Marielle L.,1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

0120181807 (E.E.O.C. Sep. 10, 2019)

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

Marielle L.,1
Complainant,

v.

William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120181807
Hearing No. 540-2012-00200X
Agency No. FBI201100280

DECISION

On May 3, 2018, 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
April 4, 2018, final decision 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

ISSUES PRESENTED

Whether the final agency decision, (FAD) correctly determined that Complainant failed to
establish that she was subjected to disparate treatment and a hostile work environment based on
national origin and reprisal when:

1. In April 2011, her Supervisory Special Agent (SSA) denied her request for undercover
identification, telling her that she “lacked the maturity and judgment” to work undercover;

2. On May 3, 2011, her Field Training Agent (FTA) told her that “everybody was afraid to
get close to [her] for fear she would file an EEO complaint against them;”

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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3. On May 4, 2011, the SSA told her she had to submit weekly reports;

4. On June 29, 2011, she was not included in an operation involving four of her squad
members;

5. On July 6, 2011, she was taken off a child kidnapping operation; and

6. On or about July 11, 2011, she was dismissed from her position as a probationary Special
Agent.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a probationary Special
FBI Agent at the Agency’s Phoenix Division facility in Phoenix, Arizona. On October 12, 2011,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of national origin (Venezuelan - Hispanic) and reprisal for prior protected EEO activity as
set forth above.

Pre-Accepted Issues Background Information

Complainant’s direct supervisor was the Supervisory Special Agent, (SSA); he stated that she first
contacted an EEO Counselor on January 31, 2011 and considered filing a complaint at that time.
She stated that when the EEO Counselor she spoke with told her to think carefully before filing an
EEO complaint, she decided not to file at that time.

Complainant asserted that she experienced issues with her Class Counselor (CC) during her
National Assignment Training, (NAT) class at Quantico. She stated that he asked her if she had a
“language barrier” because she frequently asked questions regarding material that had already been
covered; and that she considered filing an EEO complaint at that time but feared being removed
from the FBI Academy.

Complainant stated that after she began working at the Phoenix Division, she barely heard from
her assigned Field Training Agent (FTA), a Special Agent, (SA1) during her first few weeks in the
office; and that she felt lost and abandoned by SA1 and her squad mates during approximately her
first month in Phoenix. She asserted that her roommate from the Academy also arrived in Phoenix
during this time but was assigned to a different squad and treated much better.

Complainant stated that another Special Agent, (SA2) took over as her FTA after she told SSA
that SA2 provided her with much more assistance than SA1.

She asserted that she made it clear to others in the office that SA1 was “missing in action;” and
that she made it clear to others that she did not like her squad “because it was dysfunctional, and
people didn’t communicate or work together, and because I lacked guidance and training, and that
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neither my FTA or anyone else in the squad really cared about me,” adding that SSA denied her
opportunities for training and development that he gave to other probationary SAs in Phoenix.

SA1 stated that during her initial conversation with Complainant, Complainant told her she was
upset about being assigned to the Phoenix Division because her boyfriend lived in Atlanta. She
added that Complainant told her she wanted to work Civil Rights investigations, and that she found
the Squad work, mortgage fraud investigations, difficult to understand.

SA1 explained that in early December, she heard from either SA2 or SSA that Complainant
believed SA1 was a “terrible FTA” and was not devoting enough time and attention to her; and
that she asked SSA to remove her as Complainant’s FTA because she had a heavy workload and
was already the FTA for another probationary SA.

Complainant stated that she attended a counseling session with SSA and SA2 during which SSA
told her she had embarrassed SA2 and harmed her own reputation in the office by her actions
during a recent incident involving Complainant’s desire to attend an autopsy. Complainant
asserted that she apologized for the matter but believed that SSA blew a minor issue “completely
out of proportion” to make it appear as if she did not follow her chain of command.

SA2 explained that she tried to assist Complainant while she served as Complainant’s FTA and
met with the members of her Squad to request that they give Complainant a second chance and
include her in their efforts as much as possible. She recalled an incident where she made revisions
to a draft interview statement Complainant had drafted and placed the revised draft on
Complainant’s desk. SA2 stated that Complainant placed the document back on her desk and sent
an e-mail stating, “if you wanna finish it and be the drafter that’s fine with me. You understand it
much better than I do anyway.”

