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

Equal Employment Opportunity Commission

Sep 13, 2018

0120161662 (E.E.O.C. Sep. 13, 2018)

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

Alana W.,1
Complainant,

v.

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

Appeal No. 0120161662

Agency No. 54-2015-00218

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 23, 2016, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Computer Operator,
ZT-0332-III, at the Agency’s facility in Suitland, Maryland. On August 8, 2015, Complainant filed
an EEO complaint alleging that the Agency discriminated against her on the bases of race
(Caucasian), disability, and in reprisal for prior protected EEO activity when2:

1. Management has not given her a raise or promotion since 2009;

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 In her formal complaint, Complainant also alleged that she was subjected to unlawful color and
sex discrimination, however she later withdrew those bases and they will not be addressed in the
instant decision.
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2. in April 2015, her second-level supervisor (S2), did not interview her for the
position of Physical Scientist Technician;
3. with respect to her work schedule and hours:
a. in April 2015, management called her into a meeting for being late to
work, but her co-workers are not held accountable for their tardiness;
b. since April 2015, S2 has denied her requests for a daytime shift with no
explanation;
c. in May 2015, S2 denied her request for advanced sick leave and
overtime hours;
d. on July 7, 2015, S2 denied her overtime;
4. since April 2015, two of Complainant’s coworkers (CW1 and CW2) “bully, harass,
and intimidate her,” looking for mistakes she has made and making false statements
about her to supervisors and other employees, in addition to commenting on her
previous EEO complaints and reasonable accommodation. Despite reporting this
“unprofessional and inappropriate behavior” to S2 and her first-line Supervisor
(S1), they have failed to respond appropriately. More specifically:
a. on May 19, 2015, CW1 treated her rudely, interfering with her job by
telling her what to do and making inappropriate and disruptive
outbursts;
b. on July 22, 2015, CW2 made false statements concerning
Complainant’s work performance and has continued to behave
inappropriately towards her;
c. on July 28, 2015, CW1 directed rude and disrespectful comments at her,
called her names, and refused to answer any of her questions; in April
2015, and again on June 15, 2015, S1 falsely accused her of making
mistakes in the performance of her job;
5. on June 17, 2015, S1 yelled at her in front of coworkers, intimidating and
humiliating her;
6. on August 31, 2015, S1 issued her a Letter of Warning (LOW) for leaving her
workstation without proper turnover;
7. from September 1-15, 2015, her coworkers have continued to harass her, and
despite reporting this behavior to management, they have yet to respond
appropriately. More specifically:
a. on or around September 1, 2015, CW1 and other coworkers were talking
and laughing loudly near her workstation, using vulgar and threatening
language for almost an hour, then CW1 rudely commented that
Complainant “smells.” After leaving her desk for a few minutes, she
returned to find her chair soaked and damaged with an unknown liquid;
b. on that same day, CW1 “refused to write a help-desk ticket and to
reassign one as well,” in an effort to make Complainant’s job more
difficult;
c. on September 7, 2015, she noticed that her jacket was missing and
believes it was taken by a coworker;
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d. on September 14, 2015, CW1 was lingering behind Complainant’s desk
with another coworker, laughing and harassing her with spray and
eggshells. Rather than stopping this behavior, S1 said that he needed to
go over her work from the previous day and then, in front of other
employees, told her that she was wrong to have falsely accused CW1.

In its Amended Notice of Partial Acceptance for Investigation, the Agency dismissed claim (1),
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the
Agency found that Complainant failed to identify any denial of pay increases or promotional
opportunities occurring within 45 days of the date she initiated EEO contact. The Agency also
dismissed claim (1), pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim, finding
that because she failed to identify any specific pay increases or promotional opportunities she was
denied, she failed to show that she was aggrieved. As to the remaining claims, 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 (AJ). 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. On appeal, Complainant
reiterates her contention that she was subjected to unlawful harassment, and was unlawfully denied
a shift change.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and 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”).

Initially, with respect to claim (1), we find that the Agency improperly dismissed Complainant’s
claim that she has been denied raises or promotions since 2009. Complainant’s EEO Counselor
contact was timely under the Lilly Ledbetter Fair Pay Act (Ledbetter Act), Pub. L. No. 111-12,
123 Stat. 5. The Ledbetter Act applies to all claims of discrimination in compensation, pending on
or after May 28, 2007, under Title VII, the Rehabilitation Act, and the Age Discrimination in
Employment Act. With respect to Title VII claims, Section 3 of the Ledbetter Act provides that:

An unlawful employment practice occurs, with respect to discrimination in compensation
in violation of this title when a discriminatory compensation decision or other practice is
adopted, when an individual becomes subject to a discriminatory compensation decision
or other practice, or when an individual is affected by application of a discriminatory
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compensation decision or other practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or part from such a decision or other practice.

Here, Complainant’s EEO contact was timely because, as a current Agency employee, it was
within 45 days of her last paycheck. Therefore, we find that the Agency improperly dismissed
claim (1), and this claim is remanded to the Agency for further processing in accordance with the
Order herein.3

Next, it is well-settled that harassment in the workplace that occurs because of membership in a
particular group or because of participation in protected EEO activity is actionable. Enforcement
Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No.
915.002, p. 2 (June 18, 1999). To prevail in a harassment claim, complainant must show that: (1)
she belongs to a statutorily protected class; (2) she was subjected to unwelcome conduct; (3) the
conduct complained of was based on her previous EEO activity or her protected basis; (4) the
conduct had the purpose or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. McCleod v. Social Security Administration, EEOC Appeal No.
01963810 (August 5, 1999). The conduct at issue must be so offensive that it alters the conditions
of complainant's employment. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81
(1998); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993); Meritor Savings Bank F.S.B.
v. Vinson, 477 U.S. 57, 67 (1986). 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 (March 8, 1994).

