Sana I.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Nov 29, 2018

0120171376 (E.E.O.C. Nov. 29, 2018)

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

Sana I.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce,
Agency.

Appeal No. 0120171376

Agency No. 64201600169

DECISION

On March 2, 2017, 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
February 7, 2017, 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
the Agency’s final decision.

ISSUES PRESENTED

Whether Complainant established that she was subjected to discriminatory harassment constituting
a hostile work environment based on her sex and reprisal when: (1) on March 23, 2016, she became
aware of an error in the per diem rate that she had used on travel vouchers in February and March
2016, which resulted in overpayments to her, and after she informed a coworker (Coworker 1) of
the errors, she subsequently pulled some of Complainant’s past travel vouchers for review looking
for additional errors; (2) on March 30, 2016, her supervisor, (S1), informed her that her then
second-line supervisor (S2) was denying her request for Sunday travel on April 3, 2016, and her
travel the following weekend; (3) on April 4, 2016, another coworker (Coworker 2) informed
Complainant that she told S2 that she believed Complainant had made personal plans while she
was in Washington and that the “government should not have to pay for that.”; (4) in an April 7,
2016 “All-Hands meeting,” in front of approximately 100 staff members, S2 stated that “only the

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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person that makes a mistake on their voucher will go to jail.”; and (5) on April 11, 2016, S2
organized a meeting including male Regional Inspectors General and failed to invite Complainant
to the meeting.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Auditor, Regional
Inspector General for Audits, GS-0511-15 at the Agency’s Atlanta Regional Office, Office of
Audits and Evaluation, Office of Inspector General (OIG) facility in Atlanta, Georgia. On June
29, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her
based on sex as set forth above. The Agency denied discriminating against or harassing
Complainant due to her sex and maintained that any acts that it took were no more than routine
workplace decisions. 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. 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.2

Claim 1:

Complainant testified that she used to have an Administrative Assistant who prepared her travel
documents. However, she later had to complete this task herself and send her documents to an
Administrative Assistant not assigned to her. The new Administrative Assistant checked the
documents for errors and submitted them up the chain of command to S1 and S2 for approval.
Upon approval, the documents were placed in a folder accessible by two of Complainant’s
coworkers (Coworker 1 and Coworker 2) for processing. Complainant stated that she subsequently
discovered that she had used an incorrect per diem rate on a previous travel voucher when she
questioned the per diem rate that one of her subordinates submitted to her. Upon further review,
Complainant contacted Coworker 1 immediately to report the error.

Complainant alleged that Coworker 1 became upset and blamed the new Administrative Assistant
but, Complainant noted that neither Coworker 1 nor Coworker 2 caught the error and Coworker 1
had prepared one of the erroneous vouchers. Complainant stated that she thought one of her
coworkers would have corrected the error, and that she would reimburse the Agency for the amount
she had been overpaid.

Complainant stated that she later learned from S1 that Coworker 1 had pulled her prior travel
vouchers for review. Complainant asserted that she does not know what the results of the review
was but she maintained that Coworker 2 likely directed Coworker 1 to pull her prior vouchers
because Coworker 2 made comments about Complainant visiting friends and family and going on

2 The Agency dismissed Complainant’s claim that the Agency’s actions were also based on
retaliation.
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dates while on official travel to Washington. Complainant stated that she believed Coworker 2 was
hoping to uncover evidence of travel fraud on her part.

S2 testified that he had no direct involvement with any review of Complainant’s travel vouchers
and did not recall discussing any travel voucher reviews with other Agency officials other than
Coworker 1, with whom he had general conversations about her review and findings, but he did
not recall the scope of her review or the events as alleged by Complainant. Coworker 2 denied the
alleged conversations as described by Complainant. She stated that it was Complainant who
expressed frustration at being questioned about her travel vouchers and indicated that S2 was
harassing and discriminating against her. According to the Agency, the applicable procedures
were followed to address errors in Complainant’s voucher that were previously unrevealed.

Claim 2:

Complainant testified that she had to be in Washington for a week-long conference, and because
her first meeting was at 9:30 a.m., on Monday, she requested to travel the preceding day, a Sunday.
She also stated that she had proposed working at headquarters in Washington all day the following
Friday, and returning to Atlanta on Saturday. Complainant stated that S1 was aware of her plans
and had approved her travel order.

