Renee L.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Mar 29, 2017

0120141032 (E.E.O.C. Mar. 29, 2017)

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

Renee L.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120141032

Agency No. 54-2012-02026

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
December 18, 2013, 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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.

BACKGROUND

Complainant worked as a Hydrologist at the Missouri Basin River Forecast Center (MBRFC).
The MBRFC is located within the National Weather Service which, in turn, is housed within
the National Oceanic and Atmospheric Administration (NOAA). The facility is located in
Pleasant Hill, Missouri.

On December 22, 2012, Complainant filed an EEO complaint in which she alleged that the
Agency subjected her to discriminatory harassment the bases of sex (female), disability
(residual effects of hip injury sustained while on active duty), age (55), and in reprisal for prior
protected EEO activity. Investigative Report (IR) 551, 553. She identified as the responsible

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.
0120141032

2
management officials the Senior Operations Hydrologist (SOH) and the Hydrologist-in-Charge
(HIC). The HIC was the actual supervisor of the hydrologists and other professional staff at
the MBRFC. The SOH, while not a supervisor, had overall responsibility for preparing and
disseminating forecasts and other products put out by the facility. IR 551, 596.

Complainant identified the following incidents as comprising her claims:

Claim (1) – Ongoing harassment by the SOH:

a. On June 7, 2010, the SOH sent an email message to the staff that included the
term, “p.m.s.”

b. The SOH insulted Complainant, tormented her, treated her with disrespect,
yelled at her, and behaved obnoxiously and rudely toward her:

i. In December 2008, after Complainant had informed the SOH that she
had recently transferred from the Forest Service, the SOH responded
that, “Everyone who works for the Forest Service is an idiot.”

ii. On August 1, 2012, the SOH had an argument with Complainant in
which he yelled in her face.

iii. On August 4, 2012, the SOH castigated Complainant for not arriving at
6:30 AM on a Saturday when she was not part of the rotational shift.

iv. On unspecified dates, the SOH changed her work products behind her
back and then blamed her for mistakes.

c. In emails dated August 4 and August 6, 2012, the SOH made disparaging
remarks about Complainant to her co-workers and management.

d. On December 20, 2012, the SOH failed to personally notify Complainant when
a computer program that had malfunctioned was once again operable.

Claim (2) – Ongoing harassment by the HIC:

a. In the Fall of 2011, the HIC refused to allow Complainant to combine a work
trip with annual leave.

b. On September 10, 2012, the HIC gave Complainant an order not to work on any
Office of Workers’ Compensation Programs (OWCP) business during work
hours.

0120141032

3
c. On an unspecified date, the HIC shared an email message with MBRFC
management which revealed her pending EEO complaint against the SOH.

d. On October 29, 2012, the HIC kept asking Complainant why she was
scheduling her OWCP appointments during business hours instead of on her
personal time.

e. On October 29, 2012, the HIC sent Complainant an email message in which he
insisted that the only proper way to handle OWCP-related medical appointments
was to use leave without pay (LWOP).

Claim (3) – Despite Complainant’s requests to the HIC to stop the SOH’s hostile behavior, the
HIC had ignored her requests.

Claim (4) – On October 29, 2012, the HIC disapproved Complainant’s sick leave request and
advised her that she needed a doctor’s note prescribing bed rest for her one day of sick leave,
even though she had been incapacitated by a documented injury.

Claim (5) – On October 29, 2012, the HIC disapproved three of Complainant’s requests for
advance sick leave that she intended to apply toward physical therapy appointments scheduled
under the auspices of the OWCP.

Claim (6) – On an unspecified date, someone in the National Weather Service’s Central Region
Headquarters (CRH) had violated the confidentiality of her EEO complaint in order to give the
HIC advanced warning.

Claim (7) – On March 4, 2013, the HIC responded callously to Complainant’s report that she
was having a severe reaction to newly-applied paint, denied her request for a week of
administrative leave, and instructed her to use accrued annual or sick leave instead.

Claim (8) – Between March 11 and March 13, 2013, while Complainant was at home
recuperating, the HIC badgered her via email.

We discuss these claims in detail below.

Claim (1)

Incident (a) - On June 7, 2010, the SOH sent an email message to the staff that included the
term, “p.m.s.”

The subject email discussed the proper format for reporting times on MBRFC work products,
and urged staff to adhere to the office’s style manual when referring to “a.m.” or “p.m.” The
last sentence of the email read, “Meanwhile, please be sure times are clearly defined in the HC
and HMD, whether or not there is a proper format on the p.m.s.” IR 295, 902. Complainant
0120141032

4
acknowledged that the p.m.s. comment was not directed at her. IR 179. The following day,
one of Complainant’s co-workers, a female hydrologist (Coworker F1)2 sent the following
email to the SOH: “I found your response offensive and inappropriate (whether or not there is
a proper format on the p.m.s.)” IR 905. The SOH responded with the following: “I
acknowledge your complaint and will endeavor to be more careful with the connotation of my
writing in the future. My apologies.” IR 909.

When asked by the EEO investigator what was meant by the term, “p.m.s.,” the SOH averred
that he was merely referencing the symbols used to properly describe the time of day. He
admitted that the matter was brought to his attention and that he apologized to the offended
party, Coworker F1. IR 554-56. The HIC also averred that the subject and context of SOH’s
email was entirely about time references, and that he spoke to the SOH and Coworker F1
about taking offense to the term. IR 603-04, 646-49.

Coworker F1 averred that the SOH’s apology was not sincere, that the SOH and the HIC had
made sexist comments to her in the past, and that several male colleagues had told her that they
found the p.m.s. comment to be a personal attack and that she should not, “blow it off.” IR
709-10. Coworkers F2, F3, and M1 also averred that they found the comment in poor taste,
inappropriate, and unacceptable. IR 733, 752, 768-69.

Incident (b)(i) - In December 2008, after Complainant had informed the SOH that she had
recently transferred from the Forest Service, the SOH responded that, “Everyone who works
for the Forest Service is an idiot.”

