[Redacted], Eva M., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 9, 2021

Appeal No. 2020002870 (E.E.O.C. Sep. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eva M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020002870 Hearing No. 570-2016-01362X Agency No. ARHQOSA15OCT04327 DECISION On March 24, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 14, 2020 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. For the following reasons, the Commission AFFIRMS in part, and REMANDS in part 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 discrimination based in reprisal for her prior protected EEO activity. 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. 2020002870 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-11 at the Agency’s Military Training Mission, Eskan Military Base, in Riyadh, Kingdom of Saudi Arabia. On December 24, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the basis of reprisal for her prior protected EEO activity2 when: a) from January 2015 thru present, the Chief of Contracting (RMO31) (no EEO activity), the former Chief of Staff (RMO24) (unknown EEO activity) and the Chief of Staff (RMO3) (prior EEO activity, named RMO in Complainant’s prior EEO complaint), made comments to Complainant regarding her prior EEO activity, disclosed information regarding her EEO activity to other employees, and disparaged her; b) from January 2015 thru present, RMO1 changed work rules to require Complainant to process individually all Blank Purchasing Agreement (BPA) actions; c) from January 2015 thru present, RMO1 has assigned Complainant a disproportionately heavy workload of all BPA actions, required her to individually process the actions, resulting in her routinely working significant overtime to complete her work; d) from January 2015 thru present, RMO1 repeatedly refused to provide Complainant with formal and on-the-job training appropriate and necessary for her GS-11 level; e) from March 2015 thru present, RMO1 refused to issue or approve a contracting warrant for Complainant; f) around March 2015, RMO1 denied Complainant’s request for Defense Institute of Security Assistance Management (DISAM) training; g) around April or May 2015, Complainant was informed that managers had told the Director of Finance, to watch out for her because she had an EEO complaint; h) around April 2015, RMO1 denied Complainant’s request to bulk fund BPAs; 2 The listed officials (RMO1, RMO2 and RMO3) were aware of Complainant’s prior EEO activity. 3 Responsible Management Official (RMO). 4 RMO2 was no longer employed at the time of the investigation and did not respond to several email and phone requests by the EEO Investigator to provide an affidavit. 2020002870 3 i) from June 2015 thru present, RMO1 frequently disparaged Complainant and her skills/abilities. She belittled Complainant in public. She responded hostilely to questions from her (Complainant), ignored her, rolled her eyes at her, did not invite her to outside meetings, would not talk to her during meetings, treated her dismissively during an August 12, 2015, meeting with the Major General (MG) (unknown EEO activity), and praised Complainant’s co-workers for work that was performed by her; j) from June thru August 3, 2015, and from August 10 thru October 2015, RMO2 told Complainant the base was denying her daughter's dependent status, ordered her daughter to leave the base, and refused Complainant’s requests for a written decision/documentation on the decision. RMO2 also made inappropriate comments regarding Complainant’s prior EEO activity; k) from August 6 thru August 23, 2015, RMO1, RMO2, and RMO3 threatened to not allow Complainant to obtain a clearance, interfered with, and denied her requests for Temporary Duty (TDY) to attend a security clearance re-investigation, and refused multiple requests for approval of her TDY, on August 27, September 29, and October 10, 2015; l) on August 11, 2015, RMO2 stated the Agency had changed Complainant’s tour from two years to one year, and on August 25, 2015, renewed Complainant’s tour for only one year; m) on August 26 and August 30, 2015, RMO1 questioned Complainant regarding her prior EEO activity; n) on or about October 8, 2015, and November 24, 2015, RMO1 denied Complainant’s request for DISAM training; o) around October 2015, RMO1 began asking Technical Sergeants (TS15 and TS2, respectively) to report on Complainant and monitor her work; p) on October 28, 2015, Complainant learned from TS1 that RMO1 did not approve TS1’s request to issue Complainant a Simplified Acquisition Threshold (SAT) warrant and that RMO1 would never give Complainant consideration for advancement; q) on November 5, 2015, RMO1 and RMO3 failed to show up for a meeting with Complainant regarding her harassment complaint; 5 Despite repeated efforts by the EEO Investigator and Agency’s EEO Point of Contact, a declaration from TS1 could not be obtained. 