Gretchen M.,1 Complainant,v.Patrick M. Shanahan, Acting Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Apr 5, 2019

0120170809 (E.E.O.C. Apr. 5, 2019)

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

Gretchen M.,1
Complainant,

v.

Patrick M. Shanahan,
Acting Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.

Appeal No. 0120170809
Hearing No. 570-2015-0079X
Agency No. DIA-2013-00071

DECISION

On January 13, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 31, 2017, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether the Agency erred in finding that Complainant was not subjected to
discrimination or a hostile work environment.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS-11,
at the Agency’s Financial Management Division, Defense Cover Office in Washington, DC.
Complainant alleged that commencing in or about January 2008, the Agency began assigning her
higher-level duties which were graded at the GS-12 level and which were supposed to be

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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performed by a recently hired male – Coworker A. Further, Complainant maintained that Agency
supervisors continuously treated her in a hostile and disparate manner compared to her white, male
and younger colleagues in terms of work load, assignments, career advancement training, denial
of her requests to deploy, failing to compensate her for the grade level of the work she was actually
performing, and with regard to her work environment.

Complainant initiated a complaint about her treatment in the office with the Office of Inspector
General (OIG). Based on their investigation, OIG determined that Complainant was not being
subjected to discrimination or harassment, but the office in which she worked was poorly managed.

Complainant also maintained that she felt that Coworker B, a younger female, was blatantly and
openly treated as a favorite employee and was provided training opportunities that other employees
were not. Complainant indicated that younger employees were treated more favorably overall.
She also asserted that her first-line supervisor (S1), gave her a performance rating of 3.8, which
was just below the 4.0 threshold to receive recognition.

On August 21, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against and subjected to a hostile work environment on the bases of race (African-American), sex
(female), age (52), and reprisal for prior protected EEO activity when:2

1. a. On or about July 2006, the Supervisory Accountant (S1) in the Financial
Management Division, gave Complainant erroneous information regarding a work
process and constantly changed her responses when she requested guidance;
b. In October and/or November 2006, after providing assistance to a co-worker,
Complainant offered to help him at a later date and he stated he needed the help but
did not want to cause any trouble because S1 was upset with him for going to her
for help;
c. From June 2006 to June 2007, when a co-worker, was out of the office, S1 would
use her position of authority as a supervisor to try to manipulate Complainant with
her knowledge, and would purposefully try to confuse her regarding processing and
procedures;
d. From June 2006 through August 2007, S1 told a coworker not to show
Complainant how to do the ‘TBO’s,” or “total book keeping operations,” which is
complicated;
e. The Chief of Accounting (S2), told a coworker to train Complainant on the “S-
Block and M-Block” data entry procedures, however after learning the “S-Block”
data entry, the coworker advised that S1 told her not to train Complainant on the
“M-Block” processes;

