Scarlet S.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Sep 19, 2019

0120180731 (E.E.O.C. Sep. 19, 2019)

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

Scarlet S.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120180731

Agency No. HHSSAM00072016

DECISION

On December 15, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
November 17, 2017, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., 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 MODIFIES the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency’s final decision (FAD) correctly determined that Complainant did not
establish that she was discriminated against and subjected to a hostile work environment based on
age, national origin, disability and reprisal/retaliation as evidenced by multiple events that formed
the bases of her allegations.
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management Analyst,
GS-09 at the Agency’s Human Resources Liaison Data Branch, (HRLDB) Office of Management
Technology and Operations, (OMTO) Substance Abuse and Mental Health Services

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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Administration, (SAMHSA) facility in Rockville, Maryland. On November 7, 2016, Complainant
filed an EEO complaint alleging that the Agency discriminated against her on the bases of national
origin (Mexican), disability (perceived mental), age (52), and reprisal for prior protected EEO
activity. Specifically, she alleged that:

1. On June 30, 2016, S1, her first level supervisor, tasked her with more duties and responsibilities
than her younger, Puerto Rican colleague.
2. On June 30, 2016, S1 and her younger Puerto Rican colleagues ostracized her, often speaking
Spanish to one another and English to her.
3. On June 30, 2016, S1 denied her a promotion to Management Analyst, GS-343-11.
4. On July 19, 2016, S1 criticized emails authored by her.
5. On July 29, 2016, her younger, Puerto Rican co-workers isolated her from collaboration.
6. On August 1, 2016, S1 assigned her to the two biggest and busiest centers while her co-workers
were assigned less rigorous work.
7. On August 10, 2016, she was required to submit medical documentation for requested leave
while her peers were not.
8. On August 15, 2016, S1 disapproved her requested annual leave.
9. On August 15, 2016, S1 denied her requested sick leave because medical documentation had
not been submitted.
10. On August 16, 2016, S1 informed her that her Puerto Rican coworkers would be responsible
for her work during her absence.
11. On August 16, and 17, 2016, S1 sent her an email chastising her work and copied her co-
workers.
12. On August 19, 2016, S1 failed to approve her sick leave and required her to submit medical
documentation.
13. On August 19, 2016, S1 advised a customer that Complainant would not assist the customer’s
needs, without justification.
14. On August 24, 2016, S1 sent her an email chastising her work.
15. On August 31, 2016, S1 denied her request to use four hours of sick leave.
16. On September 12,2016, S1 submitted information to leadership of pending items for all offices
and centers absent her center’s actions.
17. On September 13, 2016, S1 sent her an email affirming a task that was not previously made
known to Complainant.
18. On September 14, 2016, S1 spoke to her in an irritable tone.
19. On September 20, 2016, S1 informed her that her medical document was insufficient to
approve sick leave.
20. On September 27, 2016, S1 sent her an email dismissive of her concerns.
21. On September 28, 2016, her second-level supervisor, S2, denied her requested relief as part of
her Stage 2 grievance against S1.
22. On September 28, 2016, S2 has ignored, avoided, or otherwise ostracized her following the
denial of her Stage 2 grievance and filing of the EEO complaint.
23. On September 29, 2016, S1 failed to respond to her request for annual leave.
24. On November 15,2016, S1 denied her requested annual leave for December 27, 2016, without
cause or justification.
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Complainant further alleged that she was discriminated against based on her perceived disability,
age (DOB: 10/1966), national origin (Mexican), and retaliation (prior EEO activity) when:

25. On June 30,2016, she was denied a promotion to GS-343-11, Management Analyst.2

Disparate Treatment Claims and Examples of Harassment

Claims: 1, 3, 6, 7, 8, 9, 12, 15, 19, 24, and 25

Claims 1 and 6:

Complainant alleged that S1 assigned her a second center to manage, in addition to the one center
she was already managing. She asserted that the reason for the change was to demonstrate to S1
that Complainant could handle responsibilities at a higher grade level, and in order for her to
receive a promotion.

Complainant stated that she was already handling the largest center in SAMHSA and the second
center S1 assigned to her was the second largest center. She added that she was also responsible
for processing other assignments which went into effect on August 1, 2016.

She alleged that her male coworker, also Puerto Rican, (C1) was a Management Analyst, GS-11,
who did not work independently and only received special projects on an “as needed” basis; and
that he was treated more favorably because he was not assigned the same volume of work and was
often on his phone or watching videos instead of working on his assignments.

