Corie E.,1 Complainant,v.Jeh Johnson, Secretary, Department of Homeland Security (U.S. Secret Service), Agency.

Equal Employment Opportunity Commission

Sep 22, 2016

0120140669 (E.E.O.C. Sep. 22, 2016)

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

Corie E.,1
Complainant,

v.

Jeh Johnson,
Secretary,
Department of Homeland Security
(U.S. Secret Service),
Agency.

Appeal No. 0120140669
Hearing No. 560-2012-00232X
Agency No. HSUSSS007652011

DECISION

On December 6, 2013, Complainant filed an appeal from the Agency’s December 2, 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 an Administrative
Specialist, GS-09, in the Kansas City Field Office (KCFO) in Kansas City, Missouri. On
March 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the bases of sex (female/parental status) and reprisal2 (prior protected EEO
activity) when:

(1) on April 7, 2008, Complainant’s supervisor (female) (S0) denied her leave for October 10,
2008, and January 2, 2009;

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.
2 Complainant’s reprisal claim pertains solely to claims 13 and 18.
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(2) on or about April 28, 2008, S0 issued Complainant's performance review, during which it
was noted that Complainant was required to request access to the vault, which impacted her
ability to do her job;

(3) from April 15 to 21, 2009, and on October 21, 2009, S0 did not allow Complainant to
perform back-up administrative officer (AO) duties as stated in her position description;

(4) on or about April 23, 2009, S0 allowed a Senior Investigative Assistant (female) (S1) to
scold and harass Complainant and failed to take any action to prevent or address the situation
to Complainant's satisfaction;

(5) on October 26,2009, Complainant was the only administrative employee in the office whom
S0 did not allow to assist with an inspection;

(6) on November 7, 2009, the Special Agent in Charge (male) (S3) threatened Complainant
with a desk audit, said that she was not a team player, accused her of stealing, and made other
negative, unfavorable comments to her;

(7) on February 8, 2010, S1 assigned Complainant to perform investigative duties;

(8) on May 6 and September 2, 2010, S1 did not allow Complainant to perform back-up AO
duties as stated in her position description;

(9) on approximately September 21, 2010, the Assistant Special Agent in Charge (male) (S2)
sat in on Complainant's performance review, but not in on other administrative employees'
performance reviews;

(10) in October 2010, management denied Complainant the opportunity to attend WebTA
(online time and attendance application) training;

(11) on November 23, 2010, S1 denied Complainant leave for December 29 and 30, 2010;

(12) on January 27, 2011, S1: (a) informed Complainant that S1 was reluctant to grant
Complainant compensatory time because Complainant had taken too much leave to care for her
children; (b) characterized Complainant's request for compensatory time as suspicious; (c)
asked why Complainant's husband and in-laws did not care for Complainant's children when
they were sick; (d) characterized Complainant as lazy, untrustworthy, and undependable;

(13) on February 8, 2011, after Complainant informed him that she intended to file an EEO
complaint, S3: (a) threatened to place Complainant on a Performance Improvement Plan (PIP);
(b) threatened to demote her to an Investigative Assistant (IA) position; (c) stated that her
position had been "dumbed-down" for her; and (d) made other negative, unfavorable
comments regarding her performance;

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(14) in March 2011, S1 noted in Complainant's mid-year performance review that an applicant
undergoing a background investigation did not undergo a physical examination, even though
Complainant subsequently received an e-mail from the Personnel Security Specialist in the
Security Clearance Division indicating that the lack of a physical examination was not a
problem;

(15) on July 12, 2011, S1 failed to assign Complainant to perform back-up AO duties as stated
in her position description;

(16) on July 18, 2011, S3 failed to: (a) mention Complainant's contributions to the office or to
make laudatory comments in an email to staff about Complainant's last day in the office; (b) or
organize a going-away party for her as S3 did for S1 on July 5, 2011;

(17) on July 21, 2011, Complainant learned that she had been excluded from an e-mail
soliciting monetary contributions for S1's going-away gift; and

(18) on July 29, 2011, management issued Complainant a final performance review containing
untruthful information.

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 (AJ). 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 decision concluded that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

FACTUAL BACKGROUND

During the relevant time period, Complainant's position description included the following
duties, among others: (a) serving as principle back-up to the AO; (b) scheduling applicants and
employees' physical examinations; (c) managing/coordinating administrative segments of
protective visits (office inspections); (d) paying bills for administrative expenses; (e) assisting
agents in developing background information and leads for investigations; and (f) performing
preliminary searches of criminal databases.

On March 17, 2011, S1 issued Complainant's mid-year performance review for the
performance year of July 1, 2010, to June 30, 2011. S1 noted in the review that Complainant
had needlessly delayed the scheduling of two applicants' pre-employment physical
examinations, which S1 ultimately had to schedule.

On July 12, 2011, S1 assigned two IAs to perform back-up AO duties in succession. On July
18, 2011, S3 sent an email to staff noting that Complainant was transferring to the U.S.
Immigration and Customs Enforcement and urging staff to say good bye to her and wish her
good luck. On July 29, 2011, S1 issued Complainant's final performance review, stating in
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part, “…this responsibility was taken from her several months ago due to errors selecting the
appropriate object class codes for purchase, and due to the continued problems in this area …”
which Complainant believes is untruthful. S1 resigned effective July 30, 2011.

