Complainant,v.Dick Lobo, Executive Director, Broadcasting Board of Governors, Agency.

Equal Employment Opportunity Commission

May 9, 2013

0120114052 (E.E.O.C. May. 9, 2013)

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

,
Complainant,

v.

Dick Lobo,
Executive Director,
Broadcasting Board of Governors,
Agency.

Appeal No. 0120114052

Hearing No. 570-2008-00151X

Agency No. OCR-07-06, OCR-07-06A, OCR-10-15-RN

DECISION

Complainant filed an appeal from a June 24, 2011 final Agency decision (FAD) concerning her
equal employment opportunity (EEO) complaints alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.,
the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 621 et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. Our
review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final
decision.

BACKGROUND

Complainant worked as a TV Production Specialist in the Agency’s Africa Division,
International Broadcasting Division, Voice of America, in Washington, DC. On January 29,
2007, Complainant filed EEO Complaint #1 wherein she claimed that the Agency
discriminated against her on the bases of her race (Caucasian), national origin (American), sex
(female), color (white), disability, age (58), and in reprisal for her prior protected EEO
activity. This complaint concerned a Letter of Reprimand, not being selected to host a
magazine show and multiple incidents of harassment. In November 2007, Complainant filed
EEO Complaint #2 alleging discrimination on the same bases when she was issued a five-day
suspension.

The Agency issued a “partial dismissal” and consolidated the remaining claims for
investigation. 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 EEOC
0120114052

2
Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew
her request.

On August 28, 2008, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
Complainant appealed this first FAD, and in v. Broadcasting Board of
Governors, EEOC Appeal No. 0120090135 (January 5, 2010), the Commission concluded that
almost all of the dismissals were improper1

and that the claims decided on the merits were
inextricably intertwined with the dismissed claims. Therefore, the Commission vacated the
Agency’s final decision and remanded the complaints for further processing. After the
remand, Complainant filed EEO Complaint #3, solely alleging retaliation when she was placed
on a performance improvement plain (PIP), threatened with termination and denied reasonable
accommodation. The Agency consolidated all three complaints, conducted further
investigations and then issued a second FAD.
In this second FAD, the Agency provided legitimate and nondiscriminatory reasons for its
actions. For example, the Letter of Reprimand was issued to Complainant in 2006 for
inappropriate behavior in the form of verbal abuse, screaming, shouting and other forms of
aggressive behavior toward colleagues and supervisors. This discipline followed a 2005 Letter
of Admonishment and was motivated by multiple complaints about Complainant’s behavior,
both by coworkers as well as employees from outside the Africa Division.

Similarly, with regard to the suspension, the Agency stated that the suspension was issued for
failure to comply with supervisory instructions, disrespectful behavior toward a supervisor and
inappropriate behavior in the workplace. The Agency maintained that no other employee in
the Africa Division presented the same kind of problems as Complainant presented. The
Agency noted that Complainant was counseled, admonished and reprimanded on more than one
occasion before she received the suspension. With regard to the PIP, Complainant was not
meeting the production standards of her position and was informed that her failure to improve
could result in termination.

Concerning the denial of reasonable accommodation, the accommodation Complainant
requested was to be assigned an intern to assist her in carrying equipment and a new computer
because she was limited in how much weight she could lift. Rather than straining its already
limited resources by providing Complainant an assistant to accompany her on video shoots, the
Agency removed her video journalist duties and returned Complainant to her position of record
as a TV Production Specialist. The video duties were not Complainant’s primary job
responsibility and in her position of record, Complainant would not be required to push, pull,
or lift objects more than fifteen pounds.

Finally, with regard to the multiple incidents of harassment, including denial of training, denial
of proper equipment, being given less favorable assignments, having her work sabotaged and
being reprimanded for disruptive behavior, the Agency gave explanations for its actions in

1 The exception concerned hosting the magazine show.
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3
each instance and stated that Complainant was treated no less favorably than others under
similar circumstances.

The FAD concluded that Complainant did not prove that the Agency’s explanations were not
worthy of belief and that she failed to prove that any of the conduct about which she
complained was unlawfully motivated. This appeal followed.

ANALYSIS AND FINDINGS

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, i.e., in this case, race, national origin, sex,
color, disability, age or and in reprisal or prior protected activity. Only if complainant
establishes both of those elements, does the question of Agency liability for present itself.
Similarly, to prove her disparate treatment claim concerning the discipline she received,
Complainant must prove that the Agency’s explanation for the discipline is a pretext for
discrimination.

We have reviewed the record in its entirety and it is evident that Complainant and several
coworkers and managerial officials had a difficult relationship. There were several instances
where Complainant found the work environment inconsistent with her efforts to maintain
efficiency and productivity. We do not consider all of these situations to be a reflection of
Complainant’s lack of interpersonal skills. Certain coworkers occasionally displayed a lack of
professionalism. However, by and large, the evidence indicates that Complainant was a
difficult person to work with, conducted herself inappropriately, was not a team player and
unjustifiably believed that situations that were not favorable to her were simply part of a larger
plan to remove her from Agency employment.

The Commission does not have the benefit of an Administrative Judge’s credibility
determinations after a hearing; therefore, the Commission can only evaluate the facts based on
the weight of the evidence presented. The evidence presented herein does not establish that the
actions taken against Complainant were motivated by discrimination towards her protected
bases but rather were taken in response to the problems Complainant created in the workplace.
For this reason, her claims of harassment and disparate treatment discrimination both fail. The
Commission AFFIRMS the FAD.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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:
0120114052

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
0120114052

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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

May 9, 2013
Date