[Redacted], Kori S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020000485 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kori S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency. Appeal No. 2020000485 Agency No. DTRA-18-033 DECISION On September 18, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 19, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Building Partner Capacity Advisor, GS-0130-14, at the Agency’s Building Partner Capacity Division, Joint Improvised Threat Defeat Directorate at Fort Belvoir, Virginia. On October 30, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and/or harassment on the bases of sex (female), religion (Christian),2 and reprisal for prior protected EEO activity (informal complaints in July and August and an EEO complaint in August). Her allegations are discussed below as claims (1) through (15). 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 Complainant did not include religion as a basis of discrimination in her formal complaint. However, the Agency noted that she alleged this basis during EEO counseling and accepted it as part of the complaint. 2020000485 2 The Agency accepted the complaint and conducted an investigation, which produced the following pertinent results: Claim (1) Complainant alleged that, around March 2018 and around June 2018, a Major (MAJ1) was present when a member of the Senior Executive Service (SES1), congratulated and praised her for work she performed; therefore, he wanted to purchase lunch as a reward, as he does often with male and female subordinates, equally, as a kind of “Atta boy/Atta girl.” MAJ1 took Complainant aside and told her about a policy, the Vice President (VP) had, of not participating in any activity that would place him in the company of a female without another male present. Additionally, MAJ1 went on to say, VP is a Christian and this measure ensured his marriage and the sanctity of his marriage. Complainant stated that she took this as a strong recommendation to not accept the reward lunch and followed MAJ1’s recommendation. Complainant attested that she was invited to lunch twice by SES1, and she declined each time. She attested that she was a Christian, but it was her lack of the same belief that caused the discrimination. MAJ1, Complainant’s Team Lead, acknowledged telling Complaint about VP’s rule, but asserted that she mischaracterized his statement; he attested that, as he remembered the conversation, it related to VP never having an issue with being alone with a female because he always had security. MAJ1 clarified that the rule Complainant mentioned was the Billy Graham rule and it was something he had practiced. He indicated that it may have been discussed in the office, as they often discussed politics in the office, and it would have been within that context. MAJ1 attested that he did not recall being present when SES1 invited Complainant to lunch and that he did not know SES1 was known for taking people to lunch. Claim (2) Complainant alleged that, in April 2018, after making allegations of discrimination directly to MAJ1, and after filing her informal and formal complaints, Complainant experienced an increased level of scrutiny and a decrease in autonomy to coordinate, engage and communicate with others, e.g., scheduling and coordinating her own meeting and, circumventing her by reassigning her responsibilities; moreover, his tone in emails was hostile, etc. Complainant attested that she had to go through MAJ1 for everything, including coordinating her leave and leaving the building. She did not believe her male co-workers had to coordinate leave with MAJ1. MAJ1 attested that, as Team Lead, it was his responsibility to make sure they were all working together and, because Complainant was out often, it was hard to know when she was in the office. MAJ1 attested that he tries to make sure there is coordination and, when necessary, he does it for all the staff, as it is all related to mission requirements. 2020000485 3 The Former Deputy of J-7 (DEPUTY) attested that he believed that what Complainant considered increased scrutiny was a young supervisor getting his team together and putting rules into place. A co-worker (CW1) attested that, if he was running late or had an appointment, he would send an email the day before to the team, letting them know he is going to be off. He attested that there was an instance when he came in after 9 and MAJ1 sent him an email stating that he did not let him know that he was there and was coming in late. He attested that he sensed males were treated differently. Claim (3) Complainant alleged that, from mid-April until October 15, 2018, she informed her leadership, another Major (MAJ2), DEPUTY, and a Colonel (COL), about the continual harassment experienced from MAJ1; however, they refused to investigate her allegations and continued to state, he is a “good guy” and a “Christian man.” She attested that, in July 2018, she went to COL’s office with her complaints and, in mid-April, her first-line supervisor (LTCOL) was made aware of her allegations. Complainant alleged that, when MAJ1 sent a harassing email, management was copied but did nothing. She alleged management was complicit in the harassment and, if her complaints were investigated, she was not informed. COL attested that he learned of Complainant’s concerns in July 2018. He attested that he investigated, stayed engaged, and arranged to move Complainant out of the Resources Office. He attested