Elise S.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Sep 26, 2019

2019004850 (E.E.O.C. Sep. 26, 2019)

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

Elise S.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal Nos. 0120181142, 20190048502

Agency Nos. DOS-0387-16, DOS-0155-18

DECISION

Complainant filed two timely appeals with the Equal Employment Opportunity Commission
(EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 29,
2018, and June 11, 2019, final decisions concerning her equal employment opportunity (EEO)
complaints 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., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the
Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. The
Commission may, in its discretion, consolidate two or more complaints of discrimination filed by
the same complainant. See 29 C.F.R. § 1614.606. Accordingly, the Commission exercises its
discretion and consolidates the above-captioned cases. For the following reasons, the
Commission AFFIRMS the Agency’s final decisions.

ISSUES PRESENTED

The issues presented are: (1) whether the preponderance of the evidence in the record establishes
that Complainant was subjected to discrimination based on race, national origin, sex, color,

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.

2 The Report of Investigation (ROI) for Agency No. DOS-0387-16 is cited as ROI 1, and the
ROI for Agency No. DOS-0155-18 is cited as ROI 2.
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disability, age, and/or reprisal; and (2) whether the Agency denied Complainant a reasonable
amount of official time to prepare her EEO complaints and to respond to requests for
information.

BACKGROUND

At the time of events giving rise to these complaints, Complainant worked as a GS-2131-09
Freight Rate Specialist at the Agency’s Despatch Office, Regional Logistics Center, Bureau of
Administration facility in Iselin, New Jersey (Despatch Agency New York). Complainant’s first-
line supervisor was the Despatch Agent (S1), and her second-line supervisor was the Supervisory
Regional Logistics Manager (S2). S1 works on-site in Iselin, and S2 is based in Arlington,
Virginia.

In fiscal year 2012, Complainant filed an EEO complaint based on her disability, Non-Hodgkin’s
Lymphoma. Complainant and the Agency entered into a settlement agreement to settle that EEO
complaint. Complainant filed another EEO complaint based on disability and reprisal for prior
protected EEO activity in fiscal year 2013.3 In September 2016, Complainant was a 53-year-old
female who identified her race as Caucasian, her national origin as American, and her color as
White. Complainant did not specify her sexual orientation, but she stated she was a member of
the LGBT community. ROI 1 at 186. According to Complainant, her Non-Hodgkin’s Lymphoma
was in remission at this time.

Complainant alleged that S1 denied her the opportunity to attend the Agency’s annual workshop
at the European Logistics Supply Office (ELSO) in Antwerp, Belgium, that occurred September
17-24, 2016. According to Complainant, S1 did not even ask her if she wanted to attend the
workshop. Complainant stated that a Freight Rate Specialist (C1) attended the workshop in
September 2016 and travelled to Belgium with S1. Complainant averred that she had worked for
the Agency longer than C1 had. According to S2, the workshops are held to train local embassy
staff, and his staff only attends the ELSO workshops as instructors. S1 stated that C1 was an
ELSO instructor about surface shipments and shipments to various posts in September 2016.
Complainant stated that a Freight Rate Specialist (C2) and a Traffic Management Specialist (C3)
also had the opportunity to attend the ELSO workshop in recent years. According to S1, C3
travelled to ELSO to teach a workshop in 2014, and C2 travelled to ELSO to teach a workshop
in 2015. Complainant averred that attending the ELSO workshop would be a developmental
opportunity because she would be able to observe ELSO operations.

S1 averred that Complainant told him that she had problems with flights that were longer than
seven hours and that flights to Belgium from New York were about eight hours long.

3 This complaint was the subject of a separate appeal. In its decision on that appeal, the
Commission modified the Agency’s final decision finding no discrimination, finding instead that
Complainant established that she was subjected to a hostile work environment based on
disability and reprisal and that she was denied a reasonable accommodation for her disability.
See EEOC Appeal No. 0120170164 (Sept. 25, 2019).
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The record contains a January 12, 2015, email from S1 to his subordinates, inquiring about their
availability for temporary duty (TDY) assignments. The record contains Complainant’s January
12, 2015, response that she had problems with flights that were longer than seven hours. S1
stated that Complainant travelled to attend training at the Agency’s Foreign Service Institute
(FSI) in Arlington, Virginia, that took place September 12-15, 2016.

