Jeanie P., Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Oct 3, 2017

0120151614 (E.E.O.C. Oct. 3, 2017)

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

Jeanie P.,
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.

Appeal No. 0120151614

Hearing No. 440-2012-00066X

Agency No. FBI-2011-00138

DECISION

On April 1, 2015, 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
March 6, 2015, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Special Agent (SA) at the Agency’s Field Office in Chicago, Illinois,
where she was assigned to the Public Corruption Unit. On May 10, 2011, Complainant filed an
EEO complaint in which she alleged that the Supervisory Special Agent (SSA) in charge of her
squad, two Assistant Special Agents in Charge (ASAC1 and ASAC2), and the Special Agent in
Charge of the Agency’s Chicago Division (SAC) discriminated against her on the bases of sex
(female) and subjected her to harassment in reprisal for engaging in prior protected opposition to
sexual harassment in August 2010. She identified the following incidents as comprising her

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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claims of disparate treatment on the basis of sex and discriminatory harassment on the basis of
reprisal:

1. On November 21, 2010, Complainant was transferred from Squad WC-3 to Squad
WC-2;

2. On unspecified dates, the majority of investigations assigned to Complainant were
reassigned to the SAs remaining in Squad WC-3;

3. In May 2011, Complainant became aware that she had not been selected for a
supervisory position as a result of the SAC’s decision not to recommend her for
promotion;

4. On June 1, 2011, the SSA made negative verbal and written comments about
Complainant’s work during a quarterly review of her file;

5. On June 28, 2011, ASAC1 warned Complainant that she had violated the
Agency’s Special Agent Mid-Level Management System (SAMMS) Policy and
threatened her with disciplinary action if she did so again;

6. In July 2011, Complainant became aware that the SAC had not recommended her
for a GS-14 Adjudicator position for which she had previously applied and was
the top-ranked candidate; and

7. On July 14, 2011, the SAC promulgated a new policy which required
Complainant and other employees who lived more than fifty miles from the field
office to surrender their government vehicles and to commute to work using their
own personal vehicles.

While assigned to Squad WC-3, Complainant worked under an Acting Supervisor (AS1) from
January until September of 2010. Her second-level supervisor was ASAC1. AS1 was
responsible for preparing her Performance Appraisal Report for Fiscal Year (FY) 2010, which
was reviewed by ASAC1. In September 2010, AS1 was replaced by a second Acting Supervisor
(AS2) who served as Complainant’s supervisor until she was transferred to Squad WC-2 in
November 2010. Effective November 21, 2010, the SSA became her permanent first-line
supervisor and ASAC2 became her second-line supervisor. At all times, the SAC was
Complainant’s third-line supervisor. Investigative Report Exhibit (IRE) 9, p. 2.

Complainant averred that in August 2010, she was asked inappropriate questions by the
supervisor in charge of Squad WC-1 concerning her personal relationship with an SA assigned to
that squad, and that as a result of that inquiry, she was directed to meet with ASAC1 and
ASAC2. She attended the meeting accompanied by AS1. At the meeting, she characterized her
confrontation with the WC-1 supervisor as sexual harassment and demanded that any inquiries
into her personal life cease. IRE 9, pp. 3-5; IRE 15, p. 3; Hearing Exhibit K (Sworn Declaration
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of AS1 dated February 25, 2013), p. 2. According to ACAS1 and ACAS2, the reason
Complainant was questioned was that the SA on Squad WC-1 failed to attend a training
conference he was assigned to and could not be located, and that he and Complainant were seen
together at the airport. This prompted concerns that the SA, who was married and had young
children, might have been carrying on a private affair with Complainant during work hours. The
matter was resolved when it was determined that Complainant was on leave at the time of the
training conference. IRE 11, pp. 3-4; IRE 12, p. 3. Complainant averred that although she first
formally contacted an EEO Counselor on January 6, 2011, she informally contacted a Counselor
on September 24, 2010, concerning her allegation of sexual harassment. IRE 9, p. 2.