that he may have referred to MAJ1 as a “good guy” and a Christian, as both are correct characterizations. LTCOL attested that he was unaware of anything related to harassment until he became aware of the instant complaint on August 20, 2018. He attested that he knew there were issues in July 2018 related to the office move and there were some mediation sessions between July 16 and August 20, 2018 about the issues between Complainant and MAJ1. LTCOL attested that Complainant and MAJ1 did not have the best working relationship. DEPUTY attested that Complainant informed leadership and leadership responded. He attested that he met with Complainant, as well as MAJ1, LTCOL, and COL multiple times, to ascertain the parties’ understanding of the events. DEPUTY attested that, in the end, he found no basis for Complainant’s allegation of harassment. He also acknowledged that he referred to MAJ1 as a good guy and a Christian man. Claims (4) and (8) Complainant alleged in claim (4) that, in July 2018, she was told by MAJ1 that if she wanted to remain efficient in her Arabic language, she should attend his Christian Bible Study and translate information for them from Arabic to English, instead of following her approved Individual 2020000485 4 Development Plan (IDP), which listed DoD-authorized training through JKO. Complainant alleged that he provided her with a link; however, this was not required by her male colleagues. Complainant alleged in claim (8) that, on August 6, 2018, COL Hendrix, in his effort to defend MAJ1, went on-line and researched another website (still at MAJ1’s church), but this time for a Christian-Muslim relations group, and sent it to her. Complainant attested that MAJ1 told her that she was taking too much training and he felt that her training should be limited to 10 percent of her time. Complainant attested that she did not believe he would have suggested that others take a religious course on their own time and alleged that he prevented her from taking courses in her IDP to maintain her skills as a Foreign Analyst specializing in the Middle East. MAJ1 denied these claims. He attested that he recalled Complainant’s saying that there were not enough Arabic training opportunities; but he was trying to establish that Complainant was needed in the office a certain amount of time and Complainant was signing up for a lot of courses. He attested that, when Complainant indicated there were not enough opportunities for her to practice, he thought she meant one-on-one with people. He attested that he did not offer his church instead of Agency training, but explained to her that another Analyst told him that he had been to MAJ1’s church and stated he was part of a Christian-Muslim relations program and it was helpful when he deployed. MAJ1 attested that it was not Bible study but was an opportunity to practice language and build community. MAJ1 attested that he brought the Navy Center of Language Regional to Complainant’s attention, as it sounded like it might help her; he did not offer it to other employees because they did not have that desire or skill set. COL attested that Complainant came to his office with materials she felt showed religious discrimination or favoritism. He attested that she presented him with screen shots of the website for a program MAJ1 suggested for a no-cost related practice of Arabic skills. COL attested that, because what Complainant presented seemed different from what had been discussed, he used Google to search for Christian-Muslim relations and sent Complainant the results. DEPUTY attested that he understood the issue to be that Complainant stated she needed to improve her lingual skills and keep current and, in response, MAJ1 suggested that his church had a lingual program that would allow her to practice. Complainant’s co-worker (CW2) attested that he had not been invited to MAJ1’s church for language training but there was a conversation that, if CW2 was looking for a church, he was welcome to come to MAJ1’s church. CW1 attested that he is on the same team as Complainant and MAJ1 never invited him to his church for training or any other reason. 2020000485 5 Claims (5) and (6) Complainant alleged, in claim (5) that, on July 16, 2018, MAJ1 insisted upon Complainant moving into an office with him, seated at the door, so that he could be the “gatekeeper” for her activities and prevent access to her by anyone he did not deem to have “official business” with Complainant. Complainant attested that, MAJ1 stated that it was so that he could be the gatekeeper for “you guys,” but she felt he wanted to monitor her activities. Complainant alleged, in claim (6) that, on July 16, 2018, she informed DEPUTY that she did not want to move into the same office with MAJ1. Complainant stated to him that she felt she should not have to suffer through discriminatory treatment, unequal treatment, continuous harassment, and religious preference instead of DoD policy. Complainant stated that DEPUTY asked her, “What do you want me to do about it?” and he went on to state that MAJ1 is a “good guy,” and that she needed to move into the office with MAJ1 as soon as possible. MAJ1 acknowledged using the term, gatekeeper. He attested that, when he viewed the space prior to the move, facilities personnel suggested where he should sit as Team Lead in order to his team, referring to the position as, “gatekeeper.” COL attested that Complainant was directed to move into the Resources Team office with