Susan F.,1 Complainant,v.Jeff B. Sessions, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Sep 13, 2018

0120162043 (E.E.O.C. Sep. 13, 2018)

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

Susan F.,1
Complainant,

v.

Jeff B. Sessions,
Attorney General,
Department of Justice
(Drug Enforcement Administration),
Agency.

Appeal No. 0120162043

Hearing No. 570-2014-00485X

Agency No. DEA-2011-00220

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 2, 2016 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq.

BACKGROUND

On February 2, 2011, Complainant filed an EEO complaint claiming that she was subjected to
disparate treatment and a hostile work environment based on race (Black), disability (perceived
mental), and reprisal (opposing a hostile work environment in January 2008) when:

(1) she was held to different standards than other employees while working in Pakistan;

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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(2) she was reassigned from Pakistan as an Administrative Officer, GS-12, to an
Administrative Support Specialist in the Foreign Personnel Support Unit;

(3) her repeated requests for a curtailment/reassignment, and her request to be converted
from “over hire” status to permanent status, were delayed by Drug Enforcement Agency
(DEA) management and human resources staff;

(4) the Chief of the Foreign Personnel Support Unit made comments about “people going
around threatening to blow their brains out” while pointing his index finger with his thumb
pointed upward to the side of his head. He also told Complainant numerous times that,
“we don't reassign problems” and that “you need to go to the Employee Assistance
Program” before he would consider reassigning her; and

(5) management officials threatened to write her up if she refused to perform a co-worker’s
duties as the Foreign Training Program Manager.

A prior appellate decision reversed the Agency’s dismissal of Complainant’s complaint, finding
that the Agency improperly defined the complaint and that Complainant’s claims were timely and
stated a claim. See EEOC Appeal 0120120897 (May 9, 2013). The case was remanded for an
investigation. After the EEO investigation was completed, Complainant timely requested a
hearing before an EEOC Administrative Judge (AJ). After written discovery was completed but
before her deposition took place, Complainant withdrew her request for a hearing. Accordingly,
on June 1, 2015, the matter was returned to the Agency for issuance of a final decision. The
Agency issued a final Agency decision in which it found that Complainant had not established that
she had been discriminated against or subjected to a hostile work environment.

FACTUAL BACKGROUND

On February 19, 2006, Complainant was promoted from a GS-9 Administrative Support Specialist
in the DEA Vienna, Austria, Country Office (VCO) to the GS-11 Administrative Officer (AO) in
the DEA Islamabad, Pakistan, Country Office (ICO). On July 8, 2007, Complainant received a
temporary promotion to GS-12 (not to exceed three years) because ICO was considered a “critical
threat post” and one of the most difficult and stressful countries in which to work. Complainant
asserts that shortly after her first-line supervisor (S1A) came on board in June 2007, he began to
make comments about her work, despite observing her work habits, and made derogatory
comments about the work habits of Complainant’s predecessor (C1) who was also African-
American. Complainant claims that S1A also indirectly compared C1 to her but did not treat the
other employees in the office the same way. Complainant asserts that S1A held her responsible
for an ineffective administrative staff and for not making efforts for administrative requirements
to be up to standard when she was absent from the office during the October 2007 to January 2008
time-frame. Complainant further asserts that she was held to a higher and different standard than
administrative assistants in her office and blamed for the administrative deficiencies.

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From mid-October to mid-November 2007, Complainant took six weeks of Rest and Relaxation
leave in the United States, to which Agency employees in foreign offices are entitled. From
December 16, 2007 to January 3, 2008, Complainant was on a non-emergency medical evacuation
(MedEvac) to Washington, D.C., for a medical procedure. While she was away, she failed to
inform her supervisors of her expected return date. Complainant returned to the ICO on January
4, 2008, where she received a January 2, 2008 memorandum (Inspection Memo) from S1A. The
Inspection Memo advised Complainant that despite a November 2007 memorandum that S1A had
sent to all ICO and DEA Peshawar Resident Office (RO) employees directing them to conduct a
self-inspection in preparation for a spring 2008 official DEA inspection, many administrative
matters in the office were still in disarray. As a result, S1A directed Complainant to formulate a
strategy within 35 days to correct the administrative deficiencies, including many unfiled papers,
for which Complainant, as the ICO AO, was responsible. Around the same time, Complainant
learned that the Administrative Assistant (AA1) (Pakistani/non-Black) was resigning her position
and thus no longer would work at the ICO to assist Complainant.

