Janeen S.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Dec 20, 2017

0120160024 (E.E.O.C. Dec. 20, 2017)

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

Janeen S.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(Bureau of the Census),
Agency.

Appeal No. 0120160024

Agency No. 63-2014-00099

DECISION

On September 10, 2015, 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
August 13, 2015, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.2 For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

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 In its final decision, the Agency stated that it found no violation of Title VII of the Civil Rights
Act of 1964 with respect to any of the incidents raised in Complainant’s complaint. Final
Agency Decision, p. 49. However, Complainant averred that her previous EEO complaint, filed
in 2013, was based on disability. Investigative Report, 226. See also infra. Since the underlying
complaint arose under the Rehabilitation Act, the instant complaint of reprisal would also arise
under the Rehabilitation Act, as opposed to Title VII. We would therefore characterize the
Agency’s framing of Complainant’s claim as a violation of Title VII as nothing more than
harmless error.
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BACKGROUND

Complainant worked as a Field Representative (FR) at the Agency’s Regional Office in
Philadelphia, Pennsylvania (hereinafter referred to as the “PRO”). In an EEO complaint filed on
May 6, 2014 and amended on July 25, 2014 and October 17, 2014, Complainant alleged that
several management officials in her chain of command subjected her to retaliatory harassment
and disparate treatment for having filed a prior complaint of disability discrimination in violation
of the Rehabilitation Act. Complainant identified the following individuals as the responsible
management officials: the Field Supervisor who served as her immediate supervisor (S1); the
Supervisory Field Statistician who served as her second-line supervisor (S2); the Program
Coordinator who served as her third-line supervisor; and the Program Manager for two surveys
involving medical care (PM). IR 214. She identified the following incidents as comprising her
claim:

1. On unspecified dates, Complainant was denied work assignments on certain surveys and
the amount of work assigned to her continued to decrease.

2. In late January 2014, S1 and an Administrative Officer (AO) in the PRO denied some of
Complainant’s payroll transactions.

3. In February 2014, after Complainant scheduled sick leave for a medical procedure, S2
ordered Complainant to attend mandatory training during that time frame, and when
Complainant made arrangements to accommodate this scheduling demand, S2
rescheduled the training.

4. On February 14, February 15, February 25, and March 7, 2014, Agency officials told
Complainant that there were concerns about her but refused to provide her with details
about those concerns.

5. On February 14, 2014, the PM informed Complainant that she was in the process of
hiring someone to be assigned to an area that Complainant had been working on for the
previous two years.

6. On February 21, 2014, after Complainant informed S1 that she had run out of hours
needed to complete five remaining population survey cases, S1 did not offer Complainant
overtime needed to complete those cases.

7. On February 24 or 25, 2014, S1 insisted that Complainant had Month-in-Sample (MIS) 9
cases in her area and demanded that Complainant complete them, notwithstanding
Complainant’s assertions that she did not have them.

8. Between February 25 and March 16, 2014, S1 never responded to any of Complainant’s
requests for help.

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9. On March 3, 2014, S1 left Complainant a voice message saying she was apparently not
receiving voice messages.

10. On March 7, 2014, S3 denied Complainant pay owed to her from the Government
shutdown in October 2012.

11. On March 7, 2014, S3 told Complainant that she should feel lucky to have a job.

12. April 2, 2014, Complainant was issued a notice of proposed suspension which was
reduced to a reprimand issued on June 3, 2014.

13. On unspecified dates, S1 did not inform Complainant about relevant matters with the
same frequency and clarity as she did before Complainant filed her previous complaint.

14. On May 5 and May 6, 2014, S1 alleged that Complainant had not properly updated some
of her cases and then reassigned those cases to someone else.

15. On June 10, 2014, S3 took actions that led Complainant to believe that she was under
investigation due to the payroll hours she charted the National Ambulatory Medical Care
Survey Program and in the process violated Complainant’s confidentiality.

16. On September 3, 2014, a Field Supervisor (FS1), who had been directed by S1 and S2 to
supervise Complainant in the performance of the second annual observation for the
American Community Survey (ACS), denied her a morning break, attempted to deny her
lunch break, insisted that she change interviewing procedures, refused to allow her to
finish the observation at a later date knowing that she was ill, and left her without any
help.

17. On October 9, 2014, S1 informed Complainant that she would lose her work in the
Consumer Expenditure Survey (CES) but would not add her to another survey that would
have helped her to make up the shortfall in working hours.

