[Redacted], Dotty C., 1 Complainant,v.Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Oct 27, 2021

Appeal No. 2020003603 (E.E.O.C. Oct. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dotty C.,1 Complainant, v. Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020003603 Hearing Nos. 570-2016-01434X, 570-2017-01115X Agency Nos. ODAR-15-0775, ODAR-17-00422 DECISION On June 1, 2020, 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 May 8, 2020, final decision concerning her consolidated 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, religion, and/or reprisal. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The report of investigation for Agency No. ODAR-15-0775 will be cited as ROI 1, and the report of investigation for Agency No. ODAR-17-0042 will be cited as ROI 2. 2020003603 2 BACKGROUND At the time of events giving rise to these consolidated complaints, Complainant worked as a GS- 0905-14 Attorney-Adviser (General)/Appeals Officer in the Agency’s Office of Disability Adjudication and Review (ODAR), Office of Appellate Operations (OAO) in Falls Church, Virginia. Complainant identified her race as African-American, her religion as Christian, and her sex and sexual orientation as female, straight. Complainant stated that she participated in protected EEO activity when she filed the first of her two EEO complaints in 2015. Nonselection In spring 2015, Complainant timely applied for an Administrative Appeals Judge (AAJ) position on the Appeals Council, which was advertised under vacancy announcement number SV- 1269003. On or about May 15, 2015, Complainant interviewed with two Division Chiefs (S1 and S2) for the position. Complainant averred that, about three weeks after her interview, her first- line supervisor (S3) told her that although supervisors had been contacted about certain applicants for the AAJ vacancies, he had not been contacted about Complainant. According to Complainant, she officially learned that she had not been selected as an AAJ in June 2015 when the selectees were announced. Complainant stated that she did not ask why she was not selected because when she was not selected for AAJ positions in 2013 and 2014, she had received unhelpful feedback. Complainant averred that she met the minimum requirements for the AAJ position, which were a minimum of seven years of experience as a licensed attorney and a minimum of one year of experience as a GS-14 attorney. Complainant alleged that her qualifications were just as good, if not better, than the 11 selectees and that the selection process was arbitrary. S2 explained that the interview panel was comprised of 10 members and that the 50 candidates were interviewed by two members on a rotating basis. S2 averred that, during the interview, each candidate was asked the same nine questions and was awarded up to 4 points for each answer, for a maximum score of 36. S2 stated that the two interviewers would confer after the interview to reach a consensus score. S2 averred that the interview panel checked the references of the 14 candidates who scored 28 or higher during their interview, and ultimately recommended 11 candidates for hire based on the reference checks. Complainant received a score of 17 on her interview, and the interview panel did not check her references or recommend her for hire. S1 averred that Complainant received 1 point on three of her answers, 2 points on five of her answers, and 4 points on one of her answers. According to S1, Complainant was difficult to follow during the interview because her thought process seemed scattered and her answers were jumbled. Further, S1 found that Complainant’s interview responses generally did not reflect a firm grasp of the relevant subject matter or her readiness for a job with more complex cases and adjudicative responsibility than her current position. Complainant also did not manage her time well during the interview, taking a long time to answer the first half of questions and needing to be reminded of the remaining time to respond. Complainant stated that she was not told that there was a time limit for each question. 2020003603 3 According to Complainant, she attempted to give thorough and complete answers. Complainant contended that answering interview questions has little connection to the candidate’s ability to perform successfully in the position, noting that the AAJ position requires mostly written work. According to Complainant, her race, religion, sex, and sexual orientation were factors in her nonselection. Complainant alleged that a rehired annuitant involved in the selection process (S4), who is gay, had demonstrated ill will towards her. Complainant stated that S4 exhibited negative body language towards her, grimacing and rolling his eyes in her presence. Complainant averred that, on one occasion, S4 had negative facial expressions when he saw items in her office, including Christian symbols, a portrait of Rosa Parks, family pictures, and her children’s artwork. Complainant alleged that everyone involved in the selection process is very closely aligned with S4. According to Complainant, although some of the selectees were African- American, the selectees were either non-Christians or did not display their Christianity at work. Moreover, Complainant asserted