U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karry S.,1
Complainant,
v.
Matthew G. Whitaker,
Acting Attorney General,
Department of Justice
(Bureau of Alcohol, Tobacco, Firearms & Explosives),
Agency.
Appeal Nos. 0120172717, 0120172718, 0120172719 & 0120172720
Hearing No. 540-2014-00088X
Agency Nos. ATF-2013-00828, ATF-2014-00462, ATF-2015-00080, & ATF-2015-01335
DECISION
On June 21, 2017, Complainant filed four appeals with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning the
Agency’s final decisions on her equal employment opportunity (EEO) complaints 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final orders.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as an Industry
Operations Investigator (IOI), GS-13, in the Agency’s Phoenix Field Division, Albuquerque II
Office located in New Mexico.
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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On August 7, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to hostile work environment harassment on the bases of sex
(female), disability (Chiari Malformation - neurological), and reprisal for prior protected EEO
activity when:
1. on May 30, 2013, her supervisor (S1) changed her overall performance
rating to “Minimally Successful” from “Exceeds Fully Successful,” and
2. on June 26, 2013, management revoked Complainant’s eligibility to
participate in the Alternative Work Schedule (AWS) and telework
programs.2
On May 19, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against and harassed her based on sex, disability, national origin (Hispanic) and reprisal when:
3. the Agency performance appraisal system allowed for an overall
“Minimally Satisfactory” rating based on “Minimally Satisfactory” in one
element,
4. in 2012, management instituted and revised a new rule about parking of
government vehicles when an IOI is on extended leave,
5. on July 16, 2013, S1 failed to approve Complainant’s request to exceed
normal per diem rates for travel,
6. approximately October 30, 2013, S1 failed to approve Complainant’s
within-grade increase (WGI),
7. approximately October 30, 2013, S1 told Complainant that she was no
longer eligible for AWS and telework programs, and
8. on February 28, 2014, S1 issued Complainant a Notice of Proposed
Suspension for three calendar days.3
Subsequently, on December 12, 2014, Complainant filed an EEO complaint alleging that the
Agency discriminated against and harassed her based on sex, disability, national origin, and
reprisal when:
9. on October 14, 2014, the Agency suspended Complainant for eight
calendar days effective November 3 - 10, 2014.4
Lastly, on February 13, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against and harassed her based on sex, disability, national origin, and reprisal
when:
2 The Agency identified the August 7, 2013 complaint as Agency No. ATF-2013-00828 (00828).
3 The Agency identified the May 19, 2014 complaint as Agency No. ATF-2014-00462 (00462).
4 The Agency identified the December 12, 2014 complaint as Agency No. ATF-2015-00080
(00080).
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10. on June 3, 2014, S1 ordered Complainant to change a report and failed to
instruct the same of her peers,
11. on August 28, 2014, S1 failed to approve Complainant’s request for
Family and Medical Leave Act (FMLA) absence from the period of
August 26 - 27, 2014,
12. on October 14, 2014, S1 issued Complainant a “Minimally Satisfactory”
annual performance appraisal,
13. on October 14, 2014, S1 failed to consider complimentary emails
regarding Complainant’s work in her annual performance appraisal,
14. on April 2 and 14, 2014, management issued Complainant a counseling
memo regarding her eligibility for telework and AWS,
15. on December 2, 2014, S1 ordered Complainant to exchange her old
credentials with new credentials despite previously hand-delivering new
credentials to one of her peers in the office,
16. on January 2, 2015, S1 failed to respond to Complainant’s statement that
the Acting Area Supervisor failed to notify Complainant about getting off
work early,
17. on January 2, 2015, S1 failed to grant Complainant’s request to be
approved for two hours of compensatory time for working on an
assignment, and
18. on January 5, 2015, management denied Complainant’s request to provide
training to a licensee an hour away from the work location.5
The Agency accepted the four complaints individually for investigation.
Investigations
During the investigations, Complainant stated that she has Cerebellar Tonsillar Ectopia (CTE),
which is also known as Chiari Type I malformation. Complainant stated that her medical
condition affects her vision and causes her painful headaches and nausea. Complainant stated
that she can take a muscle relaxant for pain, but cannot work or drive if she takes a full dose.
Additionally, Complainant stated that light from a computer screen exacerbates the pain, and that
she has had insomnia and anxiety since dealing with work-related stress. Complainant stated
that Agency management was aware of her medical condition. She stated that her condition
resulted from a 2006 motor vehicle accident.
