Trena M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 5, 2019

0120172410 (E.E.O.C. Feb. 5, 2019)

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

Trena M.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172410

Agency No. ARZAMA14APR01180

DECISION

On July 3, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
June 2, 2017 final decision 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., and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Budget Officer, GS-0560-13, at the Agency’s
Camp Zama in Sagamihara, Zama, Japan.

On May 21, 2014, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), religion
(Christian), color (brown), disability (association with her husband's chronic mental and physical
disabilities), and in reprisal for prior protected EEO activity when:

1. on or about February 27, 2014 and March 4, 2014, the Deputy Chief of Staff,
Resource Manager (Caucasian, white, female, Christian, no disability) (hereinafter
referred to as “the Deputy Chief”) made a statement, while in Complainant's
presence, about African American women "not knowing their place”;

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 or about March 7, 2014, the Deputy Chief made demands of Complainant that
she did not require of her peers, including for example, requiring that Complainant
submit daily bullets on work;

3. on or about March 19, 2014, the Deputy Chief removed Complainant’s ability to
communicate with principal staff in her command and counterparts at the Agency’s
Pacific command, affecting her ability to do tasks, including, but not limited to,
presenting the monthly budget to the command; telephone conferences for Budget
Officers; staff duties outside of the budget division. This action led to several
suspense deadlines not being met;

4. on or about March 19, 2014, during an office visit between Complainant and the
Deputy Commander Colonel (Caucasian, white, male, non-denominational
Christian, no disability) (hereinafter referred to as “the Deputy Commander”)
regarding the Deputy Chief’s alleged discrimination and harassment, the Deputy
Commander asked the Complainant to read Colossians 3:22 from the Bible which
says, "Slaves, obey your earthly masters in everything; and do it, not only when
their eye is on you and to curry their favor, but with sincerity of heart and reverence
for the Lord";

5. on or about March 20, 2014, after the Deputy Chief had been informed of
Complainant's complaints to the Deputy Commander, and her Inspector General’s
complaint against the Deputy Chief based on discrimination and harassment. The
Deputy Chief reassigned the Program Analyst, and another employee from
Complainant's supervision and outside her division, which increased her workload;

6. on or about March 25, 2014, the Deputy Chief directed her Administrative
Specialist to monitor Complainant's whereabouts, while not doing the same with
the Complainant's similarly situated non-African-American male colleagues;

7. on or about March 25, 2014, the Civilian Personnel Director improperly shared
Complainant’s husband's medical file with the Deputy Chief and the Deputy
Commander without justification;

8. on or about March 28, 2014, after the Deputy Chief had been informed of
Complainant’s complaints to the Deputy Commander, and her Inspector General
complaint. The Deputy Chief became enraged and stated that Complainant was on
her time and charged her as being Absent Without Leave (“AWOL”) for the time
she had spent with the Inspector General;

9. on or about April 4, 2014, in the presence of the Administrative Specialist, the
Deputy Chief entered Complainant's office, demanded her keys, informed her that
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she was being removed from her position, and demanded Complainant to vacate
her office immediately;

10. on or about April 4, 2014, the Deputy Chief telephoned Agency security on
Complainant and requested that she be escorted off Agency property by the Military
Police. Complainant requesting that the Military Police escort her to the Inspector
General’s office where she was met by the Inspector General leadership;

11. on or about April 4, 2014, following the Deputy Chief’s attempt to remove
Complainant from her position, the Deputy Commander visited Complainant’s
home to apologize for the Deputy Chief’s actions and for not responding to
Complainant's initial complaints of discrimination and harassment by the Deputy
Chief. However, upon Complainant’s return to work, he blamed Complainant for
contributing to the incident with the Deputy Chief because the Deputy Commander
had verbally counseled Complainant about being disloyal, disrespectful, and
insubordinate;

12. on or about April 15, 2014, after being informed of Complainant's visit to the EEO
office to file the instant EEO complaint, the Deputy Commander, spoke with
Complainant's psychologist without her being present and falsely informed the
psychiatrist that Complainant had threatened the Deputy Chief; and,

13. on or about April 28, 2014, the Deputy Chief sent Complainant a Notice of
Counseling in the form of a meeting request entitled, "Counseling for Budget
Supervisor," wherein she counseled Complainant on the Deputy’s Chief
expectations after the Deputy Chief was informed of Complainant’s discrimination
and harassment complaints against her.

