Complainant,v.Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Jul 3, 2014

0120131955 (E.E.O.C. Jul. 3, 2014)

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

Complainant,

v.

Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.

Appeal No. 0120131955

Agency No. HHS-SAM-0015-2012

DECISION
On April 22, 2013, Complainant filed an appeal from the Agency’s March 1, 2013, 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.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Secretary in the
Office of Automation for the Division of Prevention, Traumatic Stress and Special Programs
(DPTSSP), Center for Mental Health Services (CMHS), Substance Abuse and Mental Health
Services Administration (SAMHSA), at the Agency’s One Choke Cherry Road facility located
in Rockville, Maryland. During the relevant time, Complainant’s supervisor was Person A,
the Director of the DPTSSP.

Person B was the Chief of the Building, Logistics, and Telecommunications Branch (BLTB),
Division of Operational Support (DOS), Office of Management and Technology Operations
(OMTO), SAMHSA. Person B had no supervisory authority over Complainant. Person C
was the Director of OMTO. Person C was the second level manager over Person B. Person C
did not have a reporting relationship with Complainant.

Person D was a Management Analyst assigned to the Administrative Operations Branch, DOS,
OMTO, SAMHSA. Person E was a Public Health Advisor assigned to the Emergency Mental
Health and Traumatic Stress Services Branch, DPTSSP, CMHS, SAMHSA. Person E also
served as President of the National Treasury Employees Union (NTEU).

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During this time, the Agency had a contract for security guard services with Elite Protection
Services (EPS). Officer F was the Site Security Supervisor/Project Manager for EPS. Officer
F managed 21 security guards assigned to the Agency’s One Choke Cherry Road facility in
Rockville, Maryland. SAMHSA had 850 employees assigned to this location. Officer F did
not have a reporting relationship to SAMHSA employees, including Complainant. Officer F
maintained liaison with Person B. Person D managed the contract agreement between EPS and
SAMHSA.

On December 15, 2012, Complainant initiated EEO Counselor contact. On the initial inquiry
form Complainant raised concerns based on sex, color (black), and in retaliation for opposing
an unlawful discriminatory policy or practice (when her witness was barred from a meeting)
regarding a claim of sexual and non-sexual harassment.

On January 30, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against her and subjected her to harassment on the basis of sex (female) when:

1. Complainant was repeatedly harassed (sexual and non-sexual) by the security guards
inappropriate and disrespectful behavior toward her as supported by the following
alleged incidents:
a. On April 29 2011, Complainant was leaving and one of the security guards
mimicked her in a high-pitched voice and said, “Have a nice evening.”
b. In June or July 2011, Complainant was leaving the building and one of the
security guards pointed at her and said, “What is she, a man or what? She
looks like a guy. She has a roll.”
c. On November 3, 2011, Complainant was re-entering the building and one of
the security guards at the front desk said in a nasty tone, “Why does she
keep coming in and out like that?” Complainant confronted the security
guard and told him his behavior was inappropriate and disrespectful.
d. On November 4, 2011, Complainant was exiting the front of the building
and the security guards started making high-pitched crying noises in her face
and laughed.
e. On November 4, 2011, Complainant was scared and startled as the security
supervisor came running and yelling, and then stood over her in a
threatening manner. Complainant was told to enter from the back of the
building until the situation was resolved.
f. On November 7, 2011, Complainant was working a job fair in a conference
room near the lobby area and the security supervisor came into the room,
stood in front of her and glared at her with a threatening look.
g. On November 15, 2011, Complainant was going to an “all-hands” meeting
near the guards' desk, and the guards started to mimic a loud crying noise
and laughed while looking at her.
h. On March 26, 2012, Complainant asked for the names of the visitors at the
front desk and the security supervisor became irate and was very nasty.

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The record contains a March 15, 2012 electronic mail message from Complainant to the Senior
EEO Specialist in which Complainant states “Please note I did not file my EEO complaint
based on race, but the other items listed on my form.”

On May 7, 2012, the Agency issued a letter accepting Complainant’s complaint as alleged on
the basis of sex. The Agency informed Complainant that if she believed the complaint was not
correctly identified, she must notify the EEO office within seven days. Complainant did not
object to the definition of the complaint.

