Anya F.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (International Trade Administration), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120171077 (E.E.O.C. Dec. 19, 2018)

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

Anya F.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(International Trade Administration),
Agency.

Appeal No. 0120171077
Hearing No. 55-2015-00033
Agency No. 5500201500033

DECISION

On January 13, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 4, 2017, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision (FAD).

ISSUES PRESENTED

Whether the FAD properly dismissed three (3) of Complainant’s allegations and found no
discrimination or harassment based on her national origin, sex, and in reprisal for prior EEO
activity regarding the remaining 5 allegations.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Senior International
Trade Specialist GS-1140-13 at the Agency’s Office of Africa Global Markets, International Trade
Administration in Washington, D.C. On February 2, 2015, Complainant filed an EEO complaint
alleging that the Agency subjected her to a hostile work environment based on national origin

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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(Arab, Afghani, or Middle-Eastern), sex (female), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when:

1. She was subjected to “discriminatory and abusive comments” on June 25, 2010;
July 12, 2011; February 21, 2014, May 29, 2014; and July 28, 2014;
2. She was denied information necessary for her to perform her job duties
successfully on November 20, 2012; November 24, 2012; April 24, 2013;
November 16, 2013; January 13, 2014; January 15, 2014; January 30, 2014;
February 6, 2014; February 14, 2014; July 25, 2014; September 22, 2014;
December 22, 2014; January 16, 2015; and January 20, 2015;
3. False information which interfered with her ability to perform her job
successfully was provided on January 28, 2014; February 14, 2014; January 20,
2015; and January 30, 2015;
4. Her work performance was excessively monitored on January 28, 2014; February
4, 2014; February 21, 2014; and April 8, 2014;
5. She was denied “high level leadership assignments and duties” consistent with
her position as lead for Doing Business in Africa and as the Country Desk Officer
on February 5, 2014; June 14, 2014; June 19, 2014; August 5, 2014; September 24,
2014; September 25, 2014; October 2, 2014; October 3, 2014; August 24, 2014;
October 9, 2014; December 2, 2014; and January 20, 2015;
6. She was denied training opportunities on August 24, 2012; October 9, 2014; and
December 2, 2014;
7. She was denied overseas and local travel outreach opportunities on June 6, 2011;
October 14, 2011; October 24, 2011; January 16, 2012; January 18, 2012; February
10, 2012; March 2, 2012; June 20, 2012; September 1, 2012; November 26, 2012;
January 15, 2013; May 1, 2013; August 1, 2013; February 14, 2014; June 6, 2014;
August 25, 2014; and October 9, 2014; and
8. Her performance appraisal was downgraded on November 14, 2014, which
resulted in a lower performance bonus.

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. Complainant timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The Agency’s FAD thoroughly discussed the facts in the record, and the
instant decision incorporates them as stated. Among other things, the FAD, upon finding that
Claims 5 through 7 concerned discrete acts occurring at identifiable points in time, determined that
Complainant had a reasonable suspicion of discrimination well before September 9, 2014.
Consequently, because Complainant did not contact an EEO counselor until October 24, 2014, the
Agency dismissed these matters for untimely counselor contact as independent actions. The
Agency did agree, however, to investigate as part of Complainant’s overall hostile work
environment any alleged discrimination with respect to claims 5 through 7 occurring prior to
September 9, 2014.
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The FAD went on to find that the Agency provided legitimate, non-discriminatory reasons for its
actions regarding claims 2, 3, 4, and 8, and that Complainant was unable to establish her claim that
she was subjected to a hostile work environment.

CONTENTIONS ON APPEAL

In her appeal statement, Complainant, among other things, contends that the Agency’s final
decision ignored or distorted facts related to her claims of discrimination. She states that the
Agency’s final decision is full of false information; that the Agency chose to ignore extensive
information and facts that would indeed support her claims; and that the Agency’s analysis is
highly inconsistent and is based on a poor and inappropriate investigation that used either
incomplete or incorrect information. She also accuses the Agency of not recognizing that her
supervisor created a hostile environment around her, that prevented her from growing
professionally by withholding critical information necessary to perform her work successfully, by
raising his voice at her, by fabricating issues around her traveling to Angola in 2010 and by making
sarcastic comments about her French background.

The Agency did not submit a brief on appeal.

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

Adequacy of the Investigation

With respect to Complainant’s dissatisfaction regarding the investigation of her complaint, upon
review of the entire record, the Commission is not persuaded that the investigation into
Complainant’s complaint was incomplete or improper. The Commission also notes that
Complainant requested a hearing before a Commission Administrative Judge, but, subsequently,
withdrew that request and asked for a final decision from the Agency based on the investigative
record. The hearing process would have afforded her the opportunity to cure the alleged defects in
the record by her testifying, calling witnesses, cross-examining Agency witnesses, and engaging
in pre-hearing discovery. Thus, despite the above referenced arguments, the Commission
determines that the investigation was properly and adequately conducted.

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Disparate Treatment

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

Assuming, arguendo, Complainant established a prima facie case of discrimination based on based
on her national origin, sex, and in reprisal, we find that the Agency provided legitimate
nondiscriminatory reasons for its actions in claims 2, 3, 4, and 8, and we find no persuasive
evidence of pretext. We also find that claims 5 – 7 were properly dismissed as individual discrete
acts of discrimination based on untimely counselor contact.

Harassment

To establish a hostile work environment claim, Complainant must show that: (1) she belongs to a
statutorily protected class; (2) 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
the 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 McCleod v. Social Sec. Admin., EEOC Appeal No.
01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

With respect to claims 2, 3, 4 and 8, we find that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must
also fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No.
915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination
that Complainant failed to establish that claims 2, 3, 4 and 8 were motivated by discriminatory
animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21,
2000).

With regard to claims 1, 5, 6, and 7, we find that Complainant did not establish by a preponderance
of the evidence that these matters were based on her national origin, sex or in retaliation for
engaging in prior EEO activity.
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We also do not find that these matters, even if accurately described by Complainant were severe
or pervasive enough to establish a hostile work environment. The interactions between
Complainant and her supervisors, albeit contentions, were for the most part normal work-related
interactions between supervisors and a subordinate. Complainant’s reaction to those interactions,
no matter how personally or deeply felt to be intrusive or insulting, are not sufficient to establish
discriminatory harassment. We also note that the discrimination statutes are not civility codes and
do not address rude or obnoxious behavior, but only discriminatory conduct.

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 because the preponderance
of the evidence in the record does not establish that discrimination occurred.

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.
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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.
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

December 19, 2018
Date