Complainant averred that in her very first conversation with the SOH after her arrival from the
Forest Service in December 2008, the SOH told her that, “Everyone who works for the Forest
Service is an idiot.” She admitted that no one else had witnessed the comment, and stated that
she was shocked that a senior Hydrologist would directly insult a junior staff member whom he
had just met. IR 179-80, 260.

The SOH averred that Complainant was exaggerating the facts. He admitted, however, that he
shared some disparaging remarks about the Forest Service with her, but only because he had
worked there for seven years and had known of improprieties in the timber program for the
Pacific Northwest that had been shut down by a Federal judge. He reiterated that he would not
have made a blanket statement. IR 557-58. The HIC also denied that SOH had ever
characterized anyone who worked for the Forest Service as an idiot, pointing out that he too
had worked for the Forest Service. IR 604.

2 Due to the extensive number of witnesses in this case, Complainant’s coworkers are
designated by gender. Male coworkers are identified as “Coworker M1, M2, etc, while
female co-workers are identified as Coworker F1, F2, etc.
0120141032

5
Incident (b)(ii) - On August 1, 2012, the SOH had an argument with Complainant in which he
yelled in her face.

Complainant averred that on August 1, 2012, SOH became angry, hostile, and abusive, yelling
at her because of a dispute over her work schedule. IR 180-83, 276-81. The SOH averred
that the dispute arose because Complainant refused to modify a leave slip that she had
submitted prior to him making a schedule change. The Administrative Assistant informed
Complainant that her leave slip did not match the modified work schedule, and that she would
have to resubmit it. According to the SOH, Complainant was adamant in her refusal to do so,
which resulted in him getting into a heated argument with her. He averred that Complainant
persisted in vehemently arguing that she would not fill out a new leave slip, that she said so in
a loud and angry voice, that the argument lasted for ten minutes, and that he did raise his
voice. IR 558-60. The HIC averred that Complainant’s refusal to resubmit her leave slip had
led to the confrontation. IR 605-06.

The Administrative Assistant averred that she had asked Complainant to submit a new leave
slip once she became aware that Complainant’s original leave request did not match the
modified work schedule, and that this was normal office policy. She further stated that after
several minutes of trying to help Complainant understand the situation, she noticed that the
SOH was walking by and had asked the SOH to help her in trying to explain why Complainant
needed to resubmit her leave request. According to the Administrative Assistant, the SOH
yelled at Complainant so loudly that his face was getting red, and she, the Administrative
Assistant, was very upset with how the SOH had handled the situation. She further pointed out
that Complainant never raised her voice during the episode, and that she had reported the
incident to the HIC the next day. IR 785-86.

Coworkers F2, F3, and M1 all averred that the SOH had yelled at Complainant for a
prolonged period of time and had continued to do so even after Complainant relented, that they
and several other staff members were upset by the incident. In particular, M3 averred that
while he was off that day and did not personally witness the incident, other employees had
shared with him in his capacity as a Union Steward that they felt that their safety was in
jeopardy and that he, M3, had a discussion with the HIC about the incident. IR 733-34, 753,
769-70.

Incident (b)(iii) - On August 4, 2012, the SOH castigated Complainant for not arriving at 6:30
AM on a Saturday when she was not part of the rotational shift.

Complainant averred that on Saturday, August 4, 2012, she was not a regular part of the
weekend rotation, so she worked her normal schedule, which was from 7:30 AM to 4:30 PM.
She further averred that when the SOH arrived for the evening shift, he came into her office
and harassed her for arriving at her normal start-time, 7:30 AM. IR 183-84, 282-83. The
SOH averred that although the HIC had granted Complainant’s request to work the 7:30 AM to
4:30 PM shift during the week, the operational needs of the MBRFC required that someone
arrive at 6:30 AM on weekends in order to ensure that every shift was covered. He
0120141032

6
maintained that he and Complainant had argued about the issue due to Complainant’s
intransigence on the issue of her start time. IR 561-63.

The HIC averred that Complainant had requested and received approval to change her schedule
beginning with the pay period that ended on August 11, 2012, which made her a third person
on the Saturday, August 4 day shift that consisted of two people. In future pay periods, she,
Complainant, would become the second person. The HIC further averred that the SOH had
questioned her 7:30 AM start time, saying that it would become difficult or impossible to get
river forecasts in a timely or accurate manner and confirmed that office policy required all
weekend shift employees to begin no later than 7:00 AM in order to ensure timely and accurate
river forecasts. He also noted that Complainant had a history of objecting to SOH’s oversight
of her work. IR 606-09, 650.

Coworker F3 averred that there were no official rules about what time people had to arrive on
weekends as long as someone was there at 6:30 AM to ensure shift coverage. IR 754.
Coworker M2 averred that it was generally accepted that a staff member could modify his or
her biweekly schedule to work on weekends in lieu of another day as long as the government
did not incur additional expenses. IR 830. Coworker M3 averred that everyone in the
MBRFC, with the exception of the Development Operations Hydrologist and the
Administrative Assistant, is always on a rotational shift, and that there had never been a
circumstance where a third person comes into work on a Saturday or Sunday unless hydrologic
activity or a special project mandated the need for someone to come in on either overtime or
compensatory time. IR 844-45. Coworker M4 averred that one who started later than 6:30
AM could come in at 6:30 if he or she desired. IR 860.

Incident (b)(iv) - On unspecified dates, the SOH changed her work products behind her back
and then blamed her for mistakes.

Complainant averred that the SOH made modifications to her forecasts without informing her,
and that he had been doing this on a regular basis between 2009 and 2012. She also averred
that the SOH constantly singled her out for criticism and blamed her for forecasting errors. IR
184-91, 296-314. The SOH responded that the forecasting environment in which MBRFC
staff operated was dynamic and inexact, that forecasts must be constantly revised and updated
based on changing hydrological conditions, and that every forecaster in the office has the
authority to make any changes necessary to make the forecasting model account for any newly
observed conditions or changes in conditions. He emphasized that as the Senior Operations
Hydrologist, it was his responsibility to monitor all forecasting products disseminated to the
public and that he made changes to everyone’s work products as he deemed necessary, not just
to Complainant’s work products. IR 563-70.