Complainant stated that on September 30, 2016, she asked to move to a vacant desk that had
previously been occupied by C2 but that S1 denied her request to move. Complainant averred
that S1 did not give a reason for denying her request. According to Complainant, C2 had been
able to move to a new desk without issue. S1 averred that in April 2015 he moved C2 to a desk
near C1’s desk because they worked together on projects and shipments. Complainant alleged
that two Freight Rate Specialists (C4 and C5) had also recently changed desks. According to S1,
he moved C5 to a desk near a Transportation Assistant (C6) in August 2015 because they worked
together on air-freight shipments. S1 averred that he moved C4’s desk in February 2016 so that
he would be closer to a Transportation Assistant (C7) with whom he frequently worked. S1
stated that he denied Complainant’s September 2016 request because it was during the busy
season and there was no business-related reason for her to move.

On December 6, 2016, Complainant emailed S1 to ask to work overtime that day. S1 stated that
he denied Complainant’s request for overtime on December 6, 2016, because she took an
unauthorized lunch break at noon that day in addition to her usual lunch break at 1:00 p.m.
Complainant averred that the building manager was hosting a Christmas buffet for tenants that
day. Complainant alleged that C4 and C7 took their usual lunch break and also participated in the
Christmas lunch provided by the building, yet C4 and C7 were permitted to work overtime. S1
stated that C4 and C7 did not take an unauthorized lunch break on December 6, 2016, and he
averred that he approved their requests to work one hour of overtime to work on a project.

According to Complainant, in or around December 2016 S2 nominated many of her coworkers
for an award for their work on a 2016 project involving the transition of a warehouse. S2 averred
that he nominated C1, C2, C3, C4, C5, C6, and C7 for the Meritorious Honor Award because of
their excellent performance and for their teamwork during the transition period in fiscal year
2016. Complainant averred that she worked on the project but that S2 did not nominate her for an
award, and that she learned about the awards when she saw one on C6’s desk. On January 26,
2017, Complainant sent an email to S2 asking for an explanation for not receiving the award. On
January 26, 2017, S2 responded, “While your performance of core duties was every bit as good
as your colleagues, you were formally disciplined for unprofessional behavior in the workplace
during the same period. That in my eyes is a disqualifier for an award such as the Meritorious
Honor award and it would have been hypocritical of me to recommend you for an award.” ROI 1
at 383-84. Complainant averred that S2’s email was discriminatory and retaliatory because she
had filed an EEO complaint regarding the 2016 discipline. Complainant alleged that she should
have received an award because she worked on the project alongside the coworkers who received
an award. S2 stated that Complainant had ongoing issues with her behavior in the workplace and
that she was suspended for five days in April 2016 for unprofessional behavior.
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S2 denied that Complainant’s prior protected activity or her membership in a protected class
were factors in not nominating her for the award.

Complainant alleged that S1 assigned her more work than her coworkers. Complainant stated
that she is responsible for Africa, which means that she handles most embassies and posts and
has a correspondingly higher administrative workload. According to Complainant, she asked S1
to redistribute work more equitably, but she remains overburdened with work compared to her
coworkers, including C1, C2, C3, and C4. S1 denied that Complainant was assigned more work
than her coworkers, and he averred that Complainant selected Africa as her geographic area of
responsibility. According to S1, after Complainant complained about the workload, he
reassigned 13 of Complainant’s destinations to C3. S1 stated that, after his reassigning those
destinations to C3, Complainant has fewer destination assignments than anyone else.

According to Complainant, on January 24, 2017, C3 and C4 had referred to her as “Mongo” in
an instant message that was inadvertently shared with Complainant when C4 sent her a
screenshot of his computer in response to a work-related issue. Complainant stated that on
January 24, 2017, she reported this to S1, S2, and a Human Resources Specialist (HR1).
According to Complainant, this was a reference to her perceived sexual orientation because
“Mongo” is the name of a male character in the movie Blazing Saddles who wears a vest and is
portrayed as being dirty. Complainant stated that she frequently wears vests. C4 averred that,
when he typed that he got anxious every time he dealt with “Mongo,” he was referring to a
warehouse that had made a lot of mistakes. C3 confirmed that she and C4 were talking about a
warehouse that was difficult to deal with. Complainant alleged that management and HR failed
to take her allegation seriously. S1 stated that HR investigated Complainant’s allegation and that,
although the investigation did not find evidence that C3 and C4 had harassed Complainant, C3
and C4 were counseled about appropriate workplace behavior.

