Sherill S.,1 Complainant,v.Michael R. Pompeo, Secretary, Department of State, Agency.

Equal Employment Opportunity Commission

Apr 9, 2019

0120182006 (E.E.O.C. Apr. 9, 2019)

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

Sherill S.,1
Complainant,

v.

Michael R. Pompeo,
Secretary,
Department of State,
Agency.

Appeal No. 0120182006
Agency No. DOS022217

DECISION

On May 31, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
May 14, 2018, 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 the final agency decision (FAD) correctly found that Complainant failed to establish that
she was discriminated against in reprisal for prior EEO activity when:

1. On or around June 19, 2017, she was issued a Letter of Reprimand;
2. She was subjected to a hostile work environment, characterized by, but not limited to
yelling and an aggressive tone from her supervisor; and
3. Management issued her a delayed mid-year review that included improper comments.2

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 Initially, Complainant’s formal complaint also included the basis of age; however, because
Complainant was 38 years when she filed her complaint, and the statutory age limit for filing an
age discrimination claim is 40, the Agency dismissed age as a basis on the grounds that it failed to
state a claim in accordance with EEOC regulations.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial
Management Specialist, GS-11 at the Agency’s Foreign Service Institute facility in Arlington,
Virginia. On August 7, 2017, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 as set forth above.

Claim #1:

Complainant alleged that the Senior HR Specialist (HR1) issued her a Letter of Reprimand (LOR)
for failure to follow instructions and inappropriate behavior. Complainant declared that her first,
second and third level supervisors (S1, S2, and S3) were not named in the letter; and that it was
signed by a manager with whom she has never spoken.

She asserted that the LOR contained numerous factual errors; and that she was unaware of some
of the situations cited in the letter and disagreed that she failed to follow instructions or that she
behaved inappropriately.

Complainant alleged that the LOR was issued as reprisal for her EEO complaint because S1 was
already aware of the EEO activity and must have provided the information used in the letter.

S1 explained that after consulting with S2, she made the decision to issue the LOR to Complainant;
and that the LOR was signed by the Executive Director of the Foreign Service Institute and was
given to Complainant by the Acting HR Director at the Institute, HR1. S1 declared that the LOR
was issued because of Complainant’s failure to follow instructions and inappropriate behavior
toward customers, colleagues and her supervisor. S1 provided several specific examples in support
of the letter, including that they received several complaints about Complainant’s customer
service; that Complainant failed to follow proper timekeeping procedures for an employee; she
failed to follow instructions regarding an attendance roster; and that she had been insubordinate to
S1 and failed to take administrative action as directed.

S1 added that both she and S2 met with Complainant after receiving one of the customer
complaints and then again, a week later to discuss other customer complaints and office
requirements; and that the remaining issues were addressed either by email or in person at the time
they occurred or shortly thereafter. S1 indicated that she stressed to Complainant that customer
service was a top priority; and that in response, Complainant blamed one customer, asked for the
assertions and identities of other customers who complained, and argued with S1 regarding the
administrative direction being given to her.

S1 denied that the LOR was issued in response to Complainant’s EEO activity. She stated that her
actions, including discussing Complainant’s performance with HR, initiating the LOR discussion,
drafting the LOR, and sending it to HR took place at least one month prior to Complainant’s EEO
activity.
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S2 confirmed S1’s explanation and explained that she met with Complainant about a customer
complaint and provided guidance to her about how to provide better customer service; and that she
also discussed with Complainant her removal of S1’s access to a computer program, and believed
that Complainant provided her with incorrect information during their discussion.

S2 denied that Complainant’s EEO activity was a factor regarding the LOR and explained that the
LOR was initiated prior to that activity.

In her rebuttal, Complainant reiterated many of her allegations, denied some of the conduct at issue
(incorrect timekeeping, poor customer service), clarified some of her conduct, explained that the
meeting with S1 and S2 was at her request to discuss S1’s undermining of her, and asserted that
HR1 was aware of her EEO activity prior to presenting her the LOR.

