Alice C.,1 Complainant,v.Ryan K. Zinke, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Jul 20, 2018

0120162365 (E.E.O.C. Jul. 20, 2018)

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

Alice C.,1
Complainant,

v.

Ryan K. Zinke,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.

Appeal No. 0120162365

Agency No. BOR-14-0143

DECISION

On July 13, 2016, 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
June 1, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Space Management
Specialist. GS-1301-12, with the Property and Office Services, Pacific Northwest Regional Office,
Bureau of Reclamation (BOR), United States Department of the Interior (DOI), located in Boise,
Idaho. On May 29, 2014, Complainant filed a formal EEO complaint with subsequent amended
claims as follows:

Claim 1: Complainant alleges that the Agency subjected her to a hostile work environment based
on sex (female), age (age 60), and reprisal (prior EEO activity) when: (a) her supervisor (S1A)
(male, age 38) spoke to her in a gruff manner and used cuss words in her presence; (b) S1A ignored

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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her concern and disagreements with a co-worker (C1) (female, age 47, prior EEO activity) and
complaints that C1 was creating a hostile work environment; (c) S1A made false claims and
accusations against her; (d) S1A required her to complete her assignments prior to their due date;
(e) S1A limited Complainant’s overtime and compensation time; (f) S1A was restrictive and
overbearing in regards to ensuring Complainant work assignments and training were completed
on time; (g) on or about January 10, 2012, she was approached by her new first-line supervisor
(S1B) (male, age 48, prior EEO activity) regarding her working hours and after-hours presence in
the office; (h) in or around February 2014, she was removed from her position as lead of the Energy
Program; (i) on or about May 13, 2014, S1A prevented her from completing her EEO responses;
and (j) on or about May 20, 2014, she was accused of improperly disposing of records.

Claim 2: Complainant alleges that the Agency discriminated against her based on reprisal (prior
EEO activity) when, on or about October 28, 2014, during her yearly performance evaluation
meeting, S1B stated that she had more flexibility in her work hours than anyone else in the office.

Claim 3: Complainant alleges that the Agency discriminated against her based on reprisal (prior
EEO activity) when on or about January 12, 2015, she was given a memorandum of Direct Order.

Claim 4: Complainant alleges that the Agency discriminated against her and subjected her to a
hostile work environment based on reprisal (prior EEO activity) when: (a) on or about April 20,
2015, S1A accused her of lying on her timesheet; (b) on or about April 22, 2015, S1A asked her
about her car that was parked outside the building; (c) in or around March 2015, she was initially
denied permission to attend an Energy Conference; (d) on or about March 12, 2015, she was once
again placed under S1A’s direct supervision despite her pending EEO complaint naming him as
the responsible management official; (e) on or about June 10, 2015, S1A prohibited her from
moving to the renovated office space, but other employees were allowed to move; (f) on or about
June 12, 2015, she was accused of being in C1’s cubicle; (g) on or about June 29, 2015, S1A
presented her with a new Employee Performance Appraisal Plan (EPAP) with the least time
available in the fiscal year to meet the standards of the new plan.

After 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 EEOC 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.

FACTUAL BACKGROUND

Complainant claims that S1A generally treats her with disdain and typically addresses her with a
“gruff” tone. Complainant also asserts that S1A disregards her opinions and insight as well as
fails to consider her side of the story when incidents occur. According to Complainant, S1A treated
her in this manner from the start of their employment relationship in April 2011.

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Complainant also states that S1A treats her in a disparate manner by requiring her to submit reports
and assignments days before their formal due dates. Complainant also alleges that S1A falsely
tells other employees that she is often late on deadlines and that she frequently asks for extensions.2
Complainant states that in the spring of 2012, when she needed to telework due to her husband’s
illness, S1A micromanaged her work by requiring that she report her accomplishments
continuously throughout the day including how long it took her to complete the work and what she
was going to do next. Complainant claims that no other similarly situated employee is treated in
such a manner. On or about October 9, 2013, Complainant was called into the office during a
government shutdown to complete mandatory training related to shutdown procedures.
Complainant explains that S1A micromanaged her training throughout the day constantly
pressuring her to complete the training. Complainant asserts that S1A did not act this way toward
any other employee in the office.