Complainant requested to work overtime on January 25, 2017, but S1 denied her request.
According to Complainant, she made the request in order to meet deadlines. Complainant alleged
that S1 allowed her coworkers, including C4 and C7, to work overtime or earn compensatory
time around this time. According to S1, C4 and C7 did not work overtime on January 25, 2017.
S1 stated that January was during the slow season and that no one should have needed overtime
to complete routine tasks during the slow season, so he denied Complainant’s request for
overtime.

On January 27, 2017, Complainant requested eight hours of official time for January 30, 2017, to
participate in the investigation of her EEO complaint. According to S1, he asked Complainant to
provide documentation justifying her need for official time and stated that he would consult HR
after he received the documentation. Complainant stated that she recalled the request on
February 1, 2017, because she had not yet received a response from S1. S1 averred that he had
not responded to the leave request because Complainant had not given him any documentation.
According to Complainant, on February 3, 2017, S1 told her that if she wanted official time she
would have to submit another request. S1 averred that he approved Complainant’s subsequent
request for official time on February 7, 2017.
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Complainant received her performance evaluation for 2016 in early February 2017. S1 rated
Complainant as “Fully Successful” on all of the critical elements for her position and “Fully
Successful” overall. S1 averred that this rating was a fair assessment of Complainant’s overall
performance. In the evaluation, S1 stated that Complainant had the required knowledge for her
position and that she met the required number of shipments during the evaluation period.
According to Complainant, the evaluation did not reflect all of her accomplishments or the level
of her workload. Complainant stated that she requested another review of her performance
evaluation but that S2 concurred with S1’s initial rating. According to the record, S1 rated his
other three subordinates, C1, C2, and C4, as “Exceeds Expectations” for 2016, and S2 concurred
with these ratings.

On February 14, 2017, Complainant arrived at work around 11:00 a.m. and submitted a request
for three hours of annual leave and asked to work until 4:45 p.m. According to Complainant, her
workday usually ends at 3:45 p.m., so she wanted to stay late to avoid needing a fourth hour of
leave. According to Complainant, on February 14, 2017, S1 told her that she could not “glide”
her schedule to avoid taking leave, which had been a common occurrence. S1 averred that he
approved Complainant’s request for three hours of leave, but he stated that it was improper for
her not to ask for approval to change her schedule in advance. Complainant averred that she had
recently overheard C2 call a Supervisory Traffic Management Specialist (S3) and ask to stay late
to make up time and then thanked S3, suggesting that her request had been approved. According
to S1, he was not aware of C2 working a modified schedule without prior approval from
management. Complainant stated that after she complained about the different enforcement of
the policy, S1 sent an email on February 15, 2017, stating that staff needed advance approval
from a supervisor to change their start time. S1 stated that his policy has always been that he will
approve occasional schedule modifications but that the changes must be approved by
management in advance.

On March 16, 2017, Complainant requested eight hours of official time for March 20, 2017, to
work on her amended EEO complaint. S1 averred that he contacted HR for guidance and decided
to approve four hours of official time because four hours was reasonable based on her
description of needing to work on her amended complaint. Starting on March 16, 2017,
Complainant sent a number of emails to S1 and to various HR employees to complain about not
receiving enough official time to work on EEO matters. According to the record, on March 22,
2017, a Human Resources Specialist (HR2) told Complainant that she could use her accrued
leave if she needed additional time to work on her EEO complaint. In response, Complainant
sent a flurry of heated emails to HR1 and HR2, accusing them of threatening her, conspiring
against her with management, and denying her the right to due process. Complainant
subsequently submitted a new request, and S1 approved four hours of official time for
Complainant for March 30, 2017.

Complainant stated that on March 27, 2017, she briefly stepped away from her work area and
when she returned she noticed that an envelope containing a Letter of Warning (LOW) had been
placed on her desk.
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S1 issued Complainant the LOW to warn her about her March 22, 2017, email correspondence
with HR1 and HR2, which S1 characterized as unprofessional because Complainant was making
false accusations and attempting to belittle HR1 and HR2 because she disagreed with their
responses. Complainant alleged that the claims in the LOW were false. Complainant also averred
that the LOW mentioned previously issued LOWs that should have been removed from her
personnel file after a year.