S1 explained that Complainant was tasked appropriately for the GS-9 level; and that as part of her
career development plan, Complainant was assigned to a center as an HR Liaison Lead, and she
was assigned to another center as an HR Liaison Lead backup to a Senior Management Analyst,
GS-12, who functioned as a mentor. She asserted that all employees worked under the same setup.

She also explained that the center where Complainant served as the HR Liaison Lead was not the
busiest center in terms of work created by the branch, although it was the largest in terms of
employee numbers. She added that by comparison, all other HR Liaisons have the responsibility
of handling multiple centers, which also happen to be busier in terms of interaction and feedback
needs than those assigned to Complainant.

She denied that Complainant was tasked with more duties than any other HR Liaisons in the
branch, stating that she treated all HRLDB members equally and that her expectations including
conduct, performance, and leave requests were communicated verbally and in writing to all team
members. She stated that all team members received “constructive” feedback on a constant basis
and all team members received the same training and teleworking opportunities.

2 This incident appears to be identical to claim 3 except for the added basis of “perceive disability.”

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S1 asserted that all actions regarding conduct, performance, and leave requests are made with
direction from SAMSA’s EEO office and/or ER/LR Liaison. She denied that Complainant’s
protected bases had any bearing on her assignments.

In her rebuttal, Complainant reiterated that C1 did not carry the same workload.

Claims 3 and 25:

Complainant alleged that in a meeting, S1 told her that she was not receiving a promotion because
she was not working independently; relied too heavily on her partner; made too many errors; could
not handle complicated work; and was not working at the higher-grade level.

Complainant stated that S1 wanted her to demonstrate that she was capable of handling work at
the higher grade for six months before S1 would consider a promotion. She added that S1 had not
informed her of any performance concerns prior to this meeting and only general comments were
made regarding past performance, noting that S1 made these statements about her performance
only after she complained to S2 and S3.

Complainant asserted that she believed S1 was trying to “set her up for failure” by giving her a
center that had a very high turn-over rate; and that she did not understand how her performance
had deteriorated when four months prior, S1 issued her a 3.2 rating in a role with less responsibility.

S1 explained that Complainant met the time and grade requirements to be eligible for a career
ladder promotion to a GS-11 but her performance did not demonstrate the potential to perform the
duties at the GS-11 level. S1 added that she issued Complainant a career ladder memorandum
indicating specific areas of improvement that she would assess in another six months; and that
Complainant was promoted to a GS-11 at the conclusion of her six-month review period.

S2 stated that she was aware that Complainant’s career ladder promotion was being delayed until
her performance was at the level where she would be eligible; and that S1 created a six-month
performance plan for Complainant, which she has done for other staff, including individuals of
Puerto Rican heritage as both S1 and Complainant. S2 explained that performance plans are a
common management practice to help employees reach promotion objectives. She affirmed that
Complainant fulfilled the requirements of her performance plan and has since been promoted.

In her rebuttal, Complainant argued that S1 did not address her performance issues prior to June
30, 2016. She also stated that the only other employee issued a performance plan by S1 was C1;
and he only had to demonstrate performance at a higher level for two months prior to receiving his
promotion.

Claim 7:

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Complainant alleged that S1 issued her a Request for Medical Documentation Memorandum for
future absences; and that S1 did not make the same request of her coworkers.

S1 explained that she requested medical documentation from Complainant because over a
two-months period, Complainant requested allowance to take intermittent or unexpected
leave; and that she noticed a pattern regarding the dates and times Complainant was requesting
leave on consecutive Fridays, which created an alternative work schedule. She stated that she
consulted with the Agency’s ER/LR Liaison and, at their recommendation, requested medical
documentation from Complainant.

S1 asserted that requests for medical documentation were not solely restricted to Complainant; and
that she has requested medical documentation from other employees as well, including two of
Complainant’s Puerto Rican female coworkers ages under 40, and one other employee who was
over the age of 40 but whose national origin was unknown.

Complainant asserted that she did not create an alternative work schedule and her reason for
requesting leave on consecutive Fridays was because it was the least busy day of the week in her
office; she did not deny that she took the leave on consecutive Fridays as S1 explained was the
basis of the memorandum.

Claims 8 and 9:

Complainant alleged that she requested annual leave which was denied. She recalled that S1 stated
she was not going to approve Complainant’s leave request because C4, a co-worker, was already
scheduled to take leave for that same day. Complainant stated that S1 had earlier sent her an email
stating that her three leave requests were pending until S1 received medical documentation.

S1 asserted that Complainant’s requested leave for August 23, 2016 and August 24, 2016, were
approved and provided documentation to support her assertion.

Claim 12:

Complainant alleged that that S1 sent her an email indicating her requested leave for September
16, 2016 was pending until Complainant provided medical documentation.

