Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.

Equal Employment Opportunity Commission

Jun 6, 2013

0120121000 (E.E.O.C. Jun. 6, 2013)

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

,
Complainant,

v.

Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.

Appeal No. 0120121000

Hearing Nos. 460-2009-00133X and
460-2010-00067X

Agency Nos. USA-2007-00592 and USA-2009-00136

DECISION

Complainant filed an appeal from the Agency’s November 14, 2011 Final Order 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
Order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Legal Support
Manager (LSM) for the U.S. Attorney’s Office (USAO) for the Southern District of Texas
(SDTX) in Houston, Texas. On November 21, 2007, Complainant filed an EEO complaint
(Agency case number USA-2007-00592) alleging that the Agency discriminated against her on
the bases of race (Black), sex (female), and in reprisal for prior protected EEO activity under
Title VII of the Civil Rights Act of 1964 when:

1. On August 14, 2007, Complainant received a reduced cash award in the amount of
$1,500 instead of the maximum amount that was allegedly given to the other officials;

2. On November 30, 2006, Complainant moved to a smaller, less desirable office on the
15th floor without justification;

3. In February 2007, the Agency denied Complainant's request for training at the National
Advocacy Center (NAC) which was previously approved;
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4. On May 23, 2007, the Agency accused Complainant of allowing an employee to take
leave during trial preparation without notification;

5. On May 23, 2007, the Agency removed Complainant from a district-wide committee
and replaced her with a White female;

6. On July 2, 2007, the Agency downgraded Complainant's performance evaluation to an
overall successful for the rating period January 1, 2006, through December 31, 2006;

7. On March 25, 2008, the Agency assigned Complainant a new performance rating and
reviewing officials for her 2008 performance evaluation cycle who were also named as
responsible management officials in Complainant’s complaint;

8. On March 27, 2008, the Agency presented Complainant with her discriminatorily low
2007 performance evaluation rating;

9. On June 26, 2008, the Agency denied and/or changed Complainant's award
recommendations for the support staff that Complainant manages;1

10. On July 2, 2008, the Agency required one of Complainant's subordinates to write a
negative statement regarding an incident with Complainant over the objections of the
subordinate employee; and

11. On July 14, 2008, an employee made negative comments about Complainant to an
employee who was supervised by Complainant regarding Complainant's involvement in
EEO activity in the elevator occupied by other employees.

Complainant also filed an additional complaint (Agency case number USA-2009-00136) in
which she alleged additional incidents of a hostile work environment, from September 2008, in
reprisal for protected EEO activity, when:

A. Management failed to respond to Complainant's request to retain the office furniture
that she previously had from another office on September 24, 2008;

B. Management accused Complainant of removing a bookcase from her previous office to
her current office without being authorized on September 30, 2008;

1 Complainant’s amended her complaint and by letter dated August 6, 2008, claims (9), (10),
and (11) were accepted for investigation.

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C. Management informed Complainant that all of her previously approved requests for
administrative leave were only partially approved. The Agency denied her request for
reconsideration of her full request for administrative leave on October 2, 2008;

D. Management called Complainant unnecessarily into a meeting to discuss policy and
procedural matters about an employee's leave record on or about October 27, 2008;

E. Management inquired about the possibility of Complainant reaching settlement of her
EEO matter in a manner that appeared aimed at dissuading Complainant from pursuing
her EEO complaint and/or threatened Complainant with an undesired assignment
because of her EEO activity;

F. Management denied Complainant the position of Supervisory Litigation Support GS-13,
on December 13, 2008;

G. Management denied Complainant the opportunity to serve as a volunteer on the
Enterprise Information Management Working Group around January 12, 2009;

H. Management reassigned Complainant from the 15th floor to the 12th floor and denied
her request for reconsideration of the assignment which became effective February 17,
2009; and

I. On August 14, 2007, Complainant received a reduced cash award in the amount of
$1,500 instead of the maximum amount that was allegedly given to the other officials.2

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
Administrative Judge (AJ). Complainant requested a hearing on her complaints.