2 Many of Complainant’s claims were originally dismissed as untimely and/or for failure to state
a claim, this included claims 1a-1aa. An EEOC Administrative Judge, in EEOC Appeal No. 570-
2015-0079X, however, reinstated several claims, 1bb-1ii, and found that the untimely claims 1a
through 1aa could be used as background information for Complainant’s hostile work environment
claim.
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f. In September 2007, the Agency selected Complainant for a GG-11 position, while
at the same time, Coworker-A was listed as the selectee for a GG-12 vacancy
announcement position that had exactly the same job duties and requirements, just
a different grade;
g. In November or December 2007, S2 asked Complainant to take up the “TBO
process” following another employee’s resignation, and Complainant agreed.
However, when Complainant sought guidance from S1 on the process, she gave
erroneous information and did not take the time to show Complainant what she was
doing incorrectly. S2 pointed out that Complainant was incorrectly performing a
crucial part of the TBO process during her performance discussion in 2008, in S1’s
presence;
h. From October 2006 through November 2008, S1 constantly shifted
Complainant’s duties, which prevented her from working on each task for more
than a brief period, which, in turn, prevented her from mastering those skills;
i. In 2008, Complainant requested on-the-job training from a coworker, and she
showed her the accounts receivable process. Later that day, the coworker was upset
because S1 told the coworker she could not show her the reimbursable process,
denying her on-the-job training;
j. In 2008, as a GG-11 employee, S1 assigned Complainant to manage the largest
non-stock fund orders and payables (NSFOP), but Coworker A, a GG-12, was
doing work Complainant had done as a GG-08 and GG-09;
k. In early 2009, S1 told Complainant that in accounting you cannot achieve an
annual performance rating above “meets objectives,” a numerical rating of “3;”
l. In 2009, Complainant advised S1 that as a GG-11 employee, she was performing
a higher level of duties than Coworker A, who was selected over her for a GG-12
vacancy. S1 told Complainant she believes S2 treats men better than women,
resulting in Coworker A’s selection. S1 stated that S2 should never have selected
Coworker A for the position without interviewing him;
m. On October 8, 2009, S2 gave Complainant an annual performance rating slightly
below the score needed to be eligible for a bonus, to prevent her from receiving
recognition;
n. In February 2010, S2 asked Complainant to rewrite her mid-point self-
assessment to lower her assessment rating, stating that Complainant “didn’t walk
on water;”
o. In 2010, the lead accountant position was removed from the Accounting
Division, based on what S1 told S2, which prevented Complainant from advancing
to that position;
p. On October 20, 2010, S2 gave Complainant an annual performance rating
slightly below the score needed to be eligible for a bonus, to prevent her from
receiving recognition, even though Complainant’s reviewer suggested in
Complainant’s performance appraisal that she should receive an award for her
excellent accomplishments;
q. Complainant informed S2 that she, as a GG-11, was performing a higher level of
duties than Coworker A, a GG-12 employee:
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r. In February 2011, S2 and S1 began mentoring Coworker B, providing on-the-job
training, and sharing information while Complainant was not provided the same
benefits, around the same time a coworker put in her request to retire;
s. On September 26, 2011, a GG-12 vacancy was announced and S1 attempted to
get GG-10 equivalent employees, to include Coworker B, to qualify for the position
and S1 later stated that no one in the office, including Complainant, qualified for
the position. OHR did not rate the GG-10 employees as qualified to apply for the
vacancy. As such, Complainant was selected for the GG-12 vacancy for which she
applied;
t. On September 20, 2011, Complainant was transitioned from a Pay Band 3 to a
GG-11, based on mission category, work category, and work level of her official
position of record as identified by DIA although Complainant believes she should
have transitioned to a GG-12, and Complainant’s duty assignments, evaluated and
identified as GG-11 level three months earlier during transition, were given to
Coworker A, a male GG-12;
u. On October 12, 2011, S2 gave Complainant an annual performance rating
slightly below the score needed to be eligible for a bonus to prevent her from
receiving recognition;
v. On January 18, 2012, upon Complainant’s promotion to GG-12, management
announced her previous position, a vacant GG-11 billet, and promoted Coworker
B without delay. Within a few months, Coworker B was again promoted to GG-12
through an Agency desk audit;
w. On or about January 12. 2012, Complainant advised S2 of her request to deploy
on June 12, 2013 (18 months advance request), and weeks later, S2 told her that her
request was denied because of the time frame she selected, but any other time would
be okay;
x. In January 2012, Complainant was hired into her new position, and Coworker B,
GG-10, was selected to Complainant’s vacant position billet, which was for a GG-
11. However, Coworker A, a GG-12, was given Complainant’s job assignments;
y. On February 1, 2012, Complainant resubmitted her deployment request to S2 for
a different timeframe, November 25, 2013 (22 months advance notice) and in
March 2012, S2 told Complainant she could not afford to let her go and her request
was denied. S2 also stated that the Chief of FMD, stated that Complainant and her
husband would have to find another way “to fatten their pockets.” During the same
time frame, a Caucasian employee was approved to deploy;
z. On May 14, 2012, S2 met with Complainant and told her again, regarding her
February 1, 2012 deployment request, that she was not going to endorse or support
Complainant’s request to deploy; and
aa. On November 15, 2012, S2 gave Complainant an annual performance rating
slightly below the score needed to be eligible for a bonus to prevent her from
receiving recognition,
bb. In February 2013, when S1 was on leave, she informed customers to contact
Coworker B in her absence. During S1’s absence, Complainant and Coworker B
sorted reports. Upon her return, S1 informed Complainant that Coworker B should
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have sorted the reports. On later absences, S1 continued to deny Complainant the
opportunity to sort reports;
cc. On March 8, 2013, S2 tasked Complainant to be backup for a coworker, a GG-
11, who was assigned to do Coworker A’s expenditure realignment work.
Complainant was a female GG-12, assigned to back up a GG-11, even though
Coworker A, a male GG-12, was relieved from performing this duty;
dd. On April 4, 2013, S1 informed Complainant that she had to attend an 8:00 a.m.
meeting/training with Coworker A’s customers, but Coworker A was not required
to attend, although it was an account he managed, and the meeting was not held
until 8:30 a.m. when Coworker A’s customers arrived;
ee. In April 2013, Coworker B performed supervisory duties in S1’s absence,
allowing Coworker B to receive on-the-job training in supervisory duties, while
Complainant was not given the opportunity to learn this task, although she had
previously asked S2 in December 2012, if she could receive training on supervisory
accountant duties;
ff. Based on age (52), in April 2013, Coworker B performed supervisory duties in
the supervisor’s absence allowing Coworker B to receive on-the-job-training in
supervisory duties while she was not given the opportunity to learn this task,
although she had previously asked S2 in December 2012, if she could receive
training on supervisory account duties.
gg. On June 13, 2013, Complainant was notified by S2 that she was being moved
to a different desk in the back of the office and needed to move by COB on June
14, 2013. Complainant told S2 she felt that this was retaliation;
hh. On August 1, 2013, S1 tasked Complainant to handle all “A-Block data entry
for Army and DIA funding,” and, after questioning the directions with S2,
Complainant was tasked with doing the “A-Block data entry work” only for the
DIA accounts. However, the Staff Sergeant did not have to do any “A Blocks,”
resulting in an uneven distribution of work; and
ii. On October 29.2013, S2 removed work assignments from one of Complainant’s
coworkers and assigned them to Complainant, increasing her workload and
unevenly distributing work among the GG-12s in the section.