According to Complainant, on July 15, 2017, she requested four hours of official time for July
21, 2017. According to Complainant, she needed the time to attend a 30-minute meeting about an
upcoming EEO mediation and discuss a settlement offer with Agency counsel and also to
prepare for the mediation after the meeting. According to Complainant, S1 denied her request for
official time, and she took four hours of annual leave instead. The record contains a July 19,
2017, request for four hours of official time that does not specify the reason for the request. S1
stated that he denied the request for official time because Complainant stated that she needed
time for ongoing EEO issues, but she had recently been granted a substantial amount of official
time for that purpose.

Complainant averred that she has been subjected to a hostile work environment. According to
Complainant, S1 subjects her to heightened scrutiny and monitors her more than he monitors her
coworkers. On December 6, 2016, S1 sent Complainant an email. Complainant alleged that S1
cannot see her desk from his office but that C1 can see her desk from his workspace.
Complainant stated that C1 is helping S1 monitor her whereabouts and that other coworkers may
be reporting to management as well. S1 denied monitoring Complainant more than he monitors
his other subordinates. Complainant averred that S1 also inconsistently applies workplace
policies, such as when he would not let her glide her schedule on February 14, 2017, despite
allowing her coworkers significant leeway with their schedules.

On August 31, 2017, S3 sent Complainant an email with the subject “Failure to comply with
management instructions.” In the message, S3 asked why Complainant had moved files that were
on C5’s chair, noting that S3 had placed a note on top of the files that said, “Do not touch” on
August 25, 2017. On August 31, 2017, Complainant responded, asking what management
instructions she had ignored and stating that S3 was discriminating against her by denying her
access to office equipment. On September 1, 2017, S1 sent Complainant an email, stating that
the note on C5’s chair was a management directive and that, if she continued to ignore
management directives, she could be subject to disciplinary actions. According to Complainant,
these emails were threatening.

On February 8, 2018, S1 issued Complainant her 2017 performance evaluation, with an overall
rating of “Fully Successful.” S1 stated that he rated Complainant based on her completion of
work duties, and he denied that he based the rating on any protected factor. Complainant alleged
that her work is just as good as, if not better than, the work completed by her colleagues who
received higher ratings.

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According to S2, although he does not work in the same location as Complainant, he was aware
of Complainant’s performance based on communication with S1 and concurred with the “Fully
Successful” rating. S1 stated that he rated C1, C2, and C4 as “Fully Successful” for 2017 and
that he gave C3 and C7 ratings that were higher than “Fully Successful.” However, S1 noted that
C3 and C7 do not have the same position as Complainant.

Complainant alleged that she received a LOW on or about February 23, 2018, but during the
investigation she stated that she did not remember the reason she received the LOW. According
to Complainant, management falsely accused her of misconduct on a regular basis. S1 denied
issuing Complainant a LOW in or around February 2018. In her rebuttal affidavit, Complainant
stated that this allegation referred to a LOW or a reprimand she received sometime in 2018 that
referenced the emails she received from management on August 31 and September 1, 2017.

On October 15, 2018, Complainant requested official time to work on an EEO matter. On
October 17, 2018, S1 denied the request, stating that Complainant had already received a
reasonable amount of official time. The record contains an October 17, 2018, email from
Complainant to HR1, asking whether she advised S1 about Complainant’s request for official
time to work on an EEO matter. On October 18, 2018, HR1 responded, stating that she advised
S1 that Complainant had already received a significant amount of official time and that
additional official time was not recommended unless Complainant needed to attend a hearing or
to file a new EEO complaint.

Agency No. DOS-0387-16

Complainant initiated contact with an EEO Counselor on August 22, 2016. On November 28,
2016, Complainant filed an EEO complaint, which she subsequently amended, alleging that the
Agency discriminated against her on the bases of race (Caucasian), national origin (American),
sex (female, sexual orientation), color (White), disability (physical), age (53), and reprisal for
prior protected EEO activity (prior EEO complaints and opposing discriminatory policies and
practices) when:

1. As recently as September 2016, she was denied the opportunity to travel and to
attend ELSO training;

2. On or about September 30, 2016, her request to move her desk was denied;

3. On December 6, 2016, her request for overtime was denied;

4. On December 6, 2016, she was denied awards;

5. She has been tasked with more work than her similarly situated coworkers;

6. On January 25, 2017, her request for overtime was denied;

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7. Her 2016 performance evaluation did not accurately reflect her work;

8. As of February 1, 2017, no selection had been made for the GS-11/12 Traffic
Management Specialist position advertised under job announcement number
A/LM 2017-0019;4

9. On February 14, 2017, her leave request was denied;

10. On March 27, 2017, she received a Letter of Warning; and

11. She was subjected to a hostile work environment, which included, but was not
limited to, heightened scrutiny, management applying policies differently to her
as compared to her coworkers, and inappropriate comments about her sexual
orientation.