Thereafter, on June 14, 2012, Complainant contacted the Senior EEO Specialist asking to
amend her complaint. Complainant claimed that she thought when her complaint stated sexual
and non-sexual harassment it also included race, and she says that is why she responded as she
did in her March 15, 2012 electronic mail message. Complainant stated she did want to
include race as a basis in her complaint.

On June 20, 2012, the Senior EEO Specialist noted Complainant had previously indicated that
race was not a basis in her complaint. The Senior EEO Specialist explained that her complaint
was in the investigative stage and that the investigation was almost complete. The Senior EEO
Specialist said she would ask the investigator to make a note of Complainant's contact in the
investigation.

In a June 20, 2012 electronic mail message, Complainant stated she remembered including
race in her "original form." Complainant clarified that the basis of race primarily involved her
claim that she had to enter the building through the back door for awhile. Complainant
explains that when she received the Agency’s letter of acceptance, she asked the EEO
Counselor why this was not included and he said to address this in her narrative/affidavit
which she says she did. Complainant said she also thought it would be covered under the
sphere of non-sexual harassment. Complainant said she was then told that in order for race
discrimination to be considered it had to remain checked on the form. Complainant said if she
had known that, she would not have sent the March 15, 2012 electronic mail message.
Complainant also stated “At this point if it causes extra trouble adding back my original
selection of race, don't worry about it."

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 EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

On appeal, Complainant states she meant to include race on her formal complaint. She states
that when she selected “Other non-sexual harassment” on the formal complaint form, she
thought this meant race. Complainant also states when she notified the EEO Office that she
wanted to include race in her complaint on June 14, 2012, there was still another 37 days
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before the investigation was completed. Complainant claims the investigator failed to ask
relevant questions and failed to request relevant documents pertaining to race.

In addition, Complainant claims that the Agency failed to include retaliation as a basis in her
complaint. Specifically, Complainant notes that claim (1)(e) states that on November 4, 2011,
Complainant was scared as the Security Supervisor, came running and yelling, and then stood
over her in a threatening manner. Complainant stated she was told to enter from the back of
the building until the situation was resolved. Complainant alleges the Agency’s act of
relegating her to use the back entrance was a retaliatory act and should have been framed as a
separate issue from the harassment claim. Complainant also states that claim (1)(f) describing
the Security Supervisor glaring at Complainant with a threatening look constituted retaliatory
harassment.

Complainant claims that the investigator failed to interview relevant witnesses. Complainant
notes that in her affidavit she stated other staff had voiced concerns about the guards, but when
she asked what happened in their cases, the information was not provided. Complainant notes
that Person E stated that she had been harassed by Officer F who was verbally abusive,
demanding, and intimidating. Complainant states the investigator failed to question Person E
about identifying other employees who had negative experiences with the guards. Complainant
notes that Person D confirmed that in 2011 - 2012, she was aware of other SAMHSA
employees who made negative comments about the security guards; however, she stated the
claims proved to be unsubstantiated and no follow-up action was required. Complainant also
notes that Person G, the CMHS Director in 2011, identified Employee 1 as another employee
with complaints about the guards. Complainant states the investigator failed to make the
relevant inquiries.

ANALYSIS AND FINDINGS
At the outset, we find that Complainant’s complaint as accepted by the Agency on May 7,
2012, was properly defined. Although the record reveals that Complainant raised color (black)
as a basis on her inquiry form in December 2011, she did not identify race and/or color as a
basis when she filed her formal complaint on January 30, 2012. Moreover, in her March 15,
2012 electronic mail message, Complainant clarified that she was not including race as a basis
in her complaint. Finally, we note that when the Agency issued its May 7, 2012 letter
accepting Complainant’s complaint, Complainant was notified that if she objected to the
definition of the complaint, she should notify the Agency within seven days. Complainant did
not object to the definition of the complaint at that time.