that the selectees “were either gay or closely affiliated with gay people in the workplace.” ROI 1 at 142. Complainant alleged that management is biased against Christian and openly religious people. She noted specifically that, in December 2014, a trainer who conducted a course on leadership skills for non-supervisors “boldly announced in front of everyone that you do not have to wear your religion on your sleeve. I could only assume they were talking about me because of the religious displays in my office.” ROI 1 at 142-43. The OAO Executive Director (S5) was the recommending official. S5 stated that the interview panel recommended 11 candidates based on interview scores and references, and she approved the recommendations and forwarded them to the selecting official. The Deputy Commissioner (S6) was the selecting official for the 2015 AAJ vacancy. According to S6, he received a memorandum recommending 11 candidates for AAJ positions. S6 averred that he discussed the recommended candidates with S2, who is the Division Chief for the OAO Executive Director’s Office, and S5. S6 stated that he approved hiring the 11 recommended candidates based on their qualifications and the recommendation of the interview panel. According to Complainant, subsequent comments from OAO management reflected that the selection process was arbitrary. Complainant stated that, during a February 2016 staff meeting, S5 said that she was not concerned about democracy in the hiring process. According to Complainant, she interpreted S5’s comment to mean that she was not concerned about fairness or transparency and would continue to use arbitrary standards in the selection process. Complainant averred that, at a March 2016 meeting, S5’s Deputy (S7) said that doing a good job was not enough to be selected for promotion and that an employee would have to perform well in an interview to be selected. Complainant contended that interview performance is an arbitrary measure and should not be given more weight during the selection process than sustained job performance. 2020003603 4 Denied Opportunities to Conduct Training Complainant stated that, dating back to 2010, she was denied the opportunity to serve as a trainer, which would have enhanced her opportunities for promotion. According to Complainant, the then-Appeals Officer responsible for assigning training opportunities (S8) told her that she had received negative comments on training presented by Complainant, but S8 refused to provide the specific comments. S8 indicated that she coordinated, or helped coordinate, much of the in-house training for OAO between December 2011 and March 2015, including the selection of trainers. In making training assignments, S8 considered evaluations completed by students, other trainers, and co-lead trainers regarding prior training presentations, as well as recommendations from management. S8 stated that Complainant was a trainer for New Analyst classes in 2009 and 2010, where she received poor ratings from students who noted that Complainant did not follow the training curriculum. S8 denied blocking Complainant from training opportunities, noting that she asked Complainant to participate in the inaugural OAO Train the Trainer program in 2014 and thereafter assigned Complainant as a trainer for New Analyst class. According to S8, in March 2015, she left for a detail outside OAO and was therefore not responsible for training assignments in May or June 2015. A Division Chief who was Complainant’s second-line supervisor (S9) averred that, in the spring of 2015, he asked Complainant to train the Retirement & Survivor Insurance (RSI) branch on disability issues. S9 stated that, on the first day of the training, Complainant’s co-trainer was responsible for the morning session and Complainant was responsible for the afternoon session. According to S9, sometime during the morning session, Complainant indicated that she would be unable to instruct in the afternoon because she had to leave early due to an exchange student staying with her family. Despite having been scheduled to conduct the training for at least a week, stated S9, Complainant did not indicate a problem until the last minute. S9 was required to find a replacement on short notice. Additionally, S9 noted that Complainant was also scheduled to train the following two Tuesdays and she indicated that she could no longer commit to these sessions. According to S9, he removed Complainant from the training roster because she had stated that she did not want to train on Wednesdays, Thursdays, or Fridays, which were her telework days, and because she had backed out of three assigned trainings after initially agreeing to conduct them. FY 2016 Performance Evaluation Complainant stated that her new first-line supervisor (S10) issued her performance evaluation for FY 2016 and that S10 told her that S9 and her former first-line supervisor (S11) had contributed to the appraisal. S10 rated Complainant 3.0 for the element of “Demonstrates Job Knowledge.” Complainant asserted that it did not make sense that her job knowledge would decrease with the passage of time. Complainant alleged that S10 told her that she had issues with technology, but Complainant countered that she should not be held accountable for technology