Catherina B.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

0120181135 (E.E.O.C. Aug. 21, 2019)

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

Catherina B.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.

Appeal No. 0120181135

Agency No. 200H-0757-2017100594

DECISION

On February 10, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 10, 2018 final decision concerning an equal employment opportunity
(EEO) complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as a Registered Nurse (RN) - Behavioral Health
Accreditation Specialist, VN-0610-III, at the Agency’s Chalmers P. Wylie Veterans Affairs
(VA) Ambulatory Care Center in Columbus, Ohio.

On December 9, 2016, Complainant filed the instant formal complaint. Complainant claimed that
she was subjected to harassment/a hostile work environment based on sex (female) and in
reprisal for prior EEO activity when:

1. On May 3, 2016, during a Healthy Living Fair, when the Infection Control Nurse was
passing out condoms to everyone, her supervisor, Quality Management Coordinator,
told Complainant that she needed to pick up some condoms as she could still get
sexually transmitted diseases.

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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2. On May 24, 2016, after donating blood and discussing with the supervisor the
American Red Cross’s questions about male blood donors that have had sexual
intercourse with other males, the supervisor remarked, “I guess you have some
interviews to do then, don’t you?”

3. On May 24, 2016, during a private meeting, the supervisor disclosed that the Nurse
Executive had complained about the “banter” between Complainant and the Chief,
Behavioral Health (“Chief”), acknowledging that this constituted an “inappropriate
relationship” between them.

4. On June 8, 2016, Complainant complained to the supervisor that her co-worker, the
Clinical Nurse Coordinator (“Coordinator”), spread rumors that Complainant was in a
sexual relationship with the Chief and the only reason Complainant was successful
was because she “did it on her knees” after which the supervisor told Complainant
that she would not address this matter with the Clinical Nurse Coordinator and that
Complainant should be “nicer and socialize” with the Clinical Nurse Coordinator.

5. On June 30, 2016, the supervisor rated Complainant as “Poor” in the element of her
performance related to interpersonal relationships and when challenged with a threat
of a grievance, the supervisor changed the overall rating but refused to change the
individual “Poor” rating.

6. On September 13, 2016, the Associate Director of the facility denied Complainant’s
request to be relocated from the 4th floor of the facility after Complainant informed
her of rumors that had been spread about her alleged affair with the Chief. The
Associate Director told her that she was “not going to help her run from her
problems” and “[Complainant] needed to stay in her office and limit her alone time
with [the Chief].”

7. On November 2, 2016, the supervisor questioned Complainant about her door being
closed and told her that she needed to open her door so the supervisor could “keep
tabs on her.”

8. On November 7, 2016, the facility Director gave Complainant 48 hours to provide
information for an Office of Inspector General (OIG) report even though she had no
access to the documentation or communications relative to the report.

9. On November 8, 2016, the supervisor emailed staff about the committees they would
be attending to perform their duties but removed Complainant from seven committees
of which she had been a member for two years.

10. On November 9, 2016, during a monthly supervisory meeting, the supervisor raised
the matter of Complainant’s office door being closed and after a union official in the
attendance objected to it, the matter was dropped.
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11. On November 23, 2016, during a meeting with Complainant’s co-workers,
Complainant overheard the supervisor state that any extra work should be given to
Complainant because “she has the free time.”

12. On November 28, 2016, the supervisor: (a) updated a meeting request to include the
Accreditation Specialist “for overall understanding even through the Accreditation
Specialist’s meetings with the supervisor were private, and (b) sent Complainant
several emails with orders to follow-up with tasks belonging to the Accreditation
Specialist, and when Complainant questioned the supervisor about this, she replied
that she “d[id] not care” and that “[Complainant] needed to do more.”

13. On November 29, 2016, the supervisor failed to reply to Complainant after she asked
about being assigned extra work outside of her area.

14. On November 30, 2016, the supervisor told Complainant that the union representative
had to leave a meeting with them which made Complainant uncomfortable based on
the supervisor’s past “inappropriate conduct.”