By order dated October 19, 2009, the AJ dismissed Complainant’s claims based upon reprisal
that occurred before September 17, 2007, or before the Agency became aware that
Complainant had contacted an EEO Counselor. The AJ considered Complainant’s contention
that she had been identified as a responsible management official in an EEO matter that began
in September 2006, wherein Complainant had defended herself and provided documents to the
EEO Counselor. Also, the AJ considered Complainant’s belief that her rebuttal to a
memorandum critical of her performance where Complainant accused the Agency of prejudice
was prior activity protected under the anti-retaliation provisions of Title VII. The AJ found
that being identified in an EEO complaint was not protected activity, nor was Complainant’s
rebuttal statement, submitted in February 2007, protected activity. Accordingly, the AJ
dismissed reprisal as a basis of Complainant’s complaint with regard to those incidents that

2 We have preserved the enumeration that appears in the AJ’s Decision wherein claim (1)
appears again as claim (I) of Complainant’s overall claim of harassment.
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occurred before Complainant’s EEO contact in connection with Agency case number USA-
2007-00592.

By Order dated April 30, 2010, the AJ granted the Agency’s Motion for a Decision without a
hearing regarding claims (2) (office relocation); (3) (NAC training request); (5) (removed from
a district-wide committee); and (9) (changed award recommendations). Specifically, in her
Order, the AJ found that Complainant did not establish a prima facie case of discrimination
regarding claims (2), (5), and (9). The AJ found that even if she had done so, Complainant
failed to show that the Agency’s legitimate reasons for its actions were a pretext to mask
discrimination. The AJ found that Complainant presented no evidence from which a finding of
pretext could be made regarding claim (3).

The AJ found that Complainant was directed to relocate her office (claim (2)) when the Agency
had attorneys who needed the office Complainant occupied. The AJ found that the Agency’s
policy was to provide attorneys, specifically Assistant U.S. Attorneys (AUSA), with the larger
offices with windows. The AJ found Complainant presented no evidence that the Agency’s
decision to move Complainant’s office when additional AUSAs were hired was motivated by
discrimination.

Regarding claim (3) (NAC training), the AJ found that the First AUSA (FAUSA) believed the
Agency expended too many resources on training and denied Complainant’s request for the
NAC training on Immigration because she had already taken three NAC courses in the
previous 12 months. Complainant, the AJ found, asserted that other employees, not in her
protected groups, had taken three courses in a 12-month period and the AJ assumed this to be
true. The AJ found that Complainant’s request for the NAC course was denied because of the
FAUSA’s current policy regarding training and that Complainant failed to show that the
Agency’s decision was motivated by Complainant’s race or sex.

The AJ further found that Complainant’s supervisor, S1, did not have the authority to select
Complainant to serve on a district-wide committee, but was only asked to recommend two
people (claim (5)). The other person recommended by S1 was also a Black, female employee.
The AJ found the undisputed evidence showed that the Executive AUSA (EAUSA), E1, did
not follow S1’s recommendation regarding Complainant, because he wanted one representative
selected from a branch office. The AJ found that Complainant did not show that E1’s reasons
were a pretext to mask discrimination.

Regarding Complainant’s recommendations for awards, (claim (9)), the AJ found the evidence
showed that the Special AUSAs (SAUSAs) who reviewed Complainant’s award
recommendations were familiar with the members of the unit Complainant supervised and
articulated reasons for awarding some employees with greater awards than others based upon
performance they personally observed. The AJ found that even if Complainant had established
a prima facie case of discrimination on any basis, that the Agency had articulated reasons for
changing Complainant’s recommendations that Complainant failed to show were a pretext for
discrimination.
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The AJ therefore issued summary judgment with respect to claims (2), (3), (5), and (9),
finding that Complainant failed to show that she was discriminated against as therein alleged on
any basis.

Subsequently, the AJ held a hearing on July 20 and August 10 - August 13, 2010. The AJ
then issued a decision on September 30, 2011.

In her Decision, the AJ found that of the remaining seven claims of her complaint (in addition
to Complainant’s overall claim of harassment), Complainant established a prima facie case of
discrimination and that the Agency provided legitimate, non-discriminatory reasons for its
actions. The AJ thus considered whether Complainant had shown that the Agency’s stated
reasons were a pretext to mask discrimination.