Beginning in or about December 2013 or January 2014, Complainant began reporting directly to
S1B, who reported to S1A. Complainant asserts that S1A continued to harass her by pressuring
S1B to treat her in an unfair and disparate manner. Complainant alleges that sometime between
December 2013 and January 2014, she went to the Human Resources (HR) office to discuss a
vacancy in the property program. Complainant states that S1B told her that S1A learned that she
went to HR and asked S1B to have a discussion with her because she was “trying to get [S1A] in
trouble.”

On or about February 20, 2014, S1A informed Complainant that she would no longer be the Energy
Program lead due to an EEO settlement agreement that was made between C1 and the Ecosystems
Analysis Program Manager (S1C) (male, age unknown). According to Complainant, S1A was
involved in the settlement negotiations and did not inform Complainant of the change ahead of
time. On or about March 6, 2014, S1A issued an official memorandum indicating that
Complainant was no longer the Energy Program lead and that C1 would be taking over that
assignment.3 In addition, Complainant asserts that the EEO office improperly helped S1A write
the memorandum knowing that she had already filed a complaint against him. On or about March
19, 2014, Complainant claims she was not invited to a meeting with S1A, S1B, and C1 to discuss
the Energy Program lead assignment.

Complainant also asserts that on or about May 20, 2014, S1A held a meeting with Complainant
where she was accused of throwing out sensitive files contrary to office policy. Complainant
indicates that S1A called her into a meeting with S1B and she was repeatedly asked if she knew
how to process file records. Complainant maintains that she was the only employee targeted about
this issue. On or about January 12, 2015, S1B shared with Complainant a Memorandum of Direct
Order, reinforcing the Agency’s policies regarding work hours, flex time, core hours, and signing
in to the after-hours log, that S1B intended to formally issue to Complainant.

2 Complainant claims that she asked S1A for a list of the extensions and extension requests, but he
has never provided them.
3 The undisputed record shows that Complainant was given the lead assignment in another
program.
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However, after meeting with Complainant, the memorandum was turned into an informal email
reminding her of the polices and expectations of the office. Complainant asserts that she should
not have been issued this memorandum because: (1) S1B permitted her great flexibility with her
hours; (2) items mentioned in the memorandum do not reflect the whole picture; (3) there was no
discussion prior to the issuance of the memorandum; and (4) there is a double standard in the
office.

In or about March 12, 2015, Complainant was informed that S1A was going to be her first-line
supervisor again. She asserts that she was not made aware of the possibility of this change in
advance. Complainant claims that she expressed her concern over S1A becoming her direct
supervisor again because of her pending EEO complaint against him. Complainant asserts that
S1A failed to provide her with an explanation for the change of supervisors, except to say that it
was a “business decision.”

According to Complainant, on or about April 20, 2015, S1A asked her to account for her time from
3PM to 4PM on April 1, 2015, because he received an email from a manager stating that
Complainant went on a long break that day. Complainant alleges that S1A does not scrutinize
other employees to this degree. She further indicates that a male employee went to lunch at 12:41
PM and had not returned by 1:23 PM during the same time-frame. Complainant also asserts that
on or about April 22, 2015, S1A questioned Complainant about her car being illegally parked in
front of the building. According to Complainant, on another day a male employee’s car was parked
in front of the building for a substantially longer period (approximately two to three hours) without
being questioned about it. Complainant also asserts that on or about April 21, 2015, S1A sought
to deny Complainant any credit for attending a safety presentation because she did not attend the
entire training even though S1A was not present at the presentation himself. While Complainant
admits that she did not attend the whole safety presentation, male employees who only attended
the training for a few minutes received full credit for the training.

Complainant asserts that between May 12 and 14, 2015, she requested permission to stay late at
the office to work on her EEO complaint.4 Complainant states that S1A initially denied her request
then later set an arbitrary limited number of hours that she would be allowed to stay at the office
late to work on her EEO complaint. Complainant contends that S1A’s schedule was useless to her
and did not provide adequate time she needed to complete her EEO work. According to
Complainant, S1A also told her that her request was an excessive use of government equipment
and that she needed to complete the responses elsewhere or she should have done them at a
previous time. Complainant also states that on or about July 10, 2015, S1A refused to let her work
on EEO responses during the weekend. She indicates that he only acquiesced when the EEO
Manager intervened on Complainant’s behalf.