18. On unspecified dates, S1 and S2 failed to respond to Complainant’s requests for
information or clarification on procedures.

19. On October 10, 2014, S1 did not adjust the “11-39” ratings that Complainant had
received.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report (IR) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). When Complainant did not request a hearing within the time frame
provided in 29 C.F.R. § 1614.108(f), 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 reprisal as alleged.
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Complainant’s Job Responsibilities: As a FR, Complainant was responsible for working on a
number of surveys within a geographic area that comprised several counties in Western
Pennsylvania and Eastern Ohio. Those surveys included:

• American Community Survey – Group Quarters (ACS-GQ);
• American Community Survey – Housing Unit (ACS-HU);
• Current Population Survey – Survey of Construction Permit Address Listing (CPS-
SOCPAL);
• Demographic Area Address Listing (DAAL);
• National Ambulatory Medical Care Survey / National Hospital Ambulatory Care Medical
Survey (NAMCS/NHAMCS);3
• Consumer Expenditure Surveys: Consumer Expenditure Quarterly: Consumer
Expenditure Diary – (CEQ/CED); and
• National Crime Victimization Survey (NCVS).

IR 214, 287, 321.

Complainant’s Previous EEO Activity: On June 25, 2013, Complainant filed EEO Complaint
No. 63-2023-00225 in which she alleged that she was denied a promotion because she was
perceived as having a disability. IR 214, 224, 226. See also supra n. 2. S1, S2, and S3,
acknowledged that they became aware of Complainant’s previous complaint in July 2013, with
S2 admitting that she heard about the complaint directly from FS1. IR 286-87, 312, 321, 343.
Complainant maintains that S1, S2, S3, and PM were the officials who had retaliated against her.
IR 214.

Incident (1): Complainant averred that S1 and S2 had continuously denied her the opportunity to
work on the ACS-GQ and DAAL surveys throughout 2014. IR 215. She averred that before she
filed her EEO complaint, she would typically handle up to 46 cases each month, and that
afterword her workload had declined to 26 cases and was still decreasing. IR 216-17. S1 and S2
both denied reducing her workload. They pointed out that the workload for FRs fluctuates from
month to month, and that they had no control over the number of cases assigned to FRs in
particular geographic areas. IR 287, 322. A Supervisory Survey Statistician (SSS) who
managed several of the surveys Complainant worked on averred that there had not been any
work in the ACS-GQ and DAAL surveys in Complainant’s assigned area during 2014. IR 364.

Incident (2): Complainant averred that S1 and AO refused to reimburse her for travel expenses
she had incurred as a result of having to do field work. She stated that S1 and the AO denied that
she had provided receipts for the hotel, taxis, baggage, and per diem charges. IR 217-218. S1
averred that Complainant had informed her that her paycheck was $400 short, and that the
problem was eventually resolved. IR 290-91, 309-11, 371-72, 378-79. Complainant admitted
that she received reimbursement in the amount of $400 in the following pay period. IR 218.

3 These were the two surveys managed by PM. See supra, n. 3.
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Incident (3): Complainant averred that she first requested sick leave for a medical procedure
from February 4, 2014 to February 6, 2014 on January 2, 2014, and that in mid-January 2014, S2
had ordered her to reschedule her medical procedure because the training was mandatory. She
further averred that two other employees were allowed to miss the mandatory training and take
the training via self-directed home study. IR 218. S1 and S2 denied that she told Complainant to
reschedule her medical appointment. They averred that the training was given on the weekend of
February 4-6, 2014, and again on February 12-13, and that Complainant was allowed to take the
training on the second weekend that it was offered. IR 291-92, 324-25. Complainant admitted
that she took the training on the weekend of February 12-13, 2014. IR 218-19.

