Katrina R.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Jan 3, 2020

Appeal No. 2019000399 (E.E.O.C. Jan. 3, 2020)

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

Katrina R.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.

Appeal No. 2019000399

Agency No. 55-2018-00017

DECISION

On September 13, 2018, 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 21, 2018, final decision concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to a hostile work environment and discrimination based on her sex, age,
and reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an International Trade
Compliance Analyst, GS-1801-13, with Office VI of Enforcement and Compliance, International
Trade Administration.

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 October 31, 2017, Complainant initiated EEO counselor contact. On December 14, 2017,
Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work
environment and discriminated against her on the bases of sex (female), age (53), and in reprisal
for prior protected EEO activity (filed administrative grievances) when:

1. the Program Manager (male, under 40) (Responsible management official (RMO)
1), exhibited an ongoing hostile attitude toward her beginning prior to his
promotion to Program Manager in July 2016. The Office Director (male, over 40)
(RMO2) also contributed to these hostilities. Examples include:

a. Complainant has been “shunned and ostracized” by RMO1 and RMO2,
who have excluded her from meetings with upper management regarding
her cases. Decisions regarding her cases are instead relayed to her by
RMO1 in weekly meetings;

b. Complainant is given no opportunity to provide input regarding her
assignments, and is instead sent “do this” e-mail messages by RMO1;

c. on an ongoing basis, RMO1 has refused to appoint her to serve as Acting
Program Manager in his absence;

d. RMO1 has never asked her for feedback regarding the progress of new
analysts, despite relying on her to provide the “bulk” of training for these
analysts;

e. on or around August 17, 2016, RMO1 “berated” her for 45 minutes about
her inability to plan work assignments or communicate her plans to him,
despite knowing that she cannot plan for questions she receives from
colleagues and trainees and new assignments she receives from him that
require a “fast turnaround.” She sat silently while he berated her because
any comments she tried to offer were immediately dismissed or criticized.

2. RMO1 issued Complainant a summary rating of Level 3 on her Fiscal Year (FY)
2016 performance appraisal October 2016. The rating failed to account for her
“extraordinarily heavy” workload and training of two (2) new analysts during FY
2016, which she believed warranted a Level 5 rating;

3. RMO1 responded to the March 31, 2017 informal administrative grievances she
filed alleging a hostile work environment finding “no evidence” of a hostile work
environment;

4. RMO2 responded to the April 18, 2017 formal administrative grievances
Complainant filed which refuted RMO1’s determination referenced in Claim 3,
also denying the existence of a hostile work environment;
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5. on or around October 30, 2017, RMO1 issued her a summary rating of Level 3 on
her FY 2017 performance appraisal that was based on his “personal grudges”
against her rather than her overall work performance. It cited errors which she did
not make and failed to account for her heavy workload and work training newer
analysts; and,

6. after she signed her FY 2017 performance appraisal and FY 2018 performance plan
on December 5, 2017, RMO1 presented her with copies of these documents which
had been altered to include additional information and a memorandum that had not
been present when she signed them.

On January 3, 2018, the Agency’s Office of Civil Rights (OCR) issued a Notice of Partial
Acceptance for Investigation. The Agency determined that Claims 2 to 4 were discrete acts of
alleged discrimination and retaliation. Thus, Complainant’s October 31, 2017 EEO Counselor
contact was untimely. Therein, the Agency dismissed Claims 2 – 4 for untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2). However, the Agency accepted Claim 2 to the
extent that Complainant identified it as an incident of harassment contributing to her overall hostile
work environment claim. The Agency also determined that Claims 3 and 4 involved administrative
grievances, and therefore dismissed those claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure
to state a claim, finding that Complainant was lodging a collateral attack on the proceedings of
another forum. Additionally, the Agency determined that Complainant alleged retaliation for
initiating the administrative grievance in Claims 3 and 4. The Agency determined that
Complainant had alleged hostile conduct, but she had not alleged hostile conduct based on any
protected bases, such as her age or sex. Accordingly, the Agency determined that the activity for
which Complainant alleged retaliation did not constitute protected activity within the meaning of
Title VII. Therein, the Agency dismissed Complainant’s basis that she was retaliated against for
engaging in the Agency’s administrative grievance process for failure to state a claim.