Responding to Complainant’s claim that the SOH changed her work products behind her back,
the HIC averred that the SOH sometimes had to make changes to a work product in order to
ensure its accuracy, which was well within his responsibilities. He further averred that the
SOH did not single Complainant out for this oversight, but that he based his actions on the
0120141032

7
products themselves, not the person who produced them. In addition, he averred that he
attempted to arrange a meeting with Complainant and the SOH after he received an email from
Complainant describing her displeasure with the changes that the SOH made to one of her
forecasts in an effort to clear the air, but that Complainant refused to participate. IR 609-13,
656-57.

Coworker M1, the Union Steward, averred that Complainant was hired as a journeyman
Hydrologist and was deemed capable of making all but the most difficult forecasts, and that to
his knowledge, her performance appraisals were satisfactory and she was not under a
performance improvement plan. IR 771. Coworker M5 averred that over the years,
Complainant had accused several people of changing her work without her knowledge, and
stated that to some degree changing other staff members’ work was inherent in the MBRFC’s
operations by virtue of the fact that the office was open for sixteen hours per day, necessitating
changes in forecasts due to changing hydrological conditions within and around the rivers that
the MBRFC was responsible for monitoring. Coworker M5 stated that he was not aware of
the SOH blaming Complainant for errors or accusing her of not doing her job. IR 802.

Incident (c) - In emails dated August 4 and August 6, 2012, the SOH made disparaging
remarks about Complainant to her co-workers and management.

Complainant averred that in issuing emails on August 4 and August 6, 2012, the SOH accused
her of violating policy and made inflammatory statements about her. IR 191-94, 372-81. On
August 4, 2012, the SOH sent out an email discussing schedules and the weekend requirement
of having someone on duty at 6:30 AM. The SOH noted that Complainant had switched to an
“unprecedented” 7:30 AM – 4:30 PM schedule, and that Complainant’s “feathers were
rankled,” when he suggested to her that in his experience, people on the Saturday morning
shift usually arrived at 6:30 AM. IR 582-88, 914. Two days later, the SOH put out a second
email in which he stated that he never accused Complainant of violating policy, that he had no
problem with her arriving at 7:30 AM, and that he was trying to determine whether
Complainant thought that she would be starting at 7:30 AM on weekends. IR 915.

The SOH averred that he had told Complainant and others that it would be difficult to get the
job done if people did not cover the 6:30 AM – 7:30 AM hour on weekends. IR 570-72. The
HIC averred that nowhere in either email did the SOH state that Complainant violated any
office policy. He stated that the emails were sent not to everyone in the office but to senior
staff and management in an attempt to make sure that the MBRFC would be adequately staffed
on weekends and holidays. IR 612-41, 651-53. Coworker F2 averred that on weekends and
holiday shifts at least one person had to arrive by 6:30 AM, and that this was an unwritten
rule. IR 737. Both Coworkers F2 and F3 averred that the SOH might have been mistaken in
believing that a formal policy was in place. Coworker F3 asserted that there was no policy in
effect at the time which explicitly required someone to come in at 6:30 AM on weekends and
holidays. IR 755-56. Coworker M4 also averred that the SOH may have been mistaken about
the existence of a formal policy or precedent. IR 861. Coworker M5 averred that
Complainant and the SOH had a contentious relationship and that the SOH could be
0120141032

8
argumentative and sometimes demonstrated a sense of superiority. He also averred that
Complainant had frequently talked about being persecuted, often expressing feelings that some
people were out to get her or undermine her work. IR 803.

Incident (d) – On December 20, 2012, the SOH failed to personally notify Complainant when a
computer program that had malfunctioned was once again operable.

Complainant averred that there was a problem with a computer program called the Advanced
Hydrologic Predication System (AHPS), which all of the forecasters were required to run on
December 20, 2012. She maintained that when the AHPS had been restored, the SOH had
notified other staff members that the problem had been resolved, but not her. IR 194-195.
The SOH denied Complainant’s accusation, stating that he was certain that he did not single
out only male forecasters to inform that the AHPS had been fixed. IR 572-573. Coworker
M3, who was the Service Coordination Hydrologist averred that there were many things going
on that day, including a snowstorm which caused the phone lines to go down, and that the
oversight of Complainant not being told that the problem had been resolved may have been his
oversight. IR 846-847.

Claim (2)

Incident (a) – In the Fall of 2011, the HIC refused to allow Complainant to combine a work
trip with annual leave.

Complainant averred that on an unspecified date in the Autumn of 2011, she had requested the
opportunity to visit her assigned forecast points in her own vehicle and then continue on to
Montana for a vacation, as opposed to using a government vehicle. She averred that at first he
had denied her request but later granted it. IR 203-05. The HIC responded that he not only
granted her request, he encouraged her to combine her work trip with her vacation. IR 615-
16. Coworkers M1, M2, M4, M5, and the Administrative Assistant all averred that employees
have always been allowed to combine annual leave with work trips and that they had done so
frequently themselves. IR 772-73, 789, 805, 832, 862.

Incident (b) – On September 10, 2012, the HIC gave Complainant an order not to work on any
OWCP business during work hours.

Complainant averred that she had turned in a required monthly progress report in August 2012
in which she listed the time she spent working on her issues before the OWCP. She further
averred that on September 10, 2012, the HIC called her into his office and told her that she
could not conduct any OWCP-related business during working hours, including telephone
calls. IR 205-06, 329-31. The HIC averred that when he read Complainant’s August 2012
progress report, he observed that she was spending a lot of time on her OWCP claims. He
stated that he consulted the Deputy Regional Director and a staff member in the Workforce
Management Office, and that, based on their input, he had informed Complainant that she was
not entitled to resolve her OWCP issues on official time, but could do so on breaks or during
0120141032

9
lunch. IR 617-618. An email from a Workforce Management Officer to Complainant dated
September 14, 2012, indicated that Complainant was not permitted to make telephone calls or
engage in activities unrelated to the performance of her duties if those calls or activities
interfered with the performance of her assigned duties. IR 335.