According to Complainant, on or about June 10, 2015, S1A informed her that she could not move
her personal items to the renovated office space until he gave her permission.

4 Complainant was requesting permission to utilize the office space after hours to work on her
EEO complaint. She was not requesting to be paid for her EEO work.
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According to S1A, other employees needed to move first. However, Complainant asserts that
other similarly situated team members moved their personal items before her, including, but not
limited to, S1A, S1B, the GS-12 Support Services Supervisor (SSS) (female, age 32, prior EEO
activity), C1, a General Supply Specialist (C2) (male, age 56), and a Supply Management
Specialist (C2) (male, age 58).

On or about June 12, 2015, Complainant claims that S1A accused her of being in C1’s cubicle,
without first getting Complainant’s version that she was not in C1’s cubicle. Complainant also
states that on or about September 2, 2015, S1A asked for an explanation as to why she submitted
an assignment without having it completed. Complainant also believes that S1A has been writing
false statements and putting them in a disciplinary and adverse action folder in HR. Complainant
asserts that during the move to the new office space, on or about Friday, June 12, 2015, S1A asked
her in a loud and gruff voice not to not put her plant on the cabinet. Complainant states that she
had this plant in the temporary office space for months and there was no damage. She also
contends that one of S1A’s line supervisors has a plant on her cabinet.

Complainant further asserts that on June 29, 2015, after several weeks of vaguely referencing
changes to her performance appraisal plan (EPAP), S1A presented Complainant with an EPAP
with completely new standards and elements. Complainant also asserts that S1A did not meet with
her in advance to explain the new EPAP or provide her with any justification for the new standards.
Complainant asserts that S1A notified her of the new standards well into the performance period
which gave her very little time to meet the new objectives before the end of the rating period.
Complainant also asserts that S1A did not write a new EPAP for an employee (C3) (male, age
unknown) who moved under S1A’s supervision during the same time-frame.

In addition, Complainant asserts that in July 2015, and continuing, she requested approval to work
overtime, however, S1A only approved Compensatory Time (Comp Time) which was
automatically permitted to all employees. Complainant states that S1A constantly requires her to
justify the basis for requested overtime and provide detailed accounting of any permitted overtime.
Complainant contends that such scrutiny is not placed on her similarly situated male co-workers
who are freely permitted overtime without having to justify a necessity or provide a detailed
accounting of the overtime usage. Complainant also asserts that on or about May 25, 2014, S1A
assigned her an undesirable office space which was located next to C1’s cubicle, knowing that
Complainant had requested to be placed as far away from C1 as possible.5

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).

5 Complainant asserts that on April 14, 2014, just prior to the announcement of the new office
assignments, she caught C1 and S1A huddled together in a closed office discussing the workspace
assignment chart that was laid out on the table before them.

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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”).

To establish a claim of harassment a complainant must show that: (1) he or she belongs to a
statutorily protected class; (2) he or she 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 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). 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 may establish a prima facie case of reprisal by showing that: (1) he or she engaged
in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he or
she was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment
followed the protected activity within such a time and in such manner that a retaliatory motive
may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005);
Dominica H. v. Dep’t of Health and Human Ser’v., EEOC No. 0120150971 (Nov. 22, 2017).
The Commission has a policy of considering reprisal claims with a broad view of coverage. See
Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission
policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the
terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on
Retaliation and Related Issues, No. 915.004 § II.B(2) (August 25, 2016). The statutory retaliation
clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably
likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S.
Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999).
Retaliation claims occur under three circumstances: (1) where the employee suffered from some
type of adverse employment action (as discussed above); (2) where the employee was subject to
retaliatory harassment by a supervisor; and (3) where the employee suffered from retaliatory
harassment by coworkers. See Morris v. Oldham Cnty. Fiscal Court, 201 F.3d 784, 792 (6th Cir.
2000); Hawkins v. Anheuser Busch, Inc., 517 F.3d 321, 346 (6th Cir. 2008).