SA2 asserted that she provided Complainant with both positive and negative feedback related to
her work efforts. She explained that during the time she served as Complainant’s FTA, she
repeatedly observed Complainant’s lack of basic investigative abilities, adding that Complainant
specifically told her that she had no idea how to proceed in the sole case she had been assigned,
and it became clear to her that Complainant’s ability to develop an investigative strategy was
lacking in comparison to other new SAs. She also stated that Complainant displayed a negative
attitude at times either towards her or in her presence.

SA2 cited an instance where Complainant treated her rudely. She explained that she and
Complainant were scheduled to conduct an interview, and when she approached Complainant’s
desk to tell her it was time to leave, Complainant was on the phone talking to her boyfriend. SA2
stated that she waited a few minutes, and politely asked Complainant if she was ready, and
Complainant abruptly responded, “he comes first, I’ll come get you when I’m ready.” She asserted
that they were late for the interview.

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Complainant stated that SSA told her he heard that she was complaining about having too much
work, had been speaking in a loud and emotional voice, and had been seen crying profusely in the
lunchroom; and that she told SSA that she felt alienated by her squad mates.

Complainant stated that SSA told her she needed to improve on following the chain of command,
displaying a positive attitude, and working with her squad members; and that he documented the
counseling meeting “in the worst possible way” and omitted information in her favor. She asserted
that this was evidence of discrimination because it demonstrated “he was out to get me however
he could.”

SSA asserted that he had no knowledge of Complainant’s EEO activity until she filed her
complaint in the instant matter. He cited a number of incidents that occurred between complainant
and her supervisors and coworkers following her arrival in the Phoenix Division. He stated that
complainant repeatedly made it known she was not happy about being assigned to the Phoenix
Division; and that she failed to follow the proper chain of command at times.

SSA stated that he held a counseling session with Complainant two months after her arrival at the
Phoenix Division to discuss her issues with coworkers, her feelings that she was being alienated
from her coworkers, and an incident where he believed she abused her sick leave.

Complainant alleged that SSA told her that he had not seen a consistent effort on her part to engage
with her squad members; and that he told her he had been advised about an “offensive interaction”
Complainant had with a Photographer, and that this interaction had done further damage to her
reputation.

SSA asserted that he contacted Complainant’s Class Counselor from her NAT class at Quantico
after the counseling session and found out that complainant experienced issues during training
with her attitude and ability to get along with others, especially after she found out she was going
to be assigned to the Phoenix Division.

Complainant alleged that SSA told her she was going to have to meet with the Assistant Special
Agent in Charge (ASAC1) and Acting ASAC, (ASAC2) and that he had serious doubts whether
she had the interpersonal ability and judgment to function as a SA. She stated that she contacted
an EEO Counselor and considered filing an EEO complaint at that time but ultimately decided
against it when her Employee assistance Program (EAP) Counselor told her “that if I was planning
on staying with the FBI for the long run, I better not file an EEO complaint because it would haunt
me till the end of my career.” Complainant alleged that SSA’s discrimination towards her became
more blatant after the end of January 2011.

Complainant stated that she met with ASAC1 and then Acting ASAC2, and that both were very
supportive and told her things would get better if she stuck with it. Complainant did not allege
any incidents of discrimination in February or March 2011.

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SSA explained that after he counseled Complainant, and after she attended a counseling session
with ASAC1 and ASAC2 in early February, Complainant “made a strained but visible effort to
engage other squad members.”

ASAC2 explained that he and ASAC1 briefly met with Complainant and informed her that SSA
had concerns regarding her performance and suitability. He stated that they both told her that they
had rough starts as new SAs but had worked through it and gone on to wonderful FBI careers.

Accepted Issues

Complainant alleged that SSA denied her request to obtain undercover identification even though
the Undercover Coordinator had encouraged her and told her he needed Hispanic women in
undercover roles. She asserted that SSA told her he was denying her request because she lacked
the investigative maturity and judgment to work in an undercover role. Complainant asserted that
this was discriminatory because SSA had authorized two other probationary SAs to obtain their
undercover identification soon after they arrived in Phoenix, adding that she believed SSA had
learned of her EEO contact at this time and wanted to reduce her workload to make her look bad
so he could terminate her employment.

SSA explained that Complainant asked him if she could participate in undercover operations and
requested that he authorize her to obtain an Alias/False identification (AFID); and that he denied
her request and advised her by e-mail that participation in undercover operations required
investigative maturity, experience and judgment, and that he did not believe she had reached that
level.

He asserted that he informed Complainant that he wanted her to “develop a strong foundation of
the more basic investigative skills first,” but that he would be glad to reconsider the matter at a
later date.