Incident (4): Complainant averred that there were several instances in February and March of
2014 in which her supervisors raised concerns about her performance but had refused to disclose
the details of their concerns. For example, she averred that on February 7, 2014, she was the
only FR who was required to complete a status report requested by the PM. IR 220. The PM
responded that all FRs who worked on cases involving the NACMS/NHACMS surveys were
required to submit status reports to their Field Supervisors. IR 383-84. Next, Complainant
averred that on February 15 and February 25, 2014, S1 chose not to tell her about her concerns in
order to justify a proposed suspension. IR 220. S1 responded that she recalled Complainant
asking her several times why she was required to submit a weekly NACMS status report. S1
responded that those reports were required by S2. IR 292. Complainant also averred that on
March 7, 2014, she spoke to S3, who refused to identify the concerns raised by S1 and S2
regarding her performance. IR 220. S3 responded that she did not refuse to reveal to
Complainant what management’s concerns about her performance were, and told Complainant
that there were problems with her reporting on the status of several cases, particularly the
NAMCS cases, and that she needed to improve her communications with S1. IR 343-45.

Incident (5): Complainant averred that on February 14, 2014, PM informed her that she was
going to assign another FR to Erie, Pennsylvania, where she had been working for two years,
which caused her to lose work. She also averred that as a result of this action, she lost work in
Ashtabula, Columbiana, and Carroll Counties in Ohio. IR 221. S1, S2, and PM averred she
needed to hire an additional FR to work on the NAMCS and NHAMCS surveys in Erie because
Erie was approximately 124 miles from Complainant’s home and she needed to keep travel
expenses down. IR 293, 322-23, 327, 385. The PM also noted that Complainant did not lose
work in any of the Ohio counties to which she was assigned. IR 385.

Incident (6): Complainant averred that on February 21, 2014, when she had run out of time to
complete her five remaining population survey cases, S1 did not offer her the overtime she
needed to complete those cases. IR 221. S1 responded that she did not offer Complainant
overtime because another FR was available who could complete the work without incurring
overtime costs. IR 294, 313-14.

Incident (7): Complainant averred that on February 24 or February 25, 2014, S1 insisted that
Complainant complete the MIS 9 cases she had in her inventory, notwithstanding her
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protestations that she did not have MIS 9 cases. She further averred, that, once it was established
that Complainant was assigned those cases, she took them away from Complainant and assigned
them to another FR. IR 222. S1 averred that MIS cases were extra cases that pertain to CPS
surveys, that she had assigned Complainant several MIS cases, and that on February 25, 2014,
she called Complainant in order to inquire whether Complainant would be able to timely
complete the assigned MIS 9 cases. She further averred that Complainant informed her that she
did not see any MIS 9 case assignments in her computer. S1 stated that, rather than argue with
Complainant about why those cases did not show up on her computer, she assigned another FR
to complete those cases because they were due the evening of February 25, 2014. IR 288, 308.

Incident (8): Complainant averred that between February 25, 2014, and March 16, 2014, she
requested assistance from S1 on the NAMCS survey but that S1 did not respond to her requests
and did not give her a reason for not responding. IR 222. S1 maintained that she did respond to
Complainant when she requested assistance in order to gain cooperation at a doctor’s office she
was visiting in order to work on the NAMCS survey. S1 stated that she informed Complainant
that her schedule would not allow her to be available for assistance on the dates that Complainant
needed to visit the doctor’s office. IR 289.

Incident (9): Complainant averred that on March 3, 2014, S1 had left her a voice mail message
in which S1 stated that she was not receiving voice mail messages from her, and had done so in
order to set her up for a suspension. IR 222. S1 responded that on March 3, 2014, she did leave
Complainant a voice mail message that ended with her statement that she would follow up via
email in case Complainant did not receive the voice mail message. S1 further averred that she
was unaware that a suspension was being considered for Complainant. IR 294.

Incident (10): Complainant averred that on Marcy 7, 2014, S3 denied Complainant pay owed to
her as a result of a government shutdown that had occurred in October 2012. She stated that she
was owed 18 hours for pay periods 20 and 21 in 2012. IR 223. S3 responded that in response to
Complainant’s request for reimbursement of pay for those hours, a detailed review was
performed by the AO, and that Complainant was paid according to the rules and regulations that
were implemented for the pay periods affected due to the government shutdown. IR 346.

Incident (11): Complainant averred that on March 7, 2014, during a counseling session, S3 told
her that she should feel lucky to have a job. IR 223. S3 responded that she had a telephone
conversation with Complainant on March 7, 2014, in which she discussed the importance of
having clear communications with supervisors and colleagues, and working as a team in a
healthy environment. S3 averred that if she made the statement about Complainant being lucky
to have a job, it was in the context of Complainant griping about how her work hours were
reduced when in actuality she had been working forty hours per week even though she was a
part-time employee. IR 346.