On January 14, 2008, Complainant e-mailed a memorandum, entitled Request for Reassignment
(PCS) to Headquarters (Curtailment Request Memo), to the then-Chief of the Agency Foreign
Administrative Support Section (CFASS). Complainant wrote that even though she requested a
tour renewal in the ICO on August 8, 2007, it was impossible to continue to work in the ICO due
to a “hostile work environment” that she had been enduring for “several months.” Complainant
also claimed that she suffered “hair loss, severe chest pains, and sleep deprivation.” Complainant
requested a permanent change of station to Agency Headquarters in Arlington, Virginia.

The following day, January 15, 2008, Complainant forwarded her Curtailment Request Memo to
her second-level supervisor (S2) and her third-level supervisor (S3). S3, who was stationed in the
DEA Ankara, Turkey, Country Office (ACO), returned from temporary (TDY) travel on January
23, 2008, when he received Complainant’s Curtailment Request Memo. On that same day, S3
directed Complainant to provide a written detailed account of all incidents supporting her
allegation of a hostile work environment “to include dates, times, locations, individuals involved
and any actions that [she] construe[s] as being a hostile work environment.” On January 31, 2008,
Complainant e-mailed S3 a 10-page, single spaced memorandum that included 14 attachments
(HWE Memo). Complainant’s memorandum outlined numerous instances, between June 2007
and January 2008, of work-related disagreements with ICO co-workers and management, but did
not indicate the basis of her complaints other than noting that management was biased against her.

S3 conducted a multi-day investigation, between February 1 and February 4, 2008, in which he
traveled to and visited the ICO. During those visits, S3 interviewed every employee in the office
and asked whether the employees witnessed or heard of any discriminatory activities suggesting a
hostile work environment. None of the employees attested to exhibiting, observing, or hearing
such behavior. Instead, most noted that Complainant herself was “hostile” to her co-workers,
regularly yelling at them, hurling numerous insults about their work, throwing papers, generally
creating angst and disruption in the office, and exhibiting erratic behavior that some characterized
as bi-polar.

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The employees also told S3 that they believed that Complainant was not doing her job. S1 and S2
informed S3 that Complainant’s claims of a hostile work environment were based on their actions
to correct many of her performance deficiencies and because AA1 was resigning and no longer
could assist her. Based on his review, S3 concluded that Complainant’s hostile work environment
allegations were baseless.

However, S3 was concerned about two references to suicidal ideation in Complainant’s HWE
Memo.2 S3 was concerned about Complainant’s suicidal threats because of the stressful
environment working and living essentially in a war zone and because the day after Complainant
sent her HWE Memo, he and Islamabad U.S. Embassy personnel attended a eulogy service for a
U.S. Immigration and Customs Enforcement (ICE) Special Agent, who recently committed
suicide.

Upon reading Complainant’s HWE Memo on January 31, 2008, S3 immediately tried to contact
Complainant to discuss the memorandum and confirm that she was safe. Although security guards
confirmed that Complainant was in her residence, she did not answer her home telephone or her
ICO-issued cell phone. As noted, the next morning, February 1, 2008, S3 traveled to the ICO to
attend the ICE memorial service and to interview personnel, over several days, about
Complainant’s claims of a hostile work environment. Directed by S3, S2 sent ICO personnel to
Complainant’s residence to check on her, but she would not come to the door, despite confirmation
by security officials that she was home. After being briefed, the Islamabad Embassy Deputy Chief
of Mission (DCM) expressly “ordered [Complainant] out of the country immediately on a medical
[evacuation] for evaluation.” Complainant was amenable to leaving the country.

