[Redacted], Lelah T., 1 Complainant,v.Richard Tischner, Director, Court Services and Offender Supervision Agency, Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020003547 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lelah T.,1 Complainant, v. Richard Tischner, Director, Court Services and Offender Supervision Agency, Agency. Appeal No. 2020003547 Hearing No. 570-2017-01095X Agency No. CSOSA-EEO-F-16-0014 DECISION On May 22, 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 April 23, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUES PRESENTED The issues presented on appeal concern whether Complainant was subjected to various acts of discrimination on the bases of race, sex, age, and reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lease Acquisition Manager, GS-1101-14, at the Agency’s Office of Procurement in Washington, D.C. Complainant joined the Agency over 13 years ago. 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. 2020003547 2 On January 11, 2016, the Agency hired an external candidate to serve as the new Director of the Office of Procurement (OP Director). Immediately after assuming command, the new OP Director initiated a top-down assessment of the office, which ultimately resulted in changes to the office’s longstanding business practices. On May 3, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and age (over 40) under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when:2 a. At an all hands staff meeting on January 11, 2016, the OP Director threatened to revoke her lease warrant as well as the warrants held by the Procurement staff as a whole; b. On February 4, 2016, in response to Complainant’s concerns about submitting a multi-document leasing package to the General Services Administration (GSA) for the 25 K Street field location in a short time period, the OP Director said it was “military time”; c. On March 1, 2016, Complainant requested to split her Compressed Day Off (CDO) between Thursday and Friday to attend a meeting that had been scheduled on her day off, but her request was denied; d. On March 7, 2016, Complainant received an email directing her to provide specific documents to be reviewed within a four-hour window; e. On April 18, 2016, Complainant was directed by the OP Director to execute a leasing extension with many errors and which was not fully vetted with the lessor; and f. On April 21, 2016, Complainant was given a short time period to submit an allegedly incorrect lease document for the 601 Indiana Avenue field location. Complainant subsequently amended her complaint on December 16, 2016, alleging additional allegations of discrimination based on race, sex, age, and reprisal when: g. On August 9, 2016, Complainant received a memorandum from the OP Director informing her that beginning on August 21, 2016, her Alternative Work Schedule (AWS) would be suspended until the end of the fiscal year; h. On October 13, 2016, the OP Director assigned Complainant the task of leading an effort to remake the file room, and when she asked for additional clarification and details, her request was denied; 2 For ease of reference, we have listed the claims using the same numbering convention as the Administrative Judge. 2020003547 3 i. On October 28, 2016, the OP Director refused to approve Complainant’s request to attend federal budget processing training, which was a mandatory course needed by Complainant to maintain her Contract Officer warrant; j. On November 7, 2016, Complainant was charged with absent without leave (AWOL) while she was already on approved leave on the dates of October 24-26, 2016;3 k. On November 14, 2016, the OP Director accused Complainant of improperly contacting GSA regarding a leasing matter and threatened her with a charge of insubordination; and l. On November 14, 2016, the OP Director issued Complainant a memorandum revoking her warrant and demoting her to the role of Leasing Specialist. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI)4 and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and subsequently filed a motion to amend her complaint to include more allegations of discrimination. On October 19, 2018, the AJ assigned to the matter granted Complainant’s request and added the following claims based on race, sex, age, and reprisal when: m. On December 9, 2016, the Associate Director for Administration (Associate Director), who was Complainant’s second level supervisor, denied Complainant’s request to have the Phase II course she completed counted towards credits needed to maintain her Federal Real Property Lease Acquisition Certification; n. On December 9, 2016, the Associate Director informed Complainant that her position had been arbitrarily selected for a desk audit; o. On January 9, 2017, Complainant learned that she was excluded from a meeting pertaining to her job duties; p. On January 9, 2017, Complainant learned that her reporting structure was changed and that she would be reporting directly to the OP Director and would be required to attend weekly status meetings; 3 We note that the Administrative Judge’s decision states that Complainant was on leave on October 14, 25, and 26, 2016. Having reviewed the amended letter of acceptance dated December 16, 2016, we find that the Complainant was on leave on October 24-26, 2016. 