S1 explained that Complainant’s requested leave for September 16, 2016, was approved; and that
Complainant was “confused” about the request for medical documentation which she expressed in
an email in which Complainant submitted multiple leave requests.

In her rebuttal, Complainant stated that she was not “confused;” and that she informed S1 her
conduct was “offensive” in a grievance she submitted.
Claim 15:

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Complainant alleged that S1 denied her sick leave request for mid-September. She asserted that
she submitted her request to S1 one month prior; and S1 denied her request due to inadequate
office coverage and requested that Complainant reschedule her appointment. She added that S1
mentioned that Complainant did not provide medical documentation for consideration in
accordance with the previously issued memorandum.

S1 explained that she denied Complainant’s requested leave for mid-September, because
approving Complainant’s leave would have created insufficient office coverage. She asserted that
she asked Complainant to reschedule her non-emergency appointment; and that all prior sick leave
requests from Complainant had been approved, pointing out that she had only denied one out of
fifty sick leave requests submitted by Complainant

Claim 19:

Complainant explained that she did not have a disability but that S1 asked for medical
documentation regarding her sick leave requests; and that S1 asked for “diagnosis and a prognosis,
including plans for future treatment.” She asserted that when she provided a note from her
physician, S1 stated that it was insufficient.

S1 asserted that she was unaware of any disability associated with Complainant; and that she did
not perceive Complainant as a person with a disability. She added that Complainant never
requested any accommodation for a disability or identified herself as a person with a disability.

S2 responded to this allegation, explaining that S1 consulted with her regarding this incident
because the doctor’s note was very vague and did not appear to be legitimate; and that she referred
S1 to ER/LR for advice.

In her rebuttal, Complainant stated that S1 created a requirement that was impossible to meet
because she viewed Complainant’s medical documentation as if she had a disability.

Claim 24:

Complainant alleged that S1 denied her requested leave to give C5, a co-worker, the opportunity
to request leave for the same date; and that S1 indicated that her denial of Complainant’s requested
leave was based on office coverage, and that two coworkers had previously coordinated their leave
for the same date. Complainant asserted that she asked the two coworkers if they requested leave
for the date in question and they both told her that they would be in the office.

Complainant stated her belief that S1 gave her misleading information to provide C5 the
opportunity to submit her leave request based on S1’s personal friendship with that coworker.

S1 explained that Complainant’s partner requested leave for the same day prior to Complainant’s
request; and that Complainant then coordinated her leave with two other coworkers per HRLDB
policy.
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She explained that it was HRLDB’s policy for team members to coordinate leave requests with
their backup partners; and that if partners were requesting leave on the same date, they can
coordinate with other HR Liaisons to ensure adequate office coverage. She also explained that if
employees were unable to come to an agreement, she then made the final decision.

Complainant’s coworker, (C3) explained that two weeks earlier, S1 sent her and Complainant an
email inquiring about their leave plans for the date in question, since they both requested leave for
that day. She stated that about a week later, she replied stating that Complainant could take leave
because she cancelled her leave request.

Harassment and Hostile Work Environment Claims

Claims 2, 4, 5, 10, 11, 13, 14, 16, 17, 18, 20, 22, and 23

Claim 2:

Complainant alleged that three of her coworkers reduced their communication and would not speak
to her unless she first spoke to them, adding that one of them would defer her questions to S1
instead of answering them herself. She stated that her coworkers’ conduct caused her to wonder
if S1 was sharing information about Complainant’s performance issues with them.

Complainant stated that she began speaking Spanish to her Puerto Rican coworkers because she
did not have the opportunity to use the language often, clarifying that her issue was not that her
coworkers spoke Spanish to each other but that S1 spoke Spanish (in a Puerto Rican dialect) to
others except Complainant. Complainant stated that she never asked S1 to refrain from
communicating with her in Spanish; and that she never told S1 that she did not speak or understand
Spanish.

S1 explained that she primarily used English with all her employees, but she would speak Spanish
upon their request; and that Complainant never requested for her to speak in Spanish when
communicating with her. Rather, Complainant told her shortly after she was hired that she
preferred communicating in English.

S3, Complainant’s third-level supervisor, asserted that he did not recall when, but Complainant
visited his office for an “impromptu” conversation where they talked in “generalities” about her
concerns with S1; and that Complainant expressed that she “felt like an outsider” because her
coworkers and S1 spoke in Spanish to each other. S3 stated that he was “confused” during the
meeting because Complainant did not make it clear whether she wanted to speak Spanish or
English in the workplace.

