Hui E.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Aug 28, 2019

0120181849 (E.E.O.C. Aug. 28, 2019)

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

Hui E.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.

Appeal No. 0120181849

Hearing No. 510-2015-00377X

Agency No. DD-FY14-125

DECISION

Complainant timely 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 May 1, 2018, final order2
concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the reasons which follow, the Commission AFFIRMS the
Agency’s final order.

ISSUE PRESENTED

The issue presented is whether the decision of the EEOC Administrative Judge, who found that
Complainant did not establish that the Agency subjected her to discrimination or harassment based
on national origin, age, and reprisal, is supported by substantial evidence.

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 The Agency indicated in its final order that it received the February 23, 2018, decision of the
EEOC Administrative Judge on April 16, 2018.
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BACKGROUND

At all times relevant to the complaint, Complainant worked as a Teacher at the Antilles High
School (AHS) in the New York/Virginia/Puerto Rico School District, Domestic Dependent
Elementary and Secondary Schools (DDESS), Department of Defense Education Activity
(DoDEA) at Fort Buchanan in Puerto Rico. Complainant reported for work on August 27, 2013.
Complainant’s immediate supervisor was Dr. A, the Principal (race-Black, national origin -Black,
age 65). Dr. A began working at AHS on August 4, 2013. He had not worked for the DoDEA
previously. Dr. A began working in education in 1992 and worked as a Principal for 14 years, as
an Assistant Principal, and as a teacher, following his retirement from the military after 26 years
of service. Complainant no longer works at AHS, having applied and qualified for a position at
Fort Bragg in North Carolina.

Complainant accepted a Transportation Agreement for a job teaching at AHS for the 2013-2014
school year. She alleged that she was hired specifically to teach English Language Arts and
Advancement Via Individual Determination (AVID). When she arrived in Puerto Rico in late
August 2013, Complainant was advised that she would also be responsible for teaching a World
History Honors 9 class for the school year. Complainant alleged that management made the
assignment without providing her with prior notice or consulting with her.

Complainant further alleged that she was adversely treated because school administrators did not
support or assist her efforts to correct deficiencies in the school's AVID program and bring it into
compliance with national standards. School administrators, according to Complainant, did not
properly qualify or enroll students in her AVID classes pursuant to established national program
standards and they did not ensure that necessary documentation was completed. Complainant
alleged that, on two occasions, Dr. A cancelled planned AVID Professional Training that she was
scheduled to provide for the AHS staff with no notice after she had expended considerable time
preparing. Complainant also stated that management required her to change an AVID report she
had prepared and to include false information to reflect that the program was meeting prescribed
criteria at AHS.

On November 7, 2014, Complainant filed a discrimination complaint alleging that the Agency
subjected her to unlawful harassment on the bases of national origin (Hispanic), age (49), and
reprisal for prior protected EEO activity when:

1. On August 27, 2013, Dr. A changed Complainant’s teaching schedule to include
World History Honors 9;

2. In October 2013, Dr. A questioned Employee A, an AVID tutor, about
Complainant’s teaching practices;

3. On October 15, 2013, Dr. A cancelled Complainant’s AVID training presentation;

4. On October 30, 2013, Dr. A told Complainant to falsify an AVID report;
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5. On January 23, 2014, Dr. A cancelled Complainant’s AVID training presentation;

6. On March 18, 2014, Dr. A chastised Complainant for expressing concerns about
the lack of training, technology, and support she received at AHS;

7. From September 2013 to April 2014, Dr. A transferred 14 students out of
Complainant’s class;

8. In June 2014, Complainant was not listed in the AHS yearbook as a teacher and her
picture did not appear in the yearbook;

9. On June 14, 2014, Dr. A did not answer Complainant’s inquiries, nor did he address
her concerns about the AVID budget;

10. On June 16, 2014, Dr. A denied Complainant’s request for a teaching reassignment;

11. On July 28, 2014, Dr. B made disparaging remarks about Complainant to Dr. A;

12. On September 19, 2014, an Assistant Principal at Antilles Middle School
questioned Complainant about her EEO complaint in front of her colleagues;

13. On October 11, 2014, Dr. A offered a trip to Disneyland to two of Complainant’s
colleagues, Employee B and Employee C, but did not offer a trip to Complainant;

14. On October 15, 2014, Dr. A did not allow Complainant to compete for an AVID
Science Teacher position at AHS;

15. On November 21, 2014, Dr. A joked that Complainant was doing well for her old
age;

16. On December 11, 2014, Dr. A failed to address concerns Complainant brought to
his attention concerning the inadequate job performance of the Special Education
Aid; and

17. On December 11, 2014, Dr. A issued Complainant a Memorandum for the Record
for failing to provide academic support and services to three students.