PROCEDURAL DISMISSAL

The Agency dismissed the disparate treatment allegations in Claims 1-3, 5, 7, 8, 10, and 11, to
the extent that they alleged independently actionable discrete acts, pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely contact with an EEO Counselor.3 However, since Claims 7, 8,
10 and 11 deal with the same officials as the timely claims, the Agency included them in its
hostile work environment analysis.4 We agree with the Agency’s analysis and dismissal of
these claims.

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”).

We agree with the Agency’s analysis and conclusion that Complainant failed to present
sufficient evidence of discrimination/retaliation or a hostile work environment with respect to
any claim or claims.

Disparate Treatment Claims

Claim 15: Failure to Assign AO Back-Up Duties on July 12, 2011

The record shows that management articulated a legitimate, nondiscriminatory reason for not
assigning Complainant AO back-up duties on July 12, 2011. S1 explained that she assigned
one of the IAs (IA-1) to serve as back-up on that date because she had just been assigned as a
purchase card holder in the office, and S1 wanted her to gain as much experience as possible
paying bills for the office. According to S1, when IA-1 indicated that she was taking approved
annual leave on the day in question, S1 designated the other IA (IA-2) rather than Complainant
as back-up because she knew that Complainant was occupied with the primary administrative

3 Complainant first contacted an EEO counselor on February 9, 2011.
4 All the claims, including those dismissed were investigated and considered as background
evidence.
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duties on that day; including answering phones, sending official messages, and checking the
regional center log.

We agree with the Agency in concluding that Complainant failed to prove by a preponderance
of the evidence that management's legitimate, nondiscriminatory reason for not assigning her
AO back-up duties on July 12, 2011, was a pretext for discrimination based on her sex or prior
EEO activity. Complainant argued that the AO back-up duties should not have been rotated to
other employees, since it was a primary duty in her position description. In contrast, the IA-1
asserts that the back-up function was not removed from Complainant, since Complainant was
included in the rotation, and nothing in Complainant's position description precluded others
from performing back-up duties. The IA-2 added that she continued IA-1’s practice of rotating
the AO back-up function among administrative staff members in order to provide experience
for backing her up when both she and Complainant were out of the office at the same time, as
happened frequently. While Complainant alleged that she protested to S2 and IA-2 in
September 2010 about the rotation of back-up duties, IA-2 noted that Complainant's lack of
interest in serving as AO back-up was apparent when, on January 27, 2011, Complainant
responded to IA-2's notice that Complainant was needed as back-up while IA-2 was on military
leave by saying, "that blows.'" Complainant produced insufficient evidence to refute IA-2's
explanation or to demonstrate that IA-2’s decision was motivated by discriminatory animus.

Claim 18: Untruthful Information in Final Performance Review on July 29, 2011

We agree with the Agency in concluding that management articulated a legitimate,
nondiscriminatory reason for noting the removal of Complainant's responsibility for entering
payments on the budget spreadsheet, due to previous errors, in her July 29, 2011 performance
review. IA-2 explained that she made the statement because it was true. We also agree that
Complainant failed to prove by a preponderance of the evidence that management's legitimate,
nondiscriminatory reason for including the remark in her performance review was a pretext for
discrimination based on her sex or prior EEO activity. Complainant argued that IA-2, and not
she, entered payments in the budget spreadsheet; therefore, that responsibility could not have
been taken away from her. Nevertheless, IA-2 maintained that Complainant was entering
payment information in the budget spreadsheet when IA-2 became acting AO upon IA-1's
retirement. S3 noted that Complainant could have been required to enter data in the budget
spreadsheet whenever she was assigned to perform AO back-up duties. The record contained
emails reflecting that IA-2 delegated budget spreadsheet entry duties to Complainant: (1) on
February 19, 2010, when IA-2 issued specific instructions to Complainant regarding FedEx
and parking payments to be entered on the spreadsheet during IA-2's absence on military
leave; (2) on March 19, 2010, when IA-2 issued specific instructions to Complainant regarding
entry of four payments on the budget spreadsheet; and (3) on July, 8, 2010, when IA-2 re-sent
her February 19th instructions to Complainant regarding entry of payments on the budget
spreadsheet during IA-2's impending absence. We also agree that Complainant failed to
produce evidence refuting IA-2's explanation for including the remark in Complainant's final
performance review or demonstrating that IA-2 was motivated by discrimination based on
Complainant's sex or prior EEO activity.
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Hostile Work Environment

We also agree with the Agency’s conclusion that Complainant failed to prove that she was
subjected to hostile work environment harassment based on her race, sex, or protected EEO
activity. None of her examples of alleged harassment support a hostile work environment
claim because Complainant failed to produce evidence demonstrating either that the incidents
in question occurred as alleged or were motivated by discriminatory or retaliatory animus.

CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency’s decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 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
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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. 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

September 22, 2016
Date