In her rebuttal, Complainant stated that she was unable to approach S1 regarding this incident
because of the “things she was observing” without offering any clarification on what those things
may have been.
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C1 stated that to his knowledge, no attempt had ever been made to ostracize Complainant; and that
he, his Puerto Rican coworkers, and S1 spoke Spanish to each other because it was their native
language. He asserted that when he speaks with his coworkers, he responds in whichever language
they use when they initiate a conversation with him; and that Complainant came to him on several
occasions and asked him in Spanish what certain words were and he always answered her questions
in Spanish.

C3 stated that he had no involvement in this matter but was aware that S1 and his coworkers speak
to each other in Spanish; and that he has heard Complainant speak Spanish to the janitors in their
office.

C4 stated she never heard her Puerto Rican colleagues speak Spanish to Complainant, but she
heard her colleagues speak Spanish to each other on a daily basis; and that she never heard S1
speak Spanish to Complainant but has heard her speak Spanish to her other Puerto Rican
colleagues.

C5 stated that she did not believe there was an attempt to ostracize Complainant; and that she
speaks Spanish and English, and her use of either depended on the preference of the person to
whom she was speaking. She added that Complainant never expressed a desire for her to speak to
her in Spanish.

She explained that when Complainant began working with the Agency, she told her that she spoke
Spanish but “not a lot” so she spoke to Complainant in English. She stated that it was not until
later that Complainant mentioned she understood Spanish but that she spoke so fast Complainant
could not understand her; and that she told Complainant she would rather speak to her in English,
so Complainant could understand her properly.

Claim 4:

Complainant alleged that she was responding to a customer inquiry via email when S1 sent her a
separate email stating that Complainant should be interpreting citations to provide a better
understanding when responding to customers, and if she needed assistance in doing so, S1 would
provide some guidance.

Complainant stated that she felt embarrassed because she did not want her customers to lose
confidence in her abilities and because S1 copied others on that email. She stated that S1 never
indicated this particular request prior to that email.

S1 explained that she provided feedback to all of her employees, including Complainant; and that
in this instance, she was providing feedback to Complainant regarding the proper way to respond
to a customer inquiry. S1 asserted that she was not criticizing Complainant but trying to help her.

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In her rebuttal, Complainant stated that S1 did not send her emails of correction prior to the filing
of her EEO complaint.

Claim 5:

Complainant alleged that a coworker, C6, isolated her from collaboration; and that she would ask
C6 questions but found her to be less helpful than she was prior to June 2016.

She alleged that C6 stopped responding to her emails and instead referred her to S1; and that C1
and C5 became distant and did not interact with her unless it was required.

Complainant stated that she asked C6 why she referred her to S1 instead of answering her questions
directly. She recalled that C6 stating that since they were not going to be partners anymore,
Complainant should seek guidance from S1 instead.

S1 denied knowledge of this claim; and C1 denied isolating Complainant from collaboration,
stating that he assisted her whenever she asked for help.

C4 stated that she had no firsthand knowledge of this incident but that she did relate with how
Complainant felt because she also felt isolated. She added that she did not feel she was a “part of
the team” because S1 told her not to ask her younger, Puerto Rican colleagues questions, but to
direct them to S1. C5 stated that she never isolated Complainant from collaboration and always
included her in work-related situations; and C6 stated that she never isolated Complainant from
collaboration and always included her in any way she could.

Claim 10:

Complainant alleged that she and her partner, C4, were both scheduled to be on leave in mid-
August when S1 stated she had to ask C5 and C6 to provide coverage “again.” She explained that
she reminded S1 that C5 and C6 had not covered for her before, but she and C4 had covered for
them in the past. Complainant stated that she was just pointing out the disparity of S1’s observation
with the hope that S1 would take note of how she viewed things at the office.

S1 explained that Complainant and C4 took leave at the same time and she instructed the HR
Liaisons who were not on leave to cover for their work schedule. She asserted that it was common
for all team members to cover for each other.

Claim 11:

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Complainant alleged that S1 criticized the way she responded to a customer inquiry by explaining
what the customer was asking and how to respond appropriately. She stated that she felt that S1
was implying she did not comprehend the customer’s question; and that when she tried to voice
her concerns, S1 would “turn the issue around” and say that Complainant “struggled with
direction” and needed to process customer actions faster.

S1 explained that she disagreed with Complainant’s characterization of her feedback to
Complainant as “chastising” and that her response to Complainant’s interaction with the customer
was informative. She asserted that her intention was to identify the correct type of response that
was expected in that particular HR circumstance. C5 and C6 affirmed S1’s explanation, adding
that everyone to whom Complainant had addressed her email by copy was included in S1’s
response except the customer; and that S1 was only providing clarity to the customer’s question
and guidance for an appropriate response.