SSA explained that he authorized two other probationary SAs to apply for AFID, adding that he
did not have the same concerns about their investigative maturity and judgment.

Complainant stated that she met with SA1 to apologize for having said things about SA1 in the
past; and that SA1 told her she had also started off on the wrong foot in Phoenix but that things
eventually improved.

Complainant also alleged that SA1 told her that others in the Phoenix Division were afraid to get
close to Complainant because they feared she would file an EEO complaint against them. She
asserted that SA1 told her that “many calls” were made to Phoenix from the FBI Academy prior
to Complainant’s arrival and that people were predisposed to thinking Complainant was a problem.

SA1 stated that, both before and after she served as Complainant’s FTA, multiple parties
complained to her that Complainant “had been rude, arrogant, or displayed a negative attitude
toward them.”
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She denied telling Complainant that she had also started off on the wrong foot in Phoenix, adding
that, “I worked hard and unlike Complainant, had a great reputation.” SA1 also stated that
Complainant lied when she stated that SA1 told her that when Complainant arrived in Phoenix,
“everybody was afraid to get close to her for fear that she would file an EEO complaint against
them.” She also denied telling Complainant that multiple calls had been made from the FBI
Academy regarding Complainant prior to her arrival. She asserted that she was unaware of any
contacts from Quantico to the Phoenix Division prior to Complainant’s arrival.

Complainant stated that, “it all started at the Academy with a prejudice against me due to my
accent and national origin, which led to my being retaliated against and terminated because they
knew that I was considering filing an EEO complaint against SSA and others.”

SA1 stated that “I absolutely do not believe Complainant was discriminated against or subjected
to hostile work environment harassment,” adding that Complainant is a “rude and arrogant
individual” who “lacks the core values, integrity, and interpersonal skills required of an FBI SA.”

Complainant alleged that SSA told her she had to start submitting weekly reports to him regarding
her work efforts; and that he told her that many probationary SAs were asked to submit weekly
reports and that he just wanted to ensure she had the right investigative strategy.

SSA stated that Complainant’s FTA, SA2, advised him that Complainant lacked basic
investigative abilities; and that SA2 told him that Complainant had no idea what to do with the one
case she had been assigned since her arrival in Phoenix, and that she could not even map out a
proposed preliminary investigative plan. He explained that he met with Complainant and told her
that he was requiring her to submit weekly reports to him to document her work efforts the prior
week and her investigative objectives for the upcoming week. He added that he told Complainant
that this would help him to provide her with direction in her investigative activities.

Complainant alleged that later the same day, ASAC2 told her that if she was being asked to submit
weekly reports, “you may lose your job.” Complainant asserted that after that conversation, she
did everything SSA asked her to do, got along with her squad mates, and followed the proper chain
of command. She stated that SSA never told her anything was wrong or gave her any
recommendations regarding her performance.

ASAC2 stated that he met with Complainant again after SSA told her she had to submit weekly
reports. He asserted that Complainant told him she did not know that any problems existed and
that the FBI’s FTA process was inadequate. ASAC2 denied telling Complainant that she could
potentially lose her job, adding that he tried to build her up during the meeting.

Complainant cited two other incidents she believed constituted discrimination on the part of
management. She stated that she saw four other SAs, including two probationary SAs, dressed in
tactical gear for an operation. She asserted that she was never informed about the operation and,
when she e-mailed the lead SA and SSA to offer her assistance, she never received a reply.
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She also stated that SSA pulled her off a child kidnapping investigation even though her
involvement would have satisfied one of her probationary SA requirements. She added that on the
same day, SSA allowed another probationary SA to assist in the execution of a search warrant.

SSA explained that he approved an Operations Plan for an arrest presented to him by a SA (SA3)
and that SA3 and three other Squad SAs participated in the arrest. He stated that he did not inform
Complainant about the arrest because SA3 had not included her in the plan. SSA affirmed that
Complainant sent an e-mail to SA3 offering to assist but the arrest had already taken place. He
also stated that he received a text message from Complainant regarding her involvement in a child
kidnapping investigation; and that he told her to cease working on the matter and to return to the
office because he was aware at the time that her termination from employment was pending and
he did not want to place the investigation at risk.

Complainant stated that SSA and ASAC2 informed her that her FBI employment was being
terminated because of her failure to meet the FBI’s “Suitability Standards.” She asserted that she
spoke with her EAP Counselor the next day and he told her that the informal answer he received
from someone in the Phoenix Division regarding her dismissal was, “I don’t know why she was
fired, but I know that she filed against everybody;” and that the Counselor would not tell her who
made the comment.