On January 19, 2018, Complainant sent e-mail correspondence to Agency officials, as well as the
EEO Officer, alleging that on an unspecified date after December 5, 2017, her Fiscal Year (FY)
2017 performance appraisal and FY 2018 performance Plan had been altered and a memorandum
had been added to her performance plan without her consent.

On January 23, 2018, the Agency’s EEO Officer contacted Complainant seeking clarification
regarding whether she was requesting to amend her pending formal complaint to add a new claim,
and instructed her to contact OCR if she intended to. That same day, Complainant sent OCR an
amendment request.

On January 29, 2018, OCR issued an Amended Notice of Partial Acceptance for Investigation
accepting her claim.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ).
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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 affirmed the OCR’s prior procedural dismissal. Regarding the merits, the decision
concluded that Complainant failed to prove that the Agency subjected her to discrimination as
alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates details previously provided in her formal complaint and in the
investigation.

The Agency provided a detailed rebuttal essentially reiterating its final decision.

ANALYSIS AND FINDINGS

As a preliminary matter, we note that the Agency procedurally dismissed Claims 2 – 4 for untimely
EEO Counselor contact, and failure to state a claim; while also accepting Claim 2 as part of the
overall hostile work environment claim. Based on the record, we find no reason to disturb the
Agency’s initial procedural dismissal.

Standard of Review

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires
that the Commission examine the record without regard to the factual and legal determinations of
the previous decision maker,” and that EEOC “review the documents, statements, and testimony
of record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference
of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
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This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the agency’s actions were
motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Unlawful Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). To establish this claim, a 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.

The Supreme Court in Harris explained that an “objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently
severe to trigger a violation must be determined by looking at all the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.” Id. at 23.

A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the
complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 78 (1998).

With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for
harassment when it is created by a supervisor with immediate (or successively higher) authority
over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Reprisal

Complainant also alleges that the Agency retaliated against her. In accordance with the burdens
set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
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05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing
that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

Analysis

Upon our review of the voluminous evidentiary record, which consists of numerous affidavits and
exhibits, and having fully considered and analyzed the Agency’s decision, which recites and
addresses each claim and identifies the evidentiary support on which it relied for its alleged actions,
we conclude that the preponderant evidence does not establish discriminatory animus.2

Complainant’s allegations concern inappropriate and hostile behavior by RMO1 and RMO2. The
record contains detailed and numerous documents concerning Complainant’s claims. However,
despite the documentation, Complainant has failed to show that the claims raised were causally
connected to unlawful discrimination on any basis or motivated by discriminatory or retaliatory
animus.

Even if the claims occurred as alleged, Complainant failed to show that the Agency officials were
in any way motivated by discriminatory animus. In addition, many of the actions taken by the
alleged discriminating officials were routine managerial actions: such as monitoring work
production; providing feedback on evaluations and performance plans; and determining when an
employee might serve in an acting management role; which, absent discriminatory animus, will
not be second-guessed by the Commission. We note that agencies generally have broad discretion
to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admn.,
EEOC Request No. 05960403 (Dec. 6, 1996).

Regarding Complainant’s disparate treatment claims, while Complainant established a prima facie
case of discrimination on her claimed bases, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. For example, Complainant asserted that on or around
October 30, 2017, RMO1 issued her a summary rating of Level 3 on her FY 2017 performance
appraisal that was based on his “personal grudges” against her, rather than her overall work
performance. Complainant asserted that it cited errors which she did not make and failed to account
for her heavy workload and her work training newer analysts. The record demonstrated that RMO1
rated Complainant no differently from her peers.

2 The record in this case is exhaustive and details numerous incidents in support of the claim. We
will not individually address each incident of alleged discrimination. Although the claims will
not be individually addressed, all matters which Complainant raised have been considered and
viewed in the context of all bases and in the context of disparate treatment and a hostile work
environment.
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There was consideration for the work performed, and input from customers, and other management
officials, that impacted her overall rating. RMO1 also noted that despite asking for one,
Complainant failed to provide him with a list of accomplishments for consideration. RMO2 agreed
with the rating provided, noting that he felt Complainant’s performance was between a rating Level
2 and 3. RMO2 expressed the same concerns regarding Complainant’s overall performance, noting
that her customer service skills needed work. RMO2 stated that Complainant’s performance did
not warrant an outstanding level 5 rating.

