Zoila G.,1 Complainant,v.Andrew Wheeler, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Sep 17, 2019

0120182036 (E.E.O.C. Sep. 17, 2019)

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

Zoila G.,1
Complainant,

v.

Andrew Wheeler,
Administrator,
Environmental Protection Agency,
Agency.

Appeal No. 0120182036

Agency No. 2017-0037-HQ

DECISION

On June 1, 2018, 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
April 18, 2018, 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., and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.2

ISSUES PRESENTED

Whether the Final Agency Decision (FAD) correctly determined that Complainant did not
establish that she was subjected to hostile work environment/harassment and disparate treatment
based on race, color, sex, age, and retaliation (prior EEO activity) when:

1. Sometime in 2016, on January 31, 2017, February 3, 2017, and during the week of February
6, 2017, a Program Manager, Office of Research and Development, Office of
Administrative and Research Support/Human Resource Division, (ORD/OARS/HRD),
spoke negatively about Complainant to her supervisor, managers and other employees,
including calling her a “disgruntled, vindictive employee,” and recommending her
demotion and denial of training;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
2 According to the Agency, Complainant received its final decision on May 5, 2018.
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2. On several occasions in December 2016 and on February 4, 2017, a coworker and another
Integrated Risk Information System (IRIS) employee, ORD/National Center for
Environmental Assessment (NCEA), spoke unfavorably about Complainant and also
discussed how management/employees were discrediting her when she applied for
scientific details/positions in 2016;

3. On January 26, 2017, and on February 2, 2017, Complainant’s first line supervisor, Branch
Chief ORD/NCEA, Program Support Staff (PSS) recommended to upper management that
Complainant be fired, and that he could not recommend her for other positions;

4. On several occasions, including on February 1, 2017, coworkers and other management
officials, Supervisory Biologist, (previously ORD/NCEA/IRIS Deputy Director), Director
(ORD)/NCEA), (ORD/NCEA/IRIS), Acting Communication Director, two Assistant
Center Directors, ICF Contractor’’, 4 other ORD/NCEA coworkers, and the Branch Chief,
Toxics Effects Branch, (TED), were speaking unfavorably about Complainant including
teasing her, and laughing when talking about her;

5. On February 1, 2017, and January 17, 2017, Complainant’s coworkers warned her that she
should not go against their program office by helping out other offices;

6. On January 25, 2017, her supervisor directed Complainant not to attend the Potomac Yard
Active Shooter Response Drill training;

7. On January 17, 2017, an NCEA Web Master, Immediate Office, (ORD/NCEA), stated to
a coworker that Complainant was imagining things and needed to seek medical help and
the coworker agreed;

8. On January 11, 2017, 2 managers and the Logistical Support Coordinator,
(ORD/NCEA/IRIS), discussed Complainant’s EEO case with other managers and laughed;

9. On January 10, 2017, her supervisor spoke to Complainant about wearing “appalling”
garments, that no one wants to work with or around her and yelled loudly that she comes
and goes as she pleases;

10. On December 20, 2016, Complainant overheard a coworker, Quantitative Modeling
Branch, (ORD/NCEA/IRIS) tell a Washington. D.C. Metro employee that Complainant
was a “disgruntled EPA employee;”

11. On December 8, 2016, while Complainant was standing in the doorway of an employee’s
office, her coworker (ORD/NCEA) instructed that employee to close her office door to
avoid Complainant’s “scents/smells;”

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12. On December 2, 2016, the Division Director, (ORD/NCEA), made negative comments
about Complainant and revealed her Personally Identifiable Information (PII);

13. In December 2016, her supervisor assigned another employee to evaluate Complainant’s
work. The employee followed Complainant around, listened in on her conversations, and
has called HR to get information about her;

14. During the week of July 17, 2016, her supervisor asked Complainant for written
justification to attend the 2016 Urban Waters National Training Workshop;

15. On June 23, 2016, the Division Director made negative remarks about Complainant
including telling her that she smelled bad, and that no man wanted her;

16. During the week of June 5, 2016, her supervisor informed someone from the Office of Air
and Radiation (OAR) that they should not hire Complainant and that it is not fair that
women of color “move up in the Agency really fast;”

17. On April 19, 2016, her supervisor discussed removing two (2) of Complainant’s
Performance Appraisal Rating System (PARS) critical elements with a coworker;

18. Since 2015, the Division Director asked employees to monitor Complainant while on the
Metro train; and

19. On June 16, 2013, Complainant received her promotion to grade 12, nearly a year late.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Management Specialist (GS-12) at the Agency’s Office of Research Development (ORD),
National Center for Environmental Assessment (NCEA), Potomac Yard facility in Arlington,
Virginia.