On September 5, 2014, Complainant requested to amend her formal complaint, which was
accepted. Complainant alleged that she was subjected to ongoing discrimination, a hostile work
environment, and harassment from March 7, 2014, based on her race (African-American), color
(brown), sex (female), disability (association with her husband's chronic mental and physical
disabilities), religion (Christian) and in reprisal for prior protected activity when:

14. on July 22, 2014, the Deputy Commander Colonel (Caucasian, white, male,
Lutheran, no disability) (hereinafter referred to “the Colonel”) threatened,
intimidated and berated Complainant by stating "he would be around and [she]
need[ed] to remember that" or words to that effect;

15. on August 20, 2014, Deputy to the Commander (African American/Asian, brown,
male, Catholic, no disability) (hereinafter referred to as “the Deputy”) informed
Complainant that the Colonel asked about his knowledge of Complainant's EEO
complaint;

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16. on August 22, 2014, the Colonel made the following comment to Complainant, in
a sarcastic tone, "that sounds like a statement making a hostile work environment".
The Colonel did this during a budget meeting in the presence of 15 staff members;
and,

17. on September 2, 2014, Complainant became aware that that Colonel had reviewed
her leave request but had not reviewed any other employees leave request within
her division before becoming the colonel.

The Agency accepted the formal complaint and conducted an investigation. In sum, the
investigative record reflects the following pertinent evidence relating to the subject claims.

During the time at issue, Complainant’s first line supervisor was the Deputy Chief of
Staff/Resource Manager (Caucasian, white, female, Christian, no disability) (hereinafter referred
to as “the Deputy Chief”). Complainant’s second line supervisor was the Deputy Commander
(Caucasian, white, male, non-denominational Christian, no disability) (hereinafter referred to as
“the Deputy Commander”). The Deputy Commander was replaced on September 8, 2014, by
another manager (Caucasian, white, male, Lutheran, no disability) (hereinafter referred to “the
Colonel”).

Disability and Retaliation

Complainant said that she was treated differently due to her association with her husband's medical
conditions. Complainant stated that all responsible management officials were aware that her
husband suffered from physical and mental conditions, and treated her poorly as a result.

Complainant also alleged that she was subjected to retaliatory actions after management found out
that she had initiated a complaint with the Agency’s Inspector General in March 2014.

Claims 1 - 8

Complainant alleged that on multiple occasions, the Deputy Chief referred to various women as
“not knowing [their] place” (claim 1). Complainant alleged that the Deputy Chief was motivated
to say this because she (Complainant) had taken time off when her husband had surgery. The
Deputy Chief denied making any discriminatory comments about people not knowing their place.
Instead, the Deputy Chief asserted that she said, “Everyone has a place in the organization and
needs to know their place and their roles and responsibilities”. The Deputy Chief stated that
Complainant took her statements out of context.

Complainant also asserted that the Deputy Chief treated her differently when requiring her to
submit summaries of her work, which she did not require of others (claim 2). Complainant noted
that when she inquired about this in March 2014, the Deputy Chief allegedly began requiring it of
all her employees.
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The Deputy Chief asserted that she asked all section chiefs to provide summaries, and that it was
not just Complainant. The Deputy Commander stated that the Deputy Chief required all division
chiefs to provide summaries, and that each complied, albeit in his/her own manner. He noted that
there was confusion among the chiefs as the Deputy Chief was not clear on how she wished to
receive the summaries.

In March 2014, Complainant alleged the Deputy Chief prevented her division from communicating
with other high-ranking military members (claim 3). The Deputy Chief denied that communication
was ever prohibited, and that she only asked to be made aware of communications so she knew
what was going on. Additionally, Complainant asserted that the Deputy Chief reassigned
employees within the organization as retaliation against her (claim 5). The Deputy Commander
stated that when the Deputy Chief started, she placed restrictions on communications to control
and monitor the decision-making process. He noted that it is common among new leaders who are
not yet comfortable delegating, and that it was not targeted at Complainant. Additionally, the
Deputy Commander stated that he was aware of, and approved of, the Deputy Chief’s decision to
reassign staff because of budget issues and typical rotation. He is not sure how the staff
reassignment came about, and stated that while he agreed with the action, it was probably how she
handled it that caused conflict.

On March 19, 2014, Complainant went to the Deputy Commander’s office to complain that the
Deputy Chief treated her “like her hired help.” Complainant alleged that the Deputy Commander
then read her a bible verse that said, “Slaves, obey your earthly masters” (claim 4). Complainant
was offended by this matter and contacted the Inspector General to report harassment. The
Inspector General referred Complainant to the EEO process. The Deputy Commander denied this
interaction, and stated that while they had “faith-based discussions,” he never read any passages
regarding slaves.

