U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darcy L.,1
Complainant,
v.
Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal No. 0120170369
Agency No. ATF-2015-01627
DECISION
On November 7, 2016, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
October 6, 2016, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.
ISSUES PRESENTED
Whether the Agency discriminated against, and harassed Complainant, based on her sex, and in
reprisal for prior EEO activity.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked in the Office of Chief
Counsel (OCC) of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) as the Division
Counsel at the Agency’s New Orleans Field Division (NOFD) in New Orleans, Louisiana.
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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Starting in June 2013, Complainant participated as a witness in an EEO complaint initiated by a
Special Agent (SA), who alleged that an Assistant Special Agent in Charge (ASAC) sexually
harassed and sexually assaulted both Complainant and SA. On September 14, 2015, the Chairman
of the Senate Committee on the Judiciary, sent the then-Attorney General a letter opening an
investigation into SA’s allegations, and Complainant participated in this investigation. SA
prevailed on her EEO complaint on September 21, 2015. ROI at pgs. 314-315, 352-356.
In February 2014, the Deputy Director (DD) (male, prior EEO activity) assigned Complainant to
a one-year detail assignment with Human Resources and Professional Development (HRPD) to
help develop new training courses. ROI at pg. 612. In October 2014, Complainant continued her
detail assignment at the Agency’s National Academy (Academy), located in Georgia. ROI at pg.
103.
In January 2015, Complainant informed DD about her allegation of sexual harassment by ASAC,
and her involvement in SA’s EEO complaint. ROI at pg. 103. In early 2015, DD and Complainant
met to discuss Complainant’s desire to continue working at the Academy. The full-time Academy
Instructor (AI) planned to retire, and Complainant expressed interest in his position. Due to her
family situation, Complainant wanted to remain in New Orleans, and fly to the Academy when
needed, at the Agency’s expense. Following this meeting, DD spoke with the Chief Counsel (CC)
(male, no prior EEO activity), who stated that many attorneys wanted the opportunity to teach at
the Academy, and that he planned to identify a cadre of attorneys who would be available to
instruct at the Academy. ROI at pgs. 287-288.
On February 9 or 10, 2015, DD met with the Academy leadership, and informed them that he was
assigning Complainant to a split position between the Academy and the NOFD, to begin after the
conclusion of Complainant’s detail assignment on March 23, 2015. ROI at pgs. 103, 414. On
February 18, 2015, the Assistant Director (AD) of Field Operations emailed CC stating that the
NOFD Special Agent in Charge (SAC) (male, unknown EEO activity) expressed concerns that
Complainant was on detail for over one year, and stated that they needed a solution to ensure that
SAC had on-site counsel. ROI at pg. 616. On or about February 23, 2015, DD, CC, and AD met
with the Assistant Director of HRPD to discuss legal support for the NOFD and the Academy. The
parties decided that Complainant would return to the NOFD, and provide occasional training at
the Academy. ROI at pg. 243.
On March 3, 3015, the Deputy Chief (DC) (female, prior EEO activity) of the Academy sent an
email announcing Complainant as a “permanent member” at the Academy, working a split position
at the Academy and as Division Counsel in the NOFD. ROI at pg. 621. On March 6, 2015,
Complainant sent DD an email stating that there were still “loose ends” that needed to be resolved.
She stated that her understanding was that the split position was permanent, with no end date.
Complainant stated that she spoke with her first line supervisor (S1) (female, no prior EEO
activity), who indicated that the Academy duties would not be permanent. Complainant requested
that DD clear up the “communication nightmare.” ROI at pg. 623.
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On March 10, 2015, CC received a request for Complainant to provide training for dates in May,
June, and July, with additional possible dates in August and September. CC responded that since
Complainant’s detail was ending later in the month, he would identify a “variety of well-qualified
instructors” to meet the training requests. ROI at pgs. 632-633.
On March 12 or 19, 2015,2 Complainant participated in a conference call with S1 and CC to discuss
her return to the NOFD. CC informed Complainant that she would still be involved in training at
the Academy, but that other attorneys would also share in the training opportunities. Complainant
stated that she needed additional time to finish a training curriculum, beyond March 23, 2015.