Incident (1): Complainant was transferred from Squad WC-3 to Squad WC-2. She averred that
no reason was given other than that Squad WC-2 would be handling city cases and claimed
management assigned other agents besides her in order to “cover their tracks.” IRE 9, pp. 5-6.
On November 1, 2010, the SAC issued an electronic communication in which he announced that
twenty-five SAs would be reassigned in an effort to streamline the work of the Chicago
Division’s Public Corruption Program, which comprised the two squads. Complainant was one
of several SAs transferred from WC-3 to WC-2. Three other SAs were sent from Squad WC-2
to WC-3. The reassignments took effect on November 21, 2010. IRE 10, pp. 3-5; IRE 11, pp. 4-
6; IRE 13, pp. 2-4; IRE 14, pp. 2-4; IRE 17; IRE 18.

Incident (2): Complainant averred that right after her reassignment, two cases that she had been
working on that were close to completion were taken away from her and reassigned to other SAs
on her former squad. IRE 9, pp. 6-7. In an electronic communication dated November 19, 2010,
the SAC announced that the general policy would be to align the workload with the particular
mission of the squad, but that the supervisors would exercise discretion in allowing certain cases
to remain with the originating investigator. In Complainant’s situation, the SSA and the
supervisor of Squad WC-3 had determined that it was appropriate to leave the two cases
Complainant had been working on with Squad WC-3. IRE 10, pp. 5-6; IRE. 11, pp. 6-8; IRE 13,
pp. 4-5; IRE. 14, pp. 4-7.

Incident (3): Complainant averred that she applied for a number of supervisory positions at the
Agency’s headquarters using an application form known as the FD-954. She further averred that
she had received notification that she had not been ranked for those positions as a result of
having not been recommended for those positions by the SAC, who submitted his
recommendations on an FD-955 form. She maintained that the SAC’s representations regarding
her work performance were false. IRE 9, p. 9. The SAC responded that his decision not to
recommend Complainant for promotion was based upon his personal knowledge of multiple
issues regarding Complainant’s performance as well as input from the SSA and ASAC2 to the
effect that Complainant was not yet ready to be promoted. IRE10, pp. 6-7; IRE 11, p. 8; IRE 12,
pp. 3-5; IRE 13, pp. 5-8; IRE 20; IRE 21; IRE 25, pp. 15-17.

Incident (4): Complainant averred that during a quarterly file review held on June 1, 2011, the
SSA made negative and false comments about her job performance, both oral and written. She
expressed her belief that the SSA’s file reviews were an attempt to support the SAC’s decision
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not to recommend her for promotion. IRE 9, pp. 10-12. The SSA responded that on that day, he
spent over an hour discussing specific aspects of her performance that he believed needed
improvement. He also averred that Complainant refused to sign the mid-year review form
because she disagreed with his assessment that she had not made significant progress in one of
her public corruption cases. IRE 13, p. 8. The SAC denied that he ever directed any of his
subordinate supervisors to downgrade Complainant’s performance reviews in any way. He
pointed out that the SSA had a reputation in the Chicago Office for paying attention to detail in
file reviews and other matters. The SSA’s written criticisms of Complainant’s work included
such statements as “needs better coordination with the Chicago Police Department,” “needs to
write more detailed reports,” “write more detailed reports,” “show initiative,” and “advance your
cases and focus on obtaining results.” IRE 10, p. 10; IRE 12, p. 5; IRE 13, pp. 8-11; IRE 24;
IRE 25, p. 1-15, 21-24.

