Kiara R.,1 Complainant,v.Jacob J. Lew, Secretary, Department of the Treasury (Bureau of Engraving and Printing), Agency.

Equal Employment Opportunity Commission

Dec 16, 2016

0120142717 (E.E.O.C. Dec. 16, 2016)

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

Kiara R.,1
Complainant,

v.

Jacob J. Lew,
Secretary,
Department of the Treasury
(Bureau of Engraving and Printing),
Agency.

Appeal No. 0120142717

Agency No. BEP-13-0498-F

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated June 30, 2014,
finding no discrimination concerning her complaint alleging employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C.
§2000e et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

In her complaint, filed on June 25, 2013, Complainant alleged discrimination based on race
(African American), color (light), sex (female), and in reprisal for prior EEO activity when
she was subjected to harassment in that:

(1) Her supervisors purposely forestalled her career advancement, culminating on June 4,
2013, when she failed to receive a detail to the Department of the Treasury, Office of
Personnel Security, and a less qualified male was chosen; and

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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(2) On multiple occasions beginning in 2008, management has bashed and minimized her
work, and referred to her as “arrogant,” “pushy,” “a troublemaker,” and
“incompetent.”

In her complaint, Complainant also alleged claims that:

(3) On October 19, 2009, she was denied the opportunity to act as a Supervisory
Adjudicator;

(4) On July 16, 2009, she was denied requested job-related training;

(5) On April 30, 2010, she was not selected for the Team Leader position because
preferential treatment was given to the individual selected for that position;

(6) On same date(s) prior to November 30, 2011, her work was returned by her manager in
retaliation for her complaint about being called incompetent;

(7) On April 1, 2012, she received her Mid-Year Assessment which did not reflect what
she discussed with her manager; and

(8) On December 7, 2012, she received her goals and elements which did not allow for
errors, which led to her being held to a higher performance standard than other
employees.

On February 28, 2014, the Agency dismissed claims (3) through (8) due to untimely EEO
Counselor contact since Complainant did not contact an EEO Counselor until June 4, 2013.
The Agency noted that those claims would be considered as background evidence for
Complainant’s harassment claim. After completion of the investigation of the accepted claims
of the complaint, Complainant did not request a hearing. The Agency issued its final Agency
decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which
Complainant failed to rebut.

ANALYSIS AND FINDINGS

Initially, we find that the Agency properly dismissed claims (3) through (8) due to untimely
EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that
complaints of discrimination be brought to the attention of the EEO Counselor within 45 days
of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel
action. The record indicates that the alleged incidents in the subject claims occurred from
2009, to December 7, 2012, but Complainant did not contact an EEO Counselor regarding the
matters until June 4, 2013, which was beyond the 45-day time limit set by the regulations. On
appeal, Complainant does not present adequate justification to warrant an extension of the
applicable time limit for contacting an EEO Counselor.
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Turning to claims (1) and (2), 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), Chap. 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").

After a review of the record, assuming arguendo that Complainant established a prima facie
case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was employed as an
Adjudicator, GS-12, with the Bureau of Engraving and Printing.

With regard to claim (1), Complainant claimed that during the relevant time period, she
expressed her interest in the detail assignment at issue as an Adjudicator at the U.S. Treasury
Office of Personnel Security but she was not selected. Complainant’s supervisors indicated
that Complainant never expressed her interest in the detail to them. Complainant does not
contest this. Specifically, Complainant’s second level supervisor stated that although he
advised Complainant to notify him of her interest in the subject detail, she failed to do so. The
Deputy Chief of Human Resources indicated that no vacancy was announced for the detail as
such was not required; he was not aware of Complainant’s interest in the detail; and he made a
decision to select the selectee who expressed his interest in the subject detail. The supervisors
stated that the selectee has better writing abilities and verbal skills and he had more than 25
years of experience in the investigations/adjudications field whereas Complainant had
approximately five years as an adjudicator. The supervisors also denied that they forestalled
Complainant’s career advancement.

With regard to claim (2), Complainant’s first level supervisor (S1) denied making the remarks
or harassing Complainant as alleged. Two retired supervisors, identified by Complainant,
indicated that S1 expressed to them that Complainant was aggressive, arrogant, did not like to
be corrected, was a know-it-all, pushy, a troublemaker, and complained about her
assignments. The two retired supervisors stated that S1 did not like Complainant and would
like to get rid of her. The two retired supervisors also indicated that S1 stated that
Complainant was also competent and sought out more difficult work. It appears that S1 and
Complainant did not get along well and did not work well together. We however do not find
S1’s remarks on their face to be discriminatory and taken together are not sufficiently severe or
pervasive so as to constitute a hostile work environment.

Upon review, we find that Complainant failed to show that the Agency’s articulated reasons
were a mere pretext for discrimination. Furthermore, we find that Complainant failed to show
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that there were any similarly situated employees not in her protected groups who were treated
differently under similar circumstances. Based on the foregoing, we find that Complainant has
failed to show that the Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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 16, 2016
Date