Claim 13:

Complainant alleged that she mistakenly replied to one of C4’s customers’ emails informing them
she would assist them while C4 was on leave; and that she received an email from S1 stating that
C5 would be handling the customer’s needs while C4 was out of the office.

She asserted that the email also stated that S1 would relay this information to the customer; that
S1 told her to only work with her assigned centers and not to deviate from them without S1’s
approval; and that she would let Complainant know if she needed her assistance elsewhere.

Complainant stated that she apologized to S1 for the confusion and thanked her for “setting her
straight;” and that this was the only way she felt she could have handled the situation because she
did not want S1 to notice how she was negatively impacted by the interaction.

S1 explained that Complainant sent an email to a Senior Executive Service (SES) manager
incorrectly explaining she would be covering for C4 while who was out on leave; and that she sent
an email to the same SES manager explaining that C5 would be covering for C4, and not
Complainant. S1 asserted that Complainant was not the assigned backup to C4 for that specific
office, and she believed Complainant sent the email in error.

Claim 14:

Complainant alleged that S1 sent her an email asking a question relating to an email Complainant
sent in response to a customer inquiry; and that she felt that due to S1’s experience, she should
have known the answer to the question she asked Complainant. Complainant stated that she
answered S1’s question in the best way she could and told her if she needed further clarification,
she could contact HR. She alleged that S1’s reply chastised her and said Complainant should be
“doing her own research” on her responses to customer inquiries or checking with senior staff to
ensure her guidance was accurate and not to direct customers to someone else to research answers.

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S1 disagreed with Complainant’s characterization of her feedback as “chastising.” She added that
Complainant offered advice to a customer that S1 did not comprehend so she sent Complainant an
inquiry email for clarification. She asserted that, as Branch Chief, she has the responsibility of
ensuring communications with customers are accurate and final; and that she was not “chastising”
Complainant’s work but trying to understand what she was relaying to the customer. She explained
that this was a common practice in her branch.

Complainant stated that she was not trying to be disrespectful and that she did inform S1, via email,
she found her conduct to be offensive.

Claim 16:

Complainant alleged that S1 emailed S3 a list of pending items of all branch offices, except the
offices serviced by Complainant. She explained that once she realized her center’s actions were
not included in S1’s email, she sent S3 an email of her center’s pending actions and copied S1.

Complainant stated that S1 replied that she had requested the actions for Complainant’s center a
few days prior during a branch meeting; she noted that she was out on leave the day of the branch
meeting. Complainant stated that she saw an email from S1 to C5, asking her to verify her center’s
actions but S1 did not ask the same of Complainant. She stated that S1 discriminated against her
because S1 was aware that Complainant’s actions should have been included on the list that was
emailed to S3.

S1 asserted this was an “honest oversight” on her part; that she did not realize Complainant’s
actions were missing from the email she sent to S3; and that as soon as she realized Complainant’s
actions were missing, she corrected the action.

S3 stated that he emailed S1 asking her to provide him with a status update of all centers; and that
he received the list, but Complainant’s center was not on it. He stated that Complainant sent S1
an email, copying him, informing her of the oversight.

S3 asserted that S1 apologized for her oversight and then submitted the information to him, adding
that S1 was very focused in doing things correctly and she “raised the bar” regarding employee
performance in her branch.

In her rebuttal, Complainant stated that S1 did not “correct the action” and tried to portray her as
incompetent. She suggested that S1 purposely omitted the information for her centers.

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Claim 17:

Complainant alleged that S1 emailed her and C4 stating that they were responsible for following
up on any missed assignments discussed during branch meetings; and that she responded to S1’s
email stating that she and C4 were “confused” and neither of them recalled having previously been
made aware of this rule. Complainant stated that she asked S1 why she intentionally left her
center’s actions out of the email to S3 and stated that she believed S1 did this intentionally to
disparage her.

S1 explained that she sent the email to Complainant and C4 as a reminder of their responsibility
to “follow up” on work assignments and updates that were missed during absences by reaching
out to other team members or S1 upon their return from leave.

C4 asserted that she was aware of this incident because she was Complainant’s partner; and that
she was “well aware” of her role as Complainant’s partner, but that she was not aware that updating
her partner on assignments while she was out on leave was part of that role.

Claim 18:

Complainant alleged that S1 was speaking to the group about possible branch changes during a
branch meeting; and that S1 stopped at one point and said, in a “snarky, irritable” tone, “I just want
to be clear, so no one gets confused. Is anyone confused?” while looking at her and C4.
Complainant recalled telling S1 that she was not confused.

