Taren P.,1 Complainant,v.Patrick Pizzella, Acting Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Sep 6, 2019

0120180039 (E.E.O.C. Sep. 6, 2019)

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

Taren P.,1
Complainant,

v.

Patrick Pizzella,
Acting Secretary,
Department of Labor,
Agency.

Appeal No. 0120180039

Agency No. DOL-16-09-085

DECISION

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 August 22, 2017, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency properly found that Complainant did not prove that she
was subjected to unlawful discrimination or harassment.

BACKGROUND

Initially, Complainant worked as an Assistant Director of the Office of Inspector General (OIG),
GS-14, within the Agency’s Office of Audit (OA), Office of Audit Quality Assurance (OAQA),
in San Francisco, California. In this position, Complainant primarily assisted in establishing

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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training and development plans for OA. In January 2016, the Agency reassigned Complainant to
its Office of National Talent Pool and Training as a GS-14 Auditor.

On May 24, 2016, Complainant filed an EEO complaint in which she alleged that the Agency
harassed and discriminated against her on the bases of sex (female), disability, age (born in 1962),
and in reprisal for prior protected EEO activity when:

1. Since June 2015, her supervisor, the Director, Office of Audit Quality Assurance,
(S1) subjected her to threats of violence and inappropriate comments after
Complainant refused to participate in her (S1’s) EEO complaint;

2. On January 11, 2016, she was not provided access to databases and shared computer
drives that were necessary for her to perform her job;

3. On January 11, 2016, and continuing a) she was transferred to a new position
without the appropriate documentation, including a position description and
performance standards; b) she was directed to write the position description and
performance standards for her new position; and c) she was assigned duties that
should not have been part of her new position.

4. On January 19, 2016, she was told that her new position would be clerical in nature;

5. On February 22-24, 2016, a) she was instructed to electronically submit false
information on her timesheet; b) she was not allowed to submit her timesheet
because an Agency official did not address errors on it that were reported to her;
and c) S1 directed the aforementioned Agency official to enter information on her
timesheet that would have resulted in her not being properly compensated;

6. On February 24, 2016, she was improperly accused of going around S1 to address
a workplace issue;

7. On February 25, 2016, the Agency failed to certify her timesheet;

8. On July 25, 2016, she was issued a counseling memorandum for failure to follow
supervisory instructions;

9. On July 25, 2016, she learned she was being permanently transferred to the position
described in claim 3;

10. On or about August 16, 2016, she learned that her request to transfer to the position
of GS-14 Assistant Director in the Office of Audit Quality Assurance was denied;

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11. On or about September 1, 2016, she received a “Fact Finding Memorandum” that
reminded her to “conduct business within the OIG in a civil fashion” and to “treat
colleagues with respect;”

12. On or about November 3, 2016, she learned that she received a performance rating
of “unsatisfactory” on her fiscal year 2016 (FY 2016) performance evaluation; and

13. On or about November 9, 2016, she was placed on a Performance Improvement
Plan (PIP).

In an investigative statement, Complainant identified her medical condition as Scleroderma, a
permanent condition diagnosed in 2014 that made it difficult to walk, caused joint pain, swelling,
nausea, and diminished immune system function. Regarding claim 1, Complainant stated S1’s
attorney asked her to be a witness for S1’s EEO complaint, but Complainant declined the request.
Complainant stated that around June 15, 2015, S1 told her that she wanted Complainant moved
from her supervision, and around June 24, 2015, S1 called her at home and said that she and the
Deputy Assistant Inspector General for Audit (Deputy) were unaware that she teleworked and did
not have assigned office space in San Francisco, and that Complainant had to come into the office.
Complainant also stated that S1 made accusations against her, but she could not really understand
what she was saying because she was using profanity and said the word “fuck.” Complainant
stated that she tried to explain that her telework agreement had been approved by Human
Resources (HR), but S1 said she “did not fucking care” and hung up on her.

Complainant further stated that during staff meetings, S1 cursed and made statements about her
(S1’s) lawsuit. Additionally, Complainant alleged that from June to December 2015, S1 referred
negatively to her telework agreement, did not answer her email fast enough, and repeatedly said
she would hold Complainant accountable.