Complainant stated that she later learned that S2 had denied her weekend travel requests and would
only approve the week-day portions of the request. Complainant stated that she informed S1 that
she felt like this decision was retaliatory, and believed S2 had been influenced by Coworkers 1
and 2; and that she opted to cancel her travel and call in to the meeting.

Complainant alleged that her weekend travels had never been previously questioned; and that four
male Auditors who reported to her were permitted to travel on the weekend and operate from
Headquarters as she had requested; and that one of those employees received leave approval on
the trip while her social engagements were questioned by S2.

S1 did not dispute Complainant’s description of this incident and stated that he had no explanation
for S2’s denial of Complainant’s weekend travel request which was allowable as she had a meeting
that met the business need requirement.

S2 stated that he questioned Complainant’s travel because she had requested to travel on Sunday
and return the following Sunday. He explained that, consistent with Agency travel policy,
Complainant had been asked to provide a business reason for the weekend travel; and that he
neither approved nor denied her request because he learned that Complainant had opted to cancel
her trip. S2 added that he had previously approved weekend travel for Complainant when there
was a business need; he had never denied her travel request or orders; and that he was not the
approving official for the travel orders of the 4 male employees mentioned by Complainant.

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Claim 3:

Complainant alleged that Coworker 2 habitually meddled in her personal life, asking about her
personal plans during non-work hours. She stated that that Coworker 2 is bothered by the fact that
she is female, and that she lived previously in Washington. Complainant alleged that Coworker 2
telephoned her to pry into the reason she canceled her trip. During the discussion, she expressed
her frustration with Coworker 2 meddling in her travel arrangements and her personal life.
Complainant stated that in response, Coworker 2 stated that she had informed S2 of her belief that
Complainant had personal business in Washington, and the government should not have to pay for
it. Complainant asserted that Coworker 2 made the comment to S2 to discriminate against her
based on her sex.

Coworker 2 asserted that she and Complainant were friends who shared information about their
personal life and socialized after duty hours when Complainant was in Washington. She stated that
she was unaware of Complainant’s plan to travel to Washington for the week in question. She
asserted that she called Complainant asking why she did not come to Washington. Coworker 2
asserted that Complainant curtly responded that she canceled the trip because she was tired of S2
and Coworker 1 questioning her travel. Coworker 2 stated that Complainant did not accuse her of
meddling in her personal life.

Coworker 2 denied that she made any comment to S2 that she believed Complainant had personal
business in Washington, for which “the government should not have to pay.” Further, she asserted,
and S2 concurred, that she did not make any comments to S2 regarding Complainant’s personal
life or suggested Complainant was seeking reimbursement from the government for personal plans
while on government travel.

Claim 4:

Complainant testified that S2 convened an all-hands meeting with approximately 100 attendees.
She alleged that during the meeting, S2 raised the issue of travel documents and stated that
administrative support staff and reviewers would not be accountable for errors, but the person who
prepared the documents would “go to jail.” Complainant stated that based on S2’s tone of voice,
she did not perceive the comment to be a joke because it was evident to her and others that the
comment was directed at her, and that S2 repeated it three times. Complainant stated that one of
her subordinates texted her during the meeting and someone else commented on it afterwards.

S2 explained that the meeting was in follow up to a reminder that all staff ensure that travel
vouchers be complete and correct before they were submitted for payment. He understood that
several vouchers had been returned because of missing information and/or errors. He stated that
none of Complainant’s vouchers were among those returned, and the reminder was not directed at
her.

S2 stated that he reminded those present at the meeting that the traveler is ultimately responsible
for what is in the voucher; and that he made a “light-hearted” comment about how the person who
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made the error would be the one to go to jail but the remark was not about Complainant and he is
unaware that anyone took his comment at face value or perceived that it was about her.

Claim 5:

Complainant testified that S2 convened a meeting to discuss audit related work involving the
Census Bureau and that 4 males attended. She stated that S2 later informed S1 that Complainant
was not invited because S1 was there. Complainant stated that this made no sense to her because
two (2) other employees were at the meeting with the first line supervisors.