15. On February 7, 2017, Complainant learned that the Agency had not selected her to fill
the position of Nurse Manager for Behavioral Health (Nurse Manager).

16. On March 20, 2017, Complainant learned that the Agency had not selected her to fill
the position of Nurse Support Specialist.

17. On March 30, 2017, Complainant learned that the Agency had not selected her to fill
the position of Registered Nurse (RN), Health Promotion/Disease Prevention
Program Manager.

18. On April 28, 2017, the supervisor informed Complainant that she was aware that
Complainant kept applying for jobs outside of the unit and stated the following: “You
know that you have no chance of transferring as long as you have an EEO complaint
open. I’m only telling you this because I’m leaving in July [2017] and have nothing to
lose by telling you the truth. The only chance you have at transferring to another
[unit] is to drop the EEO.”

19. On May 5, 2017, Complainant learned that the Agency had not selected her to fill the
position of Registered Nurse, Behavioral Health.2

After the investigation of the formal complaint, Complainant was provided with a copy of the
report of investigation and with a notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.

2 The record reflects that claims 16–19 were later amended to the instant formal complaint.
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In accordance with Complainant’s request, the Agency issued a final decision, pursuant to 29
C.F.R. § 1614.110(b), on December 20, 2017, finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden,
Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of
the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant’s prior protected activity for which she alleges she was retaliated against involves
both an internal complaint she made on July 13, 2016, to the facility Director raising allegations
of harassment by her supervisor, as well as the instant EEO complaint, filed in early November
2016. Management convened an Administrative Investigation Board (AIB) to investigate
Complainant’s allegations. It appears the management officials alleged to be responsible for the
harassment were aware of this activity.
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Allegations 15, 16, 17 and 19 – Non-Selections

In allegation 15, Complainant claimed that on February 7, 2017, she learned that the Agency had
not selected her to fill the position of Nurse Manager for Behavioral Health (Nurse Manager).
Complainant alleged she was better qualified than the selectee (male) because she had more
years of nursing than he did more education (she had a master’s degree and he had a bachelor’s).
She noted that the selecting officials had participated in the AIB investigation prior to making
the selection decision.

The Associate Chief Nurse (female) stated that she was on the selection panel for the position of
Nurse Manager along with three other panelists. She stated that following the interviews, the
panel selected the selectee for the subject position because he was best qualified. Specifically,
the Associate Chief Nurse noted that the selectee, “had quite a bit of experience in Mental
Health” and worked in several VA facilities and “came here, and then for a short time went to
one of our CBOCs for Primary Care. And that was when he applied then for this position. So,
he had worked in this department. He had a good understanding of a lot of the processes and
procedures. He had a relationship with the team that he would have been working with and was
well respected. He’d also had other experiences that he brought with him that added value to
that - - to his skill set. And his responses were in great detail. It was a great interview.”3

The other interview panel members confirmed that the selectee’s highest score was due to a
number of factors, including his clear vision of a direction for nursing within Behavioral Health,
and the fact that he articulated several strong examples of his ability to form working
relationships with all disciplines within Behavioral Health.

The Associate Chief Nurse acknowledged that Complainant “is very knowledgeable as a Nurse
and has quite good background in terms of Mental Health. However, it did not come across in
her interview. Many of her responses were average responses…there were eight questions, and
quite a few of them she responded with an average response and did not go into much detail.”
Graduate work in nursing was not a requirement of the position.

The Behavioral Health Chief (male) stated that he was the selecting official for the position of
Nurse Manager. The Behavioral Health Chief stated that following the interviews, he selected
the selectee for the subject position because he scored the highest while Complainant scored
third.

In allegation 16, Complainant asserted that on March 20, 2017, Complainant learned that the
Agency had not selected her to fill the position of Nurse Support Specialist. Complainant
alleged she was well qualified for the position because she had unique experience in infection
control and risk management.

3 CBOC is an abbreviation for Community Based Outpatient Clinic.
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Complainant was selected for an initial interview for the position but was not selected as one of
the two candidates who moved on to the second interview phase. The ultimate selectee was
female.