4 The ROI is contained in a file titled as “Combined Appeal File,” which contains the both the ROI and the associated hearing records. 2020003547 4 q. On January 9, 2017, in response to an email from Complainant requesting clarification on the new reporting structure, the OP Director stated: “As your supervisor, if you have any questions, please come see me. Do not send broadcast message to the rest of my staff… This is my final warning to you on this type of behavior”; r. On January 10, 2017, the OP Director sent an email to an individual representing 25K Street Properties LLC., without copying Complainant, in reference to a lease agreement between 25K Street and the Agency, which was a matter directly within Complainant’s job duties; s. On January 13, 2017, the Associate Director issued Complainant a letter of reprimand for failure to appropriately carry out her duties, unprofessional conduct, and failure to follow supervisory instructions; t. On January 18, 2017, the Associate Director refused to rescind the memorandum even after Complainant identified a number of inaccuracies and false statements; u. On January 24, 2017, Complainant emailed the Associate Director and requested a letter affirming that she met the Level II certification requirement, but her request went unanswered; v. On January 31, 2017, Complainant sent a follow-up email to the Associate Director regarding the certification request; w. On February 1, 2017, the OP Director chastised Complainant for declining his meeting request despite the fact that he had previously approved four hours of sick leave for the day; x. On February 16, 2017, Complainant sent another email to the OP Director requesting a letter regarding her Level II certification training, but her request went unanswered; y. On February 17, 2017, the OP Director abruptly denied Complainant’s request to have her AWS day fall on the first Friday of the month without justification or explanation; z. On March 28, 2017, Complainant sent another email to the OP Director requesting her training certificate in order to permit her to maintain her warrant; aa. On April 5, 2017, Complainant sent another email to both the OP Director and the Associate Director regarding her request for training certification, but her request went unanswered; 2020003547 5 bb. As of May 1, 2017, the Associate Director has not reapproved Complainant’s request for COR II certification in the Federal Acquisition Training Application System (FAITAS), which was a requirement for her warrant; cc. On August 1, 2017, the OP Director told Complainant that she was unprofessional and disrespectful; dd. On August 16, 2017, the OP Director denied Complainant’s annual leave request; ee. On August 30, 2017, the OP Director forbade Complainant from submitting documents to the Office of General Counsel without his peer review; ff. On August 30, 2017, the OP Director refused to grant access to the file room to Complainant without justification; gg. On December 15, 2017, the Associate Director issued Complainant a letter of reprimand for sending an allegedly inappropriate email; hh. As of April 19, 2018, Complainant has not received any guidance or tasks related to her job performance for the year; ii. On August 6, 2018, the Associate Director deducted eight hours of annual leave from Complainant’s timesheet; jj. As of September 4, 2018, the Agency has not responded to Complainant’s request regarding clarification on the Agency’s Contracting Officer policies and procedures; kk. On September 20, 2018, Complainant received a position description from the Associate Director that included duties and tasks that she did not regularly perform; and ll. As of September 20, 2018, Complainant has not received an evaluation for the 2016 to 2017, performance period. Following discovery, the Agency filed a motion for a decision without a hearing on April 24, 2019, wherein the Agency argued that Complainant could not prevail on her complaint because Complainant failed to set forth a prima facie case of a hostile work environment. Complainant vehemently opposed the Agency’s motion and argued that summary judgment was inappropriate because there were genuine issues of material fact in dispute. Specifically, Complainant argued that the available evidence demonstrated that she was treated less favorably than similarly situated individuals because only female employees received AWOL notices, had their warrants revoked, and were subjected to desk audits. Complainant further maintained that the Agency subjected her to reprisal with regard to the amended claims. Given these factors, Complainant asserted that she had provided enough evidence to survive summary judgment. 