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On February 14, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color (Brown),
age (43), and reprisal for protected EEO activity under Title VII of the Civil Rights Act of 1964
and the Age Discrimination in Employment Act of 1967 as set forth above.3

Complainant's protected activity is the instant EEO complaint. Complainant contends that the
management officials involved in the instant complaint are aware of her protected statuses.

Claim 1

According to Complainant, a program manager (PM1) stated to someone with whom he was
having a phone conversation that he and NCEA management could not wait to get rid of her; and
that Complainant should take an assessment to determine the type of job that she should be placed
in. Complainant alleged that PM1 also stated that she was performing generalist work and should
have that classification instead of the Information Management Specialist classification; and that
the other job descriptions on Complainant's resume did not apply as work experience because she
was performing generalist work. She alleged that PM1 then stated that Complainant is not capable
of doing any other type of work, is a disgruntled, vindictive employee and not to be trusted, is not
to be left alone in the office, and that security needed to monitor her.

Complainant also alleged that PM1 spoke with individuals on the phone about her, stating that she
is not someone that NCEA management wanted to promote, that NCEA employees did not want
to work with her, and that management wanted to quickly get rid of her. She also asserted that
PM1 stated that the ORD human resources employees were tired of hearing information about her.
Complainant alleged that PM1 had also instructed the Branch Chief (BC1) on how to demote her
to a GS-9, but she has not been demoted; and PM1 informed BC1 that he had nothing to worry
about because [Complainant] would not take action against him.

3 Complainant alleged that the incidents outlined in Claims 1-5 and 7-19 were the result of
disparate treatment based on her protected classes. However, Complainant did not allege, and the
record did not reflect, that Complainant experienced any harm or loss with respect to a term or
condition of her employment as a result of the incidents outlined in those claims. Therefore, the
Agency dismissed Claims 1-5 and 7-19 for failure to state a claim of disparate treatment.

Complainant also alleged that the actions outlined in Claims 1-5 and 7-19 were motivated by
retaliation for her filing of the instant complaint. However, the agency found the incidents outlined
in Claims 1-5 and 7-19 (even assuming the actions occurred as alleged) are nothing more than
petty slights and trivial annoyances that are not actionable claims of retaliation. Therefore, the
Agency dismissed those for failure to state a claim of retaliation.

Regarding Claim 6, Complainant alleged that her supervisor, (S1) directed her not to attend the
Potomac Yard Active Shooter Training on January 25, 2017. However, Complainant asserted that
she attended the training on February 8, 2017. Since Complainant was permitted to attend the
training at issue, howbeit at a later date, the Agency dismissed this claim finding that it is moot.
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She alleged that PM1 had also discussed her with another employee and other human resources
employees; stating that she found PM1’s actions and comments to be intimidating, damaging to
her work and experience; and that she believed that they may prevent her from receiving another
permanent position at EPA, and intended to psychologically terrorize her. Complainant contended
that two coworkers (C1 and C2) witnessed the aforementioned incidents.

She stated that she discussed PM1’s actions and comments with her previous acting Branch Chief
and upper management. Complainant contended that PM1’s instructions to BC1 to demote her
was because she is Black; and that her sex was a factor since PM1’s comments and actions took
place because she is a shy and quiet female, and he is not threatened by her. She believed that her
age was a factor in PM1’s actions because he is aware that she is over age 40; and that the instant
EEO activity is a factor because PM1 has spread vicious rumors about her throughout EPA in
order to ruin her reputation, has called human resources employees to try to find out negative
information about her, and has tried to convince BC1 to demote and fire her.

PM1 denied all of Complainant's allegations; and Complainant’s coworkers denied overhearing
the conversations at issue.

Claim 2

Complainant alleged that two coworkers (C3 and C4) came up with a scheme to plot against her
by saying that Complainant was harassing C4, who wore a hearing aid. According to Complainant,
C3 stated that she was making sure that Complainant was not going after C4 because she has a
higher paying position.