The Administrative Specialist stated that the Deputy Chief had previously tasked him with acting
as a “babysitter”, to check on Complainant regularly (claim 6). The Deputy Chief denied directing
the Administrative Specialist to act as a babysitter, and only asked him occasionally if he would
see when Complainant, and others were available for meetings and other business related concerns.

On March 25, 2014, Complainant saw the Civilian Personnel Director holding a folder that she
believed contained her husband’s medical forms. Complainant noted that the Civilian Personnel
Director then spent time with the Deputy Chief, and she believed her husband’s medical conditions
were inappropriately discussed (claim 7). Complainant asserted that this action was harassment
because one year prior, the Civilian Personnel Director had suggested to Complainant that she
curtail her tour due to her husband’s condition. The Civilian Personnel Director denied pressuring
Complainant to curtail her tour, and stated that he did not share any of Complainant’s husband’s
medical files or information with anyone.

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On or about March 28, 2014, after the Deputy Chief had been informed of Complainant’s
complaints to the Deputy Commander, and her Inspector General complaint, Complainant alleged
she became enraged and charged Complainant as being Absent Without Leave (AWOL) for the
time she spent with the Inspector General (claim 8). The Deputy Chief denied threatening and
charging Complainant with an AWOL for seeing the Inspector General. The Deputy Chief stated
that instead, on the day in question, she saw Complainant and asked where she had been because
she “was on the clock,” but could not be found.

The Deputy Commander stated that he tried to mediate between the Deputy Chief and
Complainant, but efforts proved futile. He stated that the Deputy Chief was later disciplined, in
part, because of how she executed her duties. He also noted that while the Deputy Chief may have
treated Complainant poorly, both women were strong-willed, and had an obviously severe
personality conflict with one another. The Deputy Commander noted that the Deputy Chief was
Inexperienced as a manager, and had conflicts with a number of her employees, not just
Complainant.

Claims 9 – 13

In April 2014, the Deputy Chief, along with the Administrative Specialist, went to Complainant’s
office, and informed her that she was no longer the Budget Officer and requested her office keys
(claim 9). When Complainant refused to comply, the Deputy Chief had the Administrative
Specialist contact the Military Police (claim 10). Complainant left her office to go to the Inspector
General’s Office. When the Military Police arrived, and Complainant requested that the police
escort her to the Inspector General’s Office. Later that evening, the Deputy Commander visited
Complainant’s home and apologized for the Deputy Chief’s behavior, offered support, and stated
that Complainant would be allowed to take administrative leave due to the stress. However,
Complainant was surprised to later learn that the Deputy Commander felt that she had contributed
to hostilities between the Deputy Chief and herself (claim 11).

The Deputy Chief stated that she had spoken to the Deputy Commander about moving
Complainant into a vacant supervisory position and he agreed. The Deputy Chief went to
Complainant and said, “I’d like you to come into the Cost Sharing Office” by the day’s end. She
noted that Complainant seemed upset with the news, and seemed threatening in response.

The Deputy Commander stated that he agreed with the reassignment, and advised the Deputy Chief
to get guidance from the personnel office before making the personnel changes. When he learned
what had happened, he reprimanded the Deputy Chief for her poor choice of actions. The Deputy
Chief was later suspended for actions associated with her poor management style. The Deputy
Commander stated that while he agreed with the reassignment as it would place Complainant in a
better position, he found the Deputy Chief’s method disturbing. The Deputy Commander also
acknowledged going to Complainant’s home and apologizing on behalf of the Deputy Chief.

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The Civilian Personnel Director stated that the Deputy Chief had asked him for guidance on
reassigning employees. However, she had only asked him vaguely, and had not specifically
mentioned Complainant. Therefore, he answered her about general reassignment, and did not
provide specific guidance. The Civilian Personnel Director stated that it was inappropriate for the
Deputy Chief to try and reassign Complainant in the way she did, or to contact the Military Police.
The Civilian Personnel Director stated that there was no reason to believe that Complainant was
threatening in any fashion, and the arrival of the Military Police was completely unnecessary. The
Civilian Personnel Director stated that the Deputy Chief “had a horrible personality…pretty much
hated everyone equally, was a poisonous employee…a terrible supervisor, treated everyone
poorly…and was a poor leader with bad judgment.” The Civilian Personnel Director stated that he
believed she was intimidated by Complainant as she was a very knowledgeable and experienced
supervisor.

On April 14, 2014, Complainant sought mental health care. Complainant stated that her mental
health provider asked to speak with the Deputy Commander. Shortly afterwards, the Deputy
Commander made remarks to Complainant indicating that she had also contributed to the problems
she had with the Deputy Chief, and advised her to try and work with the Deputy Chief. The mental
health provider likewise suggested she work with the Deputy Chief. She agreed to cooperate, but
felt that the Deputy Commander’s demeanor was “intimidating” and motivated by her race, color,
gender, and Inspector General complaint (claim 12).