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.
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An EEOC AJ held a hearing from August 30th-31st 2017 and issued a decision on February 23,
2018.3 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged.

AJ’s Decision

In her decision, the AJ concluded that Complainant failed to establish by a preponderance of the
evidence that she was subjected to severe or pervasive treatment in the workplace that altered the
conditions of her employment or that rose to the level of a hostile work environment. The AJ also
concluded that Complainant failed to present sufficient affirmative evidence to establish that the
employment actions were abusive and engaged in to harass her on the bases of her protected
groups. Instead, the AJ explained that the weight of the evidence reflected that the incidents cited
were in the nature of common interactions and employment decisions based on the legitimate
exercise of managerial business judgment. The AJ noted that the Agency had clearly explained
its managerial decisions in taking the employment actions at issue and Complainant had not
introduced evidence sufficient to establish that the explanations were unworthy of credence or a
guise for unlawful discrimination.

Regarding the employment actions, the AJ concluded that the Agency had met its burden of
articulating legitimate nondiscriminatory reasons for the discrete actions, noting that the actions
were taken based on the exercise of business judgment. The AJ also decided that some of the
actions that the Agency had taken and changes it had made were a result of Complainant’s work
performance. In addition, the AJ concluded that Complainant had not presented sufficient
evidence to support a conclusion that the specific management decisions were motivated by
anything other than normal supervisory responsibilities and interactions.

Addressing pretext, the AJ concluded that Complainant had failed to present evidence that the
reasons articulated by the Agency for its actions were not the true reasons and the Agency was
motivated by discriminatory animus. The AJ noted that at the core of Complainant’s case was her
disagreement with management’s decisions and that her arguments were related to questioning
management’s decisions, not evidence of discrimination and retaliation. The AJ explained that
directing employees in the performance of the duties and ensuring the efficiency of service was
clearly within the realm of managerial prerogative. She noted that it was not the function of the
Commission to second-guess management’s decisions and substitute the Commission’s judgment
for that of management officials familiar with the present and future needs of their organization,
absent discriminatory animus.

Regarding claim 12, the allegation that the Assistant Principal at Antilles Middle School
questioned Complainant about her discrimination complaint, the AJ concluded that the evidence
did not establish that Complainant was subjected to an adverse action that would deter her from
participating in the complaint process.

3 The AJ presided over the hearing via videoconference from the Homestead Air Reserve Base and
the parties and witnesses participated from Fort Buchanan in Puerto Rico.
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The AJ noted that the Assistant Principal at the Antilles Middle School had no influence or control
over Complainant and there was no evidence that he sought to intimidate Complainant or interfere
with her rights.

CONTENTIONS ON APPEAL

Complainant asserts, among other things, that she has proven that she was subjected to unlawful
harassment in the form of unwelcome conduct, forced to change reports to reflect false statistics,
directed to falsify grades for a student, and ignored when she brought concerns to management’s
attention that reports and accommodations for students with disabilities did not adhere to
requirements. She also asserts that students were not encouraged by the Agency to speak to her
directly and to participate in after school tutoring which she offered. Complainant contends that
the Agency administration often berated teachers who transferred to Antilles High School as “not
being Puerto Rican enough” or failing to adhere to the Puerto Rican way.

The Agency did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Standard of Review

All post-hearing factual findings by an AJ will be upheld, pursuant to 29 C.F.R. § 1614.405(a), if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or the testimony so lacks in
credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015).

Legal Standards

1. Disparate treatment

Complainant alleged that she was disparately treated, that is, that she was treated less favorably
than those outside of her protected groups. A claim of disparate treatment is examined under the
three-part evidentiary scheme first enunciated in McDonnell Douglas Corporation v. Green, 411
U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that
she was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions.
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Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The prima facie case can be
dispensed with where the Agency has articulated reasons for its actions for which Complainant
must show pretext. To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Pretext can be established either directly, by a showing that a discriminatory reason more likely
motivated the agency, or indirectly, by a showing that the proffered explanation is unworthy of
credence. It can be demonstrated by “showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence.” Dalesandro v. U.S. Postal
Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (citing Morgan v Hilti, Inc., 108 F.3d 1319,
1323 (10th Cir. 1997)).

2. Harassment

Complainant alleged that she was unlawfully harassed. Such a claim is examined under the
guidelines set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in which the Supreme
Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See also
Enforcement Guidance on Harris v. Forklift Systems, Inc. EEOC Notice No. 915.002
(Enforcement Guidance) (Mar. 8, 1994).

