[Redacted], Shantel H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 22, 2023

Appeal No. 2022001441 (E.E.O.C. Feb. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shantel H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001441 Hearing No. 451-2018-00194X Agency No. ARBLISS17AUG02758 DECISION 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 December 23, 2021 final order concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Budget Analyst, GS-0560-09, at the Agency’s William Beaumont Army Medical Center (WBAMC) in Fort Bliss, Texas. On September 22, 2017, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her and subjected her to a hostile work environment at the Resources Management Division (RMD), WBAMC, Fort Bliss Texas based on race (African American), sex (female), and in reprisal for prior protected EEO activity2 when: 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 record indicates that Complainant’s reprisal claim relates to a claim alleging that her first level supervisor (S1) retaliated against her when he noted on her 2017 performance evaluation 2022001441 2 a. On July 25, 2017, the Chief of the Resources Management Division, (Complainant’s second level supervisor/S2) issued Complainant a two-day suspension from work without pay with the suspension being served August 1, 2017 through August 2, 2017. b. On July 13, 2018, Complainant’s supervisor (S1), Budget Analyst GS 13, yelled at and humiliated her during a telephone conversation in reference to processing Defense Travel System (DTS) orders. c. On May 19, 2017, S1 sent Complainant several harassing emails regarding her temporary duty travel and the authorization of a rental car. d. From October 12, 2016 through July 21, 2017, S1 assigned Complainant’s training duties to a co-worker, to groom him for a GS-12 supervisory position financial analyst position. e. On May 19, 2017, S1 continued to address Complainant by her first name after she requested he address her as Ms. [Complainant’s last name]. f. On May 4, 2017, S1 required Complainant, unlike other employees, to call into work even if she believed she would be a few minutes late prior to the start of her duty day. g. From May 8, 2014 until July 31, 2017, S1 belittled Complainant when he questioned her in an antagonizing way about his DTS orders. h. On May 13, 2014, S1 belittled Complainant in front of a customer when the Budget Analyst advised the customer contrary to the policy of having original signatures on documents, after Complainant informed the customer that original signatures were required. i. On July 31, 2017, Complainant learned that S1 shared information about her suspension with her co-worker (Co-worker 2). that she “needs to work on reducing customer complaints over the course the rating period.” Complainant wanted the note removed which S1 declined. S1 instead modified the note to state, “making effort on reducing customer complaints over the course of the rating period; also accomplished several positive comments, as well.” Nevertheless, the record indicates that Complainant received an overall performance rating of 2 out of 5 on a rating scale where a score of 1 being the highest score. We note, that on appeal, Complainant, through counsel does not address this reprisal claim. Therefore, we need not address this claim further in our discussion below. 2022001441 3 j. S1, on May 17, 2016, subjected Complainant to a hostile work environment based on sex (sexual harassment) when he showed her a picture of his wife’s boyfriend in the nude. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the Agency submitted a Motion for Summary Judgment. The AJ issued, on November 17, 2021, a decision by summary judgment, over Complainant’s objections, in favor of the Agency. On December 23, 2021, the Agency issued a final decision implementing the AJ’s summary judgment decision, finding no discrimination was established. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly consider summary judgment only upon a determination that the record has been adequately developed for summary disposition. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment - (Claims a, d, e, f, and i) A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 2022001441 4 For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Although the AJ summarily adopted the Agency’s motion for summary judgment and did not specifically address each of these claims in detail, our review of the record reflects that the Agency articulated legitimate, non-discriminatory reasons for its actions. Suspension (Claim a) Complainant testified that she believed that S1 (male) and her second level supervisor (S2, male), the RMD Chief, discriminated against her based on her race when she was issued the suspension at issue. Specifically, Complainant noted that S1, who recommended the suspension, and S2, who upheld the suspension, failed to take into account that there were complaints against both Complainant and CW1 (female, white). However, only Complainant was suspended. In contrast, S1 explained that he recommended Complainant’s suspension after consulting with Labor Management/Employee Relations who recommended a three-day suspension which S1 reduced to a two-day suspension. S1 acknowledged that only Complainant and not CW1 was recommended for a suspension. However, S1 clarified that while there were ICE3 complaints against both Complainant and CW1,4 the suspension was issued to address concerns brought to 3 This acronym was not defined in the record. 