On February 11, 2008 S3 sent an email (S3 Curtailment Request) requesting Complainant’s
curtailment to the Chief of the Office of International Operations (COIO) and the Agency Chief
Inspector stating, “[b]ased on my management review, I have requested a curtailment of
[Complainant’s] tour, not based on a hostile work environment, but predicated on a series of
management issues and performance deficiencies [due to Complainant’s] emotional state and the
corresponding behavior [that] has placed undue stress on her, her co-workers and has had a
cumulative detrimental effect on the office.”

Complainant left Pakistan on February 12, 2008 pursuant to the MedEvac. On March 3, 2008, the
MedEvac process had concluded and Complainant was reassigned to a TDY position assisting
with the Training and Passport/Visa Program at Agency Headquarters. On March 4, 2008,
Complainant met with the Chief of Employee Relations and Health Section in the Human
Resources Division (HRD) (CER). CER informed Complainant that she was to work TDY in the

2 Specifically, Complainant recounted an early-October 2007 incident in which she complained
that AA1 had unnecessarily duplicated Complainant’s work on a project and wrote: “I wanted to
put a gun to my head that very moment.” The second reference to suicidal ideation was found in
a September 6, 2007 email attachment where Complainant objected to the alleged ineptitude of
AA1 and concluded by writing, “I’m this close to blowing my brains out. I need help!!!”
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Foreign Administrative Support Office until the Career Board rendered a decision regarding S3’s
curtailment request.

On May 15, 2008, the Career Board voted to curtail Complainant’s foreign assignment in the ICO
and transfer her to the Agency Headquarters Foreign Administrative Support Section (FASS).
Accordingly, the next day (May 16, 2008) Complainant was officially transferred with her grade
reduced to her former pre-temporary-promotion grade (GS-11). Insofar as there was no vacant
slot noted on the Table of Organization for that section, Complainant was placed in an “over hire”
positon (i.e., a temporarily created position to keep her at Headquarters until a vacancy was
available). Complainant reported directly to the then-Chief of the Foreign Administrative Support
Section until his retirement in July 2008, at which time the new Acting Chief of FASS (S1B)
became her direct supervisor for approximately the next two years. During that time-frame
Complainant received Excellent ratings on her performance appraisals from S1B. In
approximately July 2010, the new Acting Chief of FASS (S1C) became Complainant’s direct
supervisor. On April 24, 2011, Complainant was placed into a permanent position and promoted
from GS-11 to GS-12 in FASS. On August 27, 2012, Complainant was promoted to a GS-13
Assistant AO position in the Agency’s Office of Training in Quantico, Virginia.

ANALYSIS AND FINDINGS

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”).

To prevail in a claim of disparate treatment absent direct evidence of discrimination, Complainant
must satisfy the three-part evidentiary scheme fashioned by the Supreme Court. 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. St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993); Prewitt v. U.S. Postal Ser’v., 662 F.2d 292 (5th Cir., 1981).

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Race Discrimination Claim

We find that the preponderance of the evidence does not support Complainant’s claim of race
discrimination.3 The record supports the conclusion that none of Complainant’s coworkers in ICO
and RO were similarly situated to Complainant. AA1 was a personal-services-contract employee
designated as a GS-11 Administrative Assistant. The other employee who Complainant asserts
was treated more favorably was a GS-9 Administrative Support Specialist (AA2) who was
stationed in RO but who sometimes worked TDY in ICO. The undisputed record shows that each
employee had different responsibilities from those of Complainant, who was a GS-12
Administrative Officer, and to whom they reported. The record shows that Complainant had more
demanding duties than AA1 and AA2 since she was the GS-12 Administrative Officer responsible
for all administrative matters in the ICO and was a manager. Since Complainant neither disputes
these facts nor presents evidence of specific instances of racial animus, there is insufficient
evidence of discrimination with respect to this allegation.