2020002870 4 r) on November 8, 2015, Complainant learned that in May 2015, RMO1 made statements to her co-workers TS1 and a third Technical Sergeant (TS36) that she (Complainant) had no skills and that they should not try to teach her anything; s) from September 29 thru November 12, 2015, RMO1 and RMO3 refused to take action on Complainant’s request for reimbursement of TDY fees; t) on November 12, 2015, RMO1 and RMO3 informed Complainant they made a mistake in sending her daughter home and referred to her as a "special case"; u) on November 18, 2015, TS1 accused Complainant of having terrorist friends; v) on November 19, 2015, RMO1 denied Complainant’s request to take a Contracting (CON) 090 training class, and referenced her EEO settlement; w) on November 19, 2015, the MG discussed Complainant’s complaint regarding disparate enforcement of base rules at an all-hands meeting; x) on November 24, 2015, RMO1’s close friend, the Contact Representative (CR) (unknown EEO activity) approached Complainant, pointed in her face, and said to her that she (Complainant) "doesn't know [RMO1]" and needed to "watch out;" y) on December 3, 2015, RMO1 loudly confronted Complainant in front of TS2 regarding her complaints about unfair assignments, being prohibited from bulk processing BPAs, training denials, and referred to her (Complainant’s) lawsuit, and humiliated her; z) from December 7 thru December 16, 2015, RMO1 refused to correctly complete Complainant’s Individual Development Plan (IDP) and performance appraisal; and, aa) from December 7, 2015 thru present, management failed to respond to her request for reassignment. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). On July 22, 2016, Complainant timely requested a hearing. Complainant subsequently withdrew her hearing request and requested a Final Agency Decision (FAD). On October 24, 2019, the AJ issued the Order of Dismissal dismissing Complainant’s hearing request pursuant to her withdrawal. 6 Despite repeated efforts by the EEO Investigator and Agency’s EEO Point of Contact, a declaration from TS3 could not be obtained. 2020002870 5 On February 14, 2020, the Agency issued its FAD. The Agency determined that management had articulated legitimate, nondiscriminatory reasons for its actions to which Complainant failed to prove was pretext for discrimination or reprisal for her EEO activity. CONTENTIONS ON APPEAL On appeal, Complainant, through her counsel, moves for default judgment, or in the alternative, lesser sanctions based on the Agency’s failure to timely upload the record pursuant to 29 C.F.R. § 1614.403(e). Complainant asserts that the record demonstrates clear reprisal by management officials. Complainant notes that she was retroactively restored to her position within the Agency based on a prior EEO complaint. Complainant felt that she would get a fresh start. Instead, she asserts that RMO1, RMO2, and RMO3 resented Complainant for what they perceived as a windfall for winning her case. As such, she was subject to disparate treatment and a hostile work environment for her EEO activity. Complainant asserted that she was often assigned the least desirable and most basic tasks, and constantly denied training. Complainant also notes that management frequently shared information about Complainant’s prior and current EEO activity with other managers and her colleagues. Complainant notes that while the reasons provided by the Agency seem reasonable, as a whole it clearly demonstrates pretext for reprisal. In response, the Agency asserts that it stands by the record. 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”). ANALYSIS AND FINDINGS Complainant’s Sanction Request On March 26, 2020, the Commission informed the Agency of its duties to provide the record pursuant to 29 C.F.R. § 1614.403(e). On August 6, 2020, Complainant submitted a Motion for Sanctions requesting that the Commission move for default judgment in her favor, or in the alternative, lesser sanctions based on the Agency’s failure to timely upload the record to FedSEP pursuant to 29 C.F.R. § 1614.403(e). 2020002870 6 Complainant noted that despite ample opportunity, the Agency had failed to upload the record as of the date of her Motion. Complainant noted that she had received the Report of Investigation on July 22, 2016, and as a courtesy, uploaded the documents. Here, the record demonstrates that the files were not completely uploaded by the Agency until October 14, 2020. This was approximately six months after the Commission’s request. While the Agency provided no explanation for its delay, the Commission takes administrative notice that many normal operations, around that time, were negatively impacted due to the unprecedented Covid-19 pandemic. While there was clearly a delay, Complainant has not made a showing that she was prejudiced by the delay. Commission regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. In this case, we find that the Agency did not act in a manner to warrant a default judgment or sanctions. While we will not issue default judgment in Complainant’s favor and will not impose a sanction in the present case, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely submission of documents. 