2020003547 6 Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 24, 2019, motion for a decision without a hearing on April 21, 2020. In finding in favor of the Agency, the AJ acknowledged Complainant’s frustration and concerns regarding the new OP Director’s efforts to reform the Office of Procurement; however, the AJ emphasized that Complainant’s disagreement with the OP Director’s changes to longstanding business processes was insufficient to demonstrate the existence of a discriminatory hostile work environment. The AJ ultimately concluded that Complainant failed to persuasively establish a causal connection between her age and the alleged discriminatory acts because “[t]he mere fact that Complainant and many of the other employees in her office were over the age of 50 will not give rise to an inference of discrimination under the evidence presented here.” See Combined Appeal File at 1411. The AJ also concluded that Complainant could not persuasively establish a causal connection based on race and sex because “the fact that Complainant was one of the few white employees and believes that women were treated more poorly than men, will not, without more, raise an inference of sex or race discrimination.” Id. Finally, the AJ rejected Complainant’s allegation of reprisal as the AJ determined that the OP Director’s actions were based on his desire to reform the office rather than to retaliate against Complainant for engaging in protected EEO activity. In so finding, the AJ emphasized that “[t]he mere fact that many of [the OP Director’s] actions with which Complainant disagreed occurred after she raised her EEO claims will not suffice to establish retaliatory motivation here.” Id. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in issuing a decision without a hearing in favor of the Agency. We will discuss her specific contentions, infra. The Agency opposes the appeal and requests that the Commission affirm its final order adopting the AJ’s decision. STANDARD OF REVIEW In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 2020003547 7 This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. In reviewing the AJ’s decision to grant the Agency’s motion, we must draw all justifiable inferences in Complainant’s favor. As discussed below, we find that AJ correctly determined that there were no genuine issues of material fact or credibility to merit a hearing. Disparate Treatment Claims For Complainant to prevail on claims c, g, i, j, l, m, n, s, t, u, v, x, y, z, aa, bb, dd, gg, and ii, concerning her allegations of disparate treatment discrimination, she must satisfy the three-part evidentiary scheme fashioned by the Supreme Court 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). 2020003547 8 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. To establish a prima facie case of disparate treatment on the basis 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. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132503 (Aug. 28, 2014), citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Assuming arguendo that Complainant established a prima facie case of discrimination on the alleged bases, we find that the Agency has articulated legitimate, nondiscriminatory reasons for the alleged actions. For claim c, regarding the denial of Complainant’s request to split her CDO, the OP Director acknowledged that he did in fact deny Complainant’s request; however, the OP Director asserted that the denial was based on Agency policy, which does not allow employees to split CDO days. See Combined Appeal File at 254. With regard to claim g, concerning the suspension of Complainant’s AWS on August 8, 2016, the OP Director stated that he temporarily suspended the AWS Program in August 2016 for all employees, including Complainant, “to maximize productivity and efficiency” due to “the number of requisitions not yet received.” See Combined Appeal File at 260-61 and 463. As for claim i, concerning Complainant’s request for federal budget processing training, the OP Director asserted that he required Complainant to submit an individual development plan (IDP) in order to attend the training because the office’s budget for Fiscal Year 2017 had not yet been approved, and the only way for the OP Director to approve Complainant’s request under the continuing budget resolution process was to tie the training to Complainant’s IDP. See Combined Appeal File at 263-64. Regarding claim j, the OP Director acknowledged that he marked Complainant as AWOL on October 18, 2016, because Complainant left work early without supervisory approval, and, when offered the opportunity to change the AWOL to annual leave, declined to do so. As for the AWOLs for October 24-26, both the OP Director and Associate Director denied marking Complainant as AWOL for the period between October 24-26, 2016, and attributed the AWOLs to a glitch in the system, which was subsequently rectified. See Combined Appeal File at 265-66. 