The AJ found with regard to claim (1) and (I) (cash award), that other employees, who were
also Black female LSMs received larger cash awards than Complainant received. The AJ
found Complainant did not show that she received a smaller cash award because of her race or
sex. Additionally, Complainant’s rating was not as high as the other LSMs receiving greater
cash awards, the AJ found.

With respect to claim (4), the AJ found that this claim involved a trial team of two AUSAs,
who were assisted in preparation for trial by a paralegal. That paralegal, the AJ found, had
not informed the trial AUSAs that she planned to be on leave the week before the trial was
scheduled to commence. The AJ found the evidence did not include any showing that other
employees had taken leave on the eve of trial without giving the assigned AUSAs adequate
notice. The AJ noted that the AUSAs were unhappy and Complainant, who supervised the
paralegal, was reasonably questioned about the approved leave.

Regarding claim (6) (2006 Performance Evaluation), the AJ found that although S1 had rated
Complainant’s performance for 2006 as “outstanding”, S2, Complainant’s second level
supervisor directed S1 to lower Complainant’s evaluation to “fully satisfactory” because he had
received critical input from AUSAs with whom Complainant and her subordinates worked.
That input, the AJ found, came from both White and Black AUSAs. The AJ found that
Complainant was the only LSM who was rated fully successful, while two other Black, female
LSMs, received outstanding ratings. The AJ observed that the comments S2 received
regarding Complainant’s performance came from a number of attorneys and that those
comments reflected similar types of perceptions of problems. Specifically, the AJ noted, some
attorneys preferred to do their own clerical work to avoid dealing with Complainant whom
they viewed as an obstacle. The AJ did not find that the comments were evidence of
discrimination.

Regarding claim (7), the AJ found that in March 2008, the Agency’s reporting structure was
reorganized so after that time, rather than reporting to S1, Complainant’s rating officials
became the Chief and Assistant Chief on the floor where Complainant was assigned. Both
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officials, the AJ noted, had been identified as discriminating officials in the instant complaint.
The AJ found that all of the LSMs, including the other Black, female LSMs, were to be rated
by officials on the floors where they worked. The AJ found that Complainant was not singled
out for special treatment and the AJ found the Agency did nothing improper in assigning
Complainant to the rating officials on her floor.

The AJ noted that Complainant achieved an overall “outstanding” rating from the new rating
officials, (claim (8)), though not every element of Complainant’s performance appraisal was
rated as outstanding. The AJ found the rating officials articulated a legitimate reason for not
rating Complainant as outstanding in all elements. Specifically, the AJ found the evidence
showed that attorneys in the office felt Complainant’s style of management did not benefit the
office. However, the AJ noted that Complainant received an overall outstanding rating which
indicated some attorneys felt Complainant did a good job. The AJ found Complainant did not
present evidence that her rating was discriminatory.

Regarding claim (10), the AJ found the evidence showed that Complainant’s subordinate
employee, E1, had complained to S3 and S4, Complainant’s new supervisors, about a
conversation he had with Complainant that he found humiliating when it was continued in
public during a fire drill. E1 was asked to make a statement about the incident, which E1
declined to do. The AJ found no evidence linking Complainant’s race or sex to the incident.

As well, in claim (11), the AJ noted that E1 described the incident as occurring at an elevator,
when one of Complainant’s supervisors or another individual, remarked that if Complainant
saw a number of Hispanic employees together, she would file an EEO complaint over it. The
AJ found no evidence presented corroborated E1’s account and that other witnesses present did
not report the incident. Accordingly, the AJ found that the evidence of this incident did not
support a finding of discrimination.

The AJ considered Complainant’s evidence of what she believed to be a hostile work
environment. For example, among the incidents Complainant described, Complainant
submitted evidence that an AUSA (prior Chief of criminal division) used a specific historic
battle fought between the British invaders and the Zulus as an example of poor management,
which example Complainant considered racist. Complainant was also offended when an
employee gave Complainant some figurines, one of which was an “Aunt Jemima” figurine.
The AJ found that the battle cited by the Criminal Chief was not the kind of example that an
anti-African or anti-African American would cite, nor was the gift of the figurine anything but
thoughtless. The AJ noted the figurines were in Complainant’s office and not where they
could be seen by everyone.