Complainant’s detail was extended until early July 2015. ROI at pg. 244. On March 19, 2015,
Complainant sent DD an email stating that she was “not pleased with how things have completely
changed.” DD responded that he was confused because Complainant “ask[ed] for a second
attorney, and you’re getting one. You ask to remain [Division Counsel], and you are. You ask to
remain engaged with the Academy, and you are.” Complainant responded that CC did not state
they were getting a second attorney, and that she is only being “allowed” to remain on detail for
an additional 90 days. Complainant also stated that CC referred to her as a “resource,” and
informed her that she could only train once per quarter. ROI at pgs. 625-626.
In late March, Complainant, DD, and SAC held a conference call. SAC agreed to Complainant’s
split position, as long as he got a second attorney for the NOFD. DD agreed to the second attorney,
and stated that he would inform CC. ROI at pgs. 103, 114, 441.
In early April 2015, pursuant to DD’s instructions, DC offered Complainant the full-time Academy
position while traveling from New Orleans, which she accepted. ROI at pg. 128. On April 13,
2015, AI informed CC that he planned to retire, effective May 30, 2015.3 ROI at pg. 654.
On April 16, 2015, AD emailed CC informing him that a Criminal Attorney (CA) within the
Department of Justice (DOJ) recently moved to New Orleans to join her husband, who was an
Agency employee. AD stated that since the NOFD needed a second attorney and DOJ had a
hardship situation, they could alleviate the hardship while meeting the Agency’s business needs.
ROI at pg. 663.
On April 19, 2015, Complainant’s second line supervisor (S2) (male, prior EEO activity) was
hired. ROI at pg. 194. On April 22-23, 2015, S2 and CC traveled to the Academy to discuss the
plan to backfill AI’s position. S2 and CC asked Complainant if she was interested in the position,
and she indicated that she would be interested if she could remain in New Orleans with the Agency
paying for her travel to the Academy. DC and CC agreed that Complainant’s detail would be
extended to allow for overlap with the future selectee of the full-time Academy position. ROI at
pgs. 195, 245. Shortly after the trip, S2 spoke with Complainant, who stated that DD had already
given her the Academy position, allowing her to reside in New Orleans and traveling to the
2 The record contains conflicting information about the date of this meeting.
3 The full-time Academy Instructor position reported to the OCC. ROI at pg. 414.
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Academy. On or about May 5, 2015, S2 met with DD, who denied offering Complainant the
position. ROI at pgs. 195-196.
On May 7, 2015, CC, S1, and S2 interviewed CA in Washington, D.C. Complainant was not a part
of the interview panel, and met CA at a later date in New Orleans. ROI at pgs. 105, 258. On May
17, 2015, S2 requested that the Office of Attorney Recruitment and Management approve CA’s
reassignment from the Criminal Division to the NOFD, which was approved. ROI at pg. 259. S1
sent an email announcing CA’s hire on May 28, 2015. ROI at pg. 672.
On May 27, 2015, S2 sent an email announcing the vacancy for the full-time Academy position.
ROI at pg. 675. The candidates were interviewed at the Academy in July 2015. ROI at pg. 208.
Complainant did not apply for the position, and a new attorney was selected. ROI at pg. 197.
On June 12, 2015, Complainant filed the instant EEO complaint alleging discrimination and a
hostile work environment. On September 8, 2015, Complainant sent an email to S2 asking what
the plans were for her supervision when she returns to the NOFD, in light of her EEO complaint.
S2 responded that he would identify interim actions while her complaint was being processed. ROI
at pg. 689. On September 23, 2015, Complainant and S2 met to discuss the matter; Complainant’s
attorney, and an Agency Attorney (AA) also attended this meeting. ROI at pgs. 136, 691. On
September 25, 2015, S2 confirmed that he would assign Complainant different supervisors,
pending the outcome of Complainant’s hostile work environment claim. ROI at pg. 691.