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 Corp. 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. Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). 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. 2020002870 7 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Claims Concerning Work: Assignments, Trainings, Security Clearance - Claims b, c, d, e, f, h, j, k, l, n, o, p, r, s, t, v, y, z, and aa Upon our review of the voluminous evidentiary record which consists of numerous affidavits, the report of investigation, 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 with respect to Complainant’s disparate treatment claims b, c, d, e, f, h, j, k, l, n, o, p, r, s, t, v, y, z, and aa.7 In reaching this conclusion, we assume, arguendo, that while Complainant has established a prima facie case of discrimination in claims b, c, d, e, f, h, j, k, l, n, o, p, r, s, t, v, y, z, and aa, the Agency has articulated legitimate, nondiscriminatory reasons for its actions in those claims. Regarding claims related to work assignments and performance, claims b, c, h, and aa, the Agency has provided detailed legitimate, nondiscriminatory reasons for each action. For example, there is no evidence of any work rules being changed (claim b) that forced Complainant to individually process Blank Purchasing Agreement (BPA) actions. RMO1 testified that prior to Complainant’s arrival, there were audits completed that demonstrated that the BPAs needed an overall review and reconciliation. RMO1 asserted that this required individualized attention to get the BPA program back to regulations. The same reason was applied to denial of in bulk funding BPAs (claim h). Additionally, while Complainant asserted that her workload was unnecessarily heavy and created overtime for her, management noted that it was unaware of Complainant’s self-imposed overtime (claim c). Moreover, there is no evidence that the workload was unduly heavy, and it was noted that the BPAs, at the time, were Complainant’s only workload, and that others in the past had been assigned similar or larger BPA workloads. Regarding her December 2015 reassignment (claim aa), the Agency considered Complainant’s request, and offered her an initial posting that she declined. Shortly after, upon further discussions, Complainant was reassigned to J8 Directorate at her request. In terms of having her work monitored (claim o), while there is no explicit evidence that RMO1 asked TS1 or TS2 to monitor Complainant’s work, TS1 and TS2 were both Complainant’s contracting officers (CO). 7 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. 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. 2020002870 8 As COs, TS1 and TS2 would have been expected to review Complainant’s work prior to signing off on it. Regarding the delay in receiving her evaluation and Individual Development Plan (IDP) (claim z), RMO1 and RMO3 detailed that circumstances such as relevant individuals going on leave, and Complainant’s request to change the evaluation coverage period impacted the delay, and not Complainant’s EEO activity. In some instances, it was Complainant’s position that dictated certain actions. For example, in claims e and p, there is no evidence that Complainant’s contracting warrant request was denied based on her EEO activity. Instead, Complainant’s position was a non-warranted position, and therefore TS2 and RMO1 determined that it would not be appropriate to approve such a request. Instead, the warrant was issued to TS2, who held a warranted position. Regarding claims related to training (claim d), we also find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding the Defense Institute of Security Assistance Management (DISAM) training (claims f and n), RMO1 could not recall Complainant’s request, and there’s no record of a denial. However, RMO3 noted that the delay was only due to Complainant’s incompletion of an assigned online training prior to the request. RMO3 testified that Complainant was ultimately approved for DISAM training. Regarding Complainant’s request for Contracting (CON) 090 training class (claim v), the record indicated that this training was related to Complainant’s prior EEO agreement. RMO1 referenced it only in that the Agency needed to rearrange budget constraints in order to accommodate the prior EEO agreement. Complainant was then approved to attend the training. Regarding claims related to her Temporary Duty (TDY) requests, claims k and s, we also find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The record demonstrated that Complainant TDY request was put on hold due to logistics unrelated to