The AJ further noted that Complainant cited as support for her harassment claim an incident in
which several AUSAs dressed in Middle Eastern attire in the office. The AJ found the
evidence showed the incident was brief and had nothing to do with Complainant’s race or sex,
nor female or Black stereotypes. The AJ found this incident offered no support for
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Complainant’s claim that the work atmosphere was permeated with discrimination toward her
race or sex.

The AJ considered Complainant’s contention that her rating official, specifically S3, whom she
identified as a discriminating official, was now the Chief of the floor to which Complainant
was relocated. The Agency, the AJ found, denied Complainant’s requests to be rated by a
supervisor now located on a different floor from her, contrary to the Agency’s new
reorganized rating structure. The AJ found the Agency reasonably denied Complainant’s
request and maintained its plan to have Complainant report to the Chief on the floor where she
worked to promote accountability between the LSM (Complainant) and the attorneys to whom
the legal support is provided.

The AJ considered Complainant’s overall claim of harassment (Agency case number USA-
2009-00136), together with the incidents set forth in Complainant’s earlier complaint. The AJ
noted that Complainant established a prima facie case of reprisal for the incidents of her second
complaint (harassment), in that she engaged in protected activity, and was subjected to
unwelcome conduct within a short time thereafter. However, the AJ found that, taking all of
the incidents described together, Complainant did not prove unwelcome conduct that rose to
the level of harassment or had the effect of unreasonably interfering with Complainant’s work.
Additionally, the AJ found that Complainant failed to show that the events and conduct she
found offensive were motivated by her race or sex, or by her prior protected activity.

For example, the AJ observed that Complainant alleged reprisal-based harassment when her
request that she be permitted to keep the furniture she currently used when her office was
relocated (claim (A)). The AJ found the decision to not move office furniture applied to all
employees, not just Complainant. When some furniture was moved, Complainant, who had
asked to retain her furniture was queried during an investigation in the furniture’s movement.
Complainant, the AJ determined, did not ask the movers to move the furniture, and
Complainant received no discipline, nor any adverse action as a result of the mistakenly moved
furniture (claim (B)).

Among the other incidents that Complainant alleged were retaliatory, was the matter of
administrative leave during a hurricane (claim (C)). Complainant, the AJ found, was asked to
provide additional information regarding her request for more than one day of administrative
leave to attend her home because an Agency official visiting Complainant’s home did not see
the damage that Complainant’s home sustained. The AJ found that Complainant’s request for
leave was ultimately approved.

Complainant, the AJ noted, was not selected for the position of Supervisory Litigation Support
(GS-13) (claim (F)). The AJ found the evidence supported the Agency’s position that some
mistakes were made in the selection process including the initial announcement was cancelled
because it was not advertised for enough time. The AJ also found that Complainant’s
application (submitted with the re-announcement) was initially found not to meet the
requirements for the position, but Complainant was later determined to be eligible by the
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Human Resource Manager. The AJ found that neither Complainant nor the other candidate
who applied (C1) was selected because the subject matter expert did not recommend either of
them, based on their applications.

The AJ found that Complainant’s claim that a male LSM was selected to serve on a volunteer
working group (claim (G)) because he was friends with the appointing Agency official, was not
discriminatory. The AJ found the evidence established that E2 was selected to serve based on
his sense of humor. Complainant was not, the AJ found, denied the opportunity because she
had filed an EEO complaint.

Regarding Complainant’s move to a different floor in February 2009 (claim (H)), the AJ found
that the evidence showed this move was accomplished after discussion of rotating the LSMs
among the floors of the office for performance reasons. The AJ found that the transfer of
Complainant’s office from the 15th floor to the 12th floor was motivated by Complainant’s
performance and not her protected EEO activity.