Incident (c) – On an unspecified date, the HIC shared an email message with MBRFC
management which revealed her pending EEO complaint against the SOH.

Complainant admitted that she did not have a copy of the email in question. She averred,
however, that a manager had told her that the HIC had shared the email with other managers
and that the email had her name on it in reference to an EEO complaint. IR 206. The HIC
responded that on November 6, 2012, he sent an email to the Deputy Regional Director
informing him of the interview that he, the HIC, had with an EEO counselor concerning
Complainant’s allegations of discrimination. He also averred that he copied the email to the
Acting Chief of the Services Division and two managers in his office, and that he did so in
order to keep the CRH and the MBRFC management team informed of personnel issues that
might require attention. He stated that he included the two managers in the email because they
routinely serve as the acting HIC in his absence. IR 618-19.

Incident (d) – On October 29, 2012, the HIC kept asking Complainant why she was scheduling
her OWCP appointments during business hours instead of on her personal time.

Complainant averred that on October 25, 2012, the HIC demanded that she provide a doctor’s
order prescribing physical therapy, and that she gave him the requested documentation on
October 29, 2012. She further averred that the HIC asked her if she could schedule her
physical therapy appointments after work hours, and that after she told him she could not, he
kept pressuring her to do so. IR 206-07. The HIC responded that he did not believe, based on
the information he was given from the Deputy Regional Director and the Workforce
Management Office, that Complainant was entitled to use official time for her OWCP-related
physical therapy appointments. IR 617-18.

Incident (e) – On October 29, 2012, the HIC sent Complainant an email message in which he
insisted that the only proper way to handle OWCP-related medical appointments was to use
leave without pay (LWOP).

Complainant averred that it was “perfectly legal” for her to cover her OWCP appointments
with advance sick leave, as opposed to leave without pay. IR 207-08. The HIC responded
that Complainant had provided him with a document from the OWCP website indicating that
she should fill out a Form CA-7 to claim compensation for lost wages, and that the OWCP
would reimburse her up to 66.67%. IR 620-22. He further stated that Complainant had
submitted advance sick leave requests for appointments on October 22, 23, 24, and 26, 2012,
because she no longer had enough accrued sick leave to cover her absences. The HIC averred
that he consulted CRH, the Workforce Management Office, and the OWCP Field Office in
Kansas City, Missouri, and that he was uniformly advised to disapprove her use of advance
0120141032

10
sick leave and allow her to use leave without pay, which would result in lower costs to the
Agency. IR 619-20. The email message that HIC sent to Complainant explained his decision
to her. IR 916.

Claim (3) – Despite Complainant’s requests to the HIC to stop the SOH’s hostile behavior,
HIC had ignored her requests.

Complainant averred that she had gone to the HIC on multiple occasions since 2009 asking him
to tell the SOH to stop harassing her, but that the HIC had done nothing. IR 212-16. The HIC
responded that he did not consider the SOH’s oversight of Complainant and the other
employees to be harassment. The HIC maintained that the SOH was simply doing his job as
Senior Operations Hydrologist. IR 622. As previously noted, the HIC attempted to convene a
meeting with the SOH and Complainant in an attempt to resolve their differences but that
Complainant refused to participate. IR 609-13, 656-57. Coworker M3 stated that on October
17, 2012, the HIC made the suggestion regarding the meeting. In an email from HIC to
Complainant and the SOH dated October 17, 2012, the HIC stated: “the difficulty in the
working relationship between you and [the SOH] needs to be resolved.” IR 850.

Coworker F2 averred that in her experience in working with the HIC, he had a “blind spot”
with the SOH in that she had discussed an incident with the HIC involving allegedly racist and
inappropriate comments made by the SOH, and that the HIC appeared to listen but took no
action. IR 741. Coworker F3 echoed Coworker F2’s assessment regarding the HIC’s blind
spot for the SOH, and added that the HIC tends to believe anything that the SOH says and will
always back him up, but will not back anyone else in the office. IR 759. Coworker M1
averred that in his capacity as Union Steward, he had discussed the SOH’s behavior with the
HIC on many occasions and that he had never seen the HIC take any action. IR 775.

Claim (4) – On October 29, 2012, the HIC disapproved Complainant’s sick leave request and
advised her that she needed a doctor’s note prescribing bed rest for her one day of sick leave,
even though she had been incapacitated by a documented injury.

Complainant averred that the DOL had failed to reimburse her for nine hours of leave without
pay that she had taken on March 29, 2012, and that she did not discover the oversight until
October 2012. She further averred that when she attempted to resubmit her request, HIC
insisted that she furnish a doctor’s note prescribing bed rest. IR 218-19. The HIC averred
that Complainant requested and received approval for leave without pay on March 29, 2012,
and that Complainant had stated in her request that she needed bed rest for her injury. He
reported that on October 22, 2012, Complainant had submitted another request to change her
March 29, 2012 leave without pay request to accrued sick leave, and that according to
information he received from the Deputy Regional Director and the Workforce Management
Office, a doctor’s note prescribing bed rest was required. He stated that since Complainant did
not provide the requested note, he did not approve her request. IR 622-23. Article 19 of the
Agency’s collective bargaining agreement expressly provides that medical documentation is
required only when absence from duty exceeds three workdays. IR 760, 779, 864, 1114-15.
0120141032

11
The leave slip in question actually states that the HIC disapproved the leave request because
Complainant was requesting advance sick leave instead of leave without pay. IR 966.

Claim (5) – On October 29, 2012, the HIC disapproved three of Complainant’s requests for
advance sick leave that she intended to apply toward physical therapy appointments scheduled
under the auspices of the OWCP.