Claim #2:

Complainant asserted that over a nearly three-week period, S1 created a hostile work environment
by yelling at her and using an aggressive tone including yelling at her regarding her timekeeping
duties; using a shouting tone to tell her that it was rude not to respond when someone says good
morning; and shouting at her to not change her STARS access again. Complainant maintained
that she told S1 to stop being so aggressive and unprofessional.

Complainant alleged that two employees twice witnessed S1 yelling at her; and that S1 used an
aggressive tone with her when discussing a customer’s request for records. She explained that S1
emailed her about the same incident and then spoke with her again.

Complainant declared that S1 accused her of having an attitude, to which Complainant responded
that she felt she was being harassed and asked S1 to stop; and that S1’s yelling caused her extreme
stress. Complainant also asserted that S1 was upset with her after a counseling session that
included S2. Complainant alleged that S1 was upset with her each time she met with someone
senior to S1.

Complainant attested that she reported the hostile work environment to S2 and the Chief of Staff.
She contended that the Chief of Staff advised her to contact HR and S2 asked to meet with her.
Complainant alleged that while she was speaking with S2 about the harassment, S2 rolled her eyes
at Complainant and stated that she would speak with one of the witnesses.

S1 denied that Complainant told her that her actions were harassing. She explained that she had
to assist a customer after Complainant failed to provide assistance but denied that she raised her
voice with Complainant at any time during their conversation. She also denied Complainant’s
other allegations including that Complainant accused her of harassment or asked her to stop.

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Regarding the removal from STARS, S1 explained that it was the third time Complainant had
improperly removed her access and that she told Complainant it was unacceptable, and it should
not happen again. She denied shouting or raising her voice at Complainant when she spoke with
her.

S1 asserted that she became aware of Complainant’s allegations of harassment when Complainant
emailed her and S2; and that S2 investigated and determined that no harassment occurred. She
denied harassing Complainant and reiterated that she initiated the LOR about one month prior to
Complainant’s claims of harassment.

S2 explained that, among other allegations, Complainant had indicated that she felt harassed
regarding an issue with STARS, although S2 described the incident as a failure or refusal of
Complainant to notify her supervisor that a specific action had been taken as directed. She attested
that Complainant told her that S1 had shouted at her regarding her STARS access but did not
mention a hostile work environment at that time. She indicated that no corrective action was taken.

In her rebuttal, Complainant reiterated her allegations that S1 shouted at her and attempted to make
Complainant say good morning to her. Complainant denied that S2 followed up with her after she
identified two witnesses to S1’s behavior. Complainant asserted that she told S2 each time S1 was
aggressive but that S2 took no action until Complainant involved the Chief of Staff. She disputed
the testimony of the witness who denied any knowledge of meeting with S2 and denied becoming
upset with her. Complainant asserted that she spoke with HR1 regarding S1’s treatment of her,
but that HR1 denied this assertion.

Claim #3:

Complainant testified that her mid-year review was not completed until almost one month after it
was due; and that S1 added negative information to the comments section, including customer
complaints and the LOR. Complainant denied that the negative information was accurate and
noted that the information was not discussed during the mid-year review meeting.

She asserted her EEO activity was a factor because S1 added some of the complaints from the
EEO complaint process to the mid- year review; and that her coworkers were treated more
favorably because they received their mid-year reviews as scheduled.

S1 explained that Complainant’s mid-year review was not delayed; and that it was completed
within the required 30 days of the mid-point of the appraisal period, the same as the other
employees in the office.

She denied Complainant’s allegations that the review included improper comments, explaining
that the negative comments on Complainant’s review were a result of numerous complaints by
customers and colleagues and, despite S1’s attempts to resolve these concerns, Complainant has
refused to correct her behavior.
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Specifically, S1 included a comment about unanswered emails because she had documentation to
support this concern, including emails from customers reminding Complainant that they needed
an answer. She denied that the review included a statement that Complainant’s training was not
up to date but indicated that she included a comment that Complainant inappropriately deleted
emails because Complainant failed to follow instructions regarding this issue. S1 declared that
many of the incidents cited in the mid-year review occurred prior to Complainant’s allegations of
harassment.