the Team Lead and other team members as part of an overall division effort to consolidate teams. COL attested that he arranged for Complainant to move upstairs despite her audacity to request a Branch Chief office. DEPUTY attested that he met with Complainant to address her concerns with MAJ1 and he asked her if she felt sexually harassed. He attested that she told him that she did not but that she did not want to move into the office with the others, stating that MAJ1 was being a gatekeeper and she did not feel comfortable with him. He attested that COL agreed to let Complainant sit at her old desk and he supported this decision while not agreeing with it. CW2 attested that Complainant did not immediately move with he, MAJ1 and CW1 moved. CW2 attested that MAJ1 did speak of being the gatekeeper and CW2 understood that to mean that he wanted to sit by the door, and, if people came in, he would know who they were. CW1 attested that, after they moved, he asked Complainant why she was not taking position space in the office and she said that she was told to move out. CW1 attested that, when he was told to move, he refused to sit by the door and things were rearranged. He attested that he suggested Complainant go to leadership with her concerns regarding the move. 2020000485 6 Claims (7) and (11) Complainant alleged in claim (7) that, from July 19, 2018 - September 4, 2018, she was sent emails and provided information on conversations MAJ1 was engaged in with a Contractor; relating to attempts being made by him to eliminate her duties; therefore, eliminating her as an EEO Complainant. Complainant alleged in claim (8) that, on September 26, 2018, she received an email from LTCOL informing her that her duties/job would be eliminated. Complainant stated, “I feel that this action is the ultimate punishment for coming forward with EEO issues.” LTCOL attested that there were conversations about Complainant’s duties, starting May 9, 2018. He attested that their group was in the J-7 Training and Exercises Division and Complainant was doing procurement tasks for Theater, J-8. He attested that he did not understand why they were doing procurements that had no link to training and exercise. He attested that Complainant acknowledged that a procurement she was doing did not align with J-7 Training and Exercises. LTCOL attested that Complainant brought her concerns to him and COL, stating that she felt the duty was being taken away from her. LTCOL attested that they were going to talk to the J-8 Rapid Capability to make sure that was not the case. He attested that, on September 7, 2018, there was a meeting to discuss Complainant’s harassment allegations and they sought to find a job that would be more fulfilling and more in line with her specialties. LTCOL attested that, in June 2018, Complainant had applied for the Career Broadening Program and, while they were trying to find her a new position, she was approved for the program. He attested that, once she was approved, her duties were transferred to J-8 and that is what prompted the discussion on September 26, 2018. MAJ1 attested that there was noting being done to eliminate Complainant. He attested that he was working to maximize the team’s efficiency. Claim (9) Complainant alleged that, on August 19, 2018, after she filed an EEO complaint against MAJ1, MAJ1 sent Complainant an email, stating that she had not informed him of her whereabouts prior to her departure; however, Complainant had informed him. Complainant attested that she had told MAJ1 the day before that she had three out of office tasks. She attested that she emailed him about one, which was a meeting, and told him about the other two verbally. She attested that she told him that she would try to return by noon. MAJ1 acknowledged that Complainant had indicated that she would return at noon. He attested that, as Team Lead, one of his responsibilities is to let the Supervisor know the whereabouts of the team. He attested that, on this occasion, there was a bad storm and he wanted to know if there was any reason for concern. 2020000485 7 COL attested that MAJ1 was justified in sending the email based on how bad the weather was at their location. He attested that MAJ1 was acting as a Team Leader showing concern for an employee. Claim (10) Complainant alleged that, on August 27-28, 2018, while in a training capacity at the DTRA, Fort Belvoir office, MAJ1 required that Complainant find an empty space with a computer, in order to respond to his emails. Complainant alleged that this was not required for the men. She attested that MAJ1 stated that he needed to know where she is and that she needs to check in every day. MAJ1 attested that he did not recall these allegations. CW2 attested that, when he attends training, he does not believe he was told that he needed to respond to emails because he was in a secure location. He attested that, when he travels alone, he takes his laptop to stay in touch. Claim (12) Complainant alleged that, on October 5, 2018, she learned from her previous supervisor, she had been misinformed by DEPUTY, when he told her, even though she out ranked her Supervisor and Team Lead, they are required to give the Team Lead and Branch Lead positions to military. She alleged that COL made the decision to omit her from the Branch Lead and Team Lead positions and gave the positions to male military members. COL attested that Complainant’s assertions that all Branch Chief and Team Lead positions had to go to military members was incredulous, noting that the former Resources Team Lead was a civilian and that six or seven of the ten Team Leads in his Division were civilians. DEPUTY attested that he never stated that they are required to give all Team Lead and Branch Lead positions to military members. He attested that those positions have been and continue to be held by both military and GS employees. A civilian Division Chief (Chief) attested that Complainant asked him if there was a policy that military had to supervise, and he explained that there certainly was not. He attested that he supervises military, as did Complainant when she was a supervisory GS-14. 