Incident (12): Complainant averred that on April 2, 2014, she received notice of a proposed
suspension. The charges and specifications included inappropriate conduct and failure to follow
supervisory directives. Complainant had been sending an excessive number of emails and voice
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mail messages to S1. For example, in one four-day span while S1 was in training, Complainant
sent her 26 emails. During that span, Complainant left a message with S1, telling S1 that it was
an emergency and that she should call her back right away. When S1 did call back, Complainant
told her that the emergency had been resolved. S1 also stated that Complainant was not
following the directions she had been given to submit her cases prior to taking leave so as to
ensure proper follow up. In addition, on March 14, 2014, Complainant called S1 telling her that
she was missing several CPS cases. When S1 advised her that she would have other FRs assist
with the completion of those cases, Complainant became angry and hung up on her.
Complainant’s fourth-level supervisor, the Assistant Regional Director, reduced the proposed
suspension to a reprimand. IR 224-26, 263-65, 295-96, 329, 344-45, 394.

Incident (13): Complainant averred that on unspecified dates, S1 failed to keep her informed
about matters relevant to her workload with the same frequency and clarity as she did before
Complainant filed her EEO complaint in June 2013. In particular, she averred that between
January and June 2014, S1 failed to keep her informed about significant survey-related issues
and deadlines. IR 224-25, 256. S1, S2, and S3 responded that they kept the FRs under their
supervision, including Complainant, informed of all matters that impacted on their job, including
training on particular surveys. IR 296, 329, 347.

Incident (14): Complainant averred that on May 5 and May 6, 2014, S1 reassigned several of her
NAMCS cases to another FR after accusing her of failure to properly update them. IR 225, 257.
S1 responded that Complainant claimed that she was entering notes in her NAMCS cases and
was also making contact history instruction (CHI) entries, but that she, S1, did not observe those
notes and entries when she viewed Complainant’s survey work in her computer. S1 had asked a
Supervisory Survey Statistician (SSS) to check the system and try to find the problem. The SSS
did determine that there was a technical glitch in the system which prevented S1 from seeing
Complainant’s updates and CHI entries, but he was not able to resolve the problem. IR 297, 330,
348, 365. PM averred that Complainant informed her that she had to report for jury duty on one
occasion, and that another FR was brought in to take up the slack. The PM also stated that this
was normal practice for any FR that was not available. IR 386.

Incident (15): Complainant averred that on June 10, 2014, S3 took actions that caused her to
believe that she was being investigated due to the payroll hours she charged to the NAMCS
survey, and that in so doing, S3 had disclosed confidential information pertaining to her personal
identity to unauthorized personnel. IR 248. S3 responded that during her review of
Complainant’s NAMCS survey report, she noticed that Complainant had charged several hours
to the task of interviewing on a Sunday. She stated that she asked Complainant for an
explanation of the charges, that Complainant provided an acceptable justification for those
charges and that there was no investigation. As to the alleged unauthorized disclosure, S3
reported that she had intended to copy her response to one of Complainant’s emails to S1, but
had accidently sent the response to another Field Supervisor with the same first name as S1. S3
immediately contacted this supervisor and asked her to delete the message. IR 349.

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Incident (16): Complainant averred that on September 3, 2014, while directing Complainant’s
observation for the ACS-GQ survey at a college campus, FS1 denied Complainant her morning
break, attempted to deny her lunch break, tried to prevent her from finishing the observation at a
later date knowing that she was ill, and left her without any help. She averred that she had
already completed this observation on April 9, 2014, and was given no explanation as to why she
had to conduct a second observation at this same location. She also averred that her fellow FRs
had their observations supervised by S1, not by Field Supervisors other than their rating
supervisors. IR 269-70. Complainant stated that when she asked FS1 if she could take a break,
FS1 told her that they had to complete the six-hour observation first. She also stated that FS1
criticized her for not following proper procedures and insisted that the observation be completed
in one day and had left her for an extended time without help while she was ill. IR 270-72. S3
stated that it was normal Agency practice to have Field Supervisors who were not the actual
rating supervisors to accompany FRs on their observations. IR 350. FS1 averred that S2
instructed her to accompany Complainant on her September 3, 2014 observation. She stated that
they started the observation at 9:00 a.m. and that Complainant never asked for a morning break.
She next stated that Complainant was not following proper procedures, and that when she tried to
offer constructive feedback, Complainant became offended and upset. Third, FS1 stated that at
11:40 a.m., when Complainant asked to take a lunch break, she replied that she did not want to
take a lunch break after such a short period of time, but relented after Complainant insisted and
allowed her to take thirty minutes for lunch. Fourth, FS1 stated that at 12:50 p.m., Complainant
informed her that she felt too ill to continue the observation, and that she contacted S3 for
instructions about what to do next. IR 411-17. Both FS1 and S3 averred that Complainant
insisted that FS1 leave since Complainant was going to visit her son who was a student at the
college where the survey was being conducted. IR 350, 416-17. Another Field Supervisor
averred that she helped Complainant to finish the observation. IR 421-22.