her request. Specifically, that there were issues with the security clearance system that needed to be resolved. Complainant noted that another individual could go, however, that person needed the investigation in order to clear for a position, unlike Complainant, who was able to wait. However, Complainant did not wait and chose to go at her own initial expense. Complainant was later reimbursed for all TDY related costs. There’s no indication any delays, or the fact that someone else was cleared to go prior to her related to her EEO activity. Complainant also asserted that the Agency punished her for her EEO activity by removing her dependent 18-year-old daughter from base (claims j and t) and then changing her tour of duty because of the issue with her daughter (claim l). RMO3 asserted that management initially believed that Complainant’s 18-year-old daughter could not stay in Saudi Arabia as a command sponsored dependent. At the time, there was confusion with the Agency policy requiring the dependent to be at least 21. However, it was later clarified that dependents 18 or over could be considered a command sponsored dependent. While this issue was going on, the Supervisory Human Resources Specialist noted that Complainant was advised that she might research being on an unaccompanied one-year tour instead of a two-year accompanied tour. However, this was just a discussion and Complainant’s tour was never changed. 2020002870 9 As the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including a number of personnel decisions listed above like training, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision- making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Based on the record, there is no evidence to demonstrate that management’s actions were motivated by discriminatory or retaliatory animus in claims b, c, d, e, f, h, j, k, l, n, o, p, r, s, t, v, y, z, and aa. Claims Concerning EEO Activity - Claims a, g, j8, m, v, w and y9 Regarding reprisal, Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas. Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep’t of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a Complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or 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). The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual Section 8: Retaliation, No. 915.003, at 8-15 (May 20, 1998); see Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO process). 8 The portion related to EEO comments. 9 The portion related to EEO comments. 2020002870 10 For claims a, g, j, m, v, w and y we find that the Agency subjected Complainant to discrimination on the basis of reprisal. We have held that the actions of a supervisor are discrimination based on reprisal where the supervisor acts to intimidate an employee and interfere with his or her EEO activity in any manner. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998); Yubuki v. Dep't of the Army, EEOC Request No. 05920778 (June 4, 1993); Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (finding that the anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO complaint process); see also Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter a complainant or others from engaging in protected activity. Id.; Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Given the importance of maintaining “unfettered access to [the] statutory remedial mechanisms” in the anti-retaliation provisions, we have found a broad range of actions to be retaliatory. For example, we have held that a supervisor threatening an employee by saying, “What goes around, comes around” when discussing an EEO complaint constitutes reprisal. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. for recons. den., EEOC Request No. 0520090654 (Dec. 16, 2010). We have also found reprisal when a supervisor accused a subordinate employee of lying to the EEO Office, as such accusations could “potentially chill an employee from participating in the EEO complaint process.” See Celine D. v. U.S. Postal Serv., EEOC Appeal No. 0120150178 (Mar. 2, 2017), req. for recons. den., EEOC Request No. 0520170258 (June 15, 2017). In this case, the overarching theme of Complainant’s complaint is an allegation of discriminatory reprisal for her prior EEO activity. In claims a, g, j, m, v, w, and y, the focus is predominately on allegations related specifically to her EEO activity. Here, the J8 Director for Resource Management (no EEO activity) (J8) testified that while she could not speak directly to the motives of the RMOs, she felt that discrimination was “pervasive” in the command. Report of Investigation (ROI) at 577. Regarding claim a, J8 testified that she had been in settings with RMO1, RMO2, and RMO3 where Complainant’s EEO activity was discussed. J8 acknowledged that the meetings were held to resolve the last few items related to Complainant’s prior EEO activity, but she was surprised and offended by the lack of professionalism held and how dismissive management was during such meetings. J8 asserted that RMO1 rolled her eyes at one particular meeting and did not participate the way a supervisor should (claim a). Regarding claim g, J8 noted that she was not told to “watch out” for Complainant because of her EEO activity, but that RMO2 had previously discussed Complainant’s EEO activity in settings where she did not think appropriate. Overall, J8 asserted her belief that Complainant was treated negatively based on her past EEO activity. ROI at 584. 