However, we find Complainant’s June 14, 2012 electronic mail message was an attempt to
amend her complaint to include the basis of race. Pursuant to 29 C.F.R. § 1614.106(d), a
complainant may amend a complaint at any time prior to the conclusion of the investigation.
The Commission has held that a complainant may allege discrimination on all applicable bases
and may amend her complaint to add or delete bases without changing the identity of the claim.
Drago v. U.S. Postal Service, EEOC Request No. 05940563 (Jan. 19, 1995); accord, Sanchez
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v. Standard Brands, Inc., 431 F. 2d 455 (5th Cir. 1970). The crucial element in a charge of
discrimination is the set of facts alleged therein, not the complainant's conclusions concerning
the agency's motivation. Mahmood v. Dep’t of Defense

, EEOC Appeal No. 01941890 (May
2, 1994). In the present case, we find the Agency improperly denied Complainant’s request to
amend her complaint on June 14, 2012, to include the basis of race. However, we find the
record in the present case is adequately developed to address Complainant’s claim of race
discrimination.
With regard to Complainant’s claim that the Agency failed to include retaliation as a basis, we
find the record shows that Complainant did not include retaliation as a basis in her formal
complaint. However, the record reflects that Complainant did mention retaliation in her
affidavit. For purposes of this decision, we will consider the basis of retaliation as having
been amended to Complainant’s complaint and we will address Complainant’s claim of
retaliation.

Additionally, we address Complainant’s contention that the investigator failed to interview
relevant witnesses. Although the record indicates that Person D and Employee 1 had
complaints about the guards, there is no indication that those complaints were alleging
incidents similar to Complainant’s concerns or that their allegations about the guards contained
claims of discrimination involving any of Complainant’s alleged bases. Upon review, we find
Complainant failed to show that the investigator failed to interview relevant witnesses.

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. (November 9, 1999) (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”).
With regard to claim (1)(a), Complainant stated that on April 29, 2011, as she was leaving the
building, a security guard (Guard 2) told her to have a nice day and she replied, “Have a nice
day.” Complainant stated that another guard (Guard 1) mimicked her in a high pitched voice
and the guards snickered and laughed.

With regard to claim (1)(b), Complainant stated that in June or July 2011, Guard 5 and Guard
6 were laughing and looking at her face. Complainant stated that Guard 5 gestured toward
Complainant and stated “she has a roll.” Complainant stated that then Guard 5 or Guard 6
stated, “What is she, a man or a woman?”

With regard to claim (1)(c), Complainant stated that on November 3, 2011, as she was re-
entering the building one of the guards was assisting her with her badge to get back into the
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building. Complainant claimed that Guard 7 then stated in a nasty tone while staring at her
face, “why does she keep coming in and out of the building.” Complainant stated that Guard 8
then said in a patronizing tone, “Who called you a guy?”

With regard to claim (1)(d), Complainant stated that on November 4, 2011, as she was exiting
the front of the building, Guard 8 made high pitch crying noises while looking at her face.
Complainant stated Guard 9 was laughing with a smile on his face and a third guard was in the
area. Complainant stated that her supervisor escorted her out of the building that evening.
Complainant stated later that night, her supervisor forwarded her a voicemail from Person D
telling the supervisor that Complainant’s badge had been re-programmed so that she could go
through the rear exit. Complainant believed the re-programming of her badge and forcing her
to enter through the back entrance was racial discrimination and retaliation.

With regard to claim (1)(e), Complainant stated that on November 4, 2011, she was scared as
Officer F (the Security Supervisor) came running and yelling, and then stood over her in a
threatening manner. Complainant stated she was told to enter from the back of the building
until the situation was resolved.

With regard to claim (1)(f), Complainant stated that on November 4, 2011, while she was
preparing her table kiosk for a job fair, she saw Officer F staring directly in her face in a
threatening manner.

With regard to claim (1)(g), Complainant stated that as she was on her way to an “All-Hands
Meeting” near the guards desk, Guard 11 started making high pitched crying noises and
laughing in her face. Complainant stated Guard 12 started laughing along with him.
Complainant stated that when Guard 12 saw that Complainant was not laughing, he said “Uh
oh!”

With regard to claim (1)(h), Complainant stated that on March 26, 2012, she received a call
from Officer F advising her that visitors were at the front desk for one of the managers.
Complainant stated she asked Officer F for the visitors’ names and Officer F said in a nasty
tone, “We don’t have time for that!” Complainant stated she went downstairs to pick up the
guests and then asked Officer F “was it their procedure to get the visitors’ names before they
call up and alert staff that they have visitors at the front desk.” Complainant stated that Officer
F was irate and nasty and said “they did not have time for that and they were too busy!”