Complainant also alleged that the Agency denied her a reasonable amount of official time on
January 30, 2017, March 20, 2017, and July 20, 2017, to work on her EEO complaint and
respond to EEO-related requests from the Agency.5

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency
concluded that Complainant failed to prove that it had subjected her to discrimination as alleged.
Appeal No. 0120181142 followed.

Agency No. DOS-0155-18

Complainant initiated contact with an EEO Counselor on February 23, 2018. On May 25, 2018,
Complainant filed an EEO complaint, which she subsequently amended, alleging that the

4 The Agency dismissed this claim pursuant to 29 C.F.R. § 107(a)(1) for failure to state a claim,
because Complainant clarified in an email to the EEO Office that the selection process for the
vacancy in question was still ongoing. Complainant does not challenge the procedural dismissal
in her appellate brief, and the Commission exercises its discretion not to address dismissal of this
claim because it was not specifically raised on appeal.

5 The Commission has stated that a claim regarding the denial of official time concerns a
violation of the Commission's regulation and does not require a determination of whether the
denial was motivated by discrimination. See Edwards v. U.S. Postal Serv., EEOC Request No.
05960179 (Dec. 23, 1996). The Commission held that such a claim should not be processed in
accordance with 29 C.F.R. 1614.108 et seq., because the focus is not on the motivation but rather
on the justification of why the complainant was denied a reasonable amount of official time.
Edwards, supra.
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Agency discriminated against her on the bases of race (Caucasian), sex (female, sexual
orientation), color (White), disability (physical), age (55), reprisal for prior protected EEO
activity (prior EEO complaints and opposing discriminatory policies and practices), and genetic
information when:

12. On or about February 23, 2018, she received a LOW;

13. Her 2017 performance evaluation rating was “Fully Successful”; and

14. Since October 2017, she has been subjected to a hostile work environment which
included, but was not limited to, denial of training opportunities and other benefits
and privileges of employment that were afforded to her similarly-situated
colleagues.

Complainant also alleged that the Agency denied her a reasonable amount of official time on
October 17, 2018. The Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a) for
failure to state a claim. ROI 2 at 37-38. To justify the dismissal of this claim, the Agency cited
Smith v. U.S. Postal Serv., EEOC Appeal No. 01A02384 (July 5, 2002) (concluding that agency
provided complainant with reasonable amount of official time).

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 AJ. In
accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The Agency dismissed genetic information as a basis for her complaint, noting
that, other than checking the box on the complaint form, Complainant did not allege that she was
subjected to discrimination based on genetic information. The Agency concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged. Appeal
No. 2019004850 followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she established that she was subjected to unlawful
discrimination and requests that the Commission reverse the Agency’s finding that she was not
subjected to discrimination and grant her requested relief. According to Complainant, she has
been subjected to ongoing harassment. Complainant also argues that she proved that she has
been retaliated against for engaging in protected activity.

The Agency submits no contentions in response to Complainant’s appeals.

STANDARD OF REVIEW

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

ANALYSIS AND FINDINGS

As an initial matter, we note that in one of her complaints, Agency No. DOS-0155-18,
Complainant claimed discrimination based on genetic information in violation of GINA, which
prohibits employers from discriminating against any employee because of genetic information
with respect to the employee. 29 C.F.R. § 1635.1. Genetic information means information about
(i) an individual's genetic tests; (ii) the genetic tests of that individual's family members; and (iii)
the manifestation of a disorder in family members of such individual (family medical history). 29
C.F.R. § 1635.3(c).