Incident (5): Complainant averred that on June 28, 2011, she was called into a meeting with the
SSA and another supervisor. At that meeting, she was presented with a document from the
Agency’s headquarters informing her that she had violated Agency policy by contacting a
Section Chief regarding her efforts to obtain a promotion. She further stated that the SSA
warned her that if she did it again, she would be subjected to an investigation by the Office of
Professional Responsibility. She characterized this action as “clearly retaliatory” in nature,
undertaken in order to threaten her and prevent her from reporting misconduct by the
management of the Chicago Office. IRE 9, 00. 12-14. On June 13, 2011, Complainant had
forwarded a package of documents to the Section Chief in charge of the Office of Congressional
Affairs. The package included several of her performance appraisals and a letter in which she
disputed the non-recommend action by the SAC. On June 20, 2011, the SAC received an
electronic communication from headquarters stating that Complainant had violated SAMMS
Policy Section No. 5.2.2.8.6, which expressly prohibits the use of appraisal reports in selection
decisions. The June 20, 2011 communication instructed Complainant that if she repeated her
conduct, she could be referred to the Office of Professional Responsibility. IRE 10, pp. 8-0; IRE
12, pp. 5-7; IRE 23; IRE 28; IRE 29; IRE 32; IRE 35, p. 71.

Incident (6): On March 17, 2011, Complainant had applied for a GS-14 Adjudicator position in
the Office of Professional Responsibility. She averred that she had been the top-ranked
candidate, that the vacancy had been cancelled and reposted, and that when she reapplied, she
was informed in July 2011 that she was no longer ranked for the position. She stated that she
had lost her ranking due to the SAC’s Form FD-955 indicating that he had not recommended her
for promotion. IRE 9, p. 8. The SAC stood by his decision not to recommend Complainant for
promotion. IRE 10, p. 8; IRE 26.

Incident (7): On July 14, 2011, ASAC2 sent out an email to all hands stating that, in order to cut
fuel costs, employees who lived more than fifty miles from the field office would have to
surrender their government-owned vehicles and commute to work using their own transportation.
Complainant lived more than fifty miles from the field office. Complainant averred that although
this policy appeared to be neutral on its face, it was merely another attempt to harass her because
of her sex and her previous opposition to being sexually harassed. IRE 9, pp. 14-16. ASAC2
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and the SAC responded that the rising costs of fuel beyond what the Agency had budgeted was
what had precipitated the commuting policy change, and that this was a continuing problem of
all of the field offices. IRE 10, pp. 10-12; IRE 11, pp. 8-10; IRE 13, pp. 11-12; IRE 22; IRE 27;
IRE 31.

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). 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 as alleged.

ANALYSIS AND FINDINGS

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

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). 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 Construction 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community. 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
Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The prima facie inquiry may be dispensed with in this case, since the responding management
officials articulated legitimate, nondiscriminatory reasons for all seven incidents listed above.
See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incidents
(1), (2), and (7), the decision to reassign Complaint from Squad WC-3 to WC-2, adjust her
workload, and institute the new commuter policy were dictated by the Agency’s need to
streamline its public corruption workload and to avoid exceeding its fuel budget. Regarding
incidents (3) and (6), the SAC concluded, based on input from ASAC1, ASAC2 and the SSA,
that Complainant was not yet ready to be promoted to grade GS-14. Concerning incident (4), the
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SSA’s comments on Complainant’s quarterly file review reflected his assessment of her
performance during that quarter. With respect to incident (5), Complainant had violated the
SAMMS policy by sending copies of her performance appraisals to the Section Chief in charge
of the Office of Congressional Affairs.

Complainant can demonstrate pretext by showing such weaknesses, inconsistencies, or
contradictions in the Agency’s proffered legitimate, nondiscriminatory reasons for its action that
a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied, EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include
inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal
Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).

In support of her contention that the reasons put forth by the SSA, the SAC and the other
management officials for their actions were pretexts, Complainant submits her appraisals from
fiscal years 2008, 2009, and 2010. She had received overall performance ratings of excellent
from a previous supervisor for FY 2008 and from ASAC2 for FY 2009, when he was her
immediate supervisor. For FY 2010, she had received a rating of outstanding from AS1.
ASAC2 was the concurring official on her FY 2010 appraisal. IRE 28. She also presented sworn
statements from AS1 taken during the investigation and at pre-hearing deposition. AS1 told the
EEO investigator that he believed that Complainant was discriminated against based upon
conversations he had with her concerning the fact that the SAC had not recommended her for
promotion. IRE 15, pp. 5-6. In his sworn declaration made during the deposition, AS1 stated
that the supervisor in charge of Squad WC-1, ASAC1, and ASAC2 appeared to be preoccupied
with Complainant’s sex life and were harassing her because she had characterized their inquiries
concerning her relationship with the SA on Squad WC-1 as sexual harassment. Hearing Exhibit
K – Sworn Declaration of AS1 dated February 25, 2013.