The Patient Safety Manager (female) was one of the three interview panelists. She said
Complainant did not selected to move on in the selection process because her responses during
the initial interview were very limited and, in most cases, did not address the questions as
expected. The record reflects that Complainant received an overall score of 20.7 while the
selectee received an overall score of 23.3 points.

None of the members of the initial interview panel were aware of Complainant’s prior protected
activity, although the selecting official was. However, the selecting official stated that she never
considered Complainant’s application because she was not one of the candidates recommended
by the initial interview panel.

In allegation 17, Complainant asserted that on March 30, 2017, Complainant learned that the
Agency had not selected her to fill the position of Registered Nurse (RN), Health
Promotion/Disease Prevention Program Manager.

Complainant was interviewed by a two-person panel for the position but was not selected. The
selectee (female) had less years of nursing experience and less education than Complainant.
Again, the interview panel stated that the selectee gave more thorough and detailed responses to
the performance-based interview questions than did Complainant.

In allegation 19, Complainant alleged that on May 5, 2017, Complainant learned that the Agency
had not selected her to fill the position of Registered Nurse, Behavioral Health.

The Behavioral Health Chief (male) stated that he and the selecting official were part of the
selection panel and that Complainant was the only individual who applied for the position of
Registered Nurse, which had only been advertised internally. The Behavioral Health Chief stated
they decided to cancel the selection and reopen it at a later date to include outside applicants to
broaden the pool of potential candidates. He said that Complainant would be able to reapply at
that time. Furthermore, the Behavioral Health Chief stated that because the selecting official was
on military leave the subject position had not been reposted yet.

Based on the evidence developed during the investigation, the responsible management officials
articulated legitimate, non-discriminatory reasons for the selection decisions made – that the
candidate judged to be best qualified was ultimately selected or that the selection was postponed
in order to broaden the applicant pool. Complainant failed to prove, by a preponderance of the
evidence, that these proffered reasons were a pretext masking discriminatory or retaliatory
animus. We note that in all but one of the selections, the selectee was female like Complainant.

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Complainant has also not shown that the alleged disparities in qualifications between herself and
the selectees (years of nursing and master’s degree) were “of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the [selectees]
over [herself] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir.
2004); see also, Ash v, Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). As such, we
affirm the Agency’s conclusion that Complainant failed to establish her claims of discrimination
with regard to these non-selections.

Harassment/Hostile Work Environment

To establish a claim of hostile environment harassment, 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 her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, to prove her harassment claim, Complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant’s position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected bases – in this case, her sex
or prior protected activity. Only if Complainant establishes both of those elements, hostility and
motive, will the question of Agency liability present itself.

Allegations 1 - 5

These allegations resulted in Complainant lodging the internal complaint in July 2016 with the
Director asserting she was being harassed by her supervisor (female).

In allegation 1, Complainant asserted that on May 3, 2016, during a Healthy Living Fair, when
the Infection Control Nurse was passing out condoms to everyone, her supervisor told
Complainant that she needed to pick up some condoms as she could still get sexually transmitted
diseases.

The supervisor (female) explained that distribution of condoms had been an ongoing discussion
at the facility and there was much opposition to it, so it did not take place. She further stated that
when Complainant started working for the Agency, she was “a very strong advocate for condom
distribution and had talked about it frequently because of needing to have easy accessibility to
the veterans in the population we served.” The supervisor stated that during the Healthy Living
Fair, Complainant stopped her to express her excitement about the condoms and “I commented,
‘let’s pick some up.’ [Complainant] giggled and laughed. I walked on. There was no further
discussion at all involving sexual activity or no discussion.”
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A witness (male) to the conversation identified by Complainant stated that the supervisor did
joke with Complainant about the need to take some condoms at the fair. He said that when
Complainant implied she could not get pregnant, the supervisor responded that it was still
possible to get STDs. He added that both parties laughed.

In allegation 2, Complainant alleged that on May 24, 2016, after donating blood and discussing
with the supervisor the American Red Cross’s questions about male blood donors that have had
sexual intercourse with other males, the supervisor remarked, “I guess you have some interviews
to do then, don’t you?”