In her affidavit, Person A (Complainant’s supervisor) stated she did not witness any of the
accepted issues. Person A stated she was not aware of any of the alleged incidents from issues
(1)(a) – (1)(h) until Complainant told her about them on November 4, 2011. Person A noted
that on November 4, 2011, she met with Complainant, Person B, and Person D and
Complainant described her experience with some of the security guards. Person A noted that
Person B and Person D agreed to look into Complainant’s concerns and review the video tapes
taken at front desk security operations. Person A stated that at 3:00 p.m. that afternoon
Complainant left the office and soon after called her in tears from Person D’s Office
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complaining the guards were bothering her again. Person A went to Person D’s Office and
saw Officer F standing by the door. Complainant asked Person F to leave and Officer F left.
Then Complainant explained that some of the guards were bothering her and when she spoke
with them, Officer F called out to the guards to “desist,” and then followed Complainant down
the hall to Person D’s Office. Person A stated she suggested Complainant might want to leave
the building by the rear door if she was uncomfortable going by all the guards again. Person
D stated this could be done if she made a change to Complainant’s ID card.

Person A noted she was later provided a copy of a statement from a guard who witnessed the
November 4, 2011 incident. Person A noted the guards stated the incident did not occur as
described by Complainant and that rather than call her “man,” the guards typically referred to
all women as “Ma’am.” Person A noted that she later watched the video from the guards’
station with Complainant, Person B, and Person D. Person A noted the video did not
sufficiently display the guards so that a viewer could determine the extent of their interaction
with Complainant. Person A stated that during the 2011 – 2012 timeframe, no other DPTSSP
employee made similar allegations to her about disrespectful behavior by the security guards.

In his affidavit, Person B stated he did not witness or have direct knowledge of claim (1)(a),
(1)(b), (1)(g), or (1)(h). Person B noted that on the afternoon of November 4, 2011, he met
with Complainant, Person A, and Person D, who managed the security contract with EPS. He
noted that during the meeting, Complainant described claims (1)(c), (1)(d), and (1)(e). Person
B noted that during the meeting, Person A suggested Complainant temporarily enter and exit
the buildings by the rear exit and she asked Complainant if that was acceptable. Person B
stated that Complainant was “enthusiastic and agreeable with this suggestion.”

Person B noted that on November 7, 2011, he met with Officer F to discuss the issues as
alleged by Complainant. Person B noted that Person F obtained written statements from the
on-duty security guards. The security guards stated they used the term “Ma’am” and “sir”
when addressing employees and the public. The security guards also stated Complainant
overheard a private conversation about personal relationships with the guards’ respective
girlfriends and stated Complainant was not being discussed.

Person B stated he reviewed the video (sound was not recorded) of the front-desk area on
November 3 and 4, 2011, showing Complainant’s direct contact with the security guards. He
stated the video tape showed Complainant as animated and pointing her finger at the security
guards. Person B stated Complainant was perceived as the aggressor. Person B stated based
on his review of the documents and the video, he determined Complainant’s concerns were
based on miscommunication, not discriminatory and/or harassment by the guards.

In her affidavit, Person C stated she did not witness claims (1)(a) – (1)(h) and she did not have
direct knowledge of incidents (1)(a) – (1)(c) or (1)(e) – (1)(g). With regard to issue (1)(d),
Person C stated she was made aware of the incident on November 4, 2011, by building
operations staff. Person C noted that Person E (Union president) also raised the issue during a
monthly union-management meeting held on November 30, 2011. Person C noted Person E
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stated she had negative encounters with the security guards located in the lobby at One Choke
Cherry Road and indicated that other staff had issues with the security guards and then
proceeded to explain the encounter Complainant had on November 4, 2011. Person E stated
since this date Complainant had had to use the back entrance to enter and leave the building
which Person E did not believe was fair.