Complainant listed various combinations of sex, age, race and retaliation as the bases on which
she believed the Agency discriminated against her. Complainant alleged that her sex was a basis
for discrimination with respect to Claims 1a-n, 1p-q, 1t-u, 1x, 1aa and 1cc-ee; race was alleged
with respect to Claims lk, lm-n, 1p, 1u, lw, ly-aa; age was alleged for Claims la-e, lg-i, lk, 1m-p,
1 r-s, l u-v, l aa-bb; and retaliation was alleged for Claims 1gg-ii.

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. Complainant timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination and harassment as alleged.
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Specifically, with regard to claims 1 bb-ii, Complainant alleged that a younger female employee,
Coworker B was given preferential training and opportunities over the other employees in the
office, that a male coworker, Coworker A’s work was distributed to other employees in the office,
which increased everyone’s work load, including hers, she also maintained that she was required
to attend a meeting which involved Coworker A’s clients but he was not required to attend, so this
was not fair. Complainant argued that as a GG-11 employee, she should not have been required
to do a GG-12’s work. Complainant also maintained that she was denied supervisory training and
senior accountant duties. Complainant indicated that following her return from bereavement leave,
she was told that she and two other employees needed to move to different cubicles. Complainant
was told that the move was so the 501s would be closer to supervisors, but Complainant questioned
this reason because she was also a 510, and as such, she believed the move was an act of retaliation.
Likewise, Complainant believed it was retaliation when she questioned an assignment and it was
taken away from her and when she was given additional work. Complainant maintained that the
constant shifting of her work was difficult.

The Agency found that with regard to claims 1bb-ii it articulated legitimate, nondiscriminatory
reasons for its actions, namely, that Complainant was essentially at odds with work assignments
made by her supervisors. Management maintained that Complainant did not come forward with
her complaints directly, and when she was questioned about it, the work that she thought was
overbearing was immediately taken away from her workload. Management maintained that
Complainant argued on one hand that she wanted more training, duties, and responsibilities, and
then on the other hand maintained that she was overworked when she assisted a coworker.

Regarding her specific claims, management maintained that with respect to claim 1bb, Coworker
B was not assigned supervisory duties. Coworker B indicated that she saw the work and knew that
it needed to be done so she did it, but that this was not directed by management. Regarding claims
1cc, 1dd, 1ee, and 1ff, management explained that Coworker A had the largest account and he had
not been trained on reimbursables, therefore, three of his twenty duties were reassigned to other
workers in the unit, not just Complainant.

With respect to claim 1gg, management explained that a decision was made by upper management
to move non-accountants closer to the supervisors, and those accountants that needed more
supervision were also moved closer and those that did not need as much supervision, like
Complainant and two others, were moved further away. Finally, with regard to claim 1ii, the
Agency indicated that it was management’s responsibility to make work assignments.

According to the Agency, Complainant’s protected bases were not considered with regard to her
complaints. The Agency found that while Complainant did not like how the office was run, she
did not demonstrate that the Agency’s reasons were pretext for discrimination or that
discriminatory animus was involved.