Incident (17): Complainant averred that on October 9, 2014, S1 informed her that she would
lose her work in the consumer expenditure surveys and would not be given another assignment
to make up the shortfall in hours. IR 275-76. S1 averred that due to changes in priorities, she
would be losing the consumer expenditure surveys in the counties that she supervised. IR 303.
S2 stated that despite not having to work on the consumer expenditure survey, Complainant was
still given forty hours of work per week on other surveys such as ACS-GQ, DAAL, and
NAMCS/NHAMCS. IR 335. S3 stated that workload assignments were dependent upon
changing priorities that were out of the supervisors’ control. IR 353.

Incident (18): Complainant averred that on various dates, S1 and S2 failed to respond to her
requests for information or clarification on procedures. She stated that she had repeatedly
requested copies of the reports she had prepared from the observations she had conducted in
April and September of 2014 and that those reports were not forthcoming until after she had filed
the instant complaint. She also stated that in September 2014 she had requested some telephone
work from S1 while she was on light duty, but that S1 did not provide her with the phone work
until there were less than 24 hours left in the pay period. She stated that throughout September
2014, she had sent emails to S1 asking for information and clarifications, and that on October 1,
2014, S1 responded that she would get back to Complainant, but never did. IR 274-75. As to
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the observation report, S1 responded that she did not have a copy of the report, so she passed it
on to S2, and that S2 checked on its status and had informed Complainant that it was still being
worked on. IR 301. S1 also averred that Complainant would email her asking about NAMCS
assignments months in advance, long before the workloads were released. IR 302. Third, S1
averred that she had given Complainant telephone work when it became available. IR 302.
Fourth, S1 averred that she forward requests for clarification after unsuccessfully attempting to
clarify those matters herself, and that she forwarded Complainant’s requests up the chain of
command, but had yet to receive a response back. IR 302-03. S2 averred that Complainant
would always inquire about what work other field representatives were working on, and what
work was coming in, and that she and S1 were not always in a position to answer her questions.
IR 334.

Incident (19): Complainant averred that on October 10, 2012, S1 did not adjust the “11-39”
ratings that she had received. She stated that the 11-39 ratings were summary report ratings that
Field Representatives received that are generated by various departments within the PRO. She
further stated that these ratings were based on cases assigned, cases completed, hours and
mileage. Complainant maintained that prior to filing the instant EEO complaint, her ratings were
adjusted for such factors as having to work multiple surveys, being assigned follow-up work
when targeted respondents refused to take part in the surveys, and having to work in other
counties. Complainant averred that S1 had informed her that she could no longer adjust the 11-
39 ratings, and that if her rating had been adjusted, it would have been 4.78 instead of 3.84. She
averred that S1 wanted to prevent her from receiving higher ratings, which would have affected
her performance plan at the end of the year. IR 272-73. S1 averred that while supervisors had
been able to adjust the 11-39 ratings of the Field Representatives in the past, they could no
longer do so, and that the ratings were calculated within the system, not by her. IR 300, 315-16.
S2 averred that no Field Representative received adjustments on their 11-39 ratings for working
on multiple surveys unless they were working outside of their assigned areas4 or if they were
covering a sub-assignment in another FSA that caused their production to fall below an
acceptable level. She maintained that the rating standards were set by the Agency and that
managers could not change them. She confirmed that Field Supervisors were no longer able to
make changes in the 11-39 ratings. IR 333.

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

4 Those areas are referred to as “FSAs.”
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

To establish a 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 classes; (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
v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she
was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting
a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S.
53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice
No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory
motivation and a chilling effect on protected EEO activity, will the question of Agency liability
for reprisal-based harassment present itself.