2020002870 11 Regarding claim w, Complainant asserted that on November 19, 2015, the Major General (MG) discussed her complaint regarding disparate enforcement of base rules at an all-hands meeting. J8 testified that an anonymous Command Climate Survey was sent around. After the results were tallied, MG wanted to discuss the survey at a town hall meeting. J8 and another director, reviewed the slides and realized that MG was displaying direct comments from the survey. J8 attempted to dissuade the MG, but he was adamant in using direct quotes. J8 felt that while the quotes were anonymous, people could easily identify who made the remarks. J8 believed that MG’s actions had a chilling effect on moral. ROI at 586. The Supervisory Human Resources Specialist (no EEO activity) acknowledged that the MG discussed numerous items from the Command Climate Survey, but did not believe the excerpts were identifiable. ROI at 638. The J1 Director (no EEO activity) (J1) testified that during a meeting in the first week of February 2016, with Complainant, RMO1 and herself, RMO1 stated that she had told her senior non-commissioned officers (NCO) that she (RMO1) would like them present when she spoke to Complainant as she had filed an EEO action (claim a). ROI at 606. J1 noted that the meeting was not related to EEO and it was at this meeting that she learned of Complainant’s EEO activity. After the meeting, J1 informed RMO1 that she should not have asked the NCOs to observe meetings. J1 also notified the leadership10 of this interaction. ROI at 614. J1 noted that a Retaliation Training was conducted on April 28, 2016, and she believed that the training helped employees gain appropriate awareness around reprisal. Id. It is unclear from the record if the training was related to J1’s notification of RMO1’s comments. Regarding claims j, m, v, and y, we find that the record demonstrated that Complainant clearly engaged in EEO activity; that management was aware of the protected activity; that in each claim she detailed allegations of adverse treatment; and, that the record demonstrated a clear nexus between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). In claim j, regarding the part involving EEO comments, we note that RMO2’s testimony was unavailable. However, J8 testified to the overall unprofessional and even hostile attitudes that RMO2 and RMO3 held towards Complainant when conversations regarding how to resolve the remaining items of Complainant’s prior EEO activity were discussed. In claims m, v, and y, considering the record before us, we construe any inferences raised by the undisputed facts in favor of Complainant and find that the environment at the facility and actions of management were indictive of retaliatory motives that would demonstrate that the articulated legitimate, nondiscriminatory reasons were pretext for retaliatory animus. After reviewing the record, we find that the actions of management could reasonably have a chilling effect on the willingness of employees to raise complaints through the EEO process. We note the following examples, when Complainant’s EEO activity is openly discussed with individuals who do not have a need to know; and, when she was made aware that NCOs were asked to sit in on conversations between her and RMO1. 10 J1 did not identify who “leadership” was in her testimony. There is no record of who was contacted or what occurred after. 2020002870 12 Based on the record, we conclude that the Agency subjected Complainant to unlawful retaliation as alleged in claims a, g, j, m, v, w and y. Complainant may be entitled to compensatory damages to the extent that she is able to show a compensable harm as a result of the retaliatory incident. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009) citing Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (finding of retaliation does not automatically entitle a complainant to a damages award). Harassment - Claims i, q, u, and x 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 conduct; (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 Servs., 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). Complainant alleged that she was subjected to a hostile work environment based on her EEO activity. Complainant noted that her prior EEO activity led to what she had hoped would be a fresh start. Instead, Complainant asserted that management treated her poorly from the beginning. For example, in claim i, Complainant asserted that RMO1 frequently disparaged her and her skills/abilities; that she was belittled in public; responded to her questions with disdain; ignored her, rolled her eyes at her; did not invite her to outside meetings; and generally treated her dismissively. 