2020003547 9 For claim l, concerning the revocation of Complainant’s contracting warrant and alleged demotion, the OP Director maintained that he revoked Complainant’s warrant because Complainant failed to timely execute the 25K lease. The OP Director emphasized that while the revocation of Complainant’s warrant meant that Complainant could no longer independently enter into contracts without supervisory approval, Complainant was never demoted and retained her GS-14 paygrade. See Combined Appeal File at 266-67. Concerning claim m, which pertains to the denial of Complainant’s request to have her Phase II training course count towards her certification, the record shows that the Associate Director denied the request because Complainant took the course over two years ago. See Combined Appeal File at 1170. As for claim n, regarding management’s decision to audit Complainant’s position, the Associate Director asserted that such action was needed in order to improve processes within the Office of Procurement and to bring Procurement into alignment with the mission and objectives of the Agency. See Combined Appeal File at 1172. With regard to claims s and t, concerning the letter of reprimand that the Associate Director issued to Complainant on January 13, 2017, the record reflects that the Associate Director reprimanded Complainant because Complainant failed to properly execute the 25K lease, engaged in unprofessional conduct by sending an inappropriate/rude email, and failed to follow supervisory instruction to not contact the GSA. See Combined Appeal File at 1179-84. The record further reflects that after Complainant filed a grievance challenging the reprimand, management reduced the reprimand to a letter of caution. Id. at 638 Concerning claims u, v, x, z, aa, and bb, which collectively pertain to the Associate Director’s alleged failure to provide Complainant with a training certificate, the record shows that on April 27, 2017, the Associate Director provided Complainant and the GSA a letter confirming that Complainant was in good standing as a Level II Lease Contracting Officer. See Combined Appeal File at 845-47. For claim y, concerning the OP Director’s allegedly abrupt denial of Complainant’s request to have her AWS day fall on the first Friday of the month, the OP Director maintained that to ensure mission readiness, he allowed seven employees to have an AWS day off on the first Friday of each month and allowed the remaining six employees to have the second Friday off. The OP Director emphasized that the assignments were based on the mission needs of the office and were not negotiable. See Combined Appeal File at 1124 and 1336-37 As for claim dd, concerning the OP Director’s denial of Complainant’s leave request on August 16, 2017, the OP Director maintained that he denied all discretionary year-end leave requests, including Complainant’s request, to ensure that “the year-end mission is achieved.” See Combined Appeal File at 1343. 2020003547 10 With regard to claim gg, concerning the second letter of reprimand that the Associate Director issued to Complainant, the record reflects that the Associate Director issued Complainant the reprimand because Complainant sent an email to Procurement staff detailing the health issues of an employee in the office. See Combined Appeal File at 1347-49. Finally, for claim ii, concerning the alleged deduction of eight hours of annual leave from Complainant’s timesheet, the Associate Director provided Complainant’s timesheet showing that no time was deducted. See Combined Appeal File at 635 and 1221. As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Indicators of pretext include, but are not limited to, discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). In arguing pretext, Complainant contends on appeal that the AJ’s issuance of a decision without a hearing was improper because the AJ failed to consider her comparative evidence, which, in her view, shows that the OP Director treated female employees less favorably by only issuing AWOL notices to them, revoking their warrants, and selecting them for a desk audit. Complainant further emphasizes that she was the only employee who received two letters of reprimand within a one-year time period. She contends that by identifying specific individuals outside of her protected classes who were treated more favorably, she met her prima facie burden, thereby precluding the issuance of a decision without a hearing. See Complainant’s Appellate Brief at 12-13. Furthermore, Complainant asserts that summary judgment was improper because she presented evidence demonstrating that the Agency’s articulated reasons were pretext for discrimination. In this regard, Complainant primarily reiterates the same version of events that she previously articulated; however, she focuses her appeal on the following claims. With regard to claim c, concerning the denial of her request to split her CDO, Complainant emphasizes that Agency policy “does not expressly forbid employees from splitting their days off.” See Complainant’s Appellate Brief at 15. She contends that the OP Director’s reliance on Agency policy as the basis for denying her request is false and pretext for discrimination. Id. As for claim g, concerning the suspension of her AWS, Complainant asserts that the OP Director had no right to suspend her AWS based on the office’s end of the fiscal year responsibilities because Agency policy allows managers to suspend an employee’s AWS only when that employee is in training and/or on travel status. See Complainant’s Appellate Brief at 15. 