2020000485 8 Claims (13), (14), and (15) Complainant alleged, in claim (13) that, from February until October 2018, she was denied the opportunity to act as Team Lead in MAJ1’s absence. She attested that she would learn via an email that CW1 or CW2 were serving as Acting Team Leads and she believed that, because of her gender, she did not receive the same emails as the rest of the team and was being left out of the loop. MAJ1 attested that, from his experience, the person selected to serve as Acting Team Lead is someone who has the ability, availability, and affinity/desire to serve in that capacity. He attested that the primary responsibility is planning and executing budget and CW1 and CW2 have budgeting and program management and integration as their primary responsibility, whereas Complainant’s role and expertise was in Arabic Language and Culture. MAJ1 attested that Complainant was out of the office often, was late, or had a lot of appointments that made her availability difficulty to forecast. He attested that she never requested to act as Team Lead. DEPUTY attested that, since MAJ1’s primary duties involved financial management, a financial analyst familiar with financial management of the budget and its execution filled in when MAJ1 took leave. Complainant alleged in claim (14) that, in or around March 2018, she was denied the opportunity to be selected as Branch Chief for Resource Readiness and Requirements Branch. She alleged that she was told that you were not selected for the position because “these positions needed to be military.” She attested that, in February or March 2018, she learned MAJ1 had been placed in the Branch Chief position at issue. She alleged that she should have been chosen because she was higher ranking than MAJ1 and more qualified than MAJ2. She believed she was not placed in the position because of her gender. COL attested that the Branch Chief position at issue is a military position per the DTRA manning documents and he chose MAJ2. He attested that military positions are not advertised. DEPUTY attested that the Branch Chief position at issue was a military, not GS, position. He attested that they would only consider a GS employee if there was no military person available and only until military personnel were obtained. He attested that Complainant was not military and did not possess the background required for the position as expressed in the military Joint Manning Document position description. Complainant alleged in claim (15) that, in or around November-December 2017, MAJ1 was selected to replace a former Team Lead (TL) and she was denied placement in this position. She learned of this replacement in February or March 2018. Complainant attested that she believed she was not placed in this position because of her gender. 2020000485 9 COL attested that he was the deciding official for the position at issue and he chose MAJ1 for this position based on recommendations from his team. COL attested that he looked at MAJ1’s experience in budget and finance in his prior assignment as well as his work on budgetary and contracting matters for the Resources Team. COL attested that Complainant’s work was not part of the core mission of the Resources Team. COL attested that Complainant’s specialty was foreign affairs officer/specialist and she did not have the background for the financial management, budgetary, contracting types of items for the team. DEPUTY attested that TL remained in this position while he was being deployed and would be returning at the end of his temporary absence. He attested that TL recommended MAJ1 to act in his position during his absence. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The decision also noted that, during the processing of the complaint, Complainant withdrew claims (5) and (11). The decision also dismisses claims (1), (14), and (15), as untimely, finding that they allege acts that occurred in March 2018, March 2018, and October 2017, respectively, which is more than 45 days prior to Complainant’s filing of the instant complaint on August 20, 2018. The instant appeal followed. On appeal, Complainant asserts that the investigation failed to address the core issue of her claim, which was a systematically developed work environment where she was excluded from opportunity, a different standard of behavior was expected of her because she was a woman, and that she was retaliated against when she stood up for herself. She also asserted that, during the investigation, no Human Resources person spoke authoritatively about the issues. She also asserts that she did not withdraw any claims, particularly claim (11). In response, the Agency argues that it properly dismissed claims (1), (14), and (15). It argues that its final decision (FAD) properly considered the evidence for a hostile work environment. Regarding claim (11), it argues that, assuming arguendo that its FAD incorrectly found the claim withdrawn, the Commission should find that the Agency did not discriminate against Complainant as alleged in that claim. The Agency argues that its FAD should be sustained. 