Complainant further stated that at a December 10, 2015 meeting, S1 cursed at her and became
physically threatening. Complainant stated that during the meeting, S1 said the problem with
communications was with her (S1’s) “weanie whiney” staff and raised her voice at Complainant
while sneering. Complainant stated that S1 then told her that she had “had it” and began talking
about her “fucking court case.” She stated that S1 tried to show her court documents for her EEO
case, but Complainant said she did not need to see anything. Complainant further stated that S1
then said she knew about Complainant talking to Deputy, and would let it go the first time, but
“the second time, no way.” Complainant stated that when S1 said “the second time,” her hands
were in a fist and she was “working her jaw.”

Regarding claim 2, Complainant stated that after she began working in her position around January
11, 2016, she asked management for access to the shared drive and databases, and on or about
February 17, 2016, she told Deputy and the Assistant Inspector General (AIG) that she did not
have access to the shared drive and databases necessary for her position. Complainant further
stated that Deputy then directed her to take the initiative to get what she needed. Complainant
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stated that she sent emails to the appropriate personnel and was granted access to the shared drive
on or about February 17, 2016, and the software was installed on her computer.

Regarding claims 3 and 9, Complainant stated that on January 4, 2016, she discussed S1’s
harassing actions with Deputy and AIG. She stated that on January 7, 2016, Deputy informed her
that she would be moved to a GS-14 Auditor position, and when Complainant stated that she really
liked her position, Deputy responded that she had “no other choice” but to reassign Complainant
to another position after she reported S1 for abuse and harassment. Complainant stated that she
told Deputy that she felt this reassignment was unfair because she really enjoyed her work.

Complainant further stated that the Director of the Office of National Talent Pool and Training
(Director) emailed her the position description and told her to edit it. Complainant stated that she
tried to edit the document, but it became clear that its language was vague regarding expertise and
duties. Complainant stated that on February 3, 2016, she emailed Director the edited position
description with a statement citing the need to develop a new position description, but Director
told her to write the position description and performance standards. Complainant stated that from
January to late June 2016, she worked in the new position without a position description,
expectations, or performance standards. Complainant also stated that she had to rely upon
assignments from Director until she was moved under the supervision of Deputy in March 2016,
and then under the Acting Director in June 2016.

Complainant stated that Director said that she was responsible for “all things training,” but these
functions are not in her position description or performance standards. Complainant stated that
when she reviewed her supervisor’s performance standards and position description, she realized
she was performing work required of her supervisor. She stated that she did not see promotional
opportunity in this new position because the Agency removed the Office of National Talent Pool
and Training from the organizational chart after her supervisor resigned, and she was not permitted
to work as Acting Director despite being required to do the work for that position. Additionally,
Complainant stated that Deputy and AIG decided to keep her in the new position permanently.

Regarding claim 4, Complainant stated when she asked Director to provide access to the shared
drive and other sources of information, he responded on January 19, 2016 that her position was
clerical in nature. Complainant stated that she disagreed with being referred to as a clerk and was
“embarrassed and demeaned” by these comments.

Regarding claims 5 and 7, Complainant stated that on February 24, 2016, she notified the
timekeeper (TK)2 that she received error codes when she tried to submit her timesheet. She stated
that she then received an email from TK that said Director had not approved compensatory (comp)
time hours, and that the Director told TK to populate Complainant’s timesheet as working a four-
day per week, ten-hour per day schedule (4/10), which resulted in omitting hours she had worked.
Complainant stated that she then called TK and told her not to delete anything or submit incorrect

2 TK’s official job title is “Management and Program Analyst.”
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information, but TK responded that she would elevate the matter to HR, and she had changed her
time and attendance entries back to the hours Complainant had recorded in the system.

Complainant stated that almost immediately thereafter, she received multiple emails from Deputy
accusing her of going around Director and instructing Complainant to modify her timesheet
because comp time was not permitted. Complainant further stated that Deputy called her and told
her she needed to modify her timesheet as instructed, and Complainant explained that Deputy’s
instructions did not reflect her actual hours worked. Complainant also stated that Deputy told her
that she must obey the instructions if she wanted to get paid, and Complainant responded that she
would not submit false information.