Complainant averred that she submitted three requests for advance sick leave for OWCP
appointments in the amount of 22 hours, and that on October 29, 2012, the HIC informed her
that he had disapproved all of those requests. IR 220-22. The HIC responded that
Complainant did not schedule her OWCP appointments outside of regularly scheduled work
hours as he had asked her to do, and that Complainant had over 80 hours of accrued annual
leave that she could have used as an option other than leave without pay. IR 620-23, 938-39.

Leave records indicate that the HIC had approved many of Complainant’s leave requests
throughout the year where Complainant had taken accrued leave or leave without pay. IR 938-
65, 967-1005, 1009, 1011-22, 1027, 124-1130. He had disapproved leave requests where
Complainant had requested advance sick leave on the grounds that leave without pay would be
less costly to the Agency. IR 1006-08, 1010.

Claim (6) – On an unspecified date, someone in the CRH had violated the confidentiality of her
EEO complaint in order to give the HIC advanced warning.

Complainant averred that on August 6, 2012, she emailed a generic inquiry to the Workforce
Program Coordinator and that on August 22, 2012, the Workforce Program Coordinator
replied, requesting additional information about the problems that she was having.
Complainant stated that she informed the Workforce Program Coordinator that she was going
to file an EEO complaint through the NOAA Civil Rights Office rather than through CRH.
She averred that shortly thereafter, one of the HIC’s subordinate managers informed
Complainant that he had seen her name on an email that the HIC had shared with him
referencing an EEO complaint. Complainant maintained that the Workforce Program
Coordinator breached confidence when she had forwarded the email that she had sent to the
HIC. IR 225-27, 381-82.

The HIC averred that on August 8, 2012, the Deputy Regional Director had informed him that
Complainant had filed a hostile work environment claim regarding the SOH. He further
averred that on September 25, 2012, the Deputy Regional Director let him know that a
harassment complaint would be forthcoming. Finally, he averred that on October 26, 2012, he
received a call from a collateral-duty EEO counselor letting him know that Complainant had
filed an informal EEO complaint alleging a hostile work environment and set up a time to
interview him. IR 597, 623.

0120141032

12
Claim (7) – On March 4, 2013, the HIC responded callously to Complainant’s report that she
was having a severe reaction to newly-applied paint, denied her request for a week of
administrative leave, and instructed her to use accrued annual or sick leave instead.

Complainant averred that on March 4, 2013, she was experiencing chest pains, dizziness, and
breathing difficulties as a severe allergic reaction to newly applied paint, that the HIC
grudgingly allowed her to take administrative leave from 2:00 PM to 3:30 PM that day, that
her physician had ordered her to remain out of work for a week, and that the HIC had refused
to grant her administrative leave for that time. IR 229-32, 1028, 1076-96. The HIC
responded that Complainant had come into his office on March 4, 2013, and told him that the
paint fumes were making her ill. The HIC stated that he told Complainant that she could use
his office, but that Complainant wanted to go home without using her accrued sick leave since
she had a low balance. He averred that he allowed Complainant to take administrative leave
for the afternoon of March 4, but that he could not approve her request for a week of
administrative leave because the Department of Commerce would not allow it. IR 624-25,
1031.

Claim (8) – Between March 11 and March 13, 2013, while Complainant was at home
recuperating, the HIC badgered her via email.

Complainant averred that she took leave on March 6, 2013, and that while she was
recuperating on March 11 through March 13, the HIC persisted in sending her emails, and that
he did so with the intent to subject her to undue stress. IR 236-237. The HIC averred that on
March 10, 2013, while she was off from work, Complainant had sent him an email regarding
his rejection of her request for administrative leave, and that they corresponded over the issue
for the next several days. The HIC emphasized that at no time did he badger Complainant; he
was merely responding to her emails. IR 625, 1045, 1047, 1049, 1051-59.

Post-Investigation

At the conclusion of the investigation, the Agency notified Complainant of her right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant thereafter requested a final decision without an EEOC hearing, and in accordance
with Complainant’s request, 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
0120141032

13
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”).

Claim (2), incident (c) & Claim (6) – Violation of Right to Anonymity

We address Complainant’s claim of breach of confidentiality at the outset. The essence of
Complainant’s allegation of confidentiality violation is that the Deputy Regional Director and
possible other officials within the CRH disclosed to the HIC during the pre-complaint phase of
her complaint that she had initiated the EEO process and that she was going to name the HIC
as a responding managing official. The Commission’s regulations governing pre-complaint
processing confer not a right of confidentiality but rather a right to anonymity during the pre-
complaint stages, which include both traditional counseling and alternative dispute resolution.
EEO counselors are prohibited from revealing the identity of the aggrieved person who
consulted the Counselor, except when authorized to do so by the aggrieved person, or until the
Agency has received a discrimination complaint from that person involving the same matter.
29 C.F.R. § 1614.105(g).

The wording of this regulation makes it clear that the obligation to maintain anonymity extends
only to the EEO counselor, and that if Complainant expressly waives her right to anonymity,
that obligation ceases. See Complainant v. United States Postal Service, EEOC Appeal No.
0120132846 (January 7, 2015). On the first page of the EEO counselor’s report for
Complainant’s complaint, next to the word “anonymity” is the word, “no.” IR 69. The
counselor’s report thus makes it clear that Complainant had expressly waived her right to
anonymity during the EEO counseling phase of the process. Neither the Deputy Regional
Director nor any other official in the CRH was under any obligation to keep Complainant’s
identity confidential. Complainant herself had written a letter to the Agency’s Civil Rights
Office in which she described the existence of a hostile work environment being instigated by
the SOH. IR 275. We therefore find no violation of 29 C.F.R. § 1614.105(g) on the part of
the Agency.