4 S1 also noted that after he had addressed the ICE complaints with Complainant and CW1, there was only one reported ICE complaint concerning CW1. In contrast, S1 indicated that 2022001441 5 S1’s attention by the WBMC Command Suite regarding Complainant’s communication and professional behavior with Command-level staff. S1 further clarified that Complainant’s complaints were more egregious than CW1’s complaints and Complainant’s complaints occurred over a longer period. Consequently, CW1 had fewer complaints with a lower level of severity than Complainant. Similarly, S2 noted that Complainant had multiple reports of unprofessional behavior documented by three separate individuals. S2 stated that he declined to reduce Complainant’s suspension because she took no reasonability or accountability for her actions in her rebuttal statement. Additionally, S2 indicated that the magnitude and severity of the complaints against CW1 and Complainant was “like comparing a grocery store bag of ice to an iceberg.” S2 explained that Complainant’s behavior was “legendary” and that she was known as an “unprofessional bully.” While S2 acknowledged that Complainant was “one of the most technically competent travel employees in the Army,” she was known to belittle and disrespect customers and leadership. A copy of the July 19, 2017 suspension notice indicates that Complainant was charged with delay in carrying out assigned duties and discourteous behavior. Contrary to Complainant’s assertions, S2 noted that Complainant’s two-day suspension was consistent with the penalty assessed for other employees charged with the same conduct. Assigned Training Duties (Claim d) Complainant explained that S1 assigned some of DTS training duties to her co-worker (CW2, white, male), a Budget Analyst, even though CW2’s duties did not include DTS. Complainant further explained that she was unaware that CW2 had been assigned to conduct DTS training, even though Complainant was the subject matter expert, and it was only after one of her customers forwarded her the email indicating that Complainant became aware that CW2 was the trainer. Complainant asserted that S1 assigned CW2 her duties to “groom him for a GS 12 Supervisory Financial Analyst position that included, among other areas, DTS.” Complainant noted that S1 never asked her if she was interested in the position, and ultimately the position was downgraded to a GS 11 non-supervisory position. S1 acknowledged that he assigned travel-related duties to CW2 to address organizational needs. Specifically, S1 explained that his division needed to increase the number of orders reviewed each day as the designated DTS alternate did not have enough time to regularly assist the DTS office, as she had department-level analyst work to complete. S1 indicated that he asked for volunteers, CW2 responded, and S1 noted that CW2 was already familiar with DTS and travel rules. Consequently, when S2 and S1 decided that it would be a good idea to train department- level personnel in the basics of DTS use in order to reduce the number of questions the DTS office received, CW2 volunteered again to conduct these trainings. Complainant did not improve, he continued to receive ICE complaints about her, and Complainant had the same customer service problems since 2013. 2022001441 6 However, S1 clarified that Complainant’s duties were not removed, because she was still assigned to conduct one-on-one trainings while CW2 conducted the classroom trainings. S1 alluded that Complainant preferred one-on-one trainings opposed to classroom trainings. S1 further acknowledged that CW2 was a GS 11 Budget Analyst. S1, however, denied and CW2 confirmed, ever offering CW2 a GS 11 Supervisory position. S1 noted that he always uses a board panel for position vacancies and the applicant with the highest score is the person selected for the position. S1 further noted that the Supervisory position description was created but denied that he shared the position description with CW2. Addressing Complainant by First Name (Claim e) Complainant indicated that she began addressing S1 by his last name and signing her emails with her last name to “ensure professional communication” in response to S1’s being a “tyrant” over her travel. However, Complainant indicated that S1 continued to address her by her first name, which Complainant considered disrespectful. Despite Complainant assertions, S1 explained that generally in RMD, employees address each other on a first-name basis. S1 indicated that he was unaware of any other employee referring to Complainant by her last name and he was unaware of her