The AJ found that in total, Complainant described some nine incidents (including claims (D)
(discussion with Complainant regarding a subordinate employee’s leave) and (E) (EEO
settlement discussions), that occurred between August 2007 and February 2009. The AJ found
the incidents were neither frequent, nor shown by the evidence to be severe. The AJ
acknowledged that Complainant felt humiliated and believed the incidents interfered with her
work, but the AJ found that under the reasonable person standard, the incidents did not rise to
the level of harassment.

The AJ determined that Complainant did not show that she was subjected to discrimination as
alleged on any basis. The Agency subsequently issued a Final Order adopting the AJ’s finding
that Complainant failed to prove that the Agency subjected her to discrimination as alleged.

ANALYSIS AND FINDINGS

Dismissed Claims

We find the AJ properly dismissed reprisal as a basis for Complainant’s claims describing
incidents that occurred prior to September 17, 2007. The AJ found no evidence that
Complainant had engaged in any protected activity prior to that time. Specifically, the AJ noted
that Complainant, in her complaint, stated that her prior protected activity consisted of being
contacted, but not named, as a responsible management official in an EEO complaint of
another employee and that Complainant provided documents in response to an inquiry from the
EEO investigator in that case. The AJ determined that the Commission has held that being
identified as a responsible management official in an EEO complaint, without more, does not
constitute a protected activity, and Complainant’s reprisal claim fails insofar as it is based on
that activity.

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We find the record fails to indicate that Complainant had any prior involvement in the EEO
process and therefore, she cannot claim reprisal as a basis for her first complaint, (USA-2007-
00592). Complainant expressly indicates that the alleged reprisal occurred after being contacted
during the investigation of an EEO complaint filed by her subordinate (E3)3

. Complainant
stated that while she was not named in E3’s complaint, the allegations included actions that
could not have been taken by anyone other than Complainant. Complainant states that she
supplied documents responsive to the inquiry she received. The Commission has held that a
person's "status as the individual incorrectly accused of discrimination in another employee's
EEO complaint does not, without more, constitute protected activity." Salgo v. Department of
the Interior, EEOC Appeal No. 0120101362 (July 29, 2010) (quoting Jarmin v. Dep’t of the
Navy, EEOC Request No. 05930019 (December 23, 1993)). A review of the record reflects
that Complainant alleges that the Agency retaliated against her through a series of actions
described in claims (1) through (6) because she was the management official responsible for
the Agency’s actions in E3’s complaint. This status is not protected activity, and as such, does
not state a claim of retaliation under 29 C.F.R. § 1614.101(b). Even if we considered this
prior status/activity to be protected, there is no indication any Agency action was motivated by
such status/activity of Complainant.
Claims Decided by Summary Judgment

The Commission's regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a
reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477
U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988).
A fact is "material" if it has the potential to affect the outcome of the case.

In the instant case, we concur with the AJ regarding claims (2), (3), (5), and (9), and find that
the material facts of these claims are not in dispute and that the AJ properly issued her decision
without a hearing, finding no discrimination on these claims. Complainant’s office was
relocated and we find that the Agency’s custom of providing larger offices with windows for
their attorneys as opposed to support staff, impacted many employees, not just Complainant,
and that Complainant presented no evidence from which an inference could be drawn that her

3 Complainant states that E3 resigned in January 2007, and thereafter E3’s complaint was
dismissed.
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race, sex, or prior protected EEO activity played any role in the process. We find, as did the
AJ, that Complainant failed to show that the Agency’s decision to limit attendance at NAC
courses based on resource limitations was false and a pretext to mask discrimination. We
further find the undisputed evidence indicates that S1 recommended Complainant along with
another Black female employee (E4) to serve on the identified district-wide committee.
Unlike Complainant, S1’s recommendation that E4 serve, was approved. We find
Complainant did not show that more likely than not, her race, sex, or prior EEO activity
played any role in the Agency’s actions. We also find that the facts surrounding
Complainant’s award recommendations are undisputed and that Complainant did not present
any evidence linking her race, sex, or prior protected activity with the Agency’s decision to
change Complainant’s award recommendations.