Complainant also alleged that C4 and an unidentified IRIS employee were in the “ladies room”
discussing how IRIS management/employees were discrediting Complainant when she applied for
scientific details/positions within EPA. According to Complainant, C4 also stated that IRIS
employees and contractors were more qualified to perform scientific work than Complainant.

She contended that these comments made her fearful that she would not advance at EPA.
Complainant believed that her race was a factor in this incident because C4 and the unidentified
employee are aware that she is black and felt that they had the right to intimidate and speak
unfavorably about her; and that because the color of her skin is brown, C4 and the unidentified
employee were jealous of her and did not want her to advance above them at EPA. She reiterated
her reasons for believing that her sex and age were factors, asserting that C4 is a higher grade than
her, so C4 and the unidentified employee felt they had the authority to discredit/speak unfavorably
about her to other employees; and that C4 and the unidentified employee have heard IRIS
management say that she is too old to be promoted, and C4 and the unidentified employee agree
with management's statement. She stated that her EEO activity was a factor because C4 and
another IRIS employee stated that management/employees discredited her when she applied for
scientific details/positions within EPA and Complainant is afraid that she may not be able to
advance within the agency due to the comments made by IRIS employees.
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C3 denied making the comment at issue, stating that she had no knowledge of Complainant's
allegation; C4 did not submit affidavit testimony; and BC1 testified that he was not made aware
of the alleged comments by C3 and C4.

Claim 3

Complainant alleged that BC1 shouted to management that he wanted Complainant fired
immediately and did not want her back in the building. She indicated that the instant EEO activity
was a factor in BC1’s actions because he was interviewed by the EEO counselor regarding the
instant complaint and became irate when he found out about her case. In response, according to
Complainant, BC1 demanded that the Director (D1), and the Deputy Director (DD1) fire
Complainant and indicated that he would not recommend her for other positions. Complainant
also alleged that BC1 recommended to upper management that she should be fired because she
was slow in getting the work done and he could not recommend her for other positions. She
believed that her race was a factor in BC1’s comments because since she is black, he thought that
he had the right to abuse his position of power and psychologically terrorized her about being fired
for an 8-month period. Complainant also contended that because the color of her skin is brown,
BC1 had made comments and took action against her so that she knows that he is in control. She
again reiterated her reasons for believing that her sex and age were factors, asserting that BC1 is
not threatened by her due to his supervisory position; and that he did not want other employees to
be upset if she advanced above them in the agency.

BC1 testified that he did not recall making the comments at issue; D1 stated that she had no
knowledge of the alleged conversation and did not discuss personnel matters with BC1; And DD1
testified that BC1 made no comment of the nature alleged.

Claim 4

Complainant alleged that on one occasion, a Director (D2), an Assistant Center Director (ASCD),
a contractor, and two coworkers (C5 and C6) stated that she should be fired, that she was too slow
when performing work, and that interns worked faster than her. She also alleged that the group
laughed after making these comments. Complainant alleged that four of her coworkers were in
the pantry/kitchen discussing her, specifying that C7 stated that management gave her permission
to fire Complainant. Complainant believed that the group was trying to come up with ways to fire
her, by documenting all her actions/behaviors that included following Complainant around the
building and evaluating what she was working on; and her entries to and from the building.

Complainant alleged that on another occasion, three coworkers spent most of the day in C8’s office
speaking in an unfavorable manner about her to EPA employees. She contended that they made
statements such as: Complainant did not fit in well, did not work well with others, did not help the
scientists with their work; and that the group did not want to be forced to work with her. She
asserted that the statements are untrue.
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Complainant alleged that on a third occasion, D2, an Associate Director for Health (ADH), and
the Communications Director (CD1) were standing by the Metro-way bus stop and were laughing
and teasing her. She alleged that D2 stated that C9 is trusted and treated more favorably by the
IRIS Division compared to Complainant. According to Complainant, it was also stated that IRIS
employees did not want her to work with them.

Complainant alleged that on a fourth occasion, C6 told an Associate Director for Ecology (ADE)
that Complainant was not friends with anyone in the office and should leave NCEA. She stated
that C6 proceeded to discuss getting rid of her and hiring an intern; and that ADE told C6 that he
was going to work on having Complainant fired and wanted to get ideas from C6. Complainant
alleged that as a result of this incident, two coworkers walked past her cubical and said that they
were going to complete paperwork to have her fired.

On the same occasion, Complainant alleged that ADE stated to a coworker that C9 wanted a
promotion; that she could do Complainant's work; and that Complainant was no longer needed in
NCEA. Then the coworker stated that she did not want to be involved in any scare tactics, and
that she did not want to hear about them.