2020003547 11 Concerning claim i, which pertain to the denial of her request to attend federal budget process training, Complainant states that while the OP Director denied her request because it was deemed to be not relevant to her duties, the training was indeed relevant and part of her duties. See Complainant’s Appellate Brief at 15. With regard to claim j, concerning the OP Director’s decision to mark her as AWOL for leaving work early, Complainant acknowledges that she left work 30 minutes prior to the end of her tour; however, she maintains that the OP Director was well aware that she had left early because she did not take her lunch break. See Complainant’s Appellate Brief at 16. Regarding the revocation of her warrant on November 14, 2016, based on her alleged failure to properly execute the 25K lease (claim l), Complainant asserts that she expressly informed the OP Director why she could not move forward with the lease. However, the OP Director disregarded her explanation and revoked her warrant. Complainant maintains that “[t]his action was clearly unwarranted because [the OP Director] had to reissue it several months later in January 2017.” See Complainant’s Appellate Brief at 16. For claim n, which pertains to the Associate Director’s decision to subject Complainant’s position for a desk audit, Complainant asserts that management only audited her and another female employee. While Complainant acknowledges that management selected a male employee to a desk audit during the relevant period, Complainant argues that the male employee was not similarly situated to her because that individual worked as a Procurement Program Support Specialist.5 See Complainant’s Appellate Brief at 13. With regard to claim s, concerning the first letter of reprimand for failing to properly carry out her duties, Complainant asserts that the reprimand contains numerous false statements. For example, Complainant notes that in the letter, the Associate Director incorrectly referred to her as a “Lease Contracting Officer,” when in reality, she could not perform the duties of a Lease Contracting Officer as her warrant had been revoked. Complainant also asserts that she voiced concerns about the 25K lease, which, in her view, would have obliged the government to accept an “unmitigated rent hike.” Complainant maintains that the Associate Director only gave her about an hour to provide a detailed explanation regarding her concerns about the 25K lease. See Complainant’s Appellate Brief at 16-17. As for claim bb, concerning the denial of her request for Phase II training through FAITAS, Complainant acknowledges that the Associate Director denied her request to have her Phase II training course count towards her certification on the grounds that it had been completed two years prior; however, Complainant notes that she has continually “sought his approval of this training for years to no avail.” See Complainant’s Appellate Brief at 16. 5 Notably, the record reflects that the female comparator referenced by Complainant held the title of Purchasing Agent and was not a Lease Acquisition Manager like Complainant. See Combined Appeal File at 629. 2020003547 12 Concerning the denial of Complainant’s request for annual leave on August 16, 2018 (claim dd), Complainant disputes the OP Director’s assertion that a leave restriction was implemented to ensure the completion of year end goals. To the contrary, Complainant maintains that the OP Director allowed other employees to take leave but denied her the same opportunity. In support of her contention, Complainant points to Exhibit 11, contained in her opposition to the Agency’s motion for a decision without a hearing.6 See Complainant’s Appellate Brief at 11 and 17; see also Combined Appeal File at 1343. As for claim gg, regarding the second letter of reprimand for sending an email containing an employee’s private medical information, Complainant acknowledges that she sent an email stating that an employee’s “foot hurts.” However, Complainant maintains that her email did not contain any private medical information, as it only noted that the employee had minor foot pain. See Complainant’s Appellate Brief at 18. After careful consideration of the evidence of record, we find no persuasive evidence that the Agency’s articulated reasons were pretext for discrimination. The Commission has long held that agencies have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). Given the facts in this case, we find that Complainant has failed to show by the preponderant evidence that he was subjected to discrimination, as the record clearly reflects that the Agency had legitimate, nondiscriminatory reasons for its actions. We are unpersuaded by Complainant’s arguments for pretext. We ultimately agree with the AJ that the preponderant evidence tends to suggest than Complainant’s claims are largely based on her disagreement with the changes that the OP Director implemented to reform the office, and the manner in which the OP Director supervised employees. In reaching this conclusion, we specifically considered Complainant’s