S1 stated that Complainant performs her work in the office conference room where the Agency
installed black-out shades and purchased a lamp for Complainant to use to review her work. S1
stated that the Agency allowed Complainant to change her tour of duty from 7:30 a.m. to 4:00
p.m. to 9:30 a.m. to 6:00 p.m. as an accommodation. S1 stated that the Agency granted two
requests for accommodation from Complainant – one in December 2011 (request for re-
configuration of cubicle) and the other in April 2012 (request for removal of light above cubicle).
5 The Agency identified the February 13, 2015 complaint as Agency No. ATF-2015-01335
(01335).
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S1 stated, subsequently, Complainant asked to telework during her duty IOI week. S1 stated that
the Agency completed reconfiguration of Complainant’s workspace on June 5, 2012, but
Complainant stated that light from the adjacent cubical made her feel ill. S1 stated that she
consistently suggested a glare screen for Complainant, but Complainant declined it. S1 stated
that, ultimately, the Agency made adjustments to its conference room for Complainant, and
changed the motion sensor light switch to an on-off light switch. Also, S1 stated, on May 29,
2014, the Agency installed black shades.6
Complaint 00828
As to Complaint 00828, a Division Director (S2) stated that the Agency’s Human Resources
database (HR Connect) assigns an overall rating mathematically based on an individual’s critical
element ratings, but the database does not consider provisions of Agency Performance
Management and Recognition Policy, 2400.8. Thus, the database initially gave Complainant a
higher overall rating. However, S2 stated Policy 2400.8 requires an overall “Minimally
Satisfactory” rating if one critical element has that rating. S2 stated that he was not aware of the
discrepancy until after the amended rating. S2 stated that Complainant received “Minimally
Satisfactory” in Interpersonal Skills, a critical element, because she was counseled about
unprofessional conduct toward her supervisor, coworkers, and industry members. S2 stated that
Complainant’s unprofessional behavior impairs her effectiveness as an IOI. S2 stated that
Complainant’s low overall rating prohibited her participation in the Agency’s AWS or telework
programs.
Complaint 00462
For Complaint 00462, S1 stated that the Agency’s Performance Management and Recognition
Policy, 2400.8A, applies to all Agency employees and it is each employee’s responsibility to
ensure his/her performance remains at or above “Fully Successful.”
S1 stated that she clarified an Agency policy for all IOIs that they are not allowed to park their
privately-owned vehicle (POV) in the space designated for their government vehicle, and were
not allowed to use the electronic garage access card assigned for their government vehicle to
park their POV. S1 stated that there were continued questions about parking policy so,
ultimately, she informed IOIs that they do not have to bring their government vehicle to the
6 We note the record contains an approved Request for Reasonable Accommodation, dated
February 4, 2015, for removing some of the fluorescent lighting out of the conference room.
Also, the record contains a letter, dated June 18, 2012, from Complainant’s Physician (P1). P1
stated that Complainant’s medical condition causes her “marked sensitivity to light especially
when working on the computer.” The sensitivity resulted in headaches and nausea. P1 stated
that Complainant required a work area with “reduced or subdued lighting, or be allowed to
telework” as she was better able to control light that filtered in at home.
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office during their duty week. S1 stated her primary concern was the safety and security of
government property.
S1 stated that she asked Complainant if she checked other nearby hotels for their daily rate
before S1 reviewed her over-per-diem rate for approval. S1 stated that she has made the same
inquiry of other IOIs when traveling.
S1 stated that Complainant was not eligible for a WGI due to her performance rating, pursuant to
the Agency’s Performance Management and Recognition Policy.
S1 stated that Complainant was no longer eligible to participate in AWS or telework due to her
“Minimally Satisfactory” performance rating. S1 stated the Agency’s Flexible Work Options
Policy, 2600.2C, does not allow AWS or telework for an employee with less than “Fully
Successful” rating.
S1 stated that she issued Complainant a Notice of Suspension for failure to follow instructions,
when in July 2013, Complainant failed to replace her expired government vehicle license plates
and, continued to drive the vehicle with expired plates until February 2014. S1 noted that
management instructed Complainant to correct the error well before she did so.
Complaint 00080
S1 stated that the Agency issued Complainant a suspension for “Improper Conduct in Failing to
Provide Proper and Correct Instruction to a Licensee” and “Failure to Follow Instructions.” S1
stated that Complainant had a history of disciplinary actions for similar offenses and the instant
suspension was progressive discipline.
Complaint 01335
S1 stated that she returned a report to Complainant for explanation and clarification, and
Complainant failed to address all clarifying questions so she returned the report to Complainant
again.