Complainant, during the investigation, conceded that the conversation about the blood donations
was with a male coworker and not the supervisor. However, she said that the supervisor was
standing close by and she surmised could overhear the conversation and interjected the comment.
The supervisor denied making the comment, and although the coworker identified by
Complainant recalled the comment, he could not remember the context of what led up to the
comment.

In allegations 3, Complainant asserted that on May 24, 2016, during a private meeting, the
supervisor disclosed that there were complaints about the “banter” between Complainant and the
Behavioral Health Chief, acknowledging that this constituted an “inappropriate relationship”
between them.

The supervisor explained that it was the Chief of Staff (male) who expressed concerns about
Complainant’s “unprofessional” conduct during a meeting with senior management by
continuously referring to the Behavioral Health Chief by first name only and attempting to
engage in informal banter with him during the meeting. The supervisor said that upon being
informed of the Chief of Staff’s concerns, she met with Complainant advised her that “at
professional meetings conduct and not addressing individuals by their first name was a much
more professional approach. And, if she was going to use the first name, that it was more
appropriate in an informal discussion, whether it be in his office or a small work group,
something of that nature, not at the level of a professional meeting where there is professional
decorum and minutes and such.” Further, the supervisor stated that she also advised
Complainant that the informal bantering between her and the Behavioral Health Chief “should
not occur at a professional business meeting.” The supervisor said Complainant became
defensive and asked who had made a complaint, and the supervisor told her “it was a leadership
concern.”

The Chief of Staff confirmed that he did express his concern about Complainant’s conduct at the
meeting to her supervisor, noting he considered Complainant’s overall demeanor, including
“giggling”, to be unprofessional.

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In allegation 4, on June 8, 2016, Complainant complained to the supervisor that the Coordinator
spread rumors that Complainant was in a sexual relationship with the Behavioral Health Chief
and the only reason Complainant was successful was because she “did it on her knees” after
which the supervisor told Complainant that she would not address this matter with the
Coordinator and that Complainant should be “nicer and socialize” with the Coordinator.

The Coordinator denied making the comment or spreading rumors about Complainant. The
supervisor stated that on June 30, 2016, after she gave Complainant her annual performance
evaluation, Complainant informed her that there was rumor that she and the Behavioral Health
Chief were in a sexual relationship. The supervisor stated at that time she “had never heard nor
stated any such information…I was absolutely mortified to hear of this.” She denied telling
Complainant she would not address the matter and, in fact, asked the Coordinator about it, who
denied making the statement attributed to her or spreading any rumors.

In allegation 5, Complainant claimed that on June 30, 2016, the supervisor rated Complainant as
“Poor” in the element of her performance related to interpersonal relationships and when
challenged with a threat of a grievance, the supervisor changed the overall rating but refused to
change the individual “Poor” rating.

The supervisor stated that she rated Complainant as Highly Satisfactory or Outstanding in all
areas of her performance evaluation except for a Satisfactory in the category of interpersonal
skills. The supervisor said she pointed to Complainant’s disputes with the Coordinator as the
reason for the rating. Complainant’s overall rating was an Outstanding.

Allegation 6 – Denial of Request for Office Move

In allegation 6, Complainant alleged that on September 13, 2016, the Associate Director (female)
denied Complainant’s request to be relocated from the 4th floor of the facility after Complainant
informed her of rumors that had been spread about her alleged affair with the Chief. She said the
Associate Director told her that she was “not going to help her run from her problems” and
“[Complainant] needed to stay in her office and limit her alone time with [the Behavioral Health
Chief].

The Associate Director admitted she denied Complainant’s request to be moved to the Mental
Health Unit (MHU) where the Behavioral Health Chief’s office was located because she did not
feel it would benefit Complainant or the Agency given Complainant’s concerns about rumors
that she and the Behavioral Health Chief were in a relationship. The Associate Chief said she
explained her reasoning to Complainant, who seemed agreeable, and encouraged her not to pay
attention to the rumor mill.