Claims (1), (2), and (3) – Harassment

Harassment of employees that would not occur but for their membership in statutorily
protected categories is unlawful if sufficiently patterned or pervasive. Wibstad v. U.S. Postal
Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). To prevail on her harassment claim,
Complainant must prove, by a preponderance of the evidence, that because of her sex, age, or
disability the SOH and the HIC had subjected her to conduct so severe or pervasive that a
reasonable person in her position would have considered it hostile or abusive. See Harris v.
Forklift Systems, Inc., 510 U.S. 17, 22 (1993). Where, as here, Complainant also alleges
reprisal, she must prove that the actions of the SOH and the HIC were harmful to the point that
they could dissuade a reasonable employee from making or supporting a charge of
discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
0120141032

14

Only if Complainant satisfies her burden of proof with respect to all of these elements, intent
and either hostility or chilling effect on EEO participation, will the question of Agency liability
for harassment present itself. Annalee D. v. Social Security Admin., EEOC Appeal No.
0120140956 (Nov. 23, 2016).

Claim (1), Incidents (a) and (b)(i)

On its face, the SOH’s remark about Forest Service employees reveals absolutely nothing
about his mindset concerning Complainant’s sex, age, or disability. As to the email
referencing “p.m.s.,” which Coworker F1 found offensive, the SOH agreed that it was made
in poor taste and promptly apologized. Complainant herself does not appear to have taken the
remark seriously at the time. Before we can even consider the existence of discriminatory
intent, we must address these incidents separately from the others because they not only took
place several years prior to the bulk of the incidents comprising her claim, but because these
two incidents occurred approximately eighteen months apart. Therefore, they are properly
characterized as isolated occurrences.

The Commission has found that under certain circumstances, a single, isolated incident could
be severe or pervasive enough to give rise to a hostile environment in and of itself. See Trina
C. v. U.S. Postal Service, EEOC Appeal No. 0120142617 (Sept. 13, 2016) (male supervisor
grabbed female employee around the waist and kissed her on the neck); Woolf v. Dept. of
Energy, EEOC Appeal No. 0120083727 (Jun. 4, 2009), req. for recon. den. EEOC Request
No. 0520090560 (Aug. 21, 2009) (male coworker forced his thigh between female employee’s
legs, put his mouth to her ear, and told her how gorgeous she looked); Hayes v. U.S. Postal
Service, EEOC Appeal No. 01954703 (Jan. 23, 1998), req. for recon. den. EEOC Request
No. 05980372 (Jun. 17, 1999) (male coworker stuck his tongue in female employee’s ear).
The Commission has likewise found that the use of a single racial epithet or slur in the
workplace could also constitute harassment. See Yabuki v. Dept. of the Army, EEOC Request
No. 05920778 (June 4, 1993) (employee of Japanese descent the subject of a comment by non-
Japanese coworker that it was all the employee’s fault that the Japanese were taking over
American businesses).

These extreme situations are more the exception than the rule, however. In general, unless the
conduct in question is severe, as it clearly was in these cases, a single incident or group of
isolated incidents will not be regarded as discriminatory harassment. Irvin C. v. Dept. of
State, EEOC Appeal No. 0120141173 (Aug. 29, 2016). In the case now before us,
Complainant has failed to demonstrate, either by evidence or by argument, that the “p.m.s.”
email or the SOH’s remarks concerning Forest Service employees rose to a level of severity on
a par with single acts of sexual harassment or racial slurs that have been found to constitute
harassment. We find that they did not, and therefore conclude that, with respect to these two
incidents, Complainant has not shown that she had been subject to discriminatory harassment.

0120141032

15
Claim (1) – Incidents (b)(ii) through (b)(iv), (c), and (d)

As noted above, before assessing the severity or pervasiveness of the incidents comprising
these claims or whether they create a chilling effect on the exercise of one’s statutory rights,
we must ascertain whether the intent behind them was unlawful. When asked by the EEO
investigator why she believed that the actions of the SOH and the HIC constituted
discriminatory harassment, Complainant averred that the fact that she was a disabled, 55-year-
old woman made her the most vulnerable target for abuse, and that the friendship between the
SOH and the HIC had created the “perfect storm” for a hostile environment. IR 198-202, 209-
11. In his defense, the SOH responded that Complainant may have been correct that he did not
always maintain a professional demeanor when dealing with her but that he had “difficulty
controlling his temper” when he believed that he was being lied to by Complainant. IR 573-
75. In an email from the HIC dated November 6, 2012, the HIC stated that he did not believe
that Complainant’s complaint had merit in that Complainant was overly sensitive to the SOH’s
oversight and sees discrimination where none exists. IR 917.

Complainant’s assertions find some support in statements from several of Complainant’s
coworkers. Coworker F1 averred that the SOH was “rude and bigoted,” that he “put down
people of color,” and that he once told her, “I hate blacks and gays – they are the ruination of
America.” IR 710-11, 716. However, there are no independent corroborations of this
statement anywhere in the evidentiary record. Coworker F1 also stated that the SOH “picks
on women the most.” IR 723.

Others were more nuanced in their assessment of the SOH’s intent. Coworker F2 and the
Administrative Assistant both averred that the SOH displayed a tone and body language
conveying an impression that he talked down to women or thought himself to be superior, that
she often became infuriated with the SOH after talking with him but realizing that this was not
the SOH’s intention, and that Complainant and the SOH unknowingly “pushed each other’s
buttons.” The Administrative Assistant pointed out that she had witnessed the altercation
between the SOH and Complainant that took place on August 1, 2012, stating that she had
never seen the SOH yell at anyone the way he yelled at Complainant that day. IR 739, 788-89.
She also pointed out that the SOH did not like to be corrected by women. IR 793. The HIC
averred that he had discussed Coworker F2’s comments with the SOH and that the SOH had
made an effort to improve his communications skills. IR 614-15, 639.

Coworker M1 made an assessment similar to that of Coworker F2, noting that the SOH’s way
of interacting with women in the office is “dissimilar” to his way of interacting with male
employees. IR 869, 773. He also noted that the MBRFC was on a “red” list regarding the
presence of “potential problem managers.” IR 778. Coworker F3 averred that the SOH
displayed an attitude of superiority over other employees and tends to talk down to them, and
that the SOH argues frequently with Complainant because she does not back down. IR 756.
Coworker M5 opined that the SOH treats Complainant differently than other staff members
and that their relationship had deteriorated over the years. IR 804-05. Coworker M6 also
averred that he frequently observed personality conflicts between Complainant and the SOH.
0120141032

16
IR 819. On the other hand, Coworkers M2 and M3 averred that they had not observed the
SOH treat Complainant differently than other staff members or otherwise behave rudely toward
her. IR 831-32, 847.