Complainant generally referenced her previous cancer diagnosis, but she did not specify what
genetic information she believed was used to discriminate against her. We find that the
complaint and the record is devoid of any allegations or facts regarding genetic tests, the genetic
tests of Complainant’s family members, or her family medical history. In the absence of
contradicting evidence, we find that, to the extent the Agency had any knowledge of or
awareness of Complainant’s genetic information, Complainant has not met her burden of proof
to show that such information played a role in any of the incidents at issue. See Porter P. v. U.S.
Postal Serv., EEOC Appeal No. 0120171893 (Mar. 27, 2019). We remind the Agency, however,
that it must clearly and explicitly dismiss issues or bases, and offer appeal rights regarding them,
in order to have such bases raised in a formal complaint dismissed. See Jozlin v. Dep’t of
Veterans Affairs, EEOC Appeal No. 01920040 (February 12, 1992).

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must generally establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, because the Agency has articulated
legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC
Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination.
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Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14,
1995). We assume, without so finding, that Complainant has established a prima facie case as to
each of her claims.

Complainant alleged that she was subjected to discrimination when she was denied the
opportunity to travel to ELSO training in September 2016. The Agency’s legitimate,
nondiscriminatory reason for not selecting Complainant to attend the ELSO workshop was that
she had told S1 that she had problems flying for the amount of time required to travel to
Belgium. Although Complainant notes that she had longer tenure than C1, who attended the
workshop with S1 in September 2016, this does not establish that the Agency’s legitimate,
nondiscriminatory reason was a pretext designed to mask discriminatory or retaliatory animus,
and the preponderance of the evidence in the record does not otherwise establish pretext for
discrimination.

Complainant alleged discrimination with respect to S1 not allowing her to change desks in
September 2016. The Agency’s legitimate, nondiscriminatory explanation for not permitting the
move was that it was the Agency’s busy season, and there was no pressing business reason for
Complainant to move. Although Complainant disputes the business need for C2, C4, and C5 to
change desks, the record establishes that none of these employees was moved to a new desk
during the busy fall season. We find that Complainant has not established that the Agency’s
proffered legitimate, nondiscriminatory reason is pretextual.

Complainant alleged that she was subjected to discrimination when S1 denied her requests for
overtime on December 6, 2016, and January 25, 2017. The Agency’s legitimate,
nondiscriminatory reason for denying the first request was that Complainant had taken an extra
unauthorized lunch break on December 6, 2016, and the legitimate, nondiscriminatory reason for
denying the second request was that January was during the slow season and overtime was
unnecessary to complete operational requirements. As evidence of pretext, Complainant alleges
that C4 and C7 also attended building management’s Christmas luncheon on December 6, 2016,
and she generally alleges that C4 and C7 may have worked overtime or earned compensatory
time in or around January 2017. However, S1 stated that C4 and C7 were granted overtime on
December 6, 2016, because they did not take an additional unauthorized break on December 6,
2016, and he denied that they worked overtime as alleged in January 2017. We find that
Complainant has not met her burden of establishing pretext by the preponderance of the evidence
in the record.

Complainant alleged that she was discriminated against when she did not receive the Meritorious
Honor Award despite having worked on the same project as the coworkers who received the
award. The Agency’s legitimate, nondiscriminatory reason for not nominating Complainant for
an award was that she had exhibited unprofessional behavior in the workplace and had been
suspended in April 2016.
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Although Complainant contends that S2’s reference to her discipline is evidence of
discriminatory or retaliatory animus because she had filed an EEO complaint about the
suspension, we do not find that this is evidence of pretext. Moreover, the Commission found that
Complainant failed to establish that the April 2016 suspension was discriminatory. EEOC
Appeal No. 0120170164. We find that the preponderance of the evidence in the record does not
otherwise establish that the Agency’s legitimate, nondiscriminatory reason was pretextual.

Complainant alleged discrimination with respect to S1 assigning her more work than her
similarly-situated colleagues. The Agency’s legitimate, nondiscriminatory reason for
Complainant having the assignments about which she complained was that Complainant
requested to have Africa as her geographical assignment. Moreover, S1 averred that he
subsequently reassigned a number of Complainant’s locations to C3, resulting in Complainant
having a small number of assignments compared to her coworkers. We find that Complainant
has not established by the preponderance of the evidence in the record that the Agency’s
legitimate, nondiscriminatory reason is a pretext for unlawful discrimination.

Complainant alleged that her 2016 performance evaluation was discriminatory. The Agency’s
legitimate, nondiscriminatory explanation for rating Complainant as “Fully Successful” was that
she successfully met the requirements for her position during the rating period. Although
Complainant contends that she deserved a higher rating, we find that she has not established by
the preponderance of the evidence in the record that the Agency’s proffered legitimate,
nondiscriminatory reason is pretextual.