On or about April 28, 2014, the Deputy Chief sent Complainant a Notice of Counseling in the form
of a meeting request entitled, "Counseling for Budget Supervisor," wherein she counseled
Complainant on her (the Deputy’s Chief) expectations of her role (claim 13). Complainant felt that
the meeting was retaliation for finding out about Complainant’s complaints against her. The
Deputy Chief stated that the meeting was meant to provide Complainant with performance
expectations only, and had nothing to do with the complaints. The Deputy Commander stated that
Complainant notified him by email of the meeting, but he did not find the meeting to be
inappropriate or harassing.

Claims 14 - 17

On September 8, 2014, another manager (Caucasian, white, male, Lutheran, no disability)
(hereinafter referred to “the Colonel”) replaced the Deputy Commander. Complainant noted that
the Colonel was friendly with the Deputy Chief, so she did not want to engage him other than for
work-related matters. During a private meeting, the Colonel allegedly said to Complainant that she
“had a chip on [her] shoulder” and should acknowledge him more often. She told him she had
nothing to say to him unless it was budget-related. He reminded her he, “was going to be around
for a while,” (claim 14) which Complainant took to be a threat. The Colonel denied the interaction
as described by Complainant. The Colonel stated that he felt a change in their work relationship,
and asked Complainant if there was a problem, why their relationship changed, and apologized if
he had something to do with it. The Colonel noted that he said something to the effect that he
would “be around for a while,” but meant that he was going to be in her line of command for some
time, and that he wanted to make sure they had a positive working relationship.
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On August 20, 2014, the Deputy to the Commander (hereinafter referred to as “the Deputy”)
informed Complainant that the Colonel asked about his knowledge of Complainant's EEO
complaint (claim 15). The Deputy acknowledged this interaction, but noted that there was nothing
discriminatory about the Colonel’s inquiry. The Deputy stated that the Colonel had never spoken
disparagingly about Complainant, and that he believed any conversation regarding the EEO
complaint was merely due to the Deputy’s position as a manager who wanted to be aware of
pertinent office matters.

On August 22, 2014, Complainant made a joke in a meeting and the Colonel sarcastically
responded, “That sounds like you’re making a hostile work environment allegation to me” (claim
16). Complainant did not complain or respond for fear of seeming confrontational. The Colonel
denied making any comments regarding a hostile work environment towards Complainant.
Instead, the Colonel stated that during a meeting, another colonel made a comment, and he had
jokingly responded to it, but it had nothing to do with Complainant. A few weeks later, she learned
that the Colonel had approved her leave request, which she felt was harassing because he was not
authorized to do so, and she felt it was a display of power (claim 17).

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 Equal Employment Opportunity
Commission Administrative Judge (AJ). Complainant timely requested a hearing, but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b), based on the evidence developed during the investigation, concluding no
discrimination or unlawful retaliation have been established.

The instant appeal followed. Complainant asserted that the Agency erroneously concluded that
there was insufficient evidence to support her claims of discrimination. Complainant then provided
a lengthy and detailed overview of her claims.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Disparate Treatment

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A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC
Petition No. 03900056 (May 31, 1990).

Here, we find that the report of investigation shows that the responsible management articulated
legitimate, nondiscriminatory reasons for its actions. Several of Complainant’s assertions that she
was singled out due to her protected classes, or in retaliation for prior protected activity, are not
supported by the record. For example, Complainant asserted that she was the only individual
assigned to provide a summary of her section’s work, when other division chiefs were not required
to do so (claim 2). The record demonstrated that while there was confusion in this area, all division
chiefs were required to provide summaries of his/her section’s work. Similarly, Complainant
asserted that she was the only one barred from communicating with other senior staff, which
affected her ability to work efficiently (claim 3). While the Deputy Chief indeed placed
requirements on inter-Agency/Office communications, this directive was provided to all the
division chiefs.

Complainant also asserted that she was monitored (claim 6); her husband’s private medical
information was inappropriately shared (claim 7); she was charged with AWOL for speaking with
the Inspector General (claim 8); her psychologist was falsely informed that she had threatened the
Deputy Chief (claim 12); and, she was counseled by the Deputy Chief about expectations (claim
13). In each of these claims, the record has demonstrated a legitimate, nondiscriminatory reason
for each action. We find no cause to believe the reasons provided were pretext for discrimination.