SSA explained that he contacted the Human Resources Department, (HRD) to inquire about
terminating Complainant’s employment during her probationary period. He stated that ASAC2
informed Complainant that her employment was being terminated during her probationary period
because of her failure to meet the FBI’s six Suitability Standards of conscientiousness;
cooperativeness; emotional maturity; initiative; integrity; and judgment

ASAC2 explained that after SSA informed him that Complainant’s suitability and performance
issues were continuing, and that he wanted to initiate the termination process, he concurred with
SSA and told him to initiate contact with FBI Headquarters.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but
subsequently withdrew her request.

On October 18, 2017, the AJ assigned to the case remanded the matter to the Agency for issuance
of a Final Agency Decision, (FAD).

Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
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CONTENTIONS ON APPEAL

Among other things, Complainant asserts that she has sufficient evidence to establish that she
suffered discrimination based on her protected classes including reprisal for opposition to
discrimination and protected EEO activity. She contends that differing witnesses validate her
version of events and contradict each other in important aspects of her claims.

Among other things, Complainant requests that her appeal be upheld, and the Agency’s finding of
“no discrimination” be overturned.

The Agency asserts that, as determined in its FAD, there is no evidence in the record to suggest
that Complainant was discriminated against or subjected to a hostile work environment
(harassment) because of her protected classes or in retaliation for EEO-related activity. Therefore,
her complaint should be dismissed with prejudice, and the FAD affirmed.

STANDARD OF REVIEW

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”).

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). He must initially establish a prima facie case by demonstrating that he was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at
n. 13. 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). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
national origin, and reprisal; we find that the Agency articulated legitimate, nondiscriminatory
reasons for terminating Complainant’s employment during her probationary period.
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Management explained that Complainant was substantially deficient in the Suitability Standards
for Probationary Agents; and that even after management officials and her FTAs took reasonable
and appropriate actions to assist her, Complainant failed to improve her performance and
development as an SA.

SSA detailed Complainant’s lack of suitability in the areas of conscientiousness, cooperativeness,
judgment, initiative, emotional maturity and integrity, and recommended complainant’s removal
from employment. Complainant’s first FTA, SA1 also stated that based on her experience working
with Complainant, she lacked the core values, integrity and interpersonal skills necessary to
succeed as a SA. SSA’s recommendation was reviewed and approved by ASAC2 and by the HRD.
Specifically, complainant was informed that her employment was being terminated during her
probationary period because of her failure to meet the FBI's six Suitability Standards. The evidence
shows that SSA and others in the Phoenix Division had issues with complainant's performance,
interpersonal skills and attitude dating back to the time she arrived in Phoenix. SSA and
complainant's two FTAs, S1a and S1B also provided statements regarding complainant's
unwillingness to follow the chain of command, her rude and inappropriate interactions with
coworkers, her inability to independently develop investigations, and her possible abuse of her
sick leave on one occasion.

In an effort to show pretext, Complainant alleged that, unlike her, other probationary SAs were
allowed to assist with arrests, obtain undercover identification, and more fully participate in squad
activities. However, SSA explained that those other probationary SAs did not display the same
lack of judgment and investigative immaturity as complainant. He explained that he denied
complainant’s request to obtain her AFID to participate in undercover operations because he did
not believe she had reached the level of investigative maturity and judgment necessary for such
operations; that SA3 drew up the Operations Plan for the arrest operations, and Complainant was
never a part of that plan; and that he pulled Complainant off of the child kidnapping matter because
he knew that her termination from employment was pending and he did not want to jeopardize the
investigation.

SA1 explained that both before and after she served as Complainant’s FTA, multiple parties
complained to her that Complainant “had been rude, arrogant, or displayed a negative attitude
toward them;” and SA2 stated that Complainant displayed a negative attitude at times either
towards her or in her presence. These statements are corroborated by the June 27, 2011, Electronic
Communications, documentary evidence in which SSA had concluded that complainant's
performance had exposed core aspects of her character, personality, and capabilities that were not
compatible with the SA position, and that she had not shown any potential for rehabilitation.
Therefore, Complainant has failed to show pretext or that the alleged management actions were
motivated by discriminatory animus. Rather, the evidence indicates that Complainant’s continuous
performance and conduct issues, which remained unresolved despite counseling by management
officials on several occasions, led to their conclusion that she was not suitable to be a SA, and her
consequent termination.