To establish her claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on her
statutorily protected class; (4) the harassment affected a term or condition of employment and/or
had the purpose or effect of unreasonably interfering with the work environment and/or creating
an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing
liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[Complainant's] employment and create an abusive working environment.” Harris, 510 U.S. at
21. The harasser's conduct should be evaluated from the objective viewpoint of a reasonable
person in the victim's circumstances. In addressing the claim of harassment, factors which are
considered are “the frequency of the discriminatory conduct; its severity; whether it was physically
threatening or humiliating or a mere offensive utterance; and whether it unreasonably interfered
with Complainant's work performance.” Id. A finding of an unlawfully hostile work environment
is precluded by a determination that the complainant failed to establish that any of these actions
taken by the agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service,
EEOC Appeal No. 01982923 (Sept. 21, 2000).

3. Reprisal

The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory
motive and is reasonably likely to deter a reasonable employee from engaging in protected activity.
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Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation
provision protects individuals from a retaliatory action that a reasonable person would have found
“materially adverse,” which in the retaliation context means that the action might have deterred a
reasonable person from opposing discrimination or participating in the EEOC process).

The Commission has stated that “[a]n action need not be materially adverse standing alone, as long
as the employer’s retaliatory conduct, considered as a whole, would deter protected activity.”
Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take
adverse actions such as reprimands, negative evaluations, and harassment are actionable.
Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004
(Enforcement Guidance on Retaliation), at § II. B. (Aug. 25, 2016).

The Commission has also held that the actions of a manager may be per se reprisal where the
manager intimidates an employee and interferes with the employee's EEO activity in any manner.
See Ashby v. Dep’t of the Treasury, EEOC Appeal No. 0120090364 (Feb. 27, 2012); Binseel v.
Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army,
EEOC Request No. 05920778 (June 4, 1993).

Analysis

After a careful review of the record in its entirety, we find that the AJ’s findings are based on
substantial evidence and that the AJ correctly applied the appropriate principles of law, excepting
reprisal as addressed below, in reaching her conclusions. The Agency articulated legitimate
reasons for its actions and the remaining claims are neither sufficiently severe nor pervasive to
constitute a hostile work environment. Complainant also failed to establish pretext.

Regarding age and national origin discrimination, Complainant testified that Dr. A told her she
was rigid, which she interpreted to mean that he was saying that she was old. She also testified
that Dr. A told her that they needed somebody younger and softer and she needed to do things the
Puerto Rican way. Another time, Dr. A remarked to her she was “not doing bad for your old age.”
Other times, he would refer to her as not being Spanish enough. She testified that he told her,
“Come on [Complainant]. You’re not Spanish. You don’t have an accent or anything.” She
testified that her mother was Panamanian, and she was raised in a Spanish home. When Dr. A
made age and nationality comments, she told him they were inappropriate. Complainant testified
that Dr. A was biased and he would say things that he did not know were ignorant to say in present
society and he would respond that he was only joking. She stated that the comments were offensive
to her because her husband is Black, her children are biracial, her mother is Panamanian, and her
father is a Russian Jew. However, Dr. A denied that he made the comments and remarks that
Complainant attributed to him, including asking her to falsify reports. Even assuming the
allegations to be true, we find that Complainant has not shown that it was unlawful discrimination
that motivated the Agency to take the actions at issue.

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The Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example,
management officials stated that Complainant was assigned an Honors World History class
(claim 1) based on student enrollment and staffing needs. The Principal met with the AVID tutor
(claim 2) because he had received a complaint from Complainant that a parent was harassing her.
Dr. A questioned the tutor about what teaching strategies were being used by Complainant.
Regarding claim 3, Dr. A denied that he cancelled training presentations, testifying that
Complainant provided professional development on AVID teaching strategies at monthly faculty
meetings. The Principal also explained that students were transferred out of her class (claim 7)
because parents wanted their children removed. The parents adamantly refused to meet with
Complainant because the parents reported that they had been in communication with her and were
very concerned about how Complainant had responded to them; the parents no longer wanted to
communicate with her.

Regarding Complainant’s allegation that Dr. A did not allow her to compete for an AVID Science
Teacher position at AHS (claim 14), Dr. A explained that an internal announcement was made to
all faculty for a Science Teacher position.4 A Request for Personnel Action was made, consistent
with the union bargaining agreement. The selectee was on the referral list provided by Human
Resources as being qualified for the vacant position.