With regard to Complainant’s hostile work environment claims, claims 1a-aa, the Agency
extensively addressed each item and found that Complainant’s allegations involved work-related
practices, performance ratings, and assignments. Complainant also asserted that her requests for
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deployment were repeatedly denied. Management explained with regard to this claim, that
Complainant was not deployed because she was promoted several times and she needed to learn
her job duties. In all, the Agency found that the incidents complained of were not severe or
pervasive enough to establish a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant contends, among other things, that the Agency disregarded her claim of
a pattern of ongoing discrimination in the form of a hostile work environment. She maintains that
she experienced a pattern of ongoing discrimination and retaliation in the form of disparate
treatment with regard to: assigning her a heavier workload, failing to assign her supervisory duties,
failing to assign her duties which would advance her career, assigning her higher graded duties
that should have gone to Coworker A’s, assigning her higher graded duties but failing to promote
her or compensate her, failing to evaluate her performance objectively, constantly criticizing and
belittling her work performance, advising her she was not qualified to be promoted, denying her
requests to deploy, moving her office to a less desirable location – all issues going back to 2006.

With respect to Complainant’s hostile work environment claims, she maintains that she presented
a vast array of largely uncontradicted evidence that S1belittled and demeaned her with respect to
promotion, training, and deployment. Complainant contends that her contemporaneous notes
regarding her treatment supports her claim. Complainant also maintains that she was subjected to
reprisal when her desk was moved to the back of the office, as it was described that she had caused
dissention in the office by arguing that the older minority female employees were subjected to a
hostile work environment. Complainant asserts that management’s reaction to her claims were
unfounded, as they asserted that her claims were slanderous and that the older female employees
were banning together and “plotting against management.” Complainant asserts that
management’s behavior clearly demonstrates discriminatory animus.

In response, the Agency contends, among other things, that it articulated legitimate, non-
discriminatory reasons for its actions regarding the accepted issues, and Complainant failed to
prove by a preponderance of the evidence that she experienced discrimination or harassment based
on her protected bases. The Agency maintains that the record as a whole reflects no evidence that
any of the Agency’s actions were motivated by a discriminatory animus toward Complainant based
on sex, age, race, or prior EEO activity.

The Agency also contends that Complainant’s claim that her allegations were fragmented are
untrue as the Administrative Judge, prior to the withdrawal of her hearing request, corrected this
matter. The Agency argues that Complainant’s assertions on appeal include the reiteration of her
claims which were not supported by the evidence. Additionally, Complainant’s allegations contain
nothing more than her own self-serving allegations. Moreover, the Agency maintains that the
incidents are normal work-related interactions, that include assignments, training, and other work
issues that do not reflect discriminatory animus nor are they severe or pervasive enough to establish
a hostile work environment.

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ANALYSIS AND FINDINGS

Standard of Review

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

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that even if we assume arguendo that Complainant
established a prima facie case of discrimination with regard to all of her bases, the Agency
articulated legitimate, nondiscriminatory reasons for its actions, namely, that work was distributed
according to the teams needs. Management also explained that it did not provide supervisory
training to any of its employees and that no employee received ratings high enough for bonuses.
Moreover, the work that Complainant maintained that Coworker B was given, was not given by
management but was done on her own accord. While management acknowledged that
Complainant was periodically assigned duties above her pay grade, management explained that
the work that she refers to was a small percentage and that she and others were asked to contribute
to helping Coworker A until he could be trained. We find that there is no evidence in the record
other than Complainant’s own assertions, that she was belittled or that her work was criticized, as
the record indicates that Complainant received “Excellent” performance ratings and was promoted
to the GG-12 level.

Further, Complainant and several other employees were required to move their cubicles in
accordance with a new office setup. We find that Complainant has not complained of any actions
that were specific to her. We also find that Complainant did not demonstrate that the Agency’s
reasons were a pretext for discrimination or that discriminatory animus was involved with
managements decisions. In fact, the record shows that the OIG’s office investigated Complainant’s
complaints and found that discrimination was not involved in this matter, but poor management
was a factor. The record also revealed that S1 treated everyone poorly, that everyone thought the
office was managed poorly, that both S1 and S2 were disappointed with Coworker A’s
performance, that S1 did not train others for supervisory duties – and that Coworker B while
apparently favored also did not perform supervisory duties directed by management.

We find that other than Complainant’s conclusory statements, she has not provided any evidence
which establishes that she was subjected to discrimination or harassment. We agree that
Complainant has shown that she disagreed with how the office was run, she did not like that there
were not opportunities to be promoted, she did not like that a male was selected for a GS-12
position and was underperforming, and that she was disappointed when she could not deploy when
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she wanted to, but she has simply not shown that discriminatory animus played a role. As
Complainant withdrew her request for a hearing, we do not have the benefit of an Administrative
Judge’s credibility determinations after a hearing; therefore, we can only evaluate the facts based
on the weight of the evidence presented to us.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD which found that Complainant did not prove that
she was subjected to discrimination or harassment as she alleged.

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. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
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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

April 5, 2019
Date