S1 asserted that she was speaking during a branch meeting when Complainant raised her voice to
her and said she was “confusing.” S1 denied responding in an “irritable” tone with Complainant
but stated that she was firm and assertive in her response.

In her rebuttal, Complainant denied raising her voice, but did not offer any evidence to show that
S1’s conduct was discriminatory based on her protected classes.

C1 stated that he was present during this branch meeting and that while S1 was speaking,
Complainant was “dismissive” of her by “rolling her eyes and scoffing.” He added that S1 did
not address Complainant directly during the meeting.

C4 stated that she was present during this branch meeting when Complainant asked S1 to clarify
the group’s partnership roles because they were “confusing.” She added that S1’s tone when
responding to Complainant was “a bit sarcastic.”

C5 stated that she was present during this branch meeting and that while S1 was speaking to the
group, Complainant used a “defiant” tone and “had an attitude” with S1. She added that
Complainant appeared “irritated” by “rolling her eyes and huffing” while S1 was speaking; and
that she did not remember S1 using an “irritable” tone with Complainant.

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C6 stated that she was not present during this particular branch meeting, but that she has witnessed
Complainant “roll her eyes” and give S1 “attitude” during other branch meetings. She added that
S1 has to be “firm” with Complainant because of Complainant’s behavior.

Claim 20:

Complainant alleged that she sent S1 two emails asking whether there were updates received from
leadership on the branch offices she serviced; and that S1 stated there were no updates, but
Complainant believed S1 did not conduct a thorough check. She stated that she then emailed S3
directly who replied that no updates were received.

S1 explained that she received an email from Complainant requesting the status updates for her
customer center; and that she replied that she did not have any updates to share. S1 stated that
Complainant continued to email her requesting the status of her center’s actions and S1 continued
to reply that she did not have the status. She asserted that Complainant appeared dissatisfied with
the response and proceeded to go directly to S3 for a status update, noting that as Director of all
of OMTO, it was not appropriate for her team member to request status updates, unless specifically
asked by her or S2.

Complainant’s rebuttal reiterated her initial claim without additional evidence.

Claim 23:

Complainant alleged that she sent S1 an email inquiring the status of her leave request that was
submitted about a month earlier; and that S1 responded to her email a week later approving her
request.

S1 explained that Complainant’s leave request was approved and because Complainant requested
leave for the same dates as C5 and C3, Complainant coordinated her leave dates with them. S1
added that it was HRLDB’s policy for team members to coordinate leave requests with their
backup/partners and if they are requesting the same date/time, they coordinate with other HR
Liaisons to ensure office coverage. She stated that she only gets involved in this process if the
employees cannot come to an agreement.

Claims 21 and 22

Complainant alleged that S2 emailed her the response to her Stage 2 grievance without first
speaking to her or even acknowledging that she received the grievance.

She stated that S2 began avoiding eye contact and “small talk” with her but continued to engage
in “small talk” with C1, C5, and C6. Complainant asserted that she felt S2 was “getting
uncomfortable” with her since she began copying S2 on her emails regarding concerns she had
with S1. Complainant stated that S2 only addressed her concerns regarding S1 once, via email.

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S1 asserted that she had never witnessed S2 ignoring, avoiding, or ostracizing any employee in
OMS or her branch.

S2 explained that she received an email from Complainant who shared that she felt S2 was
gradually avoiding her; and that since Complainant’s claims were part of her current EEO
complaint, she felt it was best not to engage in further dialogue. S2 asserted that she continued to
treat Complainant as she always had, which was with respect; and that she had limited interaction
with her second-line direct reports, oftentimes only interacting when she arrived for work in the
mornings and/or regarding work-related issues. S2 stated that she would say, “good morning” to
Complainant and her colleagues when she arrived to work and engaged in both personal and
professional conversations with Complainant on numerous occasions.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. In accordance with Complainant’s request, the
Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed Claim
21 for failure to state a claim, explaining that Complainant appeared to challenge the processes
and decisions by her supervisor during the Agency’s grievance process; and that such assertions
are a collateral attack on the grievance process. The decision went on to conclude that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Among other things, Complainant asserts that her office environment is dynamically split with a
young group, and an older group; that S1 and her coworkers are closer in age and have a close
friendship; and that she observed that the interaction between S1 and the Puerto Ricans is very
engaging and positive, and more enforced with the older group on assignments.

She reiterates her allegations, emphasizing that S1 was unfair to her older subordinates; and was
more favorable to the younger ones, assigning them special projects with assistance and being less
harsh or critical of their performance; and that her attempts at addressing her concerns with S1 and
upper management have been fruitless because S1 is highly regarded by her superiors.
Complainant contends that it is difficult to challenge some of S1’s allegations not because they are
true but because unless a thorough investigation is conducted with witnesses or colleagues or
documentation from her, the only evidence is Complainant’s case file and her appeal statement.
She also indicates that S1 needed to document incidents of Complainant’s disrespectful and
combative actions in order to prove they occurred.