Person C contacted Complainant to let her know Person E raised the November 4 incident at
the Union/Management meeting and that the Agency was looking into it. Person C indicated
that management agreed with Person E that Complainant should not be entering the building
through the back exit and would ensure that this was changed. Person C noted this was
changed by December 1, 2011. Person C noted that a mediation session was scheduled to
address Complainant’s concerns; however, Complainant elected to not participate.

With regard to claim (1)(h), Person C stated that she learned this incident occurred via
electronic mail from Person A, through the Deputy, CMHS, to Person C. Person C stated that
her staff reviewed the security tapes and received a statement from Officer F and an eye
witness. Person C stated the information provided by Officer F and the eye witness did not
corroborate Complainant’s allegations. Rather, Person C stated that both statements reflected
that Complainant’s conduct was inappropriate.

In her affidavit, Person D stated that on November 4, 2011, Complainant described claims
(1)(a) and (1)(b) when discussing claims (1)(c), (1)(d), and (1)(e). Person D stated she met
with Complainant and Officer F on November 3, 2011, regarding claim (1)(c). Person D
stated that during the meeting, she did not witness a verbal confrontation and/or threatening
gestures between Complainant and Officer F. Person D stated that on November 3, 2011, she
received a written report from Security Guard 7 and Security Guard 8. The guards contended
Complainant overheard a personal conversation they were having and apparently believed the
guards were referencing her. The guards stated they did not reference Complainant and did
not make unprofessional negative comments about her.

Person D stated that on November 4, 2011, she attended a meeting with Complainant, Person
A, Person B, and Officer F. Complainant described her November 2011 confrontations with
the front-desk security guards under claims (1)(c) – (1)(e). Person D noted that Person A
suggested Complainant temporarily enter and exit the building using the rear doors rather than
continuously encounter the security guards stationed at the front desk. Person D noted that one
security guard usually monitored the rear exit. Person D stated that Complainant, Person A,
and Person B agreed to this temporary arrangement. Person D stated she was aware in 2011 –
2012, that other SAMHSA employees made negative comments about the security guard
operation; however, she stated these issues and concerns proved to be unsubstantiated.

In her affidavit, Officer F stated she attended a meeting on November 3 or November 4, 2011,
held in Person D’s Office to discuss Complainant’s allegations of harassment by security
guards assigned to the front-desk at One Choke Cherry Road. Officer F followed up with
Security Guard 7 and Security Guard 8 and obtained written reports from them. Officer F
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noted that the two guards reported that Complainant inadvertently overheard comments they
made about the travel of Guard 7’s girlfriend. Both guards stated that Complainant was not
harassed or spoken to during their personal conversation. Officer F stated she submitted the
written reports prepared by the guards to Person B. Officer F stated Person B then informed
her that all front-desk guards were immediately to refrain from speaking to Complainant unless
there was an issue directly related to security provisions. Officer F stated she advised all
security guards of the directive on November 5, 2011.

With regard to issue (1)(h), Officer F stated that on March 26, 2012, she called Complainant
to inform her that visitors had arrived that needed to be escorted. Officer F noted that on the
day at issue SAMHSA officials had four major conferences scheduled that resulted in an influx
of non-SAMHSA visitors and the guards were extremely busy on security related processing
procedures. Officer F stated that the visitors Complainant met were processed without delay
or incident. Officer F stated that before Complainant escorted the guests to the elevator,
Complainant approached her and stated that Officer F was rude to her on the telephone because
Officer F did not provide the specific names of the arriving visitors. Officer F stated she did
not respond to Complainant’s comment.

The record contains an electronic mail message dated March 26, 2012, at 10:54 a.m. from
Officer F to Person D regarding her encounter with Complainant. Officer F stated that at 8:50
that morning, she telephoned Complainant regarding three visitors that arrived who needed to
be escorted. Officer F stated that Complainant agreed to get the visitors. Officer F stated that
Complainant then called her on the phone moments later and asked for the names of the
visitors. Officer F stated that the guards were “extremely busy right now” and she was not
sure of their names. Officer F stated that she asked Complainant to hold on and got one of the
visitor’s names, Visitor 1. Officer F asked Security Guard 7 to tell Complainant “[Visitor 1]
plus two.” Officer F stated Complainant then came to the desk to get the guests. Officer F
stated she went to the Visitor’s Center to retrieve them and brought them to Complainant. She
stated that as Complainant greeted them, she asked them to wait a moment because she had a
question for security. Officer F stated Complainant proceeded to tell Officer F it is her job to
know exactly who is here and called Officer F unprofessional.