preference. Consequently, S1 indicated that his failure to refer to Complainant by her last name was “unintentional.” Requirement to Call into Office (Claim f) Complainant asserted that there was no office policy regarding reporting to work late. Complainant indicated that her department permitted alternative work schedules and employees have different start times as long as core hours are met. In her case, Complainant alleged that S1 only required that she notify him in advance if she felt that she might not arrive to work before 9:00 am. In contrast, Complainant indicated that her white co-workers were not held to the same requirement. S1 clarified that he only asks that employees provide him a reasonable amount of notice regarding delayed arrivals. Specifically, S1 was focusing on recurring episodes of “I’m running late, but he will be in” from staff and advised that staff inform him if they were going to be more than fifteen minutes late to work. S1 explained that he implemented this policy within the first thirty days he became a manager and all employees adhered to this policy except for Complainant. S1 noted that Complainant was frequently tardy, and he had given her several verbal notices which resulted in her receiving a written counseling, during the same period that he was preparing her notice of proposed suspension, for being fifteen to thirty minutes late. Similarly, S2 indicated that Complainant reported late to work “at least every 7 - 10 business days” during a two-year period. Shared Information about Suspension (Claim i) 2022001441 7 Complainant testified that S1 informed CW1 about Complainant’s suspension. Complainant explained that CW1 knew which days Complainant would be on suspension because CW1 had asked to take one of the days off, but S1 denied this request. Complainant further explained that S1 reasoned that CW1 could not take off because Complainant would not be at work on the day CW1’s requested leave. However, S1 denied telling CW1 about Complainant’s suspension, but acknowledged that he did tell the Lead Budget Analyst. S1 reasoned that as the Lead Budget Analyst, she was responsible for assisting him with personnel issues and team workload, and he felt that she needed to know. Nevertheless, CW1 testified that she learned about Complainant’s suspension when Complainant was talking about the matter over the phone as her desk was stationed next to Complainant’s desk. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on her race, sex, or reprisal for prior protected EEO activity. Harassment (non-sexual) - (Claims b, c, g, and h) To prove her claim of hostile environment harassment, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, or reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As an initial matter, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims a, d, e, f, and i are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, sex, or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Our review of the record supports that Complainant failed to prove that she was subjected to discriminatory non-sexual harassment as alleged. DTS Orders Telephone Conversation (Claim b) Complainant testified that S1 called her and inquired about a soldier’s DTS order request to travel to attend a funeral. Although Complainant asserted that she was working on the request, Complainant stated that S1 spoke to her in a demeaning tone, yelled at her, and spoked to as if she was a child. 2022001441 8 Complainant indicated that she put S1 on speaker so that other employees could hear how he was speaking to her. Complainant noted that S1 did not talk to any of the female employees in the same manner he spoke to her, and she attributed this difference to her race. S1 acknowledged that he had asked Complainant a series of questions regarding her step-by-step processing of the soldier’s DTS order. S1 explained that he had received a phone call from a Command Sergeant Major (CSM) who expressed several complaints regarding Complainant’s processing of the soldier’s orders. The CSM informed S1 that Complainant had provided incorrect information which further delayed processing the order, Complainant had informed the CMS that she was “working on other others’ travel requests” when the CSM asked for status updates, all which resulted in there being less than twenty-four hours for the solider to travel to attend a family funeral. For this reason, S1 stated that he asked that Complainant expedite the soldier’s travel orders, and he requested that she keep him updated on the remaining steps until the orders were completed, so that he could report to back to the CSM. However, S1 indicated that Complainant questioned why it was necessary for her to update S1 at every processing stage, which resulted in S1 asking her several times, after Complainant did not respond to his questions, during the phone call to confirm whether she would provide the status updates as requested. There is conflicting testimony in the record regarding whether S1’s questioning of Complainant was appropriate and professional. Some employees