Complainant further stated that Deputy told her that she should have submitted her schedule to
Deputy or Director instead of charging an additional 15 minutes for two days and that she would
not be compensated for this time. Complainant stated that she responded that she should be
compensated for her work hours. Complainant stated that Deputy’s statement that she had to have
comp time approved before she earned it was inaccurate, and Agency policy permits employees to
earn comp time without prior supervisory approval. Complainant stated that her timesheet was
certified a day late, but she was paid the full amount she was owed on the appropriate pay date
(February 29, 2016).

With respect to claim 6, Complainant stated that on February 24, 2016, she received an email from
Deputy in which she said, “I do not appreciate that you have not addressed your concerns with
your supervisor first before you went around him.” Complainant stated that Deputy made this
statement after she notified Agency timekeepers that she was receiving error codes while trying to
submit her timesheet. Additionally, Complainant stated that during a meeting the following week,
Deputy admonished her again for “going around” her supervisor

Regarding claim 8, Complainant stated that on July 25, 2016, the Acting Director issued her a
counseling memo for failure to follow supervisory instructions. Complainant stated that she
disagreed with the memo because funding of training or conveying of funding information had
not been part of the responsibilities of the Office of National Talent Pool and Training. She stated
that her offer to assist TK was inappropriately converted to a requirement she provide such
assistance permanently as part of her position without support in her position description.

With respect to claim 10, Complainant stated that after six months in her new position, she asked
for a transfer to return to her prior position, but AIG denied her request. Complainant stated that
she liked working in her prior position.

Regarding claim 11, Complainant stated that on May 12, 2016, she asked the Deputy Inspector
General (DIG) if her reporting of a hostile work environment from June 2015 until January 2016
had resulted in an internal investigation, and DIG responded that a fact-finding inquiry had been
opening and was ongoing. Complainant further stated that an investigator contacted her, and she
responded to her questions. Complainant stated that DIG told her that Director had reported
concerns of potential workplace violence to HR regarding her, and conflicting information had
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been obtained. Complainant stated that she believed she was retaliated against when the Agency
issued a fact-finding memo that reminded her to conduct business in a civil manner.

Regarding claim 12, Complainant stated she received an overall “unsatisfactory” rating on her FY
2016 performance evaluation. She stated that the narrative in the rating is “subjective at best,” and
the rating relies upon her communication or interaction with the Acting Director and Deputy.
Complainant further stated that a coworker also received an unsatisfactory rating, and the narrative
on her evaluation was the same as the narrative on Complainant’s evaluation.

Regarding claim 13, Complainant stated that she did not receive information from management
indicating her performance was unsatisfactory at any time prior to receiving her performance
evaluation. She stated that following the evaluation, she received a PIP that was emailed to her.
She stated that the Assistant Director told her that she needed to be civil and polite to get off the
PIP.

Final Agency Decision

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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 harassment
or discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency should have found she was subjected to reprisal
because she was reassigned after she reported harassment and discrimination. Complainant further
argues that her performance rating and placement on a PIP reflect critiques of her performance by
supervisors she alleged harassed and discriminated against her. Complainant also maintains that
S1’s denial of using profanity in the workplace is contradicted by a witness. The Agency submitted
a brief in opposition to Complainant’s appeal in which it urged the Commission to affirm its final
Agency decision.

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 (EEO MD-
110), 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”).
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ANALYSIS AND FINDINGS

Disparate Treatment and Harassment

Generally, claims of disparate treatment such as this are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference
of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). Once a complainant has established a prima facie case, the burden of production then
shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas
Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

If the Agency is successful, the burden reverts to the complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for
discrimination. At all times, the complainant retains the burden of persuasion, and it is her
obligation to show by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of hostile-environment harassment, Complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on her 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).

In this case, for purposes of analysis, we assume arguendo that Complainant is a qualified
individual with a disability and has established a prima facie case of discrimination. Nevertheless,
we find that the Agency provided legitimate, nondiscriminatory explanations for its actions.