The Agency did not submit a brief in support of its FADs.

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STANDARD OF REVIEW

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

ANALYSIS AND FINDINGS

As a preliminary matter, we affirm the dismissal of Claim 21 because, as the Agency explained,
Complainant’s allegation challenging the Agency’s grievance process is a collateral attack on that
forum and outside of the Commission’s EEO complaint process.

Disparate Treatment

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a
prima facie case by demonstrating that he was subjected to an adverse employment action under
circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Regarding Complainant’s disparate treatment claims set forth in claims 1, 6, 7, 8, 9, 12, 15, 19,
and 24, we find that, assuming, arguendo, Complainant established a prima facie case of
discrimination based on age, national origin, and reprisal/retaliation, the Agency articulated
legitimate, nondiscriminatory reasons for its actions. We find no persuasive evidence of pretext
regarding these matters.

With respect to work assignments, i.e., claims 1 and 6, S1 explained that Complainant was tasked
appropriately for her grade level; and that as part of her career development plan, Complainant
was assigned a Lead role in one center, and she was assigned to another center as a Lead backup
to a Senior Management Analyst of mentorship.
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Leave Related Claims: 7, 8, 9, 12, 15, 19 and 24

With respect to the leave request memorandum, S1 explained that, consistent with applicable
Agency policy, she requested medical documentation when it appeared that Complainant was
essentially creating an alternative work schedule for herself by using sick leave on Fridays,
indicating a pattern and form of leave abuse. S1 explained that if Complainant needed to maintain
this sick leave pattern due to medical reasons then the Agency needed the appropriate
documentation, or Complainant needed to request a reasonable accommodation. The evidence
indicates that S1’s actions were based on a business need for office coverage; she appropriately
consulted with both S2 and ER/LR for guidance when she was confronted with Complainant’s
sick leave requests; and Complainant’s acknowledgement that she requested leave for Fridays
because they usually were not busy days was an admission of leave abuse. S1 also provided
supporting evidence to show that she did approve Complainant’s Annual and Sick Leave requests
on those occasions when Complainant alleged otherwise.

Regarding Complainant’s claim that S1 denied her requested annual leave for December 27, 2016,
without cause or justification, S1 explained that Complainant’s partner had submitted her leave
request before Complainant did. The evidence also supports S1’s account that she was concerned
with office coverage and did not set out to discriminate against Complainant when she emailed
and asked her staff to come to an agreement on who would be available to cover the office on the
date in question. Therefore, we find that Complainant has failed to show that she was discriminated
against based on membership in her protected classes.

Complainant’s disagreement with S1’s actions and her subjective belief that she had a higher
workload than her colleague or other employees does not prove that S1’s explanations were
inaccurate or that her actions were motivated by discriminatory intent; and the evidence shows that
other employees also had the same level or even higher workloads than Complainant did.

Complainant’s other efforts at showing pretext have been undermined by witness testimonies and
the evidence; her inability to identify similarly situated employees in her same circumstances who
received more favorable treatment from S1 or other management officials; and by management’s
articulated legitimate reasons for their actions. Therefore, even in her rebuttal statements,
Complainant has failed to show that any of her alleged events occurred based on membership in
any of her protected classes or that managements explanations are a pretext for discrimination.

Harassment and Hostile Work Environment

Regarding Complainant’s hostile work environment claim, we find that, under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claims must fail with
respect to claims 1, 6, 7, 8, 9, 12, 15, 19, and 24. See Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment
is precluded by our determination that Complainant failed to establish that any of these specific
actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United
States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
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With respect to claims 2, 4, 5, 10, 11, 13, 14, 16, 17, 18, 20, 22, and 23, we find that the incidents
described as evidence of harassment and a hostile work environment by Complainant lack the
requisite level of severity or pervasiveness that would alter the terms and conditions of her
employment, nor do we find persuasive evidence that her national origin, age, or previous EEO
activity played any role in these matters. On the contrary, we find that these matters are indicative
of common work-related interactions. While Complainant and her supervisor had different ideas
about management, work load, assignments, and other topics, we find that Complainant did not
demonstrate that discriminatory animus was involved.

Claims 3 and 25

Complainant alleged that she was discriminated against based on perceived disability, age, national
origin, and retaliation when: on June 30, 2016, she was denied a promotion to GS-343-11,
Management Analyst. In addition to her other bases, Complainant believed that S1 perceived her
as being an individual with a disability. Complainant explained that she did not have a disability
but that S1 asked for medical documentation regarding her sick leave requests asking for
“diagnosis and a prognosis, including plans for future treatment.”