Complainant contended that on a fifth occasion, D2 and ten other management officials and
coworkers did not like her because she has discussed the harassment/discrimination that has taken
place against her with union officials and these employees did not want their reputations to be
ruined. She also contended that because she is black, the identified individuals believed they had
the authority to mob and psychologically terrorize her on a daily basis.

Complainant contended that because the color of her skin is brown, the individual's made
comments and took actions against her, and also thought that she is a pushover and would not
report their behaviors. Complainant believed that her sex was a factor because the individual's
comments and actions took place because she is a shy and quiet female, and they are not threatened
by Complainant because management thinks highly of them; and they believed that they would
not be disciplined for their actions.

She also contended that her age was a factor because the individuals have been informed that she
is over age 40 years and that she needed to prove to them that she deserved a higher
grade/promotion and to not be fired. Complainant contended that the instant EEO activity was a
factor because the management staff abused their authority and power via their comments/actions
and created a hostile work environment; the non-managerial employees acted and spoke on the
behalf of management and stated that they had been given permission to do this; and the
management and non-management staff actions/comments were forms of harassment and
discrimination, and they mobbed and psychologically terrorized her. She asserted that three
coworkers witnessed the incidents alleged.

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D2 denied making the comments attributed to him, stating that he has no knowledge/involvement
regarding these allegations. The other management officials and coworkers also testified that they
had no knowledge/involvement regarding Complainant's allegation or did not provide testimonies
in response to them; and denied ever overhearing D2 make comparisons between Complainant and
C9, stating that they had never heard anyone state that IRIS staff or management did not want to
work with Complainant. One official denied making any of the comments attributed to her, stating
that she was not involved in, or party to, any incident involving Complainant; and that she was not
working in NCEA on the date in question.

Another official denied making the alleged comments, stating that she did not have the authority
to hire or fire Complainant; and a coworker denied making the comments at issue or meeting with
any of his fellow coworkers in C8’s office to discuss any of the topics described. ADE also stated
that he had no knowledge of the incident at issue and had no knowledge of any discussion of
Complainant's future employment with C6; and one coworker denied making the alleged comment
about Complainant, stating that she was not her supervisor and had no firing authority. The three
coworkers Complainant named as witnesses denied witnessing the incidents at issue.

Claim 5

According to Complainant, two coworkers stated that they were working toward having her
labeled as crazy/insane; and that they were in control of her position description, and determined
what happened to Complainant including meaning being fired. She alleged that the two coworkers
stated that she should not go against her own program office, that she needed to listen to the staff
in her program office, needed to stay off other floors in the Potomac Yard building, and should not
talk to employees in other program offices.

Complainant alleged that those two coworkers stated that their statements were being made on
behalf of C3 who was on sick leave. She contended that the two coworkers stated that they
informed management that they wanted to have her fired and would rather hire someone else to do
the work. Complainant stated that two other coworkers witnessed the alleged incidents.

She reiterated her the reasons why her race, color, sex and age were factors in the alleged incidents,
stating her belief that her EEO activity was a factor because the individuals acted and spoke on the
behalf of management and stated that they had been given permission to do this.

The two named coworkers denied making the comment at issue; C3 denies having any
knowledge/involvement in the incidents; and the three identified witnesses denied overhearing the
comments, witnessing the interactions or observing the conversations at issue.

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Claim 6

Complainant indicated that BC1 directed her not to attend a Potomac Yard Active Shooter
Training, alleging that he stated that she should not attend the training because it was not for her
and only for special people. Complainant stated that, at the time, she had not requested to attend
the training, adding that she attended the training about one month later. Complainant also stated
that BC1 informed her that she could not attend the earlier training as it did not affect her ability
to perform her job duties.

Complainant believed that her race was a factor in BC1’s action because she is black and he
thought that he had the right to abuse his position of power, and deny her the training. Complainant
also stated that she did not know why BC1 did not want her to attend the training, perhaps it was
because of the color of her skin. Complainant reiterated her reasons for believing her sex was a
factor, adding that BC1’s denial was because he felt that he had the right to and would not be
disciplined for his actions.

She did not believe that BC1’s action was motivated by her age. She however believed that her
EEO activity was a factor because BC1’s denial was an abuse of power over her. Complainant
indicated that a 44-year old brown African-American female coworker also requested to attend the
training and her request was approved by BC1.