Specifically, regarding claims 1 and 2, S1 stated that her attorneys contacted Complainant to fact-
find and gather information, not to ask her to be a witness in S1’s EEO complaint. S1 further
stated that she and Complainant often spoke to each other, and Complainant often brought up the
status of S1’s case. S1 also stated that Complainant said she would speak to S1’s attorneys because
she had information about S1’s case, and S1 provided her attorneys with Complainant’s contact
information, although she did not think Complainant’s information would be useful. S1 stated that
she and her attorneys agreed that Complainant would not make a good witness and had no desire
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to include her on the witness list. S1 stated that she never asked Complainant to be a witness, and
she did not attempt to show Complainant her court documents.

Additionally, in December 2015, Complainant told S1 that she did not trust her because she
thought S1 had told Deputy she wanted to force Complainant out of OAQA. S1 stated that she
told Complainant she never said this and must have misunderstood. S1 further stated that told
Complainant that Deputy was unaware that she teleworked 100 percent of the time. S1 also stated
that she discussed Complainant’s computer issues with the Deputy, who responded that it was
Complainant’s responsibility to make sure she remained telework-ready.

S1 stated that on June 24, 2016, she told Complainant that if she was not telework-ready, she would
be required to take leave. S1 stated that she asked Complainant why she did not make sure she
had “global connect” on her computer because the “computer room” had sent notice to staff around
June 9, 2016 to test computers to make sure the program was loaded and working, but Complainant
“went ballistic” and started yelling at S1. S1 also stated that she gave Complainant two options:
1) mail her computer to Washington, D.C. and take leave until it returned; or 2) go into the San
Francisco office and get the software loaded on her computer.

S1 further stated that she did not curse at Complainant and did not use the “f-word” or hang up on
her. However, S1 stated that she told Complainant that if she continued to have computer issues
because she was not updating her computer or was disregarding notices about upgrade
requirements, she might need to revisit Complainant’s telework agreement. S1 stated that
Complainant then said that she would continue to telework and would go to Deputy, and S1 told
her to “do what you have to do, threats do not phase [me].” S1 stated that she told Complainant
that she had to return to class and would be hanging up before she hung up the phone.

S1 further stated that she did not fail to answer her email quickly enough, and she normally
responded to Complainant’s emails within 15 to 30 minutes. S1 stated that she only delayed her
response when she was on vacation, at break, or in training. S1 also stated that Complainant made
it a point to let S1 know that she liked to work alone and liked the way things were previously
done. She stated that at every turn, Complainant refused to follow the simplest instructions such
as providing details about what she would be working on or including the Acting Director on her
sign in and sign out emails as directed by S1. S1 further stated that there were many times when
Complainant did not answer emails sent to her, even when the emails required a response, quick
turnaround, or an acknowledgment.

S1 stated that she made comments about Complainant’s telephone because there were times when
she would call her, but Complainant’s phone rang and calls dropped, or there would be noise
indicating her phone was not working. S1 also stated that Complainant would become
disconnected almost every week during staff teleconferences.

S1 further stated that she did not say her staff was “weanie whiney,” but she had a meeting with
Complainant on December 10, 2015. She stated that Complainant had not remained in the
conference room to edit OAQA documents as agreed upon, and S1 was unhappy that she had
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disappeared. S1 stated that when Complainant arrived, she became argumentative with S1 and
said she did not need S1’s permission to step out, and S1 said “something about being considerate.”
S1 also stated that Complainant brought up her EEO activity when she was attempting to give her
constructive feedback, and S1 said she “could care less about her EEO cases.”

Regarding claims 3 and 9, Deputy stated that she and AIG offered Complainant a detail assignment
to an existing position as an Auditor in the Office of National Talent Pool and Training, which
Complainant accepted. Deputy further stated that she did not direct Complainant to write or edit
the position description and performance standards; she suggested to Director that it would be a
good idea to have her input into the documents. Deputy stated that she directed Director to update
the position description and performance standards. Director stated that he told Complainant that
the position was a detail assignment until it could be updated and classified, and once these actions
occurred, it would become a permanent reassignment. Deputy stated that neither Complainant nor
Director provided updates for the position description and standards; therefore, Deputy completed
the updates. Deputy further stated that she did not recall asking Complainant to complete her prior
work duties while working in her new position, but she instructed Complainant and Director they
should review audit staff training requests, which was a major responsibility of Complainant’s new
position.