Here, we find that Complainant has failed to show that any of the actions at issue either occurred
as alleged, or were based on discriminatory or retaliatory animus. Specifically, a review of the
record shows that none of the actions alleged are corroborated by witness testimony. Further, the
record shows that, despite her contentions, these alleged incidents were investigated by
management officials when reported by Complainant, and that contemporaneous statements from
coworkers either contradicted Complainant’s allegations or failed to support her claims. Further,

3 With respect to the portion of claim (1) in which she alleges that she was denied promotions since
2009, it is unclear if Complainant is attempting to allege that she was denied promotion into
specific positions during this time period. If so, we note, that most courts have concluded that the
time frame for challenging the denial of a promotion, in which someone was denied the opportunity
to move to another position at higher pay, is not affected by the Lilly Ledbetter Fair Pay Act. See
Sherill S. v Department of Veterans Affairs, EEOC Appeal No. 0120180401 (Jan 31, 2018) (citing
Noel v. Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010) (“on the basis of a plain and natural reading,
we conclude that the [Lilly Ledbetter Fair Pay Act] does not apply to failure-to-promote claims.”);
Schuler v. Pricewaterhouse Coopers. L.L.P., 595 F.3d 370, 374 (D.C. Cir. 2010) (“in employment
law the phrase ‘discrimination in compensation’ means paying different wages or providing
different benefits to similarly situated employees, not promoting one employee but not another to
a more remunerative position”)). As such, that portion of claim (1), would not be covered under
the Ledbetter Act and would be properly dismissed under 29 C.F.R. § 1614.107(a)(2).
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several coworkers named Complainant as the instigator of conflicts, with one coworker stating that
“Complainant has difficulties with just about everyone around here” and that “she can’t seem to
get along with people.” We find that Complainant has proffered no evidence to support her claim
that she was subjected to unlawful harassment.

Next, with respect to the discrete acts alleged, to prevail in a disparate treatment claim,
Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish 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 Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the
Agency to articulate a legitimate, non-discriminatory reason for its actions. Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of race,
disability, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, as to claim (2), the record shows that
Complainant applied, but was not selected, for the Physical Scientist Technician position. In
support of his decision not to interview or selectee Complainant for the position, S2 states that
Complainant’s application contained inaccuracies and falsehoods, such as her claim that she was
a certified satellite operator, and that she did not meet the qualifications for the position. With
respect to claim (3)(a), management officials state that all late employees, including Complainant,
are counseled. The record also contains affidavit testimony from coworkers stating that they have
also been counseled regarding their tardiness. As to claims (3)(c) and (d), management officials
state that Complainant was denied advanced sick leave because she used her leave as quickly as it
was earned, and there was no evidence that she would be able to repay the leave. As to overtime,
the record shows that advanced overtime is provided to the volunteer who has had the least amount
of overtime, and that last-minute overtime is scheduled by calling each individual on the list in
order, with the first responder being granted the overtime. S1 states that Complainant failed to
respond to phone calls during the periods at issue.

As to claim (5), S2 states that Complainant made a processing error that caused their office, as
well as other offices in Europe, to spend four hours investigating the problem. S2 further states
that when it was revealed that the error was made by Complainant, she refused to take
responsibility, and that she often refused to cooperate with management’s attempts to hold her
accountable for performance errors. With respect to claim (6), the record shows that Complainant’s
tour of duty on the date at issue was 7 am to 7 pm, but that S2 saw Complainant in the employee
health club at 6:30pm. When he investigated the situation, he discovered that Complainant had left
her duty station without being relieved by another employee in violation of agency procedure. S2
further states that he had previously counseled Complainant about going to the health club while
on duty, and therefore a LOW was appropriate.
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We find that Complainant has not shown that any of the Agency actions were motivated by
discriminatory or retaliatory animus; nor has she shown that the Agency’s articulated reasons for
its actions are pretextual.

Finally, with respect to claim (3)(b), the Agency is required to provide a reasonable
accommodation for the known physical and mental limitations of a qualified individual with a
disability, absent undue hardship. 29 C.F.R. § 1630.2(o); 29 C.F.R. § 1630.2(p); EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans
with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17, 2002). Here,
the record shows that on May 21, 2015, Complainant requested the reasonable accommodation of
a day-shift only work schedule. The record also shows, however, that when the Reasonable
Accommodation Coordinator informed Complainant that she needed to submit medical
documentation to support her request, Complainant failed to respond. Accordingly, we find that
Complainant abandoned the interactive process, and therefore the Agency did not violate the
Rehabilitation Act.

CONCLUSION

We AFFIRM the Agency’s finding of no discrimination for claims 2 – 7. We REVERSE the
dismissal of claim 1 and REMAND claim 1 to the Agency for further processing pursuant to the
Order herein.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If the Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s
request for a FAD, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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.
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
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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. 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.

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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 13, 2018
Date