Allegations 7 and 10 – Instructions to Keep Door Opened

Regarding claims 7 and 10, Complainant alleged that on November 2, 2016, the supervisor
questioned Complainant about her door being closed and told her that she needed to open her
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door so the supervisor could “keep tabs on her,” and on November 9, 2016, during a monthly
supervisory meeting, the supervisor raised the matter of Complainant’s office door being closed
and after a union official in the attendance objected to it, the matter was dropped.

The supervisor denied making the statement. The supervisor stated that she was away from the
office for much of the time from August 1, 2016 through October 30, 2016. She stated that when
she returned to work on October 31, 2016, several employees stopped by her office to find out if
Complainant was in her office because her office door was shut. The supervisor stated that she
then asked Complainant if there was a reason why she kept her office door shut and she claimed
she needed privacy. She stated that she explained to Complainant that when her door was closed
“it made it appear that she was unavailable, and that people were stopping and asking me if she
was in. That was the conversation.”

Moreover, the supervisor acknowledged the discussion with the union concerning Complainant’s
door being shut and, “I had asked for it not to be closed constantly because there was a
perception that [Complainant] just was not available. The union official said, ‘are you telling
[Complainant] she can’t shut her door. I said, ‘that’s not what I stated. I asked why it was being
shut constantly, because of the perception about availability.’ We did not talk about that
anymore.”

Allegation 8 – Time to Provide Information for IG Report

Regarding claim 8, Complainant asserted that on November 7, 2016, the facility Director gave
Complainant 48 hours to provide information for an Office of Inspector General (OIG) report
even though she had no access to the documentation or communications relative to the report.

The Director stated that Complainant’s allegation “is absolutely not factual. The assignment
given to Complainant is one of the routine work assignment. It’s based - - the development of
the response to the Office of Inspector General compliance survey was a routine work
assignment that she has been working on for several months.” The Director stated that while she
was not aware of the 48 hours deadline, Complainant “was given more than sufficient time based
on what was requested.”

Allegation 9 - Committees

Regarding claim 9, Complainant claimed that on November 8, 2016, the supervisor emailed staff
about the committees they would be attending to perform their duties but removed Complainant
from seven committees of which she had been a member for two years, expecting her to
complete work related to membership in the committees.

The supervisor stated that during the relevant period, she was out of the office for an extended
period of time. The supervisor stated that when she returned to the office, she adjusted the
meeting coverage “which is usual operations for me to do every few months, or when there’s a
need identified.
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This particular need was the fact that [Coordinator] had left the service in July; a new staff
member had started in our service in July, and during my absence had not received a focused
orientation.”

Furthermore, the supervisor explained “for efficient operations and use of our resources, we try
very hard not to have the same people to go the same meeting, because we come back and we
share what transpired at the meeting and what the relevant points of the discussion are that
impact our job and what we do.”

Allegation 11 and 13 – Extra Work

Regarding claim 11, Complainant claimed that on November 23, 2016, during a meeting with
Complainant’s co-workers, Complainant overheard the supervisor state that any extra work
should be given to Complainant because “she has the free time.” The supervisor denied making
the statement.

In allegation 13, Complainant asserted that on November 29, 2016, the supervisor failed to reply
to Complainant after she asked about being assigned extra work outside of her area.

The supervisor again explained that everyone in the unit has “shared roles and responsibilities
and our functions cross over into all aspects of one another’s work. So we’re in constant
interaction with one another.”

Allegation 12- Accreditation Specialist

Regarding claim 12, Complainant alleged that on November 28, 2016, the supervisor: (a)
updated a meeting request to include the Accreditation Specialist “for overall understanding even
through the Accreditation Specialist’s meetings with the supervisor were private and (b) sent
Complainant several emails with orders to follow-up with tasks belonging to the Accreditation
Specialist, and when Complainant questioned the supervisor about this, she replied that she
“d[id] not care” and that “[Complainant] needed to do more.”