The AJ properly determined that Complainant failed to establish by a preponderance of the
evidence that the reasons advanced by the Agency were pretextual. When attempting to establish
that the Agency's legitimate nondiscriminatory reasons are pretext for discrimination, beliefs or
mere assertions are not sufficient. Although Complainant contests the Agency's version of events
and their significance, Complainant's assertions to the contrary are insufficient to establish pretext.
Complainant bears the burden to prove, by a preponderance of the evidence, that the Agency
engaged in unlawfully discriminatory actions.

To the extent that Complainant alleged that she was subjected to an unlawfully hostile work
environment, Dr. A denied that he made the remarks about Complainant’s age or national origin.
Moreover, as noted above, the substantial evidence of record does not establish that discriminatory
animus motivated the Agency’s actions. The Agency provided explanations for its actions, and
Complainant did not show that the articulated reasons were pretextual. In addition, the incidents
of which Complainant complains are neither sufficiently severe nor pervasive to rise to the level
of a hostile work environment. The Commission has consistently held that the civil rights statutes
are not meant to be civility codes, ridding the workplace of all petty slights and annoyances. The
statutes do not create a right to work in a pleasant environment, merely one that is free from
discrimination. As a result, employees may experience unprofessional, inappropriate, and
disrespectful treatment. The Commission also recognizes that not every unpleasant or undesirable
action which occurs in the workplace constitutes an EEO violation. See Shealey v. E.E.O.C.,
EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal
No. 0120093688 (Dec. 19, 2009)). Put another way, not everything that makes an employee
unhappy in the workplace creates a cause of action of discrimination.

4 Complainant denied that an announcement was made.
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The discrimination statutes do not seek to purge the workplace of every unpleasantry, insensitive
comment, or workplace slight. See Elise S. v. Dep’t of Defense, EEOC Appeal No. 0120140574
(Aug. 19, 2016); Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120133401 (May
7, 2015).

What is apparent from the record is that Complainant was concerned that programs were not being
run properly and program criteria were not being met; she was being directed to make false reports
to make programs appear more successful than they were; and she was being identified as the
teacher of a student who was assigned to another teacher and ordered to change the student’s
grades. Other allegedly discriminatory actions included being reassigned to teach only language
arts, broken promises made by Dr. A to her regarding her remaining in AVID, and actions not
being taken when she brought deficiencies to Dr. A’s attention.

As we have consistently stated, the Commission will not second-guess Agency decisions, absent
discriminatory animus. Ordinary management actions require ensuring compliance with agency
policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and
evaluating performance, providing job-related advice and counsel, taking corrective action in the
face of performance shortcomings, and otherwise managing the workplace. See Erika H. v. Dep’t
of Transp., EEOC Appeal No. 0120151781 (June 16, 2017). The question is not whether the
Agency made the best, or even a sound, business decision; it is whether the real reason is
discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a
mistake. Marvin W. v. Dep't of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12,
2018).

Regarding claim 12, the allegation that the Assistant Principal at the Antilles Middle School
questioned Complainant about her discrimination complaint in front of her colleagues, the
Commission finds that the substantial evidence does not support a conclusion of reprisal
discrimination. In that respect, we find that the evidence does not establish that the incident
occurred as alleged.

With respect to the alleged incident, Complainant testified that she sat at a table near the Assistant
Principal5 at a union-sponsored recruitment activity. She had never seen him before. According
to Complainant, he began asking her questions about AHS and its programs. He then asked her if
she was the AVID teacher who had filed an EEO complaint. She told him his question was
improper. Then he told her that the Guidance Counselor who filed a false assault charge against
Dr. A and Complainant who had filed a discrimination complaint “need[ed] to stop that.”

Comments that, on their face, discourage an employee from participating in the EEO process
violate the letter and spirit of the EEOC regulations and evidence a per se violation of the law.
Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998).

5 The Antilles Middle School Assistant Principal no longer works for the Agency. The Investigator
noted in the Report of Investigation that he did not return an affidavit.
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However, other than her assertion that the statements were made, Complainant does not provide
any other evidence to support her allegation. Although she testified that the statement was made
in the presence of other colleagues, she did not call any witnesses to corroborate her version of the
incident. Complainant, who had a hearing on her complaint and an opportunity to present witness
testimony, has not established that the Assistant Principal in fact engaged in the alleged conduct.