The record also contains a statement from Witness X, Financial Advisor, who witnessed the
incident on March 26, 2012. Witness X noted that when Complainant came to get the non-
SAMHSA guests, she immediately scolded the security team stating she was not given the
names of all the guests who were waiting to be escorted. The security guard who was assisting
Witness X with a temporary badge asked Complainant to discuss the issue with Officer F.
Witness X stated that Officer F listened to Complainant and responded saying that they did
identify the names of the individuals that were to be escorted into the building. Witness X
noted that Officer F promptly asked Complainant to escort the individuals where they needed
to go. Witness X stated that Complainant responded that the security guards need to do their
jobs and began telling them what they should have done, then walked away mumbling under
her breath and appeared to then complain to the guests. Witness X stated that Complainant’s
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handling of the situation was not professional. Witness X stated that she thought Officer F
handled the situation correctly and professionally.

The record contains Officer’s Operations Log from Security Guard 7 who stated that on
November 3, 2011, he was having a conversation with Security Guard 8 regarding their
girlfriends. Security Guard 7 noted that he commented that he liked the fact that his girlfriend
kept “coming back and forth” from Germany to visit. Security Guard 7 stated that
Complainant thought they were talking about her and yelled at the guards. However, Guard 7
stated they were not talking about Complainant.

Security Guard 8 also provided a statement noting that on November 3, 2011, he and Security
Guard 7 were talking about their girlfriends and Security Guard 7 discussed his girlfriend
coming “back and forth.” He noted Complainant assumed Security Guard 7 was talking about
her coming or going back and forth out of the building. Security Guard 8 stated he tried to
diffuse the situation by saying, “Ma’am he wasn’t talking about you,” but Complainant
continued to get loud. Complainant stated she was tired of people talking about her and she
left. When she came back, she stopped by the guards’ station and stated she did not appreciate
being called a “man.” Security Guard 8 stated that no one called her a “man” and noted that
he said “Ma’am.”

Upon review, we find that Complainant has not proven by a preponderance of evidence that
claims (1)(c) - (1)(e) occurred as alleged. Although Complainant contends that Security Guard
7 and Security Guard 8 commented on Complainant “coming in and going out” from the
building, we note that the Operations Logs from both guards indicate that they were discussing
their girlfriends and not Complainant. Additionally, with regard to the incidents on November
4, 2011, the security guards stated they word using the words “Ma’am” instead of “man”
when referring to Complainant. Moreover, Person B stated that he revealed the video of the
dates in question, which had no sound, and the video showed Complainant as animated and
pointing her finger at the security guards and he perceived Complainant as the aggressor.

Moreover, with regard to Complainant’s claim that she was told to enter the back of the
building until the situation was resolved, the record confirms that Person A suggested this
during the November 4, 2011 meeting. Although Complainant claims that having to enter and
exit through the back of the building was discriminatory, we note that Person B and Person D,
both in attendance at the meeting in question, confirmed that Complainant agreed to this
arrangement.

Additionally, we find Complainant has not shown that claim (1)(h) occurred as alleged.
Although Complainant alleged that on March 26, 2012, Officer F became irate and nasty,
Officer F disputes this. In addition, the statement from Witness X stated that Officer F acted
professionally.

With regard to claims (1)(a), (1)(b), (1)(f), and (1)(g), we find Complainant failed to show that
these incidents occurred as alleged or were based on Complainant’s race or in retaliation for
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protected EEO activity. While we find that the alleged incidents (1)(a) and (1)(g) where the
security guards allegedly mimicked a high-pitched voice and the statement in claim (1)(b)
where the guards stated Complainant looked like a man and “had a roll” were, if true, based
on sex, we find the incidents in claims (1)(a), (1)(b), (1)(f), and (1)(g) were not, when
considered together, sufficiently severe or pervasive to constitute a discriminatory hostile work
environment.

CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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
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12
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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).
FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 3, 2014