contention that the AJ failed to consider comparator evidence showing that management treated female employees less favorably; however, we do not find this contention to be persuasive. With regard to Complainant’s contention that management only marked female employees as AWOL, we note that Complainant admitted that she left work early because she did not take a lunch break. See Complainant’s Appellate Brief at 16. Complainant has not persuasively shown that management allowed individuals outside her protected classes to leave early by skipping lunch. As for the AWOLs from October 24-26, 2016, we note that management attributed these errors to a glitch. We find no persuasive evidence that the error was based on anything other than a glitch, and we note that Complainant does not refute that assertion on appeal. See Complainant’s Appellate Brief at 7. 6 Our review of Exhibit 11 shows that the OP Director denied Complainant’s leave request pursuant to his July 20, 2018, memorandum denying all discretionary leave. See Combined Appeal File at 1343. 2020003547 13 As for the revocation of Complainant’s warrant, we find that the record evidence establishes that the OP Director revoked all warrants so that he could conduct a top-down assessment of the office’s business processes. Though Complainant contends that only female employees had their warrants revoked, we find that she has not offered any evidence corroborating that assertion. See Combined Appeal File at 250. We also disinclined to find that management acted discriminatorily in issuing the letters of reprimand, as we find that Complainant has not persuasively refuted the underlying allegations of misconduct. Id. at 202-10 and 1244. With regard to the denial of her request for annual leave on August 16, 2018, we carefully review Exhibit 11 to determine whether management treated other employees more favorably; however, as discussed above, our review of Exhibit 11 shows that the OP Director denied Complainant’s leave request pursuant to his July 20, 2018, memorandum denying all discretionary leave. See Combined Appeal File at 1343. As Exhibit 11 fails to corroborate Complainant’s claim that other employees were treated more favorably, we conclude that Complainant cannot prevail on this claim. Finally, with regard to the desk audit, while we are mindful of Complainant’s contention that only female employees were audited, we note that management also audited a male employee during the same period. To the extent Complainant believes that the male employee was not similarly situated to her because he did not hold the same position as her, we note that the female comparator referenced by Complainant also did not hold the same position as Complainant. See Combined Appeal File at 1352. Our review of the record shows that Complainant’s managers stated that they selected several positions for audit to improve the business processes in the office. Id. at 681 and 733-34. We find no evidence that persuasively contradicts this assertion. Based on the totality of the record, we conclude that Complainant cannot prevail on her claims of disparate treatment. Hostile Work Environment Claim We turn now to Complainant’s hostile work environment claim. As an initial matter, we find that a finding of harassment is precluded on the remaining claims c, g, i, j, l, m, n, s, t, u, v, x, y, z, aa, bb, dd, gg, and ii, due to our determination that Complainant failed to establish that the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). To establish a claim of harassment on the remaining claims, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020003547 14 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). Further, the incidents must have been “sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). To prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See also Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). With regard to Complainant’s allegation that she was subjected to harassment, we will assume arguendo that the events occurred as Complainant described and were unwanted. However, we find that she has not shown that the conduct occurred because of her protected classes, and we find that the alleged instances of harassment were related to Complainant’s job duties or her conduct. To the extent that Complainant asserts that the OP Director and/or Associate Director acted unprofessionally towards her, we note that antidiscrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). We find that Complainant has not shown that the OP Director’s and/or Associate Director’s conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. We also find that the alleged conduct would not dissuade a reasonable person from making or supporting a charge of discrimination. Accordingly, we find that Complainant cannot prevail on her hostile work environment claim. 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 order. 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. 2020003547 15 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. 2020003547 16 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 November 8, 2021 Date