Reprisal

A complainant may establish a prima facie case of reprisal by showing 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); Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318.
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Dep't of Veteran Affairs, EEOC
Request No. 05960473 (Nov. 20, 1997). The Commission’s policy on retaliation prohibits any
adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a
complainant or others from engaging in a protected activity. See EEOC Enforcement Guidance
on Retaliation and Related Issues, No. 915.004 (Aug. 25, 2016).

We find insufficient evidence in the record to establish a prima facie case of reprisal. We agree
with the Agency that the record fails to establish that Complainant’s hostile work environment
complaint as articulated by the HWE Memo, constituted protected EEO activity. The record shows
that Complainant’s first EEO protected activity occurred on September 17, 2010, when she
initiated EEO contact in this case. Accordingly, Complainant’s reprisal claim can only pertain to
the events that took place after September 17, 2010. Assuming the responsible management
officials were aware of Complainant’s EEO activity at that time, the record is devoid of evidence
establishing retaliatory animus on the part of any such management official. Accordingly, we
affirm the Agency’s decision with respect to such claims.4

3 Complainant’s race discrimination claim pertains solely to Claim 1. However, to the extent that
Complainant asserts otherwise on appeal, the record is devoid of evidence of race discrimination
with respect to any other claim herein.
4 We note that on March 1, 2008, Complainant contacted the EEO Staff at Agency Headquarters
to discuss filing an EEO complaint. Complainant was informed by the EEO Staff that because her
tour of duty was overseas in Pakistan and because DEA did not have counselors stationed overseas,
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Perceived Disability

To establish a disability claim, Complainant must first establish that she is a “qualified individual
with a disability” within the meaning of the Rehabilitation Act. An “individual with a disability”
is one who has a physical or mental impairment which substantially limits one or more of such
person’s major life activities, has a record of such an impairment, or is regarded as having such an
impairment. “Major life activities” are functions, such as caring for one’s self, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R.
§ 1614.203(a)(3).

We find insufficient evidence in the record to establish a prima facie case of disability
discrimination. Specifically, we find the record devoid of evidence that any responsible
management official regarded Complainant as substantially limited in any major life activity.5 We
note that the general assumption or suggestion that Complainant is “crazy” or “emotionally
unstable” is not by itself sufficient to establish a perception that she has a substantially limiting
impairment. See Dedonatis v. U.S. Postal Ser’v, EEOC Appeal No. 01901915 (July 5, 1990); see
also EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric
Disabilities, EEOC Notice No. 915.002 (1997); Bilby v. Department of Defense, EEOC Appeal
No. 01934204 (July 5, 1994) (noting that even if Complainant was believed to have mental
problems, such view, without more is insufficient to establish that she was viewed as having a
substantially limiting impairment).

We note that as Complainant chose to withdraw her request for a hearing with an EEOC AJ, we
do not have the benefit of the further development of the record that would have been afforded had
there been a hearing after which an AJ could have made findings of fact or determinations of
credibility. Therefore, based on the record before us, we conclude that Complainant did not
establish that she was discriminated against as alleged.

CONCLUSION

Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we
conclude that the Agency correctly determined that the preponderance of the evidence did not

she should contact the U.S. Department of State to seek and pursue EEO Counseling. Complainant
did not pursue her complaint with the Department of State nor did she follow-up with DEA at that
time. On August 30, 2010, Complainant again contacted the EEO Staff, DEA, at Headquarters, to
discuss pursuing an EEO complaint. On September 17, 2010, Complainant contacted an EEO
Counselor, and her initial interview took place on October 17, 2010.
5 The record is devoid of medical information to which any responsible management official could
have considered to be substantially limiting.
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establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we
AFFIRM the Agency’s final decision.

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.
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Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means
the national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

September 13, 2018
Date