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Besides, where a complainant is a probationary employee, we have long held that he or she is
subject to retention, advancement, or termination at the discretion of an agency so long as these
decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No.
01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)).

Here, the evidence corroborates management’s explanations that complainant’s demonstrated
performance issues, along with her poor attitude and judgment, were the bases for management’s
actions not membership in her protected classes.

Regarding reprisal, Complainant claimed that she experienced “prejudice” because of her accent
and her national origin while she was at the FBI Academy, and that this led to retaliation against
her in the Phoenix Division and the eventual termination of her employment. Yet, there is no
evidence that the Phoenix Division management officials were aware of any EEO contact on
Complainant’s part prior to her contacting an EEO Counselor in the instant matter about nine
months after her arrival there which happened to be after her employment was terminated.

Notably, while SSA stated that he contacted complainant’s Class Counselor to see if she had
experienced similar performance and interpersonal difficulties during training, there is no evidence
that he ever engaged in any discussion of complainant’s protected classes with any of her Academy
instructors nor is there any evidence that Phoenix Division management officials ever made any
comments about complainant’s national origin or took any actions based on her membership in
any protected class.

In an attempt to show that management was well aware of her EEO activity, Complainant cited
her EAP meeting and talking to the EEO Counselor. She indicated that SSA’s denial of her
undercover identification request was because he had learned of her involvement with EEO and
the possibility of a complaint against him; and that he had begun the process of terminating her
employment at that time because of her EEO contact. However, Complainant presented no
substantiating evidence for her assertions. While complainant stated that she believed SSA was
aware of her January 2011 contact with an EEO Counselor in April 2011, SSA stated that he did
not become aware of her EEO activity in this matter until January 2012.

Complainant also alleged that her colleague, SA1 told her that coworkers in Phoenix were afraid
to get close to complainant because they were afraid she would file an EEO complaint against
them. However, SA1 vehemently denied this, calling Complainant’s allegation “a lie.” Even if
SA1 did indeed make the alleged statements to Complainant, without evidence that management
was aware of the statements and took adverse actions against her based on that knowledge,
Complainant’s claim of retaliatory animus fails.

Harassment and Hostile Work Environment

Complainant alleged that her supervisors and coworkers created a hostile work environment for
her based on her protected classes after she arrived in the Phoenix Division including that she did
not receive proper training and guidance from her FTA and her supervisor; she was not allowed to
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participate in activities and operations that would have enhanced her development while other
probationary SAs received such opportunities; and she was alienated by her coworkers in her
Squad. She however presented no evidence to show that any of the alleged conduct was in any
way linked to her membership in her protected classes.

To establish a claim of harassment and a hostile work environment, a complainant must show
that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the
form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on their statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to
alter the conditions of [complainant’s] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

Here, Complainant claimed that Phoenix Division management officials treated other probationary
SAs more favorably than her with regard to assignments, and with regard to training and
development matters. However, the evidence demonstrates that SSA and others in the Phoenix
Division had issues with complainant’s performance, interpersonal skills and attitude dating back
to the time she arrived there. SSA and complainant’s two FTAs, SA1 and SA2 , provided extensive
evidence regarding complainant’s unwillingness to follow the chain of command, her rude and
inappropriate interactions with coworkers, and her inability to independently develop
investigations.

Regarding training and development matters, SSA stated that he required Complainant to submit
weekly reports to him so that both he and her FTA could see her work and provide her with
direction in her investigative activities. Moreover, the evidence demonstrates that SSA,
Complainant’s FTAs, and other Phoenix Division management officials counseled complainant
about her performance and about her poor interpersonal skills on several occasions; yet, those
problems persisted, leading management to conclude that Complainant was not suitable to be a
SA.

Complainant also failed to describe any severe or pervasive unwelcome or physical management
conduct that, under the circumstances, would alter the terms and conditions of her employment
based on membership in any of her protected classes.

We note Complainant’s contentions indicating that the Agency’s explanations contain
contradictory information. However, because Complainant withdrew her hearing request, she did
not avail herself of the discovery and hearing process which would have allowed for an
examination of the credibility or lack thereof of management’s explanations; we can only evaluate
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the facts based on the weight of the evidence presented to us. We therefore find that Complainant
has failed to demonstrate by a preponderance of the evidence that discrimination occurred or that
the Agency subjected her to harassment.

CONCLUSION

Upon careful review of the record, as well as the arguments and documents submitted on appeal,
we AFFIRM the Agency’s final decision.

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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13
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 10, 2019
Date