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Sex and Age – Claim 1

Documentary and testimonial evidence in the record corroborates much of Complainant’s
allegations in Claim 1 with respect to S1A treating her differently than her co-workers.
Specifically, we find that: (a) S1A often spoke to Complainant in a disrespectful or gruff manner;
(b) S1A, without justification, treated Complainant as if she frequently requested extensions to
deadlines and/or had a problem meeting deadlines and generally needlessly micromanaged her
work6; (c) S1A treated Complainant’s telework/overtime requests and usage differently than her
coworkers, which resulted in reduced overtime opportunities and unequal telework conditions for
Complainant; (d) while on notice of ongoing conflicts between C1 and Complainant in which each
employee often claimed harassment by the other, it appears from the record that S1A tended to
obtain and believe C1’s account before obtaining Complainant’s version of events; and (e) placing
C1 in the Energy Program lead position was part of an EEO settlement, however it was a
discretionary decision and not mandatory.7

While the record shows that S1A treated Complainant differently than her co-workers, there is
insufficient evidence to support the finding that the differing treatment was based on
discriminatory animus. The record is devoid of evidence of any sex-based or age-based comments
made in the workplace by anyone. In addition, there is no clear pattern of disparate treatment
toward a group of older employees or female employees. In fact, the record shows that C1 and
SSS were treated more favorably than Complainant and three of Complainant’s male co-workers
(who undisputedly were treated better than Complainant), were in their late 50s during the relevant
time-frame. While Complainant is the only female in her 60s among her co-workers,8 this fact,
without more, is not sufficient to prove, by a preponderance of the evidence that she was treated
less favorably because of a combination of protected categories (i.e., a woman and 60 years old).

6 This includes the allegations pertaining to training during the government shutdown.
7 We do not find sufficient evidence in the record to support the conclusion that Complainant was
treated differently with respect to her work hours and remaining in the office past the core hours
of 6AM to 6PM. The record shows that, employees were permitted to arrive 30 minutes earlier or
30 minutes later than their set schedule without prior approval. However, each employee was
expected to maintain their set schedule that had to fall between the hours of 6AM and 6PM. We
also do not find sufficient evidence in the record to establish that S1A treated Complainant
differently with respect to staying in the office past 10PM. There are no similarly situated
employees in the record to support disparate treatment and the record shows that S1A was
concerned with Complainant’s safety (among other concerns) with remaining in the office so late
by herself. With respect to the assertion that Complainant was improperly disposing of records,
the record supports the conclusion that based on a conversation with Complainant, SSS concluded
that there was a good possibility that Complainant had chosen to disregard the policy pertaining to
the proper disposal of sensitive information. SSS, in turn notified S1A as to her concerns who
called a meeting with S1B and Complainant to address the issue and reiterate the policy.
8 We note that the record shows that Complainant names EEO and HR employees who were
females in their 60s as witnesses who were assisting S1A.
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Accordingly, we find that Complainant has failed to establish discrimination with respect to Claim
1.

Reprisal - Claims 2-4

With respect to Complainant’s reprisal claims, the undisputed record shows that Complainant’s
initial EEO activity occurred when she initiated EEO contact on February 20, 2014. Complainant
alleges and the record supports the finding that the conflicts with S1A began immediately after
S1A arrived at the worksite. The record also does not reflect that S1A’s hostile behavior towards
Complainant increased in relationship to any moment in the EEO Complaint process, or any
discernable EEO action taken by Complainant during the EEO process. Accordingly, assuming
the facts exactly as Complainant has alleged, there is insufficient evidence in the record to conclude
that Complainant’s EEO activity was the motivating reason behind such conduct.9

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision which concludes that
Complainant has failed to established discrimination and retaliation as alleged.

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

9 We find insufficient evidence in the record to support the conclusion that any other management
official, including S1B and C1, engaged in any hostile or harassing conduct toward Complainant.
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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. 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.
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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

July 20, 2018
Date