In an electronic communication dated July 5, 2011, the SA explained that Complainant had been
supervised by four supervisors, two acting supervisors, and three ASACs, and that there was a
notable lack of detail in her appraisals prior to FY 2011 regarding needed areas of improvement.
IRE 29, p. 7. In particular, the SAC stated:

It is important to note and therefore somewhat discount to of [Complainant’s]
most recent performance appraisal reports. They were issued by fellow squad
agents serving in an Acting SSA capacity. One of whom expressed concern to
Assistant ASAC **** about documenting Complainant’s performance
deficiencies knowing the Agent would have to later return to the squad, and the
other, who provided the outstanding performance appraisal report, who is a close
associate to Complainant. IRE 29, pp. 7-8.

It is unfortunate that Complainant’s performance development needs are not more
thoroughly documented. However, these deficiencies and the need for
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documenting Complainant’s developmental needs is being documented by her
current supervisor. IRE 29, p. 8.

In a sworn statement to the EEO Investigator, the SAC reported that the inquiry regarding
Complainant’s relationship with the SA on Squad WC-1 resulted from Complainant confronting
individuals on that squad regarding that alleged relationship. He further averred that the purpose
of the meeting in August 2010 was to direct Complainant not to continue those confrontations,
which were disruptive to the members of Squad WC-1. He reiterated that none of actions taken
by the Chicago Division were in any way connected to these confrontations or their aftermath.
IRE 10, pp. 2-3.

As Complainant chose not to request a hearing, the Commission does not have the benefit of an
Administrative Judge’s credibility determinations after a hearing. Therefore, the Commission
can only evaluate the facts based on the weight of the evidence presented. Based upon that
evidence, we find that the record does not support Complainant’s claim of disparate treatment.
Her performance deficiencies as well as the SAC’s reasons for not recommending her for
promotion to GS-14 are thoroughly documented and corroborated by multiple witnesses,
including the SSA, ASAC1, and ASAC2. The same is true regarding Complainant’s
reassignment and the institution of the fuel conservation policy. While we cannot assess AS1’s
credibility as a witness, the fact that he based his sworn statements on his conversations with
Complainant rather than through his own observations diminishes the probative value of his
statements. Beyond her own assertions and those of AS1, Complainant has not presented
affidavits, declarations, or sworn statements from witnesses other than themselves, or documents
that contradict the explanations for the various incidents offered by the SAC, ASAC1, or
ASAC2, or which call their veracity into question. We therefore find, as did the Agency, that
Complainant has not established that any of the aforementioned officials were motivated by
unlawful considerations of her gender or opposition to sexual harassment in connection with the
seven incidents at issue in her complaint.

To establish a claim of discriminatory harassment Complainant must show that: (1) she belongs
to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her statutorily protected classes; (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).

Put another way, in order to establish her harassment claim, Complainant must show that she
was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of a protected basis. Only if Complainant
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establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

We find that Complainant has not established that the conduct at issue was based on her
protected classes. Since Complainant failed to establish the existence of a discriminatory motive
on the part of the SSA, the SAC, ASAC1, or ASAC2 in connection with any of the seven
incidents comprising her claim, no further inquiry is necessary as to whether the incidents
complained of are severe or pervasive enough to rise to the level of a hostile work environment.
Tynisha H. v. Dept. of State, EEOC Appeal No. 0120141395 (March 17, 2017). Therefore she
has not established that she was subjected to a legally hostile work environment based on her sex
or in reprisal for her opposition to actions she believed constituted discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was subjected to
unlawful discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
Agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
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Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 3, 2017__________________
Date