its final order, adopting the AJ’s decision.

The instant appeal followed.

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).

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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.

Disparate Treatment

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, she
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).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination on any basis alleged.

Harassment

To prove her harassment claim, 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 taken because of a protected basis – in this case, race, sex and/or retaliatory animus.
Only if Complainant establishes both of those elements – hostility and motive – will the question
of Agency liability present itself. Here, the AJ found that the evidence of record did not
establish that Complainant was subjected to harassment based on race, sex and prior protected
activity. We determine that the AJ’s analysis that Complainant failed to prove her harassment
claim was also proper.

Finally, we note that Complainant, on appeal, argues that the AJ did not address her request to
amend the instant formal complaint to include her claim that Agency management did not
change her tour of duty from compressed fixed schedule to a maxi-flex schedule.

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However, we note that relating to claim 6, the AJ did not find any discrimination when the
supervisor changed Complainant’s maxi-flex schedule to a fixed schedule because he needed her
in the office supporting and serving the staff during business hours. The record clearly indicates
that Complainant’s prior maxi-flex schedule did not assure coverage expected in the office.

Moreover, we note that in his decision, the AJ indicated that Complainant claimed that the
supervisor made the following comment “I feel like Bill Cosby” during the November 23, 2014
meeting. The AJ determined that Complainant had not presented any evidence “apart from her
own self-serving statement, that the supervisor made the alleged comment.” Although the
Commission has held that certain acts may constitute per se reprisal, the matter raised in this case
does not rise to this level even if true, despite Complainant’s appellate contention to the contrary.

We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing,
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.
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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. 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

February 6, 2019
Date