issues. According to Complainant, when she asked why her score was lower than it had been the previous year, she was told that it was because of her RSI workload. Complainant stated that no one approached her with any issues regarding her work, including her RSI work. 2020003603 5 Complainant averred that it was not fair to base her performance evaluation on the RSI workload when not all of the Appeals Officers were assigned the RSI workload. Complainant added that she completed her share of cases and that her overall rating should not have lowered from 4.5 to 4.0. S10 stated that Complainant’s self-assessment was accurate and reflected performance in line with the “Fully Successful” standard. S10 added that, although Complainant had a higher overall adjudication rate, she had a lower RSI workload than some of her peers. S10 averred that, if Complainant had a higher RSI workload or provided RSI training, she would be more likely to earn an “Outstanding” rating. According to S10, Complainant generally did not demonstrate initiative, develop new materials, recommend improvements in work unit performance, or otherwise innovate as required to meet the “Outstanding” rating. According to S10, Complainant’s time and attendance frequently had errors that required substantial amounts of time to correct, taking away from the OAO core mission of adjudicating cases. S10 averred that, despite these issues, he did not need to discuss any performance issues with Complainant because her performance was always at or above the “Fully Successful” level. Time and Attendance Scrutiny Complainant alleged that, while he was her supervisor, S10 subjected her time and attendance to excessive scrutiny. According to Complainant, when she left the office and planned to return, S10 would require her to submit a leave slip before she left, which other supervisors had not required. Complainant stated that, because she was unsure of the precise length of her absence, she had to estimate the amount of leave to request. Consequently, explained Complainant, there were times when an amendment to her time and attendance would be required. Complainant averred that, on October 28, 2016, when she left the office and returned, S10 implied that she had been absent without leave (AWOL) that day. Complainant denied that she was AWOL and attributed the discrepancy to S10’s requirement that she submit a leave request in advance, stating that she had overestimated the amount of leave she would need on that occasion. Complainant stated that she felt like S10 was constantly watching her and trying to catch her cheating. S10 denied scrutinizing his subordinates’ time and attendance or holding Complainant to a separate standard regarding time and attendance. According to S10, when he became Complainant’s supervisor, he noted repeated errors and warnings in her time and attendance. S10 stated that issues with Complainant’s timesheet would sometimes take up to an hour to fix. S10 averred that part of the issue was that Complainant would come and go without prior notice to her supervisor. According to S10, he asked Complainant to notify him in advance of leaving for safety and workflow reasons. S10 stated that he had the same time and attendance expectations for all of the Appeals Officers he supervised. According to S10, he told all of his subordinates that, if they are unsure how much leave they will take, they should overestimate the amount of leave needed on the leave slip and fill in the actual amount leave taken on their return. S10 stated that, although he informed Complainant about the overestimation protocol twice, Complainant had trouble following it. 2020003603 6 S10 averred that, because Complainant had trouble with overestimating her leave, he allowed her to save, but not submit, her leave requests in the time and attendance system, which he did not allow the other Appeals Officers to do. According to S10, on the morning of October 28, 2016, Complainant filled out a leave request for two hours of annual leave, from 4 p.m. to 6 p.m. S10 stated that, when Complainant left the office at 10:47 a.m., she had worked 4.5 hours. So, with the two hours of leave, Complainant had another 1.5 hours that she would need to account for by working or requesting leave. According to S10, when Complainant did not return to the office by 2:30 p.m. or contact him, to report that her plans had changed or request additional leave, he began to wonder if she was AWOL. S10 averred that he left the office around 4 p.m. that day and that Complainant had not returned as of the time of his departure. S10 explained that while certifying Complainant’s time and attendance on October 31, 2016, he noted that she reported: leaving the office at 10:47 a.m.; working from 1:00 p.m. to 2:00 p.m., with 30 minutes for lunch; and returning to the office to work from 4:00 p.m. to 6:00 p.m. on October 28, 2016. According to S10, although Complainant had not communicated the change of plans, he certified her time and attendance. S10 stated that he spoke to Complainant the next day and expressed the need for clear communication and asked Complainant to submit requests for any leave she took, inform him when she was leaving work, and inform him when her plans changed. S10 averred that, while Complainant