The supervisor again stated that she was out of the office from August 1, 2016 through October
30, 2016, and when she returned to the office she included the Accreditation Specialist in
everyone’s meeting “upon my return, because I had not been here, and if there was any
discussion about anything that [Accreditation Specialist] could contribute to, as she was acting
during my absence, then we needed that for the coordination of the operations of our service. It
wasn’t just with [Complainant]. It was with all of them.”

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With respect to Complainant’s allegation that the supervisor sent her several emails with orders
to follow-up with tasks belonging to the Accreditation Specialist, the supervisor stated, “I never
said that. However, in our service we have a lot of shared responsibilities and tasks. We have to
do cross-coverage…the e-mail communication that I sent back to [Complainant] stated that
workload distribution within our service was necessary to accomplish what’s needed and asked
of us. It’s what we’ve always done and that helps support with coverage and cross-training to
sustain our service.”

Allegation 14 – Union Representation

In allegation 14, Complainant alleged that on November 30, 2016, the supervisor told
Complainant that the union representative had to leave a meeting with them which made
Complainant uncomfortable based on the supervisor’s past “inappropriate conduct.”

The supervisor explained that on the meeting invitation she noted that Complainant “had
forwarded our routine, usual operational discussion that I have with each individual to the union
officials.” She stated that she asked the Chief of Human Resources (HR) if it was normal
practice because she had never experienced this and “my understanding was that if it’s a usual
operational discussion it did not meet the criteria for union officials to attend, then they were not
to attend.”

The supervisor stated that according to the Chief of HR, he advised her that their routine, usual
operational discussion did not meet the criteria to involve the union and that she should ask the
union officials “to leave if they came to the meeting. So, when the union official came to the
meeting, I asked why they were there, explained that the conservation and discussions did not
meet the criteria for them to attend. The Chief of HR came over, stated the same things, asked
the union official to leave and he would not.” The supervisor stated at that time, the Chief of HR
suggested her to call a Labor Relations (LR) representative, and the LR representative told the
union official “that there was no need for him to be there.” At the same time, the union official
was on the phone with the union president and then the union official and Complainant got up to
leave. The supervisor stated that she asked Complainant to remain so they could continue their
discussion but she left the room with the union official. Furthermore, the supervisor stated that
Complainant later returned and “we continued our discussion as scheduled. That’s what
happened.”

Allegation 18 – Comment About Complainant’s EEO Activity

In allegation 18, Complainant asserted that on April 28, 2017, the supervisor informed
Complainant that she was aware that she kept applying for jobs outside of the unit and stated the
following: “You know that you have no chance of transferring as long as you have an EEO
complaint open. I’m only telling you this because I’m leaving in July [2017] and have nothing to
lose by telling you the truth. The only chance you have at transferring to another [unit] is to drop
the EEO.”

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The supervisor asserted that this conversation never occurred and stated, “I have never discussed
EEO activity that [Complainant] has with her, nor did this discussion occur whatsoever.”

In sum, after careful consideration of all the allegations offered in support of Complainant’s
hostile work environment claim, we conclude that the weight of the evidence developed during
the investigation does not establish that either events occurred as alleged by Complainant, or that
her sex or retaliatory animus played a role in the events. Taken together, much of the evidence,
developed during what appears to be a very thorough investigation, has been presented with
conflicting testimony that was, at best, in equipoise. We note that Complainant declined the
opportunity to request a hearing before an EEOC Administrative Judge. Had she done so, then
she may have had an opportunity to present further witnesses and to cross-examine those from
the Agency. In doing so, Complainant might have benefited from an AJ's determinations of
witness credibility. Without such findings to tip the balance in Complainant’s favor, we conclude
that she had failed to meet her burden to establish a discriminatory or retaliatory motivation for
the events at issue. A case of harassment/hostile work environment is precluded based on our
finding that Complainant failed to establish that any of the actions taken by the Agency were
motivated by her sex or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal
No. 01982923 (Sept. 21, 2000).

CONCLUSION

We AFFIRM the Agency’s decision because the preponderance of the evidence of 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).
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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. 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.
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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

August 21, 2019
Date