S1 stated, on August 28, 2014, Complainant submitted a FMLA request for August 26 - 27,
2014, but did not provide medical documentation to support her request. S1 stated that she
informed Complainant she had 15 days to do so to cover the August absences. S1 stated that
Complainant provided medical documentation from her neurosurgeon in February 2015 and the
Agency approved her FMLA. She noted the August 26 and 27 absences were not approved
under FMLA retroactively.
S1 stated that management rated Complainant “Minimally Successful” in the critical element of
Interpersonal Relations, and that required an overall performance rating of “Minimally
Successful.” S1 stated that she referenced a laudatory letter as well as positive feedback
Complainant received from the United States’ Attorney’s Office, but she also cited the poor
interpersonal communications Complainant had with her coworkers and supervisor.
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S1 stated, based on a mid-year performance rating, Complainant inquired about her eligibility for
AWS and telework and she informed Complainant that a mid-year rating is not a rating of
record. Further, S1 stated that she informed Complainant that she received less than Fully
Successful on her annual rating so she was ineligible for either program. Also, S1 stated that an
employee who is subject to disciplinary action within the year is ineligible for AWS and
telework. S1 stated that management denied Complainant’s WGI and informed her what was
required to earn a WGI in the future.
S1 stated that she informed Albuquerque II employees that they had to swap old credentials for
new credentials as quickly as possible (by December 1) so that she could send the old credentials
to the Division Office. S1 stated that all employees except Complainant complied with the
deadline to swap and that Complainant did not respond immediately to supervisory
communications to comply. S1 stated that she met Complainant as she arrived for work on
December 2 and got her old credential.
S1 stated that she was on annual leave between December 18, 2014 and January 2, 2015 but
there was an acting supervisor present. S1 stated that Complainant was on grand jury duty with
early release on some days and there was a mix-up in conveying early release information to her
on a specific day.
S1 stated that she gave Complainant compensatory time and flexible time as appropriate.
S1 stated that she denied Complainant’s request to provide training for a licensee because
staffing is very limited in the Albuquerque II office, and the focus of their work efforts is
mandatory assignments. S1 explained that outreach is not mandatory.
Post-Investigations
Following each investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ) or an immediate final agency decision. Complainant requested a hearing for 00828 and
00462. The AJ did not hold a hearing for 00828 and instructed the Agency to supplement the
record for 00462.
For Complaint 00828, in a summary judgment decision dated August 1, 2016, the assigned AJ
found that Complainant failed to establish discriminatory motives and that the alleged incidents
do not rise to the level of a hostile work environment. Specifically, the AJ stated that the Agency
changed Complainant’s overall performance rating based on Agency policy and revoked her
AWS and telework privileges based on her performance rating. In a final decision dated
September 14, 2016, the Agency agreed with the AJ’s finding of no discrimination.
Further, the Agency issued final decisions on March 7, 2017 (Complaint 00462), September 14,
2016 (Complaint 00080), and June 2, 2017 (Complaint 01335). In each decision, the Agency
found that Complainant failed to show she was subjected to harassment or retaliation, or that the
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Agency’s actions were based on discriminatory motives. Complainant filed the instant four
appeals.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).
Hostile Work Environment & Disparate Treatment
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected class; (2) they were subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
their 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 v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
Here, we find that Complainant failed to establish a claim of actionable harassment. Specifically,
we find that Complainant failed to prove, by a preponderance of the evidence, that the actions
complained of were based on sex, disability, national origin, or reprisal. Generally, the Agency
stated that it exercised normal business judgment in its actions toward Complainant. The
Agency stated that it made adjustments requested by Complainant to the workplace to
accommodate her medical condition; assigned Complainant a low performance rating based on
Agency policy and her unprofessional conduct to her supervisor, coworkers, and Agency clients;
Complainant’s low overall rating negatively impacted her participation in the Agency’s AWS
and telework programs and receipt of a WGI; it issued Complainant progressive disciplinary
actions based on her conduct and failure to follow instructions; and it provided supervision to
Complainant based on Agency policy and practices. The Agency denied treating Complainant
less favorable than others outside of her protected classes.
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We conclude that a finding of harassment is precluded by our determination that Complainant
failed to establish that the actions were motivated by discriminatory animus. See Harris v.
Forklift Systems, Inc., 510 U.S. 17 (1993).
Further, to the extent that Complainant alleged disparate treatment, even if we assume that
Complainant established a prima facie case of discrimination, the record shows that the Agency
articulated legitimate, nondiscriminatory reasons for the matters at issue. We find that
Complainant failed to prove that the Agency's reasons for its actions were a pretext designed to
conceal discriminatory animus toward Complainant's protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decisions.
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.
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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.
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
November 30, 2018
Date