When asked whether she had any reason to believe that any of the actions that the SOH had
taken vis-à-vis Complainant were based on her sex, age, disability, prior EEO activity, or
opposition to discrimination, Coworker F2 answered yes with respect to sex only. IR 744.
When asked the same question, Coworker F3 replied that the SOH did not like it when women
stood up to him and that he tended to get much more agitated when women disagreed with him
than when men disagreed with him. She also averred that although sex may have played a role
in how the SOH treated Complainant, his interactions with Complainant had a lot to do with
the fact that he felt superior to others in the office because of his education degrees. IR 761-
62. Coworker M1, when asked the same question replied, “yes, from his treatment of other
employees.” IR 777. The Administrative Assistant, however, a female coworker who, as we
noted before, had witnessed the altercation between Complainant and the SOH on August 1,
2012, replied “no.” IR 794. Coworker M5 answered that the relationship between
Complainant and the SOH was strained and was primarily a function of a “substantial
personality clash,” but that he did not believe that the SOH had discriminated against
Complainant on any of the protected bases. IR 809. Coworkers M2 and M6 likewise averred
that they did not believe that SOH took any of the actions described in claims (1) and (2)
because of Complainant’s sex, age, disability, prior EEO activity, or opposition to
discrimination. IR 823, 835.

At best, the question of whether the SOH harbored a discriminatory motive when he took the
actions at issue in Claim (1) incidents (b), (c), and (d) is inconclusive. We note that
Complainant did not request a hearing before a Commission AJ, and so the Commission does
not have the benefit of an Administrative Judge’s factual and credibility determinations after a
hearing. Therefore, the Commission can only evaluate the facts based on the weight of the
evidence presented. Thus, based upon the evidentiary record before us, we find that
Complainant has not presented enough evidence to establish the existence of a discriminatory
motive on the part of the SOH in connection with Claim (1), incidents (b)(ii) through (b)(iv),
(c), and (d). Although the harassment inquiry would normally end here, we will continue on
to the issues of severity, pervasiveness, and chilling effect under the assumption, for purposes
of analysis only, that the requisite motivation has been established.

Routine work assignments, instructions, and admonishments are by definition neither severe
nor pervasive enough to rise to a level of abuse on part with a racial epithet or otherwise
engender a hostile work environment. Complainant v. Department of State, EEOC Appeal
No. 0120123299 (February 25, 2013). Moreover, the 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. Dept. 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
0120141032

17
conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 81 (1998).

Without exception, the remaining incidents comprising Claim (1) are nothing more than
workplace occurrences, for which the SOH had articulated reasons for his actions vis-à-vis
Complainant. As to the confrontation between Complainant and the SOH that took place on
August 1, 2012, the affidavits of the witnesses establish that the cause of the altercation was
Complainant’s refusal to submit a revised leave slip. While we agree that the SOH continuing
to yell at Complainant even after she agreed with him was uncalled for and a vivid display of
unprofessional behavior, the fact remains that such behavior is not on a par with sexual
harassment or racial slurs found to constitute discriminatory harassment in Trina C., Woolf,
Hayes, and Yabuki. Regarding the argument concerning Complainant’s start time on
Saturday, August 4, 2012, and the emails that the SOH issued on August 4 and August 6,
2012, there clearly was an expectation on the part of the SOH that Complainant needed to start
her weekend shift at 6:30 AM. What is not clear from the witness statements is whether that
expectation was consistent with the office policy that was in effect at the time. Regarding the
SOH’s practice of changing forecasts and other work products, statements from the various
witnesses demonstrate that this was a regular and necessary practice in the MBRFC due to
ever-changing conditions within and around the rivers that the facility was responsible for
monitoring. The emails represented the SOH’s attempt to clear the air regarding his
disagreement with Complainant over what time the weekend shift should begin. Concerning
the SOH’s alleged failure to notify Complainant that the AHPS had once again become
operable, the Service Coordination Hydrologist admitted that the oversight was his and not the
SOH’s.

To summarize, we agree with the Agency that Complainant has not established the
pervasiveness or severity of the SOH’s actions alleged to constitute discriminatory harassment
at issue in Claim (1), incidents (b)(ii) through (b)(iv), (c), and (d). Likewise, we find that
Complainant has not established that any of the SOH’s actions at issue in those incidents would
be enough to dissuade a reasonable employee from making or supporting a charge of
discrimination. We have already determined that Complainant has not shown by the
preponderance of the evidence that the alleged actions were motived by discriminatory animus.
Consequently, we find that Complainant failed to prove that she was subjected to
discriminatory harassment with respect to the SOH’s actions at issue in Claim (1), incidents
(b)(ii) through (b)(iv), (c), and (d).

Claim 2, incidents (a),(b),(d), & (e)

As to the incidents comprising Claim (2), the record unequivocally establishes with respect to
incident (a), and Complainant herself admits, that she was allowed to use her own vehicle to
visit her river forecasting points prior to leaving on a vacation. The remaining incidents, (b),
(d), and (e), revolved around a dispute between Complainant and the HIC over whether
Complainant should have been allowed to schedule her OWCP medical and physical therapy
0120141032

18
appointments during work hours and should have been allowed to use advance sick leave in
lieu of leave without pay or accrued annual leave to cover those appointments.