On October 2, 2015, the parties met again to discuss the situation, and S2 sent a follow-up email
on October 9, 2015. S2 stated that he was willing to consider Complainant’s preference to be
supervised by someone outside of the OCC, but was concerned that reassigning an employee with
an EEO complaint may appear to be retaliatory. He also stated that if Complainant were to be
supervised by anyone outside of the OCC, she could not be involved with performing its work. S2
stated that his preference was for Complainant to return as Division Counsel in the NOFD, with
alternate supervisors. S2 also agreed to extend Complainant’s detail to the Academy, through late
November or early December 2015. ROI at pgs. 694-695.
EEO Complaint
On June 12, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against, and subjected her to harassment, on the bases of sex (female), and in reprisal for prior
protected EEO activity under Title VII when:
1. in early 2015, DD offered Complainant a position to split her time as Division
Counsel of the NOFD and one of two staff attorneys at the Academy, which she
accepted. On or about March 19, 2015, DD and ATF management, unilaterally
changed her job to a Headquarters HRPD 90-day temporary detail, through June
30, 2015. Thereafter, she was required to return full-time to her position as Division
Counsel;
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2. On or about March 19, 2015, ATF management refused to allow Complainant to
deliver requested training to the Firearms Operations Division, Firearms
Trafficking Branch, for any courses scheduled to occur after the 90-day detail was
to end;
3. On or about March 19, 2015, ATF management refused to approve Complainant to
complete the Special Agent Basic Training 1504 Firearms Criminal Violations
block of instruction, an 8-10-hour single block of instruction that was scheduled to
end July 3, 2015, exceeding the end of the HRPD detail;
4. On or about March 19, 2015, ATF management limited Complainant’s ability to
train any blocks of instruction, or participate in further course development or
course revision, other than work on the Firearms Criminal Violations course for the
Academy;
5. On or about March 19, 2015, ATF management stated to Complainant that “anyone
could do” the work she had been doing, despite their lack of concrete knowledge
of what that work was;
6. On or about March 19, 2015, ATF management falsely represented discussions
with SAC during a phone conversation regarding the split position Complainant
had been offered and accepted;
7. On or about March 19, 2015, ATF management condescendingly called
Complainant “their resource,” and falsely accused her of being underhanded;
8. On or about March 19, 2015, ATF management advised Complainant that in the
future, she was restricted to training one training block per quarter after the end of
her 90-day detail;
9. On or about March 25, 2015, DD was advised on the above, and allowed the
retaliatory acts to go unchallenged and unpunished;
10. Between April 1-23, 2015, DD offered Complainant a full-time Staff Attorney
position at the Academy. Complainant would continue to reside in New Orleans,
and travel to the Academy, as needed. On or about April 23, 2015, this position was
changed to a full-time temporary detail to the Academy, with an undetermined end
date;
11. On or about April 23, 2015, ATF management advised Complainant that the
position she was previously offered at the Academy would be advertised, and that
the selectee must reside near Brunswick, Georgia, or be willing to relocate there;
12. On or about April 23, 2015, DD was advised on incidents 10 and 11, and allowed
the retaliatory acts of ATF management to go unchallenged;
13. On or about May 7, 2015, ATF management excluded Complainant from the initial
interview process for the second attorney in the NOFD;
14. ATF management boasted via email regarding the expedient hiring and clearance
of a second attorney to the NOFD by a process that circumvented the requirements
averred to be the reason for earlier advertising a position that Complainant had been
offered and accepted;
15. On or about May 27, 2015, ATF management posted a job listing for the Academy
lawyer position, a position Complainant had twice been offered and accepted;
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16. On or about July 8-9, 2015, ATF management flew from Washington, D.C. to the
Academy and interviewed candidates two doors down the hall from Complainant’s
office to fill the position that Complainant had twice been offered and accepted, but
taken away;
17. On or about August 19, 2015, Complainant discovered that earlier that year, ATF
management allowed a lawyer to go into her confidential records at the Internal
Affairs Division, obtain a copy of a report, and attach it as an exhibit while
misrepresenting the matter, implying that Complainant was less than forthcoming,
and referring to an alleged sexual assault as an “attempt to pick her up”;