After Complainant was presented with the Level 3 rating on her FY 2017 appraisal, she informed
RMO1 that she wanted to review it with an attorney prior to signing it. Complainant stated that
when she went to sign the plan in December 2017, RMO1 presented her with copies of the
documents which she asserted had been altered to include additional information and a
memorandum that had not been present prior. Complainant stated that the memorandum noted her
initial response, and a request to review the appraisal with an attorney. Complainant believed this
was discriminatory and harassing. Based on the record, it is clear that Complainant disagreed
strongly with RMO1’s evaluation of her performance, and wanted to consult with an attorney prior
to signing the appraisal. However, Agency policies required appraisals to be signed by October
30, 2017, and performance plans by November 30, 2017. Therefore, based on her request, RMO1
added a document stating that he had shown and spoken to Complainant regarding her evaluation
and performance plan, and explained why neither was signed by the deadline. RMO1 included the
statement at the suggestion of RMO2. Outside of his notation, there were no changes to
Complainant’s appraisal or performance plan. We find the reasons provided to be legitimate and
nondiscriminatory.

Regarding Complainant’s various claims supporting her hostile work environment claim, we find
that none of the examples provided, alone or all together, provide evidence of a pervasively hostile
work environment. For example, Complainant asserted that RMO1 has mistreated her ever since
becoming the new manager. Complainant provided a list of examples to demonstrate how he has
subjected her to a hostile work environment. For example, she stated that she was “shunned and
ostracized” from meetings regarding her cases; not given opportunities to provide input on her
assignments; not asked about feedback regarding new analysts that she helped train; and was
frequently berated regarding work. Here, the record demonstrated that Complainant’s workload
was comparable to her peers; that she had a mix of cases from high profile to more routine.
Regarding exclusion from meetings about her cases, Complainant did not demonstrate that she
would have the need to meet with upper management regarding every case in her inventory. It
would be inefficient for upper management to meet with every analyst regarding caseload. In terms
of inventory management, although Complainant was dissatisfied with the method, we find no
evidence that RMO1 or RMO2 discriminatorily excluded Complainant from the meetings.

In another example, Complainant asserted that her summary rating of Level 3 on her FY 2017
performance appraisal was intentionally low because RMO1 wanted to harass her. Complainant
clearly disagreed with the rating provided. However, based on the record, there is nothing to
suggest that the rating was based on anything other than her actual performance.
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RMO2 testified that Complainant’s performance could have been rated at level 2, but he agreed
with the level 3 rating as RMO1 worked closer with Complainant.

Complainant also asserted that she was never given the opportunity to act as the Acting Program
Manager. Complainant noted that several of her peers were allowed to act in this role, while she
was continuously passed over. Here, RMO1 acknowledged that he had yet to assign Complainant
this role. However, he asserted that it had nothing to do with her protected classes or retaliation.
The record demonstrated that while Complainant has years of experience, RMO1 and RMO2 did
not believe that those years translated to necessary skills needed to serve in upper management.

RMO1 acknowledged that his relationship with Complainant was challenging. He asserts that the
relationship is challenging due to her performance-related issues, defensive attitude, and resistance
to feedback. RMO1 believes that Complainant has construed his differing opinions, constructive
criticism, and performance feedback as adversarial, when he is merely trying to manage. In this
matter, we find that many of the examples indicate a contentious relationship, one readily
acknowledged by RMO1. However, we find that Complainant has not established the existence of
a hostile work environment based on Complainant’s protected classes or retaliation.

The Commission notes that a finding of a hostile work environment is precluded by our
determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant 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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director,
Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s
request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by
certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark,
the request to reconsider shall be deemed timely filed if it is received by mail within five days of
the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request
must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29
C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other
party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

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.
Carlton M. Hadden, Director
Office of Federal Operations

January 3, 2020
Date