When asked by the investigator why she believed that her sex, age, disability, previous EEO
activity and opposition to discriminatory practices were motivating factors in HIC’s decisions
vis-à-vis these incidents, Complainant responded that there were two male employees who
were injured on the job since she arrived in 2008, and that the HIC never badgered either of
them. IR 238. In support of her contention, she presents the affidavit of Coworker F1, who
averred that the HIC said to one of her female colleagues that “women belong at home having
biblical babies.” IR 723. She also presented the affidavit of Coworker M1, who when asked
if he had any reason to believe that any of the actions that the HIC had taken with regard to
Complainant were based on her prior EEO activity or opposition to discrimination, he replied,
“yes, from his treatment of other employees” but did not elaborate further. IR 777.

Again, there are significant evidentiary problems with Coworker F1’s statement, the most
prominent of which is that it constitutes hearsay. While generally admissible in an EEO
administrative proceeding, hearsay evidence is of limited probative value. See e.g. Trina C,
supra, citing Complainant v. U.S. Postal Service, EEOC Appeal No. 0120120413 (Feb. 11,
2015). As with her statement regarding the remark that she attributed to the SOH, the
probative value of Coworker F1’s assertion concerning the HIC is severely limited by the lack
of corroboration from other witnesses and the lack of evidence of the time frame in which the
HIC made the remark which, as we previously noted, make it all but impossible to tie the
remark to the specific incidents described in Claim (2). The probative value of Coworker
M1’s assertion is limited by a lack of specific references as to how other employees were
treated differently than Complainant by the HIC. Moreover, Coworkers F3, M2, M5, and
M6, when asked whether they had any reason to believe that any of the actions that the HIC
took with regard to Complainant were based on her sex, age, disability, prior EEO activity or
opposition to discrimination, all replied, “no.” IR 762, 809, 823, 836.

Complainant has not submitted any sworn statements from other witnesses or documents that
contradict the explanations provided by the HIC or Complainant’s coworkers, or which call
their veracity into question. We note again that as Complainant chose to not 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. We therefore agree with the Agency that
Complainant failed to present enough evidence to establish the existence of a discriminatory or
retaliatory motive on the part of the HIC in connection with the actions described in Claim (2),
incidents (a), (b), (d), and (e). In view of Complainant’s failure to establish the element of
unlawful intent, we need not inquire into the severity, pervasiveness, or potential chilling effect
of these incidents.

0120141032

19
Claim (3)

The Agency can make out an affirmative defense to a hostile environment allegation by
demonstrating that it exercised reasonable care to prevent promptly correct any harassing
behavior and that Complainant failed to unreasonably take advantage of any preventive or
corrective opportunities provided by the Agency to avoid harm otherwise. Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No
915.002, p. 12 (June 18, 1999). The Agency would be liable for harassment of the hostile-
environment type if it failed to establish this affirmative defense. Complainant claims that she
had reported the SOH’s behavior to the HIC on numerous occasions but that the HIC did
nothing about it. As previously noted, however, Complainant did not present enough evidence
to establish the elements of discriminatory intent and either severity and pervasiveness or
potential chilling effect on EEO activity. Since discriminatory harassment had not been
established, Claim (3) must inevitably fail. Moreover, by refusing to accept the HIC’s
invitation to meet with him and the SOH in an effort to resolve the ongoing situation between
them, Complainant effectively established the Agency’s affirmative defense by not taking
advantage of a potential corrective opportunity.

Claims (4), (5), (7), (8) – Disparate Treatment

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her disparate treatment claims, Complainant would
have to prove, again by a preponderance of the evidence, that the SOH or the HIC was
motivated by unlawful considerations of her sex, age, disability, or previous EEO activity in
connection with the incidents described in her claims. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In circumstantial-evidence cases such as this, Complainant can establish motive by presenting
evidence tending to show that the reasons articulated by the SOH and the HIC for their actions
were pretext, i.e., not the real reason but rather a cover for discrimination or reprisal. St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by
showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered
legitimate 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 discriminatory statements or past personal treatment
attributable to those responsible for the personnel action that led to the filing of the complaint,
comparative or statistical data revealing differences in treatment across various protected-group
lines, unequal application of Agency policy, deviations from standard procedures without
explanation or justification, or inadequately explained inconsistencies in the evidentiary record.
Mellissa F. v. U.S. Postal Service, EEOC Appeal No. 0120141697 (Nov. 12, 2015).

0120141032

20
With respect to Claim (4), there appears to be an unexplained inconsistency in the record
concerning Complainant’s claim for retroactive reimbursement of leave. The HIC stated in his
affidavit that he denied Complainant’s retroactive leave correction request because she did not
provide a doctor’s note. IR 623. On the other hand, the leave slip itself indicates that the HIC
disapproved the request because Complainant was seeking accrued sick leave to cover the
appointment and that leave without pay was recommended because it would be less costly to
the Agency. IR 966. As to Claim (5), the HIC had granted most of Complainant’s leave
requests throughout 2012, and had disapproved only those requests for which Complainant had
requested advance sick leave to cover her absences rather than the accrued annual leave which
she had. Concerning Claim (7), the HIC offered to let Complainant use his office when she
first reported feeling ill on March 4, 2013, and that he allowed her to leave work early that day
and cover her absence between 2:00 and 3:30 PM using administrative leave. The HIC did not
allow her to use administrative leave for the week in March 2013 that she was absent because
to do so would have violated the Department’s policy on leave. Finally, with regard to Claim
(8), the email trail clearly shows that, rather than badgering Complainant, he was merely
responding to her inquiries concerning her use of leave.

Although the HIC did not provide an explanation for the inconsistency between his affidavit
and the leave slip at issue in Claim (4), we find that Complainant has not shown either
proffered reason to be pretext for discrimination. As to Claims (5), (7), and (8), Complainant
has again failed to provide any evidence beyond her own assertions that contradicted the HIC’s
explanations for those occurrences. We therefore concur with the Agency in finding that
Complainant has not met her burden to prove, by a preponderance of the evidence, that the
incidents at issue in Claims (4), (5), (7), and (8) were motivated by unlawful discrimination or
retaliation on the part of the HIC.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant was not discriminated against as alleged.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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:
0120141032

21
1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 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. The requests 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 request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

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
0120141032

22
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

March 29, 2017
Date