S1 asserted that she was unaware of any disability associated with Complainant; and that she did
not perceive Complainant as a person with a disability. She added that Complainant never
requested any accommodation for a disability or identified herself as a person with a disability.

As noted above, S1 explained that Complainant met the time and grade requirements to be eligible
for a career ladder promotion to a GS-11 but her performance did not demonstrate the potential to
perform the duties at the GS-11 level. S1 added that she issued Complainant a career ladder
memorandum indicating specific areas of improvement that she would assess in another six
months; and that Complainant was promoted to a GS-11 at the end of her six-month review period.

S2 stated that she was aware that Complainant’s career ladder promotion was being delayed until
her performance was at the level where she would be eligible; and that S1 created a six-month
performance plan for Complainant, which she has done for other staff, including individuals of
Puerto Rican heritage as both S1 and Complainant. S2 explained that performance plans are a
common management practice to help employees reach promotion objectives. She affirmed that
Complainant fulfilled the requirements of her performance plan and has since been promoted.

To show pretext, among other contentions, Complainant asserted that she was placed on a six-
month performance plan to get her promotion, and that she was treated differently than C1 who
was only given a two-month performance plan before he was promoted. Unlike her, Complainant
stated that C1 did not work independently and only received special projects on an “as needed”
basis. Complainant also maintained that he was not assigned the same volume of work and was
often on his phone or watching videos instead of working on his assignments.

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The Agency’s investigation did not rebut or even address Complainant’s specific assertion that
where she was required to demonstrate higher-level performance over a six-month period, C1, a
younger, non-Mexican employee with no prior EEO activity and no perceived disabilities, only
had to demonstrate higher-level performance for two months.3 In its FAD, the Agency merely
stated that employers have broad discretion to set policies and to carry out personnel decisions.
Moreover, the Agency indicated that, “[w]hile Complainant may have found the different
evaluation periods unfair, there is no evidence of discriminatory animus in the decision and
therefore, we will not second-guess management’s decision to delay Complainant’s promotion for
6 months.” We disagree. Without some evidence in the record regarding why S1 apparently used
her discretion to create different evaluations periods for Complainant and C1, we are not prepared
to find that there was not an unlawful motivation here. Accordingly, we will vacate the Agency’s
finding of no discrimination regarding claims 3 and 25 and will remand these matters to the Agency
for a supplemental investigation.

CONCLUSION

Upon careful review of the record, as well as the arguments and documents submitted on appeal,
we MODIFY the FAD. The Agency’s DISMISSAL of claim 21 is AFFIRMED. The Agency’s
finding of no discrimination or harassment regarding claims 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 22, 23, and 24 is AFFIRMED. The Agency’s finding of no
discrimination regarding claims 3 and 25 is VACATED and REMANDED for further processing
in accordance with this decision and the ORDER below.

ORDER

Within 90 (ninety) days of receipt of this ORDER, the Agency shall conduct a supplemental
investigation, to include the following actions:

(a). The Agency shall obtain an affidavit from S1 or another person with knowledge, indicating
when C1 was promoted; whether he was only required to complete a two-month evaluation period;
and, if so, why his evaluation period was only two months while Complainant was required to
complete a six-month period.
(b). The Agency will provide documentation establishing the exact promotion dates of both
Complainant and C1 to GS-343-11, Management Analyst.

Upon completion of the investigation, the Agency must issue a new final decision addressing the
merits of claims 3 and 25 with appeal rights to the Commission. The Agency must provide
Complainant with a copy of the supplemental record and findings and return the completed record
along with a copy of the new final decision to the Compliance Officer, as referenced below.

3 Both S1 and C1 provided both affidavits and supplemental affidavits but were never asked about
Complainant’s assertion.
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In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this
remanded case in order to comply with the time frames contained in this Order. The Office of
Federal Operations will issue sanctions against agencies when it determines that agencies are not
making reasonable efforts to comply with a Commission order to investigate a complaint.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.

If the Agency does not comply with the Commission’s order, the Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has
the right to file a civil action to enforce compliance with the Commission’s order prior to or
following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and
29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on
the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp.
IV 1999). If the Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the
Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint.
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If you file a civil action, you must name as the defendant in the complaint the person who is the
official Agency head or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your case in court. “Agency” or
“department” means the national organization, and not the local office, facility or department in
which you work. If you file a request to reconsider and also file a civil action, filing a civil action
will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

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

September 19, 2019
Date