18. On September 15, 2015, S2 advised Complainant that effective October 4, 2015,
she was to return to the NOFD as Division Counsel, and resume her full-time duties
there;
19. On September 22, 2015, S2 agreed to a phone conversation regarding
Complainant’s duties and supervisors when she returned full-time to the NOFD. S2
included AA who is handling the claim on behalf of the Agency, and supervises a
lawyer against whom Complainant has a claim;
20. On September 22, 2015, during the phone call with S2 and AA, S2 attempted to
have Complainant agree to a change in her chain of command. S2 alleged that his
proposal to realign management temporarily was something he could force, but
condescendingly couched his willingness to explore options that Complainant
proposed to alleviate concerns of continued retaliation as “just trying to make
[Complainant] happy”;
21. In an attempt to force Complainant to return to the OCC, an environment where
Complainant was, and continues to be, subjected to retaliation, ATF management
advised her that “reassignment of the Complainant to another job is likely to be
found to be retaliatory”;
22. On or about October 2, 2015, S2 referred to Complainant’s work on the detail at
the Academy as a volunteer activity;
23. On or about October 5, 2015, S2 traveled to the Academy and spoke with Academy
management. They agreed that Complainant would remain on detail to the
Academy until Complainant completed training the new attorney. On October 9,
2015, S2 stated in an email that he was looking for something for Complainant to
do, in direct contradiction to the agreement of October 5, 2015;
24. On October 9, 2015, ATF management prohibited Complainant from any work or
interaction with the OCC unless she agreed to return to counsel at the end of the
detail; and
25. On October 9, 2015, ATF management stated that no matter where Complainant is
assigned, the OCC will still be involved in her management.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an 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.
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The Agency determined that Complainant had not established that she was subjected to a hostile
work environment based on her sex, or in reprisal for her EEO activity. The Agency found that the
incidents were not so sufficiently severe or pervasive to have altered the terms or conditions of
Complainant’s employment. Additionally, the Agency determined that there was nothing in the
record to support the claim that the incidents were motivated by discriminatory or retaliatory
animus. For Complainant’s claims that management references to her as being a “resource,” and
her work at the Academy to be “voluntary,” the Agency found that these incidents were not
objectively offensive.
The Agency found that while Complainant and DC asserted that DD unequivocally offered
Complainant the split position, the record showed that this was not as concrete as suggested. The
Agency noted an email from Complainant to DC in which she stated that she did not “see anything
really set in stone,” and that questions remained as to whether the agreement was permanent.
Additionally, Complainant sent DD an email stating that there were “loose ends” that needed to
be resolved.
The Agency noted that it did not find CC’s overall account to be credible because he repeatedly
mischaracterized SAC’s position on Complainant’s continued role at the Academy. However, the
Agency assumed that even if Complainant’s account was correct, and that CC and S1 worked
together to deny her the opportunity to work the split position, it found that those actions were
insufficient to support a claim of a hostile work environment.
The Agency determined that the record strongly suggests that there was a “turf war” over
Complainant’s continued support of the Academy because her managers “bristled at
Complainant’s close relationship with [DD] and her efforts to engage him in resolving the matter.”
With regards to Complainant’s claim that she was retaliated against when the Agency rescinded
her offer to work at the Academy, and instead advertised the position with the requirement that the
selectee live in Georgia, the Agency found that there was insufficient evidence that they did so for
an unlawful purpose. The Agency determined that this was reasonable, and that while AI may have
lived in Florida,4 the record does not suggest that the Agency paid for his commute to the
Academy.
Additionally, the Agency noted that S2’s decision to change Complainant’s supervisors during the
pendency of her EEO complaint was not grounds for hostile work environment. Rather, the
Agency found that S2 took steps to accommodate Complainant’s preference to be managed by
supervisors outside of the OCC, and to continue to provide support to the Academy. The Agency
concluded that the record did not support a finding that Complainant was discriminated against
based on her sex or in reprisal for her protected EEO activity.