In her rebuttal, Complainant asserted that her mid-year review was due in June but that S1 emailed
her on June 14th informing her that the review will be delayed until July; and that she received her
review at the end of July. Complainant denied allowing emails to go unanswered for several days
or a week and denied that S1 had ever mentioned that to her. Complainant denied deleting emails
from the shared folder except those that had already been saved to the shared drive.

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.

CONTENTIONS ON APPEAL

In a handwritten note on appeal, Complainant reiterates her allegations of discrimination.

The Agency did not submit an appeal statement.

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

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.
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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).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal; we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.

Management explained, and the explanation is supported by record evidence, that the LOR
discussion had been initiated, and the LOR had been drafted weeks before Complainant contacted
the EEO Counselor and days before she accused S1 of harassment. Additionally, S1 provided
detailed reasons for initiating the LOR, including Complainant’s failure to provide the expected
required level of customer service, Complainant’s failure to take direction and Complainant’s
failure to behave appropriately with her supervisor and customers.

S1 asserted that Complainant’s mid-year review was done within the same timeframe as the other
employees she supervised; and Complainant identified no similarly situated comparators nor did
she provide any evidence to refute S1’s assertion that other employees were not treated more
favorably than she with regard to the timing of their mid- year reviews. S1 also denied
Complainant’s allegations that her review included improper comments. S1 provided
documentation and testimony, with specific examples and context, in support of the comments she
placed on the review.

In an effort to show pretext, Complainant asserted that the LOR was given to her after she
complained of harassment; and to show that the mid-year review was inaccurate and created in
retaliation, she asserted that S1 included some of the complaints from the EEO process. However,
S1 declared that many of the incidents cited in the mid-year review occurred prior to
Complainant’s allegations of harassment; and the record evidence supports management’s
explanation that the LOR was initiated and drafted weeks before Complainant contacted the EEO
counselor. Therefore, Complainant has failed to establish that her EEO activity played a role.

To establish a hostile work environment claim, a complainant must show that: (1) they belong to
a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on their statutorily protected class; (4) the harassment affected a term or condition of
employment and/or had the purpose or effect of unreasonably interfering with the work
environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there
is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter
the conditions of [complainant’s] employment and create an abusive working environment.”
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Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be
evaluated from the objective viewpoint of a reasonable person in the victim’s
circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No.
915.002 at 6 (Mar. 8, 1994).

S1 denied that she used an aggressive tone or yelled at Complainant; and the witness testimony on
this point varied. Assuming, arguendo, that Complainant correctly described S1’s behavior
towards her, we find no persuasive evidence that the conduct was based on Complainant’s EEO
activity. As noted above, the incidents alleged by Complainant occurred prior to her EEO activity
and, as such, could not have been in response to it. The Commission notes that Title VII is not a
civility code. Rather, it forbids “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).

Moreover, Complainant has failed to describe any other situation in which she was subjected to
unwelcome verbal or physical conduct involving her protected class or that was so severe or
pervasive that the terms of her employment were negatively impacted. Rather, the evidence shows
that S1 was performing her supervisory duties in her role as Complainant’s supervisor; and that,
consistent with Agency policies, S2 took immediate action to address Complainant’s harassment
allegations as soon as she was made aware of them. As Complainant did not request a hearing, we
do not have the benefit of an Administrative Judge’s credibility determinations after a hearing;
therefore, we can only evaluate the facts based on the weight of the evidence presented to us. We
therefore find that complainant’s allegations are not supported by the totality of the evidence and
she has failed to present any persuasive evidence that would support a different outcome.

CONCLUSION

Accordingly, we AFFIRM the Agency’s FAD.

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.
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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.
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.

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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

April 9, 2019
Date