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In a series of additional claims, Complainant further asserted that the Deputy Chief attempted to
discriminatorily remove her from her position, called the Military Police on her, and she was later
blamed for contributing to the hostilities in the situation (claims 9 – 11). The record demonstrated
that the Deputy Chief handled the situation rather poorly, and was later disciplined for doing so.
However, there is no evidence to demonstrate that the Deputy Chief’s poor handling of the
reassignment was due to any discriminatory animus toward Complainant. In fact, the weight of the
evidence indicates that the Deputy Chief was an inexperienced manager with a reputation for
having poor relations with many of her subordinates, not just Complainant. However, there is no
evidence which suggests the Deputy Chiefs actions, or those of other management officials
responding to Complainant’s concerns about her, were based on discriminatory or retaliatory
animus.

Harassment

To establish a claim of discriminatory 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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

In short, 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, because of her race, sex,
association with her husband’s disabilities, religion, color, or prior EEO activity. Only if
Complainant establishes both of those elements, hostility and motive, will the question of Agency
liability present itself.

Complainant has cited various incidents that she found to be adverse or disruptive to her. For
example, Complainant asserted that the Deputy Chief looked down on African Americans, and
made references to her that African American employees did not seem to know their place (claim
1). Complainant acknowledged that the references did not specifically mention African American
individuals, but she felt that the context of the statement meant that the Deputy Chief was only
referring to African American employees. Additionally, Complainant asserted that the Deputy
Commander, and the Colonel, also made disparaging and harassing comments to her (claims 4 and
14). In each situation, management denied making any discriminatory or harassing statements, and
that what was said was taken out of context.

Complainant also asserted that the Deputy Chief reassigned employees from her supervision,
which resulted in an increase of her workload (claim 5). Here, the record demonstrates that the
Deputy Chief reassigned two employees and an intern after discussion with the Deputy
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Commander, who agreed with the reassignments. It was noted that prior to the Deputy Chief’s
arrival, Complainant had reassigned staff herself, and the Deputy Chief was rebalancing the
organization as she saw fit. The record demonstrated that while the Deputy Commander was aware
of, and agreed with the reassignments, he did not agree with the way the Deputy Chief made the
reassignments. In general, the Deputy Commander stated that many of the Deputy Chief’s actions
lead to much discord, which eventually lead to her being formally disciplined. Despite an Agency
assessment of the Deputy Chief’s lack of leadership and management qualities, the record does
not demonstrate that the Deputy Chief’s actions were based in discriminatory or retaliatory animus
toward Complainant.

In further support of her retaliation claim, Complainant also argued that she was subjected to
retaliatory actions by the Colonel. Specifically, Complainant asserted that the Colonel berated and
threatened her (claim 14); that the Colonel inappropriately asked the Deputy about her EEO
complaint (claim 15); that the Colonel made a sarcastic and disparaging comment about hostile
work environments during a meeting (claim 16); and, that her leave was inappropriately approved
by the Colonel (claim 17). In each instance, the record demonstrates in detail, legitimate,
nondiscriminatory reasons for such actions, as detailed above. For example, the Colonel stated that
he worried about their working relationship, and sought Complainant out on how to repair their
work relationship. Additionally, any conversations he had regarding Complainant’s EEO
complaint was only based on his desire to be aware of what was happening in the office. There
was no indication that any of the Colonel’s actions were conducted with any retaliatory intent.
Finally, the Colonel acknowledged making a joke during a meeting with another colonel, but
asserted that it was not directed at Complainant. In that instance, we note that one-off comments
do not typically rise to the level of a hostile work environment.

Most importantly, despite the length and detail of the record, there is insufficient evidence to
demonstrate that Complainant was subjected to discriminatory and hostile actions based on her
protected classes and/or in reprisal. In this matter, Complainant decided not to request a hearing
before an EEOC AJ, and as a result we do not have the benefit of an AJ's credibility determinations
of these conflicting witnesses. Complainant had to prove, by a preponderance of the evidence, that
the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly,
Complainant has failed to meet her burden of persuasion. Complainant v. Dep't of Health and
Human Services, EEOC Appeal No. 0120122134 (Sep. 24, 2014), citing Lore v. Dep't of
Homeland Security, EEOC Appeal No. 0120113283 (Sep. 13, 2013); and Brand v. Dep't of
Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012).

The record is clear that Complainant had a contentious relationship with the Deputy Chief. It is
also clear that the Deputy Chief had difficulty in her management role, with several individuals
attesting to her severe lack of leadership qualities. However, the Commission notes that Title VII
is not a civility code. The record simply does not show that the conduct at issue was based on
animus towards Complainant’s protected classes.

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CONCLUSION

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

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
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.
Carlton M. Hadden, Director
Office of Federal Operations

February 5, 2019_
Date