Vicki B.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Nov 14, 2019

0120182718 (E.E.O.C. Nov. 14, 2019)

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

Vicki B.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120182718

Agency No. DOS-0234-17

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated June 1, 2018, finding no discrimination
concerning her complaint alleging employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior Procurement
Analyst, GS-14, at the Agency’s Office of the Procurement Executive, Policy Division, in
Washington, D.C.

On July 7, 2017, Complainant filed her complaint alleging discrimination based on disability
(feet pain) and in reprisal for prior EEO activity when she was subjected to a hostile work
environment, characterized, but not limited to false allegations and unsafe working conditions.

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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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. When Complainant did not request a hearing,
the Agency issued its final Agency decision finding no discrimination as alleged. Complainant
appealed.

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 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").

To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a
statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on her or his statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant’s] employment and create an abusive working environment.” Harris
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Complainant indicated that: she had multiple surgeries on her right foot since 2009 with the most
recent being in May 2016; she had nerve damage making walking difficult; she had other
mobility problems including knee deterioration; and she had one knee replaced, Morton’s
Neuroma, Barrette esophagus, ulcers, disk/shoulder/back pain, fibromyalgia, and anxiety.

Complainant indicated that her supervisor (S1) was aware of her surgeries and reasons for
absence and she had been accommodated including teleworking twice per week. S1 stated that
Complainant was accommodated with full-time telework during the recovery from her knee
surgery. We note that Complainant does not claim that she was denied any reasonable
accommodations from the Agency.

Here, Complainant alleged that her coworker (E1), also a GS-14, Procurement Analyst, subjected
her to a hostile work environment.
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Complainant and E1 worked in a cubicle across from each other in a small office of 30
employees. S1 supervised both Complainant and E1. Complainant claimed that E1 placed a
trash bin repeatedly in the hallway since May 2016, although she asked E1 to try to keep the
trash bin in E1’s cubicle because she was worried that she would fall over if she tripped on the
trash bin due to her knee problem.

E1 indicated that Complainant never told her that Complainant was harassed by her or the
placement of her trash bin was a potential safety hazard until January 18, 2017; and up until
January 18, 2017, their relationship was civil. E1 stated that on January 18, 2017, Complainant
became aggressive toward her regarding the location of her trash bin and demanded that it be
moved inside her cubicle. E1 stated that Complainant then picked up the trash bin which was at
the entrance of E1’s cubicle and “slammed” it into the cubicle and away from the entrance. E1
stated that she then told E1 that if E1 moved it, she would kick it down the aisleway. E1 stated
that Complainant then picked up the trash bin again and kick it down the aisleway. Complainant
admitted kicking E1’s trash bin. E1 indicated that the trash bin was always at the cubicle
entrance so that the cleaning crew could readily empty it and it was never in the aisleway and/or
blocked Complainant’s use of the aisle.

After the January 18, 2017 incident, both Complainant and E1 went to S1 complaining that the
other one created a problem in the work environment. S1 talked to them separately and told E1
she could telework the rest of the day if she needed or go to an empty office and work. E1
teleworked on that day. On January 25, 2017, E1 then went to see Employee Relations/Human
Resources (HR) Specialist concerning the trash bin incident and requested to be moved to a
different cubicle because she did not feel safe around Complainant. Accordingly, E1 was moved
three cubicles away from Complainant on February 1, 2017. S1 indicated that this move
involved moving three employees’ cubicles. E1 indicated that even after the move, Complainant
routinely walked passed her cubicle and stopped to watch her unnecessarily.

Complainant indicated that she was later notified by the HR Specialist that E1 had filed an EEO
complaint against her for harassment.2 Complainant further indicated that she thus filed this
instant complaint to “protect herself against the lies being said against her by [E1].”

There is no evident connection between the alleged harassment and Complainant’s membership
in any protected class. It appears that Complainant and E1 had an ongoing conflict, including the
placement of E1’s trash bin. After a review of the record, we find that Complainant failed to
show that the alleged harassment claim was related to any protected basis of discrimination.
Accordingly, Complainant has failed to establish that she was subjected to a hostile work
environment.

2 Our records indicate that E1 filed her EEO complaint, Agency No. DOS-0238-17, alleging
discrimination when she was subjected to harassment by Complainant. The Commission, in
EEOC Appeal No. 0120182832 (May 31, 2019), affirmed the Agency’s July 16, 2018 final
decision finding no discrimination concerning E1’s complaint.
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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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 (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.
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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

November 14, 2019
Date