Additionally, Deputy stated that it was not unreasonable for TK to contact Complainant for
assistance because Complainant was responsible for reviewing and processing Audit staff training
requests, parts of which require interaction with the Budget Officer. Deputy stated that on July
25, 2016, she decided to permanently reassign Complainant to the Auditor position because she
could no longer work for S1, and she did not disagree with the reassignment and appeared
“anxious” for it at the time of the reassignment.

Regarding claim 4, Director stated that he may have used the word “clerical” to describe some of
Complainant’s filing and recordkeeping work because that was the nature of the work previously
done by the GS-7 Administrative Assistant who was assigned to Director from 2010 until 2014.
Regarding claims 5 and 7, Deputy stated that after Director made her aware that Complainant had
not properly completed her timesheet on February 24, 2016, she contacted Complainant to have
her correct her improperly completed timesheet. She stated that Complainant did not fill out her
timesheet correctly and had not requested that her schedule be modified in advance, which meant
that her timesheet could not be validated for certification. Deputy further stated that she instructed
Complainant to modify her timesheet because Agency policy requires that compensable time be
requested in advance and approved before being earned. However, Deputy stated that on February
25, 2016, she ultimately approved Complainant for 30 minutes of comp time and advised her that
she would need to request such time in advance in the future. Deputy stated that Complainant was
paid on time.

Regarding claim 6, Deputy stated that she believed that Complainant should have addressed the
workplace issue of completing her timesheet through her supervisor and not have elevated it to a
senior executive [Deputy] who was leading a conference. Deputy stated that she spent more than
four hours addressing Complainant’s comp time issue, and Complainant’s dialogue with Deputy,
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her administrative officer, and S1 was not polite, respectful, or professional. Deputy further stated
that in a conference call with Complainant on February 29, 2016, she reiterated her concerns about
Complainant’s interactions with S1, Director, and Deputy regarding the timesheet issue and that
Complainant needed to work through her chain of command to address concerns while keeping
communications polite and professional.

Regarding claim 8, the Acting Director stated that he issued Complainant a counseling
memorandum because on July 13, 2016, he requested that Complainant and her colleague act as
points of contact with staff for training issues as required by her position description, and
Complainant responded, “No, I will not be continuing to do work outside of my position.” He
stated that the memo was not a disciplinary action, but communicated management’s expectations
to Complainant.

Regarding claim 10, AIG stated that he denied Complainant’s request to be reassigned to the
position of OAQA Assistant Director because the operational needs of the office did not support
her return to that office.

Regarding claim 11, AIG stated that after Complainant reported that she had been harassed by S1,
Deputy and AIG met with her. AIG stated that S1 made similar allegations against Complainant.
AIG further stated that all parties, including Complainant, agreed to transfer Complainant to the
Office of National Talent Pool and Training. “This was a voluntary detail that was offered to and
accepted by [Complainant],” AIG stated. Report of Investigation (ROI), Affidavit C, p. 669. AIG
also stated that an Agency fact-finding investigation found fault by both Complainant and S1, and
an IG memo reminded Complainant and S1 of the expectation to conduct OIG business in a civil
manner.

Regarding claims 12 and 13, the Acting Director stated that Complainant refused to provide input
for her evaluation when requested, and he had to rely upon his memory of her work. The Acting
Director stated that to the best of his memory, Complainant had provided only limited support
during the evaluation period, and therefore, he was not even able to rate her in the Other Significant
Contributions element.

Regarding the rating element of Customer Service, the Acting Director stated that Complainant
failed this element because she demonstrated rudeness, disrespect, and other unprofessional
conduct, including in a February 2016 incident wherein she became irate at a colleague who was
trying to assist her in correcting errors on her timesheet. Regarding the rating element of
Organization Representation, Acting Director stated that Complainant failed this element because
she consistently failed to maintain effective relationships with supervisors; did not listen to
constructive feedback; did not always work collaboratively with others; and did not perform
significant duties for OAQA. Regarding the element of Oral and Written Communication, the
Acting Director stated that Complainant failed this element because her communications failed to
promote civility at all levels, especially her tone and behavior toward supervisors. Regarding the
element of Self-Management and Problem Solving, the Acting Director stated that Complainant
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failed this element because she frequently ignored her supervisor’s requests to perform tasks and
did not provide her supervisor with meaningful work progress information in a timely manner.