4 The Florida border is approximately forty (40) miles from the Academy location in Georgia.
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Complainant filed the instant appeal and submitted a brief in support of her appeal on December
7, 2015.5 The Agency filed a response on January 5, 2017.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency erred in finding that Complainant was not
subjected to discrimination based on her sex and in reprisal for her prior EEO activity because it
did not identify the reasons for the actions of the Agency management officials. Complainant also
alleges that her superiors subjected her to an “unending stream of denigrating, patronizing, and
condescending remarks.”
Complainant alleges that CC’s statements were “less than credible” because the “sole” reason that
CC was telling people different stories was to take away the split position from Complainant. For
claims 2-4, Complainant argues that she was already in her detail position when the training request
was made, and that S1’s attempts to prevent her from providing training occurred when the OCC
had no authority related to the training request. Complainant also alleges that the Agency
mischaracterized her emails, and ignored other evidence showing that DD “unequivocally” gave
Complainant the split position. To the extent that there was a “turf battle,” Complainant argues
that it was for the OCC officials to retaliate against her. Complainant states that the management
officials’ statements are inconsistent, and that statements by Complainant and her witnesses show
that their statements are less than credible.
The Agency argues that Complainant did not submit any valid arguments for why the Agency’s
final decision should be reversed. The Agency alleges that Complainant only argues that the
Agency “failed to understand” or “mischaracterized” the record. The Agency also argues that
Complainant has not established a prima facie case of sex discrimination because she did not
identify a similarly situated male employee who was treated differently. Additionally, the Agency
argues that Complainant did not establish a prima facie case of reprisal discrimination because too
much time had passed between her protected activity, and the alleged revocation of the split
position. The Agency requests that the Commission affirm its final decision.
5 Complainant requested, and was granted, an extension to file her brief in support of her appeal
through February 10, 2017.
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ANALYSIS AND FINDINGS
Standard of Review
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
Disparate Treatment
Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once complainant
has established a prima facie case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253 (1981). If the agency is successful, the burden reverts back to complainant to demonstrate
by a preponderance of the evidence that the agency’s reason(s) for its action was a pretext for
discrimination. At all times, complainant retains the burden of persuasion, and it is her obligation
to show by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460
U.S. 711, 715-716 (1983).
As an initial matter, the Commission finds Complainant’s allegations that ASAC sexually harassed
and assaulted her to be a serious matter. However, these claims are not before us in the instant
complaint. To the extent that Complainant reported these allegations and participated in
investigations into these allegations, we find that she has engaged in protected EEO activity.
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
her sex, and in reprisal for her prior EEO activity, we find that the management officials articulated
legitimate, nondiscriminatory reasons for their actions. For claim 1, S1 stated that Complainant
asserted that she still had a lot of work left to do at the Academy and was interested in splitting her
time with the NOFD and the Academy. ROI at pg. 150. CC stated that Complainant’s job was not
“unilaterally changed.” He stated that during a conference call with Complainant, they discussed
extending her detail assignment, and she agreed. CC added that if Complainant had objected to the
extension, her detail would have ended on March 23, 2015. ROI at pg. 246.
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For claims 2-4, S1 stated that there was never any prohibition against Complainant providing
training after the end of her detail assignment. However, since Complainant’s position was a
Division Counsel, it was expected that she would limit activities that took her away from her
responsibilities. ROI at pg. 151. Additionally, CC stated that once Complainant returned from her
detail assignment, any requests to provide legal instruction would be made on a case-by-case basis.
ROI at pg. 247.
Regarding claim 5, S1 stated that since no names or context was provided, her best guess is that
CC stated that other attorneys were available to serve as instructors. CC added that he did not recall
anyone making such statement, and that he most likely stated that there were other attorneys who
were qualified, interested in, and capable of providing training at the Academy. ROI at pgs.
155,156, 250.
For claim 6, S1 and CC stated that they could not provide a response since Complainant did not
state what she believed was “falsely represented.” ROI at pg. 156, 251. With regards to claim 7,
CC stated that he did not recall anyone calling Complainant a “resource,” and that they reminded
her that she was a permanent employee within the OCC. CC also stated that no one spoke to
Complainant in a condescending manner, or accused her of being underhanded. ROI at pg. 252.