S2 asserted that he did not invite Complainant because he did not anticipate that her office would
be doing Census audit work. He stated that the discussion at the meeting drifted into a discussion
about audit work for the Patent and Trademark Office (PTO); and that S1 was free to invite
Complainant to the meeting if he thought she should have been present. He also stated that there
was a female employee at the meeting; it was not only male employees who were invited.

S1 mostly agreed with S2, explaining that he did not feel the need to invite Complainant based on
the meeting’s agenda; and that she was in fact invited to the PTO meeting, scheduled for the
following day but it was cancelled.

CONTENTIONS ON APPEAL

In her appeal brief, Complainant, among other things, reiterates her allegations and contends that
regarding her assertion of retaliation, she contacted the EEO office because she felt unsafe around
one of her employees; and that though she did not file a complaint at the time, she had contacted
the EEO office and had thus engaged in protected activity. Therefore, the Agency erred in
dismissing her reprisal claim.

The Agency reiterates its assertion that Complainant failed to establish discriminatory animus or
established that she was harmed by any of management’s actions. The Agency also stated that the
dismissal of Complainant’s reprisal claim should be affirmed because Complainant did not allege
that she was subjected to reprisal for her current EEO activity or that she was retaliated against for
opposing any unlawful practice, and because Complainant did not allege that she previously
contacted an EEO counselor concerning discrimination on any basis.

The Agency also maintains that Complainant’s alleged 2014 contact with the “EEO office” is not
a sufficient basis for finding that she engaged in protected activity because her contact with the
office was unrelated to the administrative process established by Title VII and was not
“participation” under EEOC regulations and guidance; and that too much time had elapsed
between the contact with the EEO Office in November 2014, and any alleged adverse Agency
actions at issue in this case.

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STANDARD OF REVIEW

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).
ANALYSIS AND FINDINGS

At the outset, we note that given the Commission’s broad interpretation of retaliation claims, for
purposes of this decision only, we will assume, arguendo, that Complainant established a prima
facie case of retaliation discrimination.

To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant
must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing 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). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears
the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered
by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

To meet her burden of proving that the Agency’s actions were pretextual, Complainant needs to
demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in
the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No.
0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir.
2014).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
sex and reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its
actions with regard to claims 1, 2, and 5. We further find no persuasive evidence of pretext or
discriminatory animus in this case. For the most part, Complainant asserted that her coworkers
treated her as if she had attempted to defraud the government; however, other than Complainant’s
assertions about the voucher review process, there is no persuasive evidence that her sex or
previous EEO activity played any role.

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Complainant also asserted that she received less favorable treatment because her weekend travel
request was denied but three male employees received approval for their weekend travel. However,
the record indicates that the three male employees whose weekend travel requests were approved
were not similarly situated to Complainant because the chain of approval for their travel requests
were not the same as Complainant’s. Also, S2 did not deny her request, but merely raised
questions. Complainant decided to cancel the request on her own. Given that her previous requests
had not been questioned or denied, we do not find that the circumstances surrounding this one
request is sufficient to indicate discrimination based on sex or reprisal.

Finally, we note Complainant’s assertion about the meeting to which she was not invited and which
was attended by male comparators; however, the record also indicates that a female was present at
that meeting. Moreover, Complainant was invited to attend a meeting the next day where her
expertise was needed, although the meeting was cancelled. Consequently, we find no persuasive
evidence of pretext or of discrimination here.

With respect to Complainant’s hostile work environment claim regarding claims 1, 2, and 5, we
find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that
Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile
work environment is precluded by our determination that Complainant failed to establish that any
of the actions taken by the Agency regarding claims 1, 2, and 5 were motivated by discriminatory
animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21,
2000).

With respect to Complainant’s claims 3 and 4, we find that even if these matters occurred exactly
as alleged the conduct as described did not rise to the level of severity and pervasiveness that
would have negatively impacted the terms and conditions of Complainant’s employment or
constitute a hostile work environment, nor do we find any persuasive evidence that Complainant’s
sex or prior EEO activity play any role.

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 because the preponderance
of the evidence in the record does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency 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.
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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 29, 2018
Date