The Acting Director further stated that Complainant was placed on a PIP because of her
unsatisfactory performance rating, and she earned a satisfactory rating during the 120-day period
of the PIP. Deputy stated that she was the reviewing official for this evaluation, but Director
retracted the rating and placed Complainant on a PIP in accordance with OIG practice. Deputy
stated that she and Acting Director erred in issuing the rating before placing Complainant on a
PIP. Deputy stated that Complainant received a list of major duties for the Auditor position while
position description standards were developed and classified, and she was provided with draft
position description when it sent for classification. Deputy also stated that he understood that
Complainant did not provide any input for her evaluation, despite being given the opportunity to
do so.

In an effort to prove pretext, Complainant contends that the Agency should have found she was
subjected to reprisal because she was reassigned after she reported harassment and discrimination.
However, at least two management officials attested that Complainant agreed to the reassignment.
Moreover, the record reveals that S1 simultaneously made harassment allegations against
Complainant, which we find made it appropriate to reassign Complainant to a substantially
equivalent assignment under these circumstances.

Complainant further maintains that S1’s denial of using profanity in the workplace is contradicted
by a witness. Indeed, DIG’s report concludes that S1 used profanity in the workplace, as reported
by witnesses. However, there is no evidence that S1 used profanity that reflected discriminatory
animus against Complainant because of her age, sex, disability, or EEO activity. Moreover, while
S1’s denial of using profanity may be unworthy of belief, we find that the remainder of her
statement is largely corroborated by other witnesses. Further, we do not find that S1’s alleged
actions are severe or pervasive enough to constitute a hostile work environment.

Regarding Complainant’s objection to being assigned training duties, we note that the position
description for a GS-14 Auditor position in the Office of National Talent Pool and Training reflects
that employees in this position primarily assist in establishing comprehensive training and
development plans for OA, as well assists in planning, coordinating, and conducting the OA
training program and recommends external training programs. As such, we find it reasonable for
the Agency to assign Complainant training assignments.

Regarding Complainant’s comp time, Complainant contends that Agency policy only requires
advanced approval for credit time, not comp time. However, we find it reasonable for
Complainant’s supervisors to exercise their managerial discretion to require advance notice of
comp time by employees. Further, it is undisputed that Complainant was nonetheless paid on time
for comp time worked.

Overall, there is ample evidence that Complainant had an extraordinarily stormy and tense
relationship with management officials. For example, an August 30, 2016 report from DIG found
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that during a meeting between Complainant and S1, Complainant screamed at S1. Generally, the
record reflects that Complainant frequently communicated with management in a rather
disrespectful, abrasive, and accusatory tone that escalated tensions and workplace disagreements
instead of diffused them. See Myron S. v. General Services Administration, EEOC Appeal No.
0120140902 (Sept. 23, 2016). For example, in an email responding to Acting Director’s request
that she review and comment on proposed performance standards, Complainant retorted, “I am in
no hurry to sign anything, especially standards that I don’t trust have been properly approved.”
We note that the record reflects that Complainant not only amassed a continuous history of caustic
relationships with multiple management officials, but she also had ongoing conflicts with
coworkers, including her timekeeper.

Additionally, we note that most of the elements on which Complainant was rated in her
performance evaluation contain expectations about civility, professionalism, politeness,
responsiveness, and interpersonal relationships with coworkers and managers. As such, we find
that Complainant received an “unsatisfactory” FY 2016 rating because of her documented
resistance to basic managerial instructions and clashes with coworkers and managers.
Nevertheless, management rescinded the evaluation when Complainant was placed on a PIP,
which she successfully completed.

Thus, we find that Complainant did not prove that the Agency’s legitimate, nondiscriminatory
explanations are pretext for unlawful discrimination, and there is simply no evidence that the
Agency’s actions were motivated by animus against Complainant’s disability, age, sex, or previous
EEO activity. Thus, we conclude that the Agency properly found that Complainant did not prove
she was subjected to unlawful discrimination or harassment. See Oakley v. U.S. Postal Serv.,
EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final decision finding that
Complainant did not establish that she was discriminated against for the reasons set forth herein.

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. 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).

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FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 6, 2019
Date