For claim 8, CC stated that he did not “restrict” Complainant to one training block per quarter, and
that since the training opportunities should be shared, the “once per quarter” was aspirational, and
not a rule. ROI at pg. 253.
For claims 9 and 12, DD stated that he had no recollection of any retaliatory acts being taken
against Complainant. ROI at pgs. 293, 296. With regards to claim 10, DD stated that he was
amenable to having Complainant work as a part-time Academy attorney, but that the full-time
Academy attorney should reside locally, and work out of the Academy. ROI at pg. 294. For claim
11, S2 stated that he and DD agreed that the full-time Academy instructor should be located at the
Academy, like AI had been for more than a decade. S2 stated that when Complainant informed
him that DD had already given her the position, and that she could live in New Orleans, traveling
back and forth to the Academy, he asked DD, who denied offering Complainant the position. ROI
at pgs. 255, 195-196.
For claim 13, S2 stated that he scheduled the CA interview with S1, and CC, who were the
supervisory attorneys in the chain of command for the position being filled, while Complainant
was a non-supervisory attorney. S2 stated that Complainant would meet CA in New Orleans and
provide her assessment of the candidate before a hiring decision was made. ROI at pgs. 203-204.
Regarding claim 14, S1 stated that she sent the welcome email, but denied being “boastful.” She
stated that she was crediting the various offices for transitioning CA faster than she thought
possible. ROI at pg. 162.
For claim 15, S2 stated that he confirmed with DD that Complainant had not already been given
the position, and proceeded to advertise the vacancy. ROI at pg. 207.
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With regards to claim 16, CC stated that they conducted the interviews at the Academy because
some of the best candidates were already Academy employees; DC was part of the interview panel,
and was located at the Academy; and it would be helpful for the candidates to see the facility that
they would be working in, if selected. ROI at pg. 262. S2 stated that they conducted the interviews
in a conference room in the same hallway as Complainant’s office because that was the room the
Academy provided. ROI at pg. 209.
We note that a management official did not provide a legitimate, nondiscriminatory reason for
claim 17. However, Complainant has not shown that she suffered a present harm or loss with
respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v.
Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant states that the
Agency used one of her statements in SA’s EEO complaint “to obtain a benefit” in that complaint
by discrediting Complainant, and attempting to portray her as less than credible amongst her peers.
We find that there is no remedial relief available even if she were to prevail on this claim. See
Harris, et al. v. U.S. Postal Service, EEOC Appeal No. 01A35321 (Apr. 13, 2005). Additionally,
to the extent that Complainant is claiming a discriminatory hostile work environment, we find that
the event described, even if proven to be true, would not indicate that Complainant has been
subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her
employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Regarding claim 18, S2 stated that he informed Complainant that the new Academy attorney would
begin on October 4th, and Complainant would be expected to resume her Division Counsel duties.
ROI at pg. 211. For claim 19, S2 stated that there was no agreement to exclude AA in the phone
conversation, and that when her presence was announced at the start of the call, Complainant did
not object to her participation. ROI at pg. 213. For claims 20 and 21, S2 stated that he was being
receptive to Complainant’s concerns and preferences. He denied communicating in a
condescending manner, and does not recall stating that he was making Complainant “happy.” S2
stated that he believes that reacting to a hostile work environment claim by reassigning a
complainant is likely deemed a retaliatory act. ROI at pg. 221-222.
For claim 22, S2 stated that he believed that Complainant’s detail assignment was voluntary, rather
than directed. ROI at pg. 224. In response to claim 23, S2 stated that he traveled to the Academy
to confirm the extension of Complainant’s detail, but that there was no agreement about the end
date. S2 also stated that they discussed a possibility that Complainant’s detail could be extended
to perform additional work on a new project. ROI at pg. 225.
For claim 24, S2 stated that he sent Complainant an email on October 9, 2015, directing
Complainant not to perform any OCC work during the period of time that she was not supervised
by anyone in the OCC. He stated that despite Complainant’s desire to continue to provide legal
advice, his view was that Complainant could not perform work for the OCC, when she was not
being supervised by anyone in OCC. ROI at pgs. 231-232. For claim 25, no one was able to provide
a response because this statement was not attributed to any specific person. ROI at pgs. 171, 232,
269, 305.