BC1 did not recall directing Complainant not to attend the training at issue, stating that the
Potomac Yard Active Shooter Response Drill training was provided by “facilities” (not NCEA or
ORD) and offered only to those who volunteered to participate in the Potomac Yard Active Shooter
Response Drill. Therefore, any request to attend the training would go to facilities and not the
supervisor.

Claim 7

According to Complainant, CD questioned the Webmaster about the events that had taken place
in the area of Complainant's cubicle related to the instant complaint; and the Webmaster stated that
nothing had occurred. She alleged that the Webmaster stated that Complainant was imagining
things, and needed to go see a doctor to get help; and that CD agreed. Complainant contended that
CD asked the Webmaster questions about the activities on her side of the office because she filed
an EEO complaint.

She believed that her race was a factor in this incident because CD and the Webmaster were aware
that Complainant is black and because of their authority they thought that they have the right to
make negative comments about her, and that no one would believe Complainant if she reported
their statements. Complainant also contended that because the color of her skin is brown, the
Webmaster and CD thought that she is a pushover and would not report their behavior.
Complainant reiterates her reason for believing her sex was a factor in this incident, adding that
the Webmaster and CD were higher grades than her, so they felt that they had the authority to
speak unfavorably about her.
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Complainant believed that her age was a factor in this incident because the Webmaster and CD
had been informed that she is over age 40 and have agreed that she did not need or deserve a
promotion, so this was a way to make her look bad. Complainant believed that the instant EEO
activity was a factor in this incident because CD questioned the Webmaster about the events that
Complainant included in the instant complaint and the psychological terrorizing was used to scare
her into withdrawing her EEO complaint.

CD stated that he had no knowledge of the alleged event, and no knowledge of any events
occurring in the area of Complainant's cubicle that would lead to an EEO complaint. He had no
recollection of the Webmaster ever discussing Complainant with him, beyond coordination of
posting materials to the NCEA website, and the delivery and timing of Federal Register Notices,
which fell under Complainant's responsibilities in NCEA. The Webmaster denied having any
knowledge of the incident, stating that she did not recall having a conversation of this nature with
CD about Complainant; and that she was unaware at the time that Complainant had filed an EEO
complaint. Complainant’s coworkers denied overhearing and observing the conversation or
witnessing the incident at issue.

Claim 8

Complainant alleged that CD, D2, and a coworker were discussing her EEO case and laughing.
According to Complainant, CD stated that management was going to do a countersuit and asked
how Complainant knew if people were addressing her. She stated that the coworker agreed with
CD’s comments and laughed at her. She contended that three management officials overheard the
conversation at issue.

She reiterated her reasons for believing that her race, color, sex, and age were factors, adding that
the named officials felt that because they were higher grades than her, they had the authority to
laugh and tease her about her EEO case. Complainant indicated that the instant EEO activity was
a factor because the named individuals were discussing her case and at the same time laughed and
teased her about it. Complainant contended that this situation was a scare tactic to persuade her to
withdraw her EEO complaint.

The coworker denied having any memory of the incidents at issue. CD stated that he had no
knowledge of the event, and that he did not become aware of Complainant's EEO complaint until
August 9, 2017. D2 also denied making the comments at issue, stating that he had no knowledge
and involvement regarding these allegations. The identified coworkers denied overhearing the
conversation at issue; and one of them stated that she did not observe any conversation among the
named individuals over Complainant's EEO Claim; and another provided no testimony.

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Claim 9

According to Complainant, BC1 stated that the things that she wore were appalling and that no
one wanted to work with her or be around her. Complainant asserted that BC1 also questioned
who was going to verify that all the events and facts in her instant EEO case are true; and that he
yelled the statements in his office and she and everyone that sat in the area around his office could
hear him. Complainant contended that this type of incident happened every couple of months.
According to Complainant, BC1 also stated that she came and went from the building as much as
she pleased, which Complainant contended was not true. She stated that a coworker witnessed
this incident.

Complainant again reiterates her reasons for believing that her race, color, age and sex were factors
why BC1 made the alleged comments, adding that the instant EEO activity was a factor because
employees in the office discussed the garments that she wore and reported all of her actions to
BC1; and he was tired of the gossip and as a result, this caused him to speak loudly about
Complainant.

BC1 stated that he did not recall making the comments at issue; and the coworker stated that she
never heard BC1 make the statements.