2020002870 13 While the conduct may have been distasteful, we note that the discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005). Not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Shealey v. Equal Emp’t Opportunity Comm’n, EEOC Appeal No. 0120070356 (Apr. 18, 2011) citing Epps v. Dep’t of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009). In claim q, Complainant asserted that RMO1 and RMO3 intentionally failed to show up to a meeting concerning her harassment claims. In this incident, RMO1 was on sick leave and the meeting was postponed. There is no indication that the meeting was canceled for any other reason, or that RMO1 and RMO3 were intentionally ignoring Complainant. In addition, to the above claim i, Complainant also asserted that RMO1’s friend, the Contact Representative (CR) (unknown EEO activity) threatened Complainant in claim x. However, in that instance, CR denied making such threats, and Complainant failed to provide evidence to support her assertion that any such threats were made. Regarding claim u, Complainant asserted that TS1 accused Complainant of having terrorist friends. We note that despite frequent attempts, the EEO Investigator was unable to obtain a declaration from TS1. However, Complainant acknowledged that she did not report this comment to any management official. Accordingly, while we have no statements from TS1, we also have no evidence from Complainant to support her assertations that TS1 made this accusation. Even if both claims occurred as alleged by Complainant, we note that discrimination statutes are not a civility code. What is prohibited is “behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Svcs., Inc., 523 U.S. 75, 78 (1998). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor regarding claims i, q, u, and x. Based on the record, we find that there is no clear evidence that Complainant was subject to an objectively hostile work environment. CONCLUSION The Agency's finding of no discrimination in claims a, g, j11, m, v, w and y12 is REVERSED and a finding of reprisal discrimination is made. The Agency's finding of no discrimination in claims b, c, d, e, f, h, i, j13, k, l, n, o, p, q, r, s, t, u, v, x, y14, z, and aa is AFFIRMED. The Agency will remedy the finding of discrimination in accordance with the ORDER below. 11 The portion regarding EEO comment. 12 The portion regarding EEO comment. 13 The portion regarding Complainant’s dependent daughter. 14 The portion regarding RMO1’s confrontational mannerisms and actions. 2020002870 14 ORDER Regarding claims a, g, j, m, v, w and y, the Agency is ORDERED to take the following actions in accordance with 29 C.F.R. § 1614.108. 1. Within sixty (60) calendar days from the date this decision is issued, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages. The supplemental investigation and issuance of the final decision shall be completed within one-hundred and fifty (150) calendar days of the date this decision is issued. A copy of the final decision must be submitted to the Compliance Officer as referenced below. 2. The Agency is directed to conduct EEO training for the supervisor identified as RMO1, RMO3,15 and MG above. The training shall address their responsibilities with respect to eliminating discrimination in the Federal workplace with a special focus on the anti- retaliation provisions of the law. 3. The Agency shall consider taking appropriate disciplinary action against RMO1, RMO3, and MG. If the Agency decides to take disciplinary action, it shall identify the action taken in its compliance report to EEOC. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline in its compliance report. 4. The Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” The Agency is directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall include supporting documentation reflecting that the corrective action addressed above has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Military Training Mission, Eskan Military Base, in Riyadh, Kingdom of Saudi Arabia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. 15 RMO1 is identified in the Report of Investigation (ROI) on page 476. RMO3 is identified on page 530 of the ROI. RMO2 is no longer employed with the Agency. The MG is identified on page 553 of the ROI. 2020002870 15 The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020002870 16 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). 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). 2020002870 17 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 September 9, 2021 Date