We note that, in finding no reprisal, the AJ considered that the Antilles Middle School Assistant
Principal had no influence or control over Complainant. In Woolf v. Department of Energy, EEOC
Appeal No. 0120083727 (June 4, 2009), we found that the Agency engaged in unlawful retaliation
when a Labor Management Specialist made certain remarks. In Woolf, the Labor Management
Specialist (LMS) told the complainant that he was not trying to influence her decision as to whether
she should file a discrimination complaint, but, if she did so, it would polarize the office and affect
the complainant’s future. We found that, even if the LMS prefaced his statement that he was
making the statement as a friend, “given the nature of [LMS’s] position,” the statement was
reasonably likely to deter a complainant from engaging in the discrimination complaint process.

In the present case, based on the nature of the position of the Antilles Middle School Assistant
Principal, the statement, if it were established that it had in fact occurred, would be likely to deter
Complainant and her colleagues who were present from engaging in the discrimination process.
The Commission has held that disclosure of EEO activity by a supervisor to coworkers constitutes
per se reprisal. Candi R. v. Environmental Protection Agency, EEOC Request No. 2019000393
(Feb. 8, 2019) (inadvertent disclosure of a complainant’s confidential EEO information to co-
workers); Complainant v. Dep't of Justice, EEOC Appeal No. 0120132430 (July 9, 2015), req. to
reconsider denied EEOC Request No. 0520150466 (Dec. 23, 2015) (reprisal found where a
supervisor broadcasted complainant's EEO activity in the presence of coworkers and
management).

Although the AJ found that Complainant presented no independent evidence that the Antilles
Middle School Assistant Principal sought to intimidate or interfere with Complainant’s EEO
rights, we note that the test is whether the behavior would reasonably deter a complainant from
engaging in protected activity. “When a supervisor's behavior has a potentially chilling effect on
use of the EEO process -- the ultimate tool that employees have to enforce equal employment
opportunity -- the behavior is a per se violation.” Vincent v. U.S. Postal Serv., EEOC Appeal No.
0120072908 (Aug. 3, 2009), req. to reconsider denied, EEOC Appeal No. 0520090654 ((Dec. 15,
2010). “Central to a finding of per se reprisal is that the conduct is reasonably likely to have a
chilling effect on a complainant’s exercise of EEO rights.” Christeen H. v. U.S. Postal Serv., EEOC
Appeal No. 0120162478 (June 14, 2018); see also Ludie v. U.S. Postal Serv., EEOC Appeal No.
0120170459 (May 9, 2019).

We also note that we have previously held that it is not necessary for a complainant to demonstrate
that she was actually deterred from filing a complaint. See Matt A. v. Dep't of Veterans Affairs,
EEOC Appeal No. 0120161100 (Aug. 17, 2016) (claim of per se reprisal not defeated because
complainant filed a complaint); Complainant v. Dep't of Justice, EEOC Appeal No. 0720120032
(May 1, 2014) (complainant subjected to retaliation when Human Resources employee and
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coworker inadvertently left message on complainant's work voicemail berating her and using
strong language while discussing settlement of complainant's prior EEO complaint); Complainant
v. Internat'l Boundary & Water Comm., EEOC Request No. 0520130669 (Feb. 11, 2014) (rejected
argument that an adverse action can only be retaliatory if it actually deterred complainant or others
from engaging in protected activity; test is whether the action is reasonably likely to deter protected
activity by complainant or other employees); Boyd v. Dep't of Transportation, EEOC Appeal No.
01955276 (Oct. 10, 1997) (mere fact that complainant filed a complaint does not defeat a claim of
unlawful interference with the EEO process).

The Commission reminds the Agency that agencies are obligated to ensure that managers and
supervisors perform in such a manner as to “insure a continuing affirmative application and
vigorous enforcement of the policy of equal opportunity.” 29 C.F.R. § 1614.102(a)(5). Although
we find that the evidence before us does not establish that reprisal occurred in this case, we
nonetheless urge the Agency to provide EEO training to management officials at the Antilles High
and Middle Schools and to emphasize the obligation not to restrain, interfere, coerce, or retaliate
against any individual who exercises his or her right to oppose practices made unlawful by, or who
participates in proceedings under, the Federal equal employment opportunity laws.

CONCLUSION

We find that substantial evidence of record supports the AJ’s conclusions. Therefore, we find no
basis to disturb the AJ’s determination that Complainant did not establish that the Agency
discriminated against her as alleged. Based on a thorough review of the record and the contentions
on appeal, including those not specifically addressed or referenced herein, we AFFIRM the finding
of no discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015).
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All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal
Employment Opportunity Commission. Complainant’s request may be submitted via regular mail
to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington,
DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely
filed if it is received by mail within five days of the expiration of the applicable filing period. See
29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition
must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests.

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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 28, 2019
Date