Claim 10

According to Complainant, she and a coworker were both on the yellow line Metro train; and the
coworker told a Metro employee that Complainant was a disgruntled EPA federal employee. Once
the train reached the L'Enfant Plaza Metro station and idle for about 10 minutes, Metro transit
police proceeded down the escalator. Complainant stated that she made eye contact with a
Hispanic female officer and they stared at each other for about 1 minute, before all of the officers
ran up the escalator.

Complainant again reiterated her reasons for believing that her race, color, sex, and age were
factors, repeating the alleged incidents to support her belief, and adding that the coworker felt that
she is more valuable to the agency and had the authority to label Complainant as a disgruntled
EPA federal employee; and that no one would believe her comments/actions.

The coworker contended that the alleged conversation did not occur and denied making any
comment about Complainant. She stated that she and Complainant have never spoken to one
another, she has never seen Complainant in any Metro station, and was not aware of whether
Complainant was happy in her position at NCEA. She also testified that on the date at issue, she
was in Dallas, Texas.

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Claim 11

According to Complainant, she was at a holiday party and stood in the doorway of a coworker’s
office to talk to her; and another coworker was also in that office. Complainant contended that as
she walked away, that other coworker instructed the first coworker to close the door to the office,
so that Complainant would get the hint that they did not want to deal with her scents/smells.
Complainant reiterated her reasons for believing that her protected classes were factors in this
incident, adding that her coworker knew NCEA management and some employees did not like
her, so she felt that she had the authority to comment about Complainant's scents/smells without
repercussions; and that she used knowledge of Complainant’s age as a way to lower her self-esteem
and to discredit her.

The first coworker stated that the other coworker never asked her to close the door to her office so
that they could avoid Complainant's smell. According to her, she and the other coworker were
both sitting down in her office talking when Complainant came to the door and spoke to both of
them; that she asked Complainant if she wanted to join them and Complainant declined stating
that she would talk to them later; and that she and the other coworker continued their conversation.
This coworker also stated that at no time was there a conversation about a smell from Complainant.
The other coworker denied making the comment at issue.

Claim 12

Complainant alleged that the Division Director (DD) and D2 were making inaccurate accusations
about her to an individual on the phone. Complainant specified that DD and D2 stated that she
was not doing her job, was not qualified to work in the Federal Government, and that they would
rather be fired before having Complainant promoted. She contended that neither D2 nor DD had
the authority or permission to call and discuss personally, identifiable information (PII) about her
with anyone because they were not her Branch Chief.

Complainant contended that this incident was a form of abuse of power and mobbing, and she was
horrified by the way DD and D2 psychologically terrorized her. Both DD and D2 denied having
any knowledge or involvement in this allegation.

Claim 13

Complainant alleged that PM1 started to evaluate her work habits, contending that he had been
evaluating her to determine the type of work that she can perform and the best job for her.
Complainant alleged that PM1 was asked by a retired Branch Chief (BC2) and BC1 to evaluate
her work habits because they did not like her. Complainant asserted that BC1 knew that she was
exploring other employment opportunities, so without her permission, he decided to have PM1
evaluate her work habits to determine the best job for her.

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Complainant also alleged that PM1 had been following her around the Potomac Yard building to
check on her activities and to listen to her conversations. She contended that on two separate dates,
PM1 brought a female into the NCEA office space (possibly from Human Resources) to help
evaluate her. She also contended that because she is black, BC1 felt that he had the right to abuse
his position of power by assigning PM1 to evaluate her work habits and collect information about
her without her permission. She contended that because the color of her skin is brown, BC1 used
his superiority to assign PM1 to evaluate her work and habits by spying to see what she was
working on, listening to her conversations, and following her around the building.

She reiterated her reasons why her sex and age were factors, adding that BC1 knew she was over
40 and did not want other employees to be upset if she advanced above them in EPA, so he assigned
PM1 to follow her around to keep up with her activities. Complainant stated that two coworkers
witnessed the incidents. PM1 denied Complainant's allegation; and BC1 denied asking PM1 to
evaluate Complainant's work. The two coworkers identified as witnesses were not questioned
about this incident.