Complainant alleged that she was subjected to discrimination when S1 denied her leave request
for February 14, 2017. Although the record reflects that S1 ultimately approved Complainant’s
request to work an extra hour and for three hours of annual leave, the Agency’s legitimate,
nondiscriminatory reason for initially denying the request was that Complainant did not have
supervisory approval to adjust her schedule. Complainant alleged that other employees were
permitted to adjust their schedule without advance approval, and she cited S1’s February 15,
2017, email as evidence that she had been treated differently than other employees. However, we
do not find that S1’s email reminding his subordinates of his policy the day after he granted
Complainant an exception to the policy is evidence of pretext, and the preponderance of the
evidence in the record does not otherwise establish pretext for unlawful discrimination.

Complainant alleged that she was discriminated against when she was issued an LOW in March
2017. The Agency’s legitimate, nondiscriminatory reason for warning Complainant was that her
March 2017 emails to HR1 and HR2 were unprofessional in tone and in substance. As evidence
of pretext, Complainant generally asserted that her coworkers were not counseled, warned, or
disciplined for engaging in unprofessional behavior. However, the record does not contain
evidence that any of her coworkers sent multiple unprofessional emails to HR staff and were not
issued an LOW. We find that Complainant has not established by the preponderance of the
evidence that the Agency’s legitimate, nondiscriminatory reason for issuing the LOW was a
pretext for discrimination based on Complainant’s membership in any protected class.

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Complainant alleged that she was subjected to discrimination when her performance was rated
“Fully Successful” for 2017. The Agency’s legitimate, nondiscriminatory explanation for the
rating was that the rating reflected Complainant’s work product. Although Complainant alleged
that her work was just as good as the work of her coworkers who received higher ratings than she
did, the record reflects that S1 rated her similarly situated coworkers as “Fully Successful” for
2017. We find that Complainant has not sustained her burden of establishing that the Agency’s
proffered legitimate, nondiscriminatory reason is pretextual.

Finally, Complainant alleges that she was warned or reprimanded in February 2018 for ignoring
S3’s note not to move the files that were on C5’s chair. The Agency’s legitimate,
nondiscriminatory reason for warning Complainant about her actions was that S3 was a member
of management and had indicated that the files on C5’s chair should not be moved. As evidence
of pretext, Complainant alleges that S1 and S3 were singling her out and denying her equal
access to office furniture and office supplies. However, we find that the preponderance of the
evidence in the record does not establish that the Agency’s legitimate, nondiscriminatory reason
is a pretext for unlawful discrimination.

Hostile Work Environment

Complainant also alleged that she was subjected to a hostile work environment. In addition to the
allegations analyzed as disparate-treatment claims above, Complainant alleged that the hostile
work environment included management singling her out for heightened scrutiny and uneven
application of workplace policies and an allegedly inappropriate comment about her sexual
orientation.6

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 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).
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).

6 Although Complainant alleged that multiple inappropriate comments referenced her sexual
orientation, the only incident she described was C4 complaining about having to deal with
“Mongo” in the instant message to C3.
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We find that there is no evident connection between the alleged instances of harassment and
Complainant’s membership in any protected class. Complainant alleged that C4 complaining to
C3 about having to deal with “Mongo” was inappropriate because it referred to her sexual
orientation. However, both C3 and C4 stated that they were talking about a warehouse, not
Complainant. This allegation and other alleged instances of harassment in this complaint concern
conflicts in witness testimony, but Complainant did not produce any additional evidence to
support her assertions. Complainant did not request a hearing before an EEOC Administrative
Judge, and, as a result, we do not have the benefit of an Administrative Judge's credibility
determinations of the witnesses in this case. Complainant bears the burden to prove, by a
preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence
is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland
Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that
witnesses made false statements where he withdrew his request for a hearing and credibility
determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No.
0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive
comments in a “he said, she said” situation where complainant requested a final decision and an
Administrative Judge did not make credibility determinations). Accordingly, we find that
Complainant has not established that she was subjected to harassment based on her membership
in any protected class.