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 2020000485 10 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”). Dismissed Claims EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, the Agency dismissed claims (1), (14), and (15), as untimely. As alleged, these events occurred between March and June 2018, March 2018, and in or around November to December 2017, respectively. The record shows that Complainant initially contacted an EEO Counselor on August 20, 2018, which is more than 45 days after the alleged events. Complainant has failed to provide sufficient justification for extending or tolling the time limit. Therefore, to the extent these allegations raise independent claims, we find that they were properly dismissed as untimely. However, as discussed below, they are relevant to the overall harassment claim. Harassment Claim To establish a claim of hostile environment harassment, 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 his 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); 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 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, her gender, religion, and/or prior EEO activity. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Some of Complainant's harassment allegations reflect her disagreement with routine managerial decisions, such as those relating to how employees should be supervised, office assignments, reassignments, and selections for promotional opportunities or temporary assignments. 2020000485 11 Her remaining allegations reflect personality conflicts, trivial slights, and petty annoyances between Complainant and members of management. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We recognize the implications of management’s use of language suggesting that MAJ1’s religion was a relevant consideration or referring to him as “a good guy.” We also recognize Complainant’s objections to the suggestions that she receive any sort of work-related training at a religious institution. While these actions suggest poor managerial and communication skills, we find they are insufficiently severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Although Complainant alleged the Agency acted discriminately or in retaliation, we have reviewed the record and find it does not establish that that the incidents at issue were based on Complainant's sex, religion and/or prior EEO activity. Therefore, we find her allegations are insufficient to establish her claim of discriminatory harassment. Disparate Treatment Claims 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). Complainant must initially 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 next burden shifts on the Agency to articulate a legitimate, non- discriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (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. 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). 2020000485 12 For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant’s allegations regarding having her duties changed and not being selected for leadership opportunities as Acting Team Lead or Team Lead and/or Branch Chief give rise to claims of disparate treatment. However, even if we assume, arguendo, that Complainant has established a prima facie case of discrimination with respect to these claims, her claims still fail. We find the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complainant’s duties, the Agency explained that once Complainant had been approved for the Career Broadening Program, her duties were transferred. The Agency also explained that changes were made to improve efficiency. Regarding Complainant’s claims regarding not being offered opportunities for leadership roles, either on an acting or permanent basis, the Agency explained that, some but not all Team Lead and Branch positions were reserved for members of the military. The Agency also explained that, with respect to Complainant’s wanting to serve as Acting Team Lead in MAJ1’s absence, MAJ1’s primary duties involved financial management and the Agency chose employees with a financial background to fill in for him and Complainant lacked such a background. The Agency explained that Complainant did not have the training or background in financial management, budgeting or contracting for the Branch Chief or Team Lead positions at issue. We note that Complainant seems to conclude that allocating positions to military members as opposed to civilian employees equates to or is a proxy for gender-based discrimination; however, there are female members of the military and male civilians employed by the Agency. Although Complainant has alleged the Agency acted discriminately or in reprisal, we find that she has not shown that the Agency acted because of her sex, religion and/or prior EEO activity. Therefore, we find she has failed to establish a claim of disparate treatment. 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. 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. 2020000485 13 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). 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. 2020000485 14 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 2, 2021 Date