Claim 14

According to Complainant, she asked BC1 to attend the EPA Urban Waters National Training
Workshop but BC1 did not believe that the training related to her. She stated that BC1 instructed
her to write a justification stating why she wanted to attend the training before she was allowed to
attend. Complainant reiterated the reasons why she believed that her protected bases were factors
in this incident, asserting that after her persistence did he finally asked for a justification, and she
was allowed to attend the training; and that because of her age, BC1 felt that other employees did
not feel that she should have been representing NCEA at this conference. She added that BC1 did
not want to upset these employees, so he asked for a justification.

BC1 stated that Complainant did not request to attend the training/workshop at issue, but rather
sent him an email, informing him that she registered for the training; and that he asked her why
she was planning to attend the workshop as the topic area was not in line with the duties of the
organization. He also asked Complainant to provide a justification as to how the training would
benefit her career advancement and/or the organization in general. Complainant provided a
justification and after further discussion, he permitted her to attend the conference. BC1 contended
that discussions concerning employee training taken during working hours are part of a
supervisor's responsibility; and that since Complainant did not request this training in the usual
manner and the training occurred during working hours, it was his duty to inquire about its purpose
to ensure the proper use of federal resources. He also stated that he also wanted to make sure that
the training would be of potential benefit to Complainant; and denied that Complainant's race,
color, sex, or age were factors in his decision.

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Claim 15

Complainant alleged that a management official stated that she had a bad smell and that no man
wanted her. The official also stated that no manager in NCEA had taken a liking to Complainant
to mentor and guide her; and that management can do whatever they want to her. Complainant
contended that because the she is black, the official felt that she had the right to abuse her position
of power by spreading vicious rumors about Complainant and discredit her career aspirations.
Complainant also contended that because the color of her skin is brown, the official used her
superiority to spread rumors about her. She again reiterated her reasons for believing that her sex
and age were factors.

The official denied making any comment to Complainant on the date in question; and denied that
the incident occurred. According to her, she had very few interactions with Complainant during
the time that she worked at NCEA; the interactions were either about work services and products
(specifically Federal Register Notices), or they were friendly and cordial greetings in passing in
the hallways and pantry.

Claim 16

Complainant stated that she applied for an Environmental Protection Specialist position and did
not make the certificate of eligible applicants for the position. According to Complainant,
someone from OAR contacted BC1 during the week of the application; he stated that OAR should
not hire her, that women of color (like herself) tended to move up in EPA really fast which is not
fair to other employees; and that BC1 suggested that the office hire two people to do the job instead
of Complainant. Complainant stated that OAR management never contacted her about this
position because her application was not referred to the hiring manager. Complainant stated that
her coworker was in BC1’s office when the OAR employee contacted him; the coworker then
notified Complainant that the conversation was occurring and the two went to BC1’s office where
Complainant heard the conversation at issue.

She reiterated her reasons for believing that her protected classes were factors in this incident,
adding that BC1 knew her age and did not want NCEA employees to be upset if she advanced
above them in the agency so he spoke unfavorably about her to an OAR employee to ruin her
reputation in this office and to prevent them from considering Complainant for future
opportunities. BC1 denied making the comments at issue; and the coworker denied overhearing
the alleged conversation and discussing it with Complainant.

Claim 17

According to Complainant, BC1 discussed removing two of her four work duties/critical elements
from her PARS Performance Plan. Complainant avers that to her knowledge none of her critical
elements have been removed.

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She contended that BC1 had also previously discussed her PARS critical elements with a
coworker; and that because the color of her skin is brown, BC1 used his superiority by suggesting
removing two of her critical elements (document editing and an editing contract) and this could
greatly affect Complainant's future aspirations.

Complainant reiterated her reasons for believing that her sex and age were factors in this incident,
asserting that NCEA employees did not want her to advance within the organization, so BC1
suggested removing two critical elements to keep her at a grade GS- 12. BC1 stated that he did
not recall having the conversation; and the coworker denied having the conversation at issue.

Claim 18

Complainant alleged that since 2015, a management official had contractors evaluate her in the
mornings on Metro trains and buses to monitor her time and attendance. She specifies that one
morning, an EPA contractor was sitting next to her on a Metro train; she left her umbrella on the
train and the contractor called the official about it. According to Complainant the official told the
contractor to keep the umbrella because Complainant did not need it.

Complainant reiterated her reasons for believing that her protected classes were factors in this
incident, adding that the official did not like her; and that did not support her interest in taking
training courses and participating in mentoring groups in the agency. The official denied
Complainant's allegation that she asked employees to monitor her while on the metro train.