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We find that Complainant has not shown that the reasons given by the Agency are pretext for
discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer’s proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
With respect to claims 2-4, Complainant argues that the Agency misunderstood the timing of
events because she was already on the detail assignment, and not under S1’s supervision. She
alleges that S1’s attempt to stop her from giving the training was not within her authority at the
time. However, we do not find this to be the case. Claims 2 and 3 specifically state that the training
requests were for dates after her 90-day detail extension was expected to end. Even though the
request was made while Complainant was currently on detail, at the time, S1 expected her to return
at the end of March 2015, and it was appropriate to get her permission for Complainant to give
any training after she returned to the NOFD.
To clarify, we note that there is a difference between the split position, and the full-time Academy
instructor position. In claim 1, Complainant stated that DD offered her the split position, which
she accepted. We find that the record shows that DD agreed to Complainant working the split
position, in which she would work part time as the NOFD Division Counsel, and part time in the
Academy. Complainant argues that CC’s “less than credible” statements show that the “sole
reason” he told others “differing stories” was to take away the split position. However, we do not
find CC’s lack of credibility to be an issue because the record shows that it was DD, not CC, who
made the decision. DC stated that DD decided that the split position was no longer an option
because Complainant had to choose between working at the NOFD or the Academy. ROI at pg.
421. Complainant also stated that AI’s retirement “caused [DD] to change his plan.” ROI at pg.
128.
In claim 10, Complainant alleged that DD offered her the full-time Academy position. On appeal,
Complainant argues that the statements from her witnesses show that Complainant was offered the
full-time position, and that CC “again took that employment position away.” However, DD denied
offering Complainant the full-time position because he believed that the incumbent should be
physically located at the Academy. ROI at pgs. 288-289.
The record shows that DC, not DD, discussed the full-time Academy position with Complainant.
DC stated that she spoke with DD, and clarified that Complainant would not be required to move
for the position, and that DC’s understanding was that for the short term, the Academy could cover
the costs of Complainant’s travel. ROI at pg. 421. Complainant stated that in early April, DC acted
on DD’s instructions, and offered her the full-time Academy position from New Orleans. ROI at
pg. 128.
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Unfortunately, Complainant did not request a hearing before an EEOC Administrative Judge, and,
as a result we do not have the benefit of an Administrative Judge’s credibility determinations of
the witnesses in this case. Complainant bears the burden to prove, by a preponderance of the
evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise,
Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal
No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false
statements where he withdrew his request for a hearing and credibility determinations were unable
to be made): Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012)
(complainant failed to establish that his coworker made offensive comments in a “he said, she
said” situation where complainant requested a final decision and an Administrative Judge did not
make credibility determinations). In this case, DC stated that DD agreed that Complainant could
be offered the Academy position while remaining in New Orleans, while DD denied that.
Complainant has not provided additional evidence showing that DD approved offering
Complainant the full-time Academy position with the Agency paying her travel costs. While
Complainant states that her “many unbiased witnesses” provided statements showing that
Complainant was offered the full-time position, we find that these witnesses do not possess direct
knowledge of the events, and have not presented any evidence supporting her claim. Accordingly,
we find that Complainant has not shown pretext for discrimination; and conclude that the Agency
did not discriminate against Complainant based on her sex, or in reprisal for prior EEO activity.
Harassment
As discussed above, we found that Complainant did not establish a case of discrimination based
on her sex or in reprisal for prior EEO activity. Further, we conclude that a case of harassment is
precluded based on our finding that Complainant failed to establish that any of the actions taken
by the agency were motivated by her protected bases. See Oakley v. United States Postal Service,
EEOC Appeal No. 01982923 (September 21, 2000).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding that the Agency
did not discriminate against, or subject Complainant to a hostile work environment, based on her
sex or in reprisal for prior EEO activity.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. 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.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
December 4, 2018
Date