Moreover, we find that Complainant has not established that the alleged harassment was
sufficiently severe or pervasive to constitute a hostile work environment. Anti-discrimination
statutes are not general civility codes designed to protect against the “ordinary tribulations” of
the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter
v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts,
general workplace disputes, trivial slights and petty annoyances between an alleged harasser and
a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory
conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523
U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments,
instructions, and admonishments are by definition neither severe nor pervasive enough to rise to
a level of abuse on par with a racial epithet or otherwise engender a hostile work environment.
Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). We find that the
alleged harassment consists of S1 and S2 engaging in ordinary supervisory oversight such as
monitoring attendance, administering leave and overtime policies, assigning work, and assessing
performance and behavior in the workplace. Complainant has therefore not established that she
was subjected to a hostile work environment.

Denial of Official Time

Complainant alleged that the Agency denied her a reasonable amount of official time for EEO
matters on three occasions in January, March, and July 2017 and on October 17, 2018. The
Commission’s regulations state that agencies shall afford complainants a reasonable amount of
official time to allow a complete presentation of the relevant information associated with their
complaint and to respond to agency requests for information. 29 C.F.R. § 1614.605.
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The actual number of hours to which a complainant is entitled will vary, depending on the nature
and complexity of the complaint and considering the mission of the agency and the agency's
need to have its employees available to perform their normal duties on a regular basis. Whatever
time is spent in meetings and hearings with Agency officials or AJs processing a complaint is
automatically deemed reasonable.

Because EEO investigations are conducted by agency or Commission personnel, the above
regulation does not envision large amounts of official time for preparation purposes.
Consequently, “reasonable,” with respect to preparation time (as opposed to time in meetings
and hearings), is generally defined in terms of hours, not in terms of days, weeks, or months,
albeit what is reasonable depends on the individual circumstances of each complaint. EEO MD-
110, at Chap. 6, § VII.C. The Commission considers it reasonable for agencies to expect their
employees to spend most of their time doing the work for which they are employed, and so an
agency may restrict the overall hours of official time afforded. Id.

Under these circumstances, we do not find that the Agency denied Complainant a reasonable
amount of official time in 2017 as alleged. With respect to Complainant’s January 2017 request,
the record reflects that Complainant did not provide S1 with documentation explaining her need
for official time and that Complainant cancelled the request. However, S1 did approve
Complainant’s request for official time on February 7, 2017, after she justified her request. In
March 2017, Complainant requested eight hours of official time, but S1 approved four hours
based on Complainant’s stated need to work on her amended complaint. We find that four hours
was a reasonable amount of time under the circumstances to work on her amended EEO
complaint. The record reflects that part of Complainant’s July 2017 request was for a meeting
with Agency officials regarding upcoming mediation, and the Commission considers the amount
of time spent in meetings with agency officials to automatically be “reasonable.” However, there
is no evidence in the record that Complainant informed S1 that she was requesting official time
at least in part to attend a meeting with Agency officials. Therefore, based on Complainant not
thoroughly explaining her need for official time, it was not unreasonable for S1 to deny this
request for official time.

However, the Agency erred in dismissing Complainant’s claim regarding the 2018 denial of
official time for failure to state a claim. In the case cited by the Agency to support the procedural
dismissal, Smith v. U.S. Postal Serv., EEOC Appeal No. 01A02384 (July 5, 2002), the
Commission noted that it had modified the agency’s dismissal of the official time claim in a
previous appellate decision and remanded the matter to the agency to supplement the record. See
Smith v. U.S. Postal Serv., EEOC Appeal No. 01976587 (May 26, 1999) (claim of denial of
official time does not state a claim of employment discrimination, but agency must document
any reason for denial of official time and provide evidence demonstrating compliance with EEO
MD-110). Although the Agency erred in dismissing this claim, we find that there is sufficient
evidence in the record to assess the Agency’s reason for denying Complainant’s request for extra
time.

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The record reflects that the Agency denied Complainant’s October 15, 2018, request because she
had already received a large quantity of official time and because she did not inform S1 that she
needed official time to file a new EEO complaint or to participate in a meeting or hearing with
Agency or Commission personnel. We therefore find that the Agency did not deny Complainant
a reasonable amount of official time in October 2018 as alleged.

CONCLUSION

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 decisions because the
preponderance of the evidence in the record does not establish that discrimination occurred and
because the Agency provided Complainant with a reasonable amount of official time.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration.
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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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 26, 2019
Date