Claim 19

Complainant stated that she was eligible for a promotion to a grade 12, contending that her
promotion was delayed by BC2 and a Team Leader. According to Complainant, she spoke with
BC2 about her promotion; and she had a discussion with the Team Leader about her full
performance level to a grade 12. She indicated that the Team Leader gave her invalid excuses
about not receiving her promotion on time. Complainant stated that she did receive her promotion.

Complainant contended that because she is black, management felt that they had the right to abuse
their position of power and deny her promotion for no particular reason. She also contended that
because the color of her skin is brown, management used their superiority by not promoting her
on time, which has affected her career aspirations. She reiterated her reasons for believing that
her sex were also factors in this incident. Complainant included with her testimony copies of email
correspondence which reflect that she informed BC2 (then “Acing” Program Support Staff
Director, ORD/NCEA/PSS) that she became eligible for a career ladder promotion about nine
months earlier. BC2 informed Complainant that he had not been previously aware that she was
eligible for the promotion as human resources did not provide notification about grade level
increases. Complainant was then granted her promotion.

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The Team Leader testified that she had no involvement in the decision; and BC2 testified that he
did not recall who denied Complainant a promotion or the reasons why. BC1 testified that he was
not made aware of Complainant's allegation that her promotion was delayed.

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 decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant summarily reiterates her allegations; identifies some of her
accomplishments over her 7-year period of employment with the Agency; and pleads that OFO
give her an opportunity to discuss the injustices of discrimination and harassment that have been
“impended” upon her by management and non-managerial staff members.

The Agency reiterates its position that Complainant failed to establish her allegations of
discrimination, harassment and retaliation; and requests that its FAD be affirmed.

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

To succeed in a claim of harassment, a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).
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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).

Here, Complainant has failed to establish a case of harassment and hostile work environment based
on race, color, sex, and age because she failed to establish, nor does the record indicate, that the
incidents outlined in Claims 1-5, 7-13, and 14-18 occurred as alleged or were based on her
protected classes.

Specifically, Complainant has alleged that management and her coworkers plotted against,
discredited, or spoke negatively about her. However, the named officials and individuals denied
that the alleged incidents occurred; and one individual had never seen Complainant at a Metro
station, never spoken to her, and was on travel during the incident she was accused of in Claim
10. Complainant provided no evidence to refute any of the denials; and she did not refute all of
her named witnesses’ denials of overhearing or otherwise having any knowledge of the alleged
incidents and discussions. Rather, the evidence indicates that the incidents were based on
Complainant’s own beliefs and statements she allegedly overheard, not on actual occurrences; and
she admitted that she reported coworker harassment and a hostile work environment to a former
supervisor but not S1, indicating that management was not even aware of the alleged coworker
harassment and therefore had no opportunity to address the situation.

In the same vein, Complainant’s disparate treatment allegation that she was denied training in
Claim 6 fails because she admitted, and the evidence shows, that she did eventually attend the
training. Her retaliation allegation in this Claim also fails because S1’s alleged statement that the
Active Shooter training only applied to special people occurred in late January of 2017, about a
month after Complainant made her initial EEO contact, and about 7 months before S1 became
aware of that filing. Therefore, there is no nexus between the alleged training discussion and
Complainant’s protected EEO activity.

Notably, the incidents alleged in Claims 10 and 19 occurred prior to Complainant’s EEO
Counselor contact and could not have been motivated by discrimination. Regarding Claim 14, S1
explained that he was performing his supervisory duty when he inquired about the purpose of
Complainant’s requested training to ensure proper use of federal resources; and that he wanted to
be sure the training would be potentially beneficial to Complainant and the organization. In
response to the allegations in Claim 19, management explained that they were unaware that
Complainant was eligible for a career ladder promotion until she informed the then Acting
Program Support Staff Director that she became eligible for a career ladder promotion almost one
year earlier. Therefore, we find that Complainant has failed to prove that any of the alleged
management actions were motivated by discrimination or retaliation. See Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass), aff ‘d,545 F.2d 222
(151 Cir. 1976). See also, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). As
Complainant did not request a hearing, we do not have the benefit of an Administrative Judge’s
credibility determinations after a hearing; therefore, we can only evaluate the facts based on the
weight of the evidence presented to us.
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CONCLUSION

Upon careful review of the record, as well as the arguments and documents submitted on appeal,
we AFFIRM the Agency’s final decision.

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

September 17, 2019
Date