indicated that S1 yelled at Complainant and could have used a more professional tone, while other employees indicated that S1 spoke “sternly” and “firmly” to Complainant to emphasize that he wanted the task completed immediately. One employee noted that Complainant had turned the volume up high when she placed S1 on speaker phone and there was no indication that S1 knew that Complainant had placed him on the speaker phone. Another employee noted that Complainant did not respond to S1’s questions which resulted in S1 repeating himself. Another employee acknowledged that Complainant and S1 simply did not get along because Complainant felt that S1 provided contradictory information to customers to whom Complainant had spoken. Additionally, one employee felt that S1 did not address CW1’s attitude issues and only focused on Complainant’s which the employee indicated could be attributed to race. However, another employee indicated that S1 had disregard for women in authority. Harassing Emails Regarding TDY Travel Time (Claim c) Complainant alleged that S1 bullied her, via emails, regarding her attendance to a government travel credit card training. Specifically, Complainant indicated that she felt that S1 wanted her to change her mind about attending this training. Complainant further indicated that S1 wanted her to travel late on a Monday night with a flight arriving at 11:00 pm, coordinate a ride with another attendee, attend the 8 am training the following morning, and take a returning flight that night that arrived at 11:30pm. Contrary to Complainant’s testimony, S1 explained that Complainant had planned to exceed the minimum mission requirement because she planned to be absent one extra duty day. 2022001441 9 Moreover, the extra day would have required that S1 realign staff to cover duties during her absence. S1 further explained that there were flights available for Complainant to select that would have allowed her to return before 9:00 pm which was considered suitable travel hours. S1 noted that travel hours between midnight - 6:00 am were excluded travel hours. Finally, S1 indicated that he had no issue with Complainant’s request for a rental car. However, he noted that Complainant had ironically in the past not readily approved car rental requests for other travelers. Belittling over DTS Orders (Claim g) Complainant explained that S1’s DTS permissions were removed, and he waited until after Complainant’s tour of duty had ended to address his concerns. Complainant noted that she was unaware that his DTS permissions had been removed, as the removal occurred while Complainant was on leave. The record indicates that S1 emailed Complainant on January 3, 2014, asking her not to remove or change his roles in DTS unless asked. In an April 16, 2014 email, S1 indicates that his DTS permissions were changed again and inquired whether Complainant or CW1 changed them. Nevertheless, by May 8, 2014, S1 notified Complainant that he had received her permissions. Belittling in Front of Customer (Claim h) Complainant indicated that four days after DTS permissions conversation with S1, S1 then addressed his concerns in front of customers regarding the original signatures on conference pack memos. In short, S1 disagreed with Complainant that original signatures were required. Complainant explained that S1 was rude, discourteous, and unprofessional, and he should not have addressed this matter in front of customers, and in response, Complainant told him that “we can talk about it later.” The day after this incident, Complainant stated that S1 confronted her and informed her that her comment was rude and that they would work on her “persona in 30 days.” Specifically, Complainant indicated that S1 informed her that she was “not allowed to talk with [her] hands, face” even though Complainant asserted that these gestures were part of her [Black] culture. Complainant noted that S1 continued to threaten her with a reprimand whenever she disagreed with him. S1 disputed Complainant’s characterization of this incident. S1 explained that it was a customer, not Complainant, who reported to him that the customer felt belittled by Complainant and sought assistance. When S1 attempted to intervene, S1 stated that Complainant stated that she would “talk to [S1] later” and Complainant proceeded to “cluck her tongue and turned her back on [the customer] and [S1].” S1 explained that he did not believe that Complainant exuded professional behavior, consulted with Labor Management/Employee Relations, and issued Complainant a written counseling. 