did not submit a leave request for October 28 or satisfactorily explain why she claimed to be on duty from 1 p.m. to 2 p.m., when he knew she did not return to the office until after 4 p.m., he did not feel that discipline was warranted. Complainant was never charged AWOL. Harassment Complainant alleged that, dating back to 2011, she was subjected to discriminatory harassment. Complainant averred that S3 harassed her in November 2011 when he accused Complainant of abusing leave. According to Complainant, S9 harassed her on several occasions when he was not her supervisor, including two occasions when S9 barged into her office and was foaming at the mouth regarding her time and attendance and her review of a coworker’s work. On another occasion, Complainant averred that, S9 was conducting a training and made sure that everyone except Complainant had a packet for the training. Complainant stated, on April 1, 2014, that she had asked to be reassigned from the Decision Review Board. Complainant contended that, after initially refusing to grant her request, S9 told her that she would be removed from the Decision Review Board. However, Complainant alleged that, the day before she was to be removed from the Decision Review Board, S9 told her that she had to remain on the board, without any explanation. Complainant averred that, after she was not selected for AAJ and Administrative Law Judge positions in 2014, she filed a Freedom of Information Act (FOIA) request, but the Agency refused to provide the requested documents. S9 denied barging into Complainant’s office, and he stated that he does not foam at the mouth, as alleged. S9 stated that he had no responsibility for assigning or removing anyone from the Decision Review Board. According to S9, while he may have told Complainant that he had no objection to her not working on the board, it was not his decision to make. 2020003603 7 S9 averred that OAO denied Complainant’s request because of workload issues. S3 denied harassing Complainant. S3 stated that, on one occasion, Complainant complained to him that S9 had stormed into her office to discuss work-related issues. According to S3, although he did not remember the exact issue, he stated that the problem was resolved. Complainant stated that in July 2015, in response to issues with her religious compensatory time, S9 did not make an effort to resolve the problem. Rather, S9 told her that he was counting her compensatory time based on a handwritten record created by S3. According to Complainant, her white coworkers were permitted reassignment. Complainant averred that, in September 2015, when her computer screen was cracked, S9 told Complainant that she might need to pay for the repairs or the cost of replacing the computer. Complainant added that S9 did not help her obtain a replacement computer. S9 stated that there was an OAO-wide problem with the time and attendance system in June and July 2015. According to S9, since he could not correct a timesheet, he forwarded Complainant’s request for assistance to the timekeeper. A timekeeper (T1) stated that, as Complainant’s timekeeper, she was the only one who could assist with timecard amendments prior to certification by her supervisor. Regarding the computer, S9 stated that the Division of Information Technology (DITI) informed him that, while she denied responsibility for any damage, Complainant damaged her work computer while it was in her care. According to S9, although DITI issued Complainant a new computer without charging her for the damage, DITI reminded him that employees are responsible for government property in their care and that subsequent damage could result in the employee bearing the cost of replacing damaged government property. S9 averred that he relayed DITI’s reminder to Complainant. According to Complainant, after she filed an EEO complaint on September 29, 2015, she was subjected to retaliatory harassment by S9 and S11. Complainant stated that, for example, S11 deleted a sentence from Complainant’s self-assessment describing her participation in training the RSI group on disability issues. According to Complainant, when she told S11 that she did participate in training, S11 told her that S9 directed him to remove the line from Complainant’s self-assessment and that he would not modify the evaluation. S9 denied directing anyone to delete anything from Complainant’s self-assessment. According to S9, his reasoning was that Complainant should not get credit for participating in training the RSI branch on disability when she failed to participate in the training as asked. Procedural History On September 29, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female, sexual orientation)3, and religion (Christian) when: 3 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 2020003603 8 1. On June 3, 2015, she became aware she was not selected for an Administrative Appeals Judge position on the Appeals Council; 2. From May 3 to June 3, 2015, she was denied training opportunities that could lead to promotion; and 3. From 2013 to June 3, 2015, she was subjected to harassment. On December 15, 2015, Complainant amended her EEO complaint, alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 4. Starting on September 29, 2015, she was subjected to ongoing