Claims Decided after a Hearing

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (November 9, 1999).

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that he or she 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, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To establish a claim of harassment a 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 their statutorily protected class; (4) the harassment affected a term or condition of
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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).
With respect to element (5), an employer is subject to vicarious liability for harassment when it
is created by a supervisor with immediate (or successively higher) authority over the employee.
See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118 s. Ct. 2257, 2270 (1998);
Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275, 2292-93 (1998). However,
where the harassment does not result in a tangible employment action the agency can raise an
affirmative defense, which is subject to proof by a preponderance of the evidence, by
demonstrating: (1) that it exercised reasonable care to prevent and correct promptly any
harassing behavior; and (2) that complainant unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the agency or to avoid harm otherwise. See
Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for
Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). This
defense is not available when the harassment results in a tangible employment action (e.g., a
discharge, demotion, or undesirable reassignment) being taken against the employee. In the
case of co-worker harassment, an agency is responsible for acts of harassment in the workplace
where the agency (or its agents) knew or should have known of the conduct, unless it can show
that it took immediate and appropriate corrective action. Id.

Complainant can establish a prima facie case of reprisal discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec.
Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for
Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a
complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he
or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the
protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC
Appeal No. 01A00340 (Sept. 25, 2000).

In the instant case, we find substantial evidence supports the AJ’s determination that
Complainant did not prove discrimination on the bases of race, sex or reprisal occurred as
alleged. Regarding Complainant’s overall claim of harassment, we find as did the AJ, that the
series of incidents that occurred from 2007 through 2009, do not rise to the level of harassment
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and are not sufficiently linked to Complainant’s race, sex, or prior protected activity.
Specifically, we find the two isolated incidents with possible racial components are insufficient
to supply a racial overtone to Complainant’s description of an atmosphere of racial hostility.
We consider the incident where in an employee gave Complainant three figurines, one or more
of which Complainant found offensive. E5 apparently knew that Complainant collected
figurines. We find that the employee (E5) is not a member of management, that E5 is not
directly implicated in any of Complainant’s remaining claims, and that the isolated event was
not shown by the evidence to have been witnessed by a wide audience. We do not find that
E5’s actions are indicative of a tolerance of racial stereotyping in Complainant’s workplace.
Similarly, we find the use of the historical battle between the British and native Zulu warriors
during a meeting between Complainant and a unit Chief to illustrate the impact of rigid style of
management is not indicative of racial bias. We note that the criminal Chief (S5), similarly, is
not directly implicated in Complainant’s remaining claims, nor was this one-time incident
particularly egregious in any respect. We find, as did the AJ, that Complainant failed to
present evidence that the unwelcome incidents to which she was subjected occurred because of
discrimination.
Moreover, we find, as did the AJ, that the Agency articulated legitimate, non-discriminatory
reasons for its actions (claims (A) through (I)) that Complainant failed to show were a pretext.
For instance, we note no dispute in the record that Complainant ultimately received the
administrative leave she requested for days surrounding the hurricane (claim (C)).
Complainant’s supervisors ultimately did respond to Complainant’s requests concerning her
furniture requests, denied her request to move her existing furniture (claim (A)), and later
learned that Complainant did not request that her bookcase be moved to her new office, but
that contracted movers relocated it because it had been mismarked. (claim (B)). We find the
evidence does not show that the Agency selected anyone from the announcement to which
Complainant applied (claim (F)), and we do not find that Complainant presented evidence that
more likely than not the Agency canceled the announcement because Complainant would have
been promoted otherwise.

We find the remaining few incidents described in claims (D), (E), (G), and (H), are neither
severe, nor pervasive, and do not rise to the level of harassment when considered together, or
in light of the remaining claims of Complainant’s complaint. We note no persuasive evidence
that the threat in claim (E) occurred or that the alleged discussion of a settlement constitutes
retaliation. We decline to disturb the AJ’s determination that Complainant did not show that
she was subjected to harassment based on race, sex, or in reprisal for her protected activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s Final Decision.

0120121000

13

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:

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.

0120121000

14
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
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

June 6, 2013
Date