Complainant established the first element of a retaliatory harassment claim by virtue of having
engaged in prior protected EEO activity. We would also agree that the conduct by the various
officials named in her complaint is unwelcome from her own subjective perspective, which is
enough to satisfy the second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal
No. 0120150737 (Apr. 27, 2017). In order to establish the third element of a claim of
harassment, Complainant must show that at least one of the responsible management officials
identified in her complaint relied on considerations of her current or former EEO complaint. See
Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387 (Mar. 29, 2016).

When asked by the EEO investigator why she believed that S1, S2, S3, and PM took the actions
at issue in incidents (1) through (14) in retaliation for her having filed Complaint No. 63-2023-
00225, Complainant replied that before she filed the previous EEO complaint, she was treated
well by management, and that afterward, her workload decreased, which resulted in reduced
income and reduced hours, she was reprimanded, and was subjected to a hostile work
environment. IR 216, 226. As to Complainant’s workload decreasing, S1, S2, and S3 all stated
that although Complainant was on the roles as a part-time employee, she was always given forty
hours of work each week due to the fact that she was assigned to work on multiple surveys. If
work stopped on one survey, she had others to fall back on. Moreover, the workload was always
changing due to shifting priorities, and neither S1, S2, or S3 had control over those shifts. As to
the proposed suspension which was later reduced to a reprimand, the reprimand letter dated June
3, 2014, stated that Complainant was sending far too many email messages to S1, and that she
had hung up the telephone on S1 in a disrespectful manner. The incidents that she characterized
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as harassment invariably involved difficulties in communication between Complainant and the
members of her management chain, and administrative issues that were later resolved, such as
reimbursement for her travel expenses and for pay lost as the result of a government shutdown.

When asked by the investigator why she believed that the actions taken by S3 at issue in incident
(15) were taken in retaliation for her filing the instant complaint, Complainant stated that the
timing of S3’s transmission of the email containing her personal information to the other Field
Supervisor was too exact to be a coincidence, and that S3 had taken no action to mitigate the
effects of the disclosure. IR 248-49. To the contrary, S3 stated that she had realized her mistake
right away, and had contacted the Field Supervisor and asked her to delete the email
immediately.

When asked why she believed the actions at issue in the remaining incidents, (16) through (19),
were retaliatory, Complainant replied that her annual observations had always been undertaken
in the company of the supervisors to whom she reported, and that she was given no reason as to
why FS1 and FS2 were assigned to supervise her observations. She repeated that before she
engaged in her prior and current EEO activity, S1 and S2 had kept her in the loop regarding the
dissemination of information necessary for her to carry out her job responsibilities, and that
afterward, they refused to answer her inquiries, reduced her work hours, and denied her not only
work on various surveys but also the training she needed to maintain or enhance her proficiency
on those surveys. IR 276-77. As we previously pointed out, however, S3 stated that it was the
Agency’s normal practice to have a Field Supervisor who was not in the FR’s chain of command
accompany the FR on his or her observation. S1, S2, and S3 averred that they responded to
Complainant’s questions as best they could, but that Complainant often overwhelmed them with
emails, many of them frivolous. They also denied that they ever refused her work hours or
training opportunities, and again emphasized that she was always given forty hours of work per
week and that work hours and training opportunities were determined by the needs of the
Agency during a given time frame.

Other than her own assertions, Complainant has not presented affidavits, declarations, or
unsworn statements from witnesses other than herself or documents that expose any weaknesses,
inconsistencies, or contradictions in the explanations provided by any of the named officials to
such an extent that a reasonable fact finder could rationally find those explanations unworthy of
credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No. 0120060802 (Nov. 20,
2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). As
Complainant failed to request a hearing within the prescribed regulatory time frame, the
Commission does not have the benefit of an Administrative Judge’s credibility determinations
after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of
the evidence presented. We therefore agree with the Agency that Complainant has not presented
evidence sufficient to establish the existence of a retaliatory motivation on the part of S1, S2, S3,
or PM with respect to any of the nineteen incidents raised in her complaint. Consequently, no
further inquiry is necessary as to whether those incidents rise to the level of harassment or
constitute separate acts of discrimination under disparate treatment theory. Tynisha H. v. Dept.
of State, EEOC Appeal No. 0120141395 (March 17, 2017).
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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against as alleged.

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).

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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

December 20, 2017
Date