harassment based on retaliation. On January 31, 2017, Complainant filed a second EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), religion (Christian), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 5. On October 24, 2016, she received a lower score than her previous appraisal rating in the “Demonstrates Job Knowledge” element, resulting in a 4.0 Performance and Communication System (PACS) Performance Plan rating for FY 2016; and 6. Beginning on July 1, 2016, and continuing, including on or about November 1, 2016, she was subjected to excessive scrutiny and reporting related to leave and time and attendance. At the conclusion of the investigations, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing on both complaints, and an AJ consolidated the complaints. Complainant subsequently withdrew her hearing requests. (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 2020003603 9 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency dismissed claim (2) for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant did not provide any dates or other specific information about the denial of training opportunities. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged in her remaining claims. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she established that the Agency’s reason for not selecting her as an AAJ in 2015 was pretextual. Complainant challenges the procedural dismissal of her claim that she was denied training opportunities. Complainant also contends that she established pretext regarding her FY 2016 performance evaluation. According to Complainant, the Agency erroneously concluded that she was not subjected to a hostile work environment because there was no connection between her protected bases and the alleged harassment. Complainant argues that she established a nexus and therefore the Agency is liable for the harassment. Complainant requests that the dismissal of claim (2) and the Agency’s final decision finding no discrimination be reversed. In response to Complainant’s appeal, the Agency requests that its final decision be affirmed. ANALYSIS AND FINDINGS 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, 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”). Dismissal for Failure to State a Claim As a preliminary matter, we consider the Agency’s dismissal of claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). 2020003603 10 The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We find that the Agency erred in dismissing this claim, as the record reflects that Complainant was removed from the training roster by S9 in April 2015. Because the Agency dismissed the claim after the investigation, we will consider the merits of the claim. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Complainant alleged that she was subjected to discrimination when she was not selected for an AAJ position in 2015. The Agency’s legitimate, nondiscriminatory reason for not selecting Complainant was that she did not perform well enough during the interview for further consideration. Specifically, S1 stated that Complainant’s thoughts appeared scattered during the interview, that she did not manage her time well during the interview, and that her answers generally did not reflect a firm grasp of the relevant subject matter or readiness for more complex cases and more adjudicative responsibility. As evidence of pretext, Complainant contends that the interview process was arbitrary and was influenced by S4’s bias against Complainant as well as the Agency’s general hostility towards religion. S4, who identified his religion as Christian, stated that he did not know the religion or the sexual orientation of any of the candidates and added that Complainant’s interview score was determined based on her interview with S1 and S2. We do not find that Complainant established by preponderant evidence that her interview was influenced by her religion or sexual orientation. Regarding Complainant’s contention that the interview was arbitrary and that interview performance was unrelated to the skills needed for the AAJ position, we have consistently recognized that an agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed, as here, by the reviewing authority absent evidence of unlawful motivation. See Burdine, 450 U.S. at 259; Vanek v. Dep't of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Moreover, mere assertions or suppositions by Complainant are not enough to establish pretext. Richardson v. Dep't of Agriculture, EEOC Petition No. 03A40016, (Dec. 11, 2003). 