Ashely H.,1 Complainant,v.John F. Lansing, Director, Broadcasting Board of Governors, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120170706 (E.E.O.C. Oct. 18, 2018)

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

Ashely H.,1
Complainant,

v.

John F. Lansing,
Director,
Broadcasting Board of Governors,
Agency.

Appeal No. 0120170706

Agency No. OCR1601

DECISION

On November 19, 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
October 7, 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.

ISSUES PRESENTED

Whether the Agency discriminated against Complainant on the bases of race (Caucasian), national
origin (Iranian), sex (female), religion (Muslim), color (White), age (77), and reprisal for prior
protected EEO activity when: (1) her position description was changed, (2) she received a
performance appraisal she believed to be retaliatory, and (3) she was subjected to discriminatory
acts she believed adversely affected the terms and conditions of her employment, to include, but
not limited to having the necessary tools needed to do her job withheld from her, and having her
reports blocked from broadcasting.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an International
Broadcaster, Grade G-12, Step 8 - Designated White House Correspondent at the Agency’s
Broadcasting Board of Governors/Persian Division, Voice of America, Washington, DC.

Complainant contacted an EEO Counselor on July 10, 2015, and requested resolution of her
complaint, but no resolution materialized. On October 15, 2015, Complainant filed an EEO
complaint alleging that the Agency discriminated against her as set forth above. Despite repeated
efforts to contact Complainant and obtain information, the Agency found that Complainant failed
to cooperate during both the informal and formal complaint processing. In the informal phase,
Complainant did not respond to requests to clarify her claims. During the formal stage,
Complainant was provided with a request for information dated December 15, 2015, and was
warned that the “failure to provide the information within fifteen (15) days of the date she received
the Agency’s communication might result in the dismissal of her formal complaint pursuant to 29
CFR Part 1614.107(a)(6).” Complainant generally failed to respond to any of the Agency’s
specific requests for information during the investigation and analysis of her complaint.

The Agency, thereafter, determined that based on the limited information that was provided, seven
issues were raised by Complainant. The issues were:

1. During calendar year 2015, Complainant’s position description was changed;
2. The necessary tools needed to do Complainant’s job were withheld;
3. Complainant’s reports were blocked from broadcasting;
4. Complainant received a retaliatory performance appraisal;
5. Complainant received a letter of reprimand on September 29, 2014;
6. Complainant received a letter of suspension on May 21, 2015; and
7. Some of Complainant’s wages were withheld and deducted.

The record reflects that Complainant’s prior EEO activity occurred in 2010, five (5) years prior to
the filing of her complaint. All Agency witnesses who were interviewed denied that Complainant’s
protected classes were factors in in her treatment by management.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. When Complainant did not request a hearing or
otherwise respond within the time frame provided in 29 C.F.R. § 1614.108(f), 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.

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Regarding Claim 1, that Complainant’s position description was changed, effective March 8, 2015,
the Agency provided evidence that between the dates of July 9, 2013 and July 9, 2015, twenty-six
(26) employees under Complainant’s supervisor had their position description changed. The
change was necessary to implement various changes regarding multi-media.

Regarding Claim 2, that the necessary tools needed to do her job were withheld, Management
stated that it was unaware of this issue, and that every employee was given the necessary resources
to perform their jobs.

Regarding Claim 3, that Complainant was “blocked” from broadcasting,” the Agency stated that
Complainant’s reports were outdated and that she had “issues” with translation.

Regarding Claim 4, that Complainant received a retaliatory performance evaluation, management
denied it retaliated against Complainant and stated that there were some duties where Complainant
“fell short.”

Regarding Claims 5, 6, and 7, the Agency dismissed these claims as being untimely raised to the
EEO counselor. According to the Agency, Complainant should have been aware of any
discrimination at the time each incident occurred. Therefore, her July 10, 2015, EEO counselor
contact was well beyond the forty-five (45) day time limitation period with regard to each of these
matters.
CONTENTIONS ON APPEAL

Complainant did not submit a statement on appeal. The Agency’s brief, among other things, asks
that we affirm its final decision.

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”).

At the outset, we AFFIRM the Agency’s dismissal of claims 5, 6, and 7.

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, national origin, sex, religion, color, age, and/or reprisal for having engaged in prior EEO
activity, we find that the Agency presented legitimate non-discriminatory reasons for claims 1, 2,
3, and 4. Complainant was treated in the same manner as her co-workers, and she needed
improvements in some areas with respect to her work-related skills.
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Moreover, Complainant did not develop a record of evidence that would demonstrate that said
explanations were unworthy of credence. 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. Based on the
record before us, we are not persuaded that Complainant has shown that the Agency’s conduct was
based on her alleged protected categories. Complainant also did not demonstrate reprisal based on
her prior EEO activity. The record indicates that her last EEO activity occurred, approximately,
five (5) years earlier than the events at issue; therefore, we are not persuaded that her EEO activity
played any role.
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.

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

October 18, 2018
Date