2022001441 10 Assuming these incidents occurred as alleged, Complainant has not presented sufficient credible evidence demonstrating that considerations of her race, sex, or retaliatory animus motivated management’s actions towards Complainant. Here, the record reflects that Complainant and S1 had a contentious working relationship. Although Complainant felt that S1 was micro-managing her by requiring that she update S1 on every stage of the travel order approval process, the record supports that S1 requested this information after he had been informed of Complainant’s errors and delays with processing this request. The record further supports that S1’s phone conversation with Complainant regarding this matter escalated after Complainant delayed responding to S1’s questions. Additionally, the record supports that Complainant disagreed with S1’s decision to enforce the rules regarding the minimum mission requirement for travel days employees were allotted. Ultimately, Complainant disagreed with many of management decisions including written counseling to address Complainant’s behavior towards S1. Moreover, testimony from other employees indicated that Complainant was difficult to work with and often did not back down with her opinions. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Aside from Complainant’s bare assertions there is simply no evidence that the disputed actions were motivated in any way by Complainant’s race, sex, or retaliatory animus and, therefore, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Sexual Harassment - (Claim j) To establish a case of sexual harassment creating a hostile work environment, Complainant must show, by a preponderance of the evidence, that: (1) she belongs to a protected class; (2) she was subjected to unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature; (3) the harassment complained of was based on sex; (4) the harassment affected a term or condition of employment, either unreasonably interfering with the work environment or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998); 29 C.F.R. § 1604.11. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). We find that the AJ’s determination, that claim j fails to support a finding that the Agency subjected Complainant to sexual harassment, was proper. S1 Sharing Nude Picture of Wife’s Boyfriend (Claim j) Complainant indicated that the individual in the picture “looked nude.” Complainant further indicated that S1 had not shared nude pictures with her white female co-workers. 2022001441 11 Complainant explained that she felt S1’s actions were inappropriate, and she was afraid to address the matter because S1 had already warned her that “he doesn’t forget anything” and she did not want him to hold it against her. However, S1 denied showing Complainant a nude photo. S1 indicated that he was going through a divorce and had shared his experiences with a few of his colleagues, none of whom were Complainant. S1 indicated that he was close with one colleague, a Supervisory Security Specialist (female), who offer to allow him to live at her house until he found a suitable living arrangement and S1 indicated that whatever information he shared with this colleague occurred after work hours in the privacy of her own home. Similarly, the Supervisory Security Specialist acknowledged that S1 had shared with her a photo of a man whose torso was exposed and S1 lamented that he could not believe that his ex-wife was leaving him for the man in the photo. The Supervisory Security Specialist clarified that S1’s sharing of the photo was not done in a sexual, offensive, or harassing manner as she and had been helping S1 cope with his divorce. CW2 also acknowledged that S1 had shared with him a picture of a semi-nude female. CW2 explained, however, that S1 was seeking comfort as he was going through a difficult divorce. CW2 further explained that he could sympathize with S1 because like S1, CW2’s marriage also resulted in a divorce after his wife was cheating on him. Consequently, CW2 noted that he was not offended by S1 sharing the photo. Although neither the Supervisory Security Specialist or CW2 were offended by Complainant’s discussions regarding his divorce, S2 testified that he informed S1 these discussions about his private personal matters placed employees in an “awkward” position and, therefore, he should refrain from having these conversations. We note that aside from Complainant’s testimony, there is no other testimony to support a determination that S1 shared the photo with Complainant. S1 denied sharing the photo with Complainant. The record reflects that Complainant approached CW2 and the Supervisory Security Specialist to confirm the story about S1 sharing a photo. Both individuals, however, testified that Complainant declined to answer whether she had actually seen the photo. Consequently, there is no adequate evidence, besides Complainant’s testimony, that she was subjected to unwelcome sexual conduct regarding S1 allegedly showing her a nude picture. Additionally, the individuals who S1 acknowledged sharing the photo with, both testified that they did not perceive the photo as sexual as they were both aware of Complainant’s difficult divorce. Therefore, Complainant has not demonstrated that she was subjected to sexual harassment in violation of Title VII. CONCLUSION The Agency's final order implementing the AJ's finding of no discrimination is AFFIRMED. 2022001441 12 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2022001441 13 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 February 22, 2023 Date