2020003603 11 Neither is it enough for Complainant to simply disagree with the Agency's actions. Harris v. Dep't of the Army, EEOC Appeal No. 01940486 (Sept. 6, 1994), request to reconsider denied, EEOC Request No. 05950046 (Mar. 21, 1996). We have consistently stated that pretext analysis is not concerned with whether the Agency's action was unfair or erroneous but whether it was motivated by discriminatory animus. Andrews v U.S. Postal Serv., EEOC Petition No. 03980017 (May 28, 1988). We find that Complainant has not established that the Agency’s legitimate, nondiscriminatory explanation for her nonselection was pretextual. Complainant alleged that she was discriminated against when she was denied opportunities to provide training. The Agency’s legitimate, nondiscriminatory reason for removing Complainant from the training roster in April 2015 was that she had backed out of scheduled training sessions with little to no notice and had expressed unwillingness to provide training on her telework days. Complainant argued that being excluded from training affected her competitiveness for promotions, but she did not specifically address the legitimate, nondiscriminatory reason for removing her from the training roster in April 2015. We find that she has not established pretext for discrimination. To the extent Complainant challenges her exclusion from training before March 2015, this will be addressed below as part of her hostile work environment claim. Complainant also alleged discrimination with respect to her FY 2016 performance evaluation. The Agency’s legitimate, nondiscriminatory explanation for rating Complainant “fully successful” in the “Demonstrates Job Knowledge” performance element was that her self- evaluation tracked the standard for “fully successful performance.” As evidence of pretext, Complainant averred that she deserved a higher rating because her job knowledge had increased during her time on the job. Complainant stated that S10 told her that she could have earned a higher rating by adjudicating more RSI cases and by improving on technical issues. While Complainant argued it was unfair for S10 to rate her based on her RSI workload because not all Appeals Officers were responsible for RSI cases, her assertion is not supported by the record. Rather, the record reflects that all Appeals Officers in Complainant’s division were responsible for these cases and were evaluated based on RSI adjudication. As for her contention that technology problems were out of her control, the record reflects that S10’s comment about technical issues related to Complainant’s frequent errors with her time and attendance. Further, S10 stated that the other employees he supervised did not have frequent problems with their time and attendance. We find that Complainant has not established that the Agency’s proffered reason was a pretext designed to mask discriminatory or retaliatory animus. Complainant alleged that she was subjected to discrimination when S10 scrutinized her time and attendance. S10 denied scrutinizing Complainant’s time and attendance. The record shows that Complainant was asked to submit a leave request, for an overestimated amount, due to her history of leaving the office without notifying S10 of her absence or expected return. Moreover, the record reflects that S10 asked all of his subordinates, including those who did not have as many time and attendance errors, to follow the same guidelines. In fact, because Complainant was having difficulty adhering to the overestimation protocol, S10 allowed Complainant to save, but not submit, her leave requests until she returned to work. 2020003603 12 This was a practice that other Appeals Officers were not permitted to do. Therefore, we find that Complainant has not established that the Agency’s legitimate, nondiscriminatory reasons were pretextual. Harassment To establish a claim of harassment 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 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). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. Here, Complainant alleged that she was subjected to a hostile work environment. Complainant stated that S8 sidelined her from training, that her request to be removed from the Decision Review Board was denied, that S9 refused to help her resolve her issues with her compensatory time, that S9 told her supervisor not to give her credit for participating in RSI training, that S9 told her she that she might have to cover the cost of her damaged computer, and that S10 accused her of being AWOL. We find that Complainant has not established based on preponderant evidence that these instances of alleged harassment were based on her membership in any protected class. S8 stated that she did not assign Complainant training for several years after Complainant received negative reviews for not following the curriculum, but S8 subsequently included Complainant in the 2014 train-the-trainer course. The record reflects that Complainant was not removed from the Decision Review Board because of workload issues. Regarding the RSI training, S9 stated that Complainant should not get credit for participating because she backed out of three scheduled sessions at the last minute and was removed from the training roster. S9 stated that he told Complainant that he told Complainant she might have to cover the cost of further damage based on DITI’s warning. 2020003603 13 Finally, the preponderance of the evidence in the record reflects that S10 wondered if Complainant had been AWOL because she had submitted a leave request from 4 p.m. to 6 p.m. on October 28, 2016, and because she had not returned to the office to complete the remainder of her workday before S10 left for the day. Accordingly, Complainant has not established that she was subjected to a hostile work environment based on race, religion, sex, and/or reprisal. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020003603 14 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 October 27, 2021 Date