2024002688•EEOC Appeal 2024002688
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Phyllis F.,1 Complainant, v. Janet Petro, Acting Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 2024002688 Agency No. NCN-23-HQ-00063 DECISION Complainant filed an appeal to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 19, 2024, 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 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 decision. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Acting Deputy Director at the Agency’s Office of Diversity and Equal Opportunity at its Headquarters in Washington, D.C. 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.
2024002688 2 On September 19, 2023, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of sex (female), age (YOB: 1967), and reprisal for prior protected EEO activity when: 1. On May 3, 2023, the Deputy Associate Administrator, Office of Diversity and Equal Opportunity (ODEO) (Deputy Administrator), prohibited Complainant from speaking about ADR issues, while permitting a GS-15, with no current responsibility to speak instead; 2. On May 11, 2023, Complainant became aware she was not selected for the position of Deputy Director, under an unspecified vacancy announcement number; 3. Since May 23, 2023, the Deputy Administrator prohibited Complainant from hiring staff in her division, while allowing one of her male coworkers to hire employees in his division; 4. On several occasions, including June 6-8, 2023, the Deputy Administrator excluded Complainant from ODEO leadership meetings, despite Complainant’s role as the Acting Deputy Director of the Equal Opportunity Programs Division (EOPD); 5. During a meeting on June 8, 2023, the Deputy Administrator “aggressively” contradicted Complainant’s statements about the Anti-Harassment Program (AHP), and demanded he and the Associate Administrator, ODEO, be directly involved in making determinations regarding the AHP; 6. On June 13, 2023, Complainant became aware that under a planned reorganization, the scope of her responsibilities would be limited; 7. On June 20, 2023, the Deputy Administrator sent an email to Complainant accusing her of failing to provide information to him regarding the AHP; 8. On June 21, 2023, the Deputy Administrator sent Complainant and the Division Director an email threatening to disapprove funding previously set aside for specific initiatives, if his questions concerning the status of projects were not answered by June 22, 2023; and 9. On an unspecified date, the Deputy Administrator attempted to reassign one of Complainant’s employees to another division. Complainant was serving on a detail as the Acting Deputy Director of the Equal Opportunity Programs Division (EOPD) and she alleges that the Deputy Administrator, who was her second-level supervisor at the time, subjected her to continuing and ongoing harassment characterized by rude behavior that refuses to acknowledge her expertise and experience.
2024002688 3 See Report of Investigation (ROI) at 127-30. For example, she took issue with a planned reorganization that would change her current division to a sub-unit under another Director and that would limit her responsibilities and reduce the number of employees that she supervises. See ROI at 135-36. She asserted that the reorganization would have a greater negative impact on her than it would on her other male coworkers. See ROI at 136-38. She stated that the Deputy Administrator refused to acknowledge her position by excluding her from ODEO leadership meetings that she felt she should have attended as part of the leadership team. See ROI at 140-42. She further asserted that at a meeting, when she tried to explain to the Deputy Administrator that her team did not have the information that he wanted, the Deputy Administrator “aggressively” interrupted her to state that he knew what the process was and refused to listen to her. See ROI at 143-44. Complainant stated that she applied for the permanent position of Deputy Director but was not selected even though she insists she was the most qualified, experienced person for the position at the Agency but that hiring her would threaten the “boys club” of the leadership team. See ROI at 149-51. She asserted that she did not believe the explanation that the vacancy announcement was cancelled due to a hiring freeze because another director was permitted to hire after this date and she insists that it must have been the Deputy Administrator not wanting to hire her. See ROI at 151. The Deputy Administrator explained that the planned reorganization impacted all of ODEO and was at the direction of the ODEO Administrator in order to improve communications and program delivery at the Agency. See ROI at 174. He stated that the Administrator sought feedback from the employees of ODEO before the package was submitted and it is still pending approval from the Agency. See ROI at 175. He denied excluding Complainant from meetings, stating that meeting participation was determined by the Administrator, not him, and he was actually the one who told the Administrator that including Complainant and other employees would help improve communication, so the Administrator added those other employees, including Complainant. See ROI at 175-76. He further clarified that the meetings were intended for ODEO Center Directors, but Complainant was not a Director. See ROI at 176. He denied acting aggressively in a meeting, stating that Complainant was not responsive or cooperative, so he responded with a direction to provide the information in a professional and direct manner. See ROI at 177. The Deputy Administrator stated that the vacancy announcement for the Deputy Director position was cancelled because under the proposed reorganization, there would be no deputy director positions within the ODEO, so the position was going to be abolished. See ROI at 180.
2024002688 4 Complainant’s first-level supervisor, the Director of the EOPD (Supervisor) stated that the planned reorganization was a leadership decision to increase efficiency in ODEO program operations and administration. See ROI at 209. He stated that the meetings that Complainant was initially excluded from were for ODEO Center Directors and no deputy directors were initially included but he approached the Deputy Administrator about including Complainant and the Deputy Administrator “embraced” the idea and so Complainant was included. See ROI at 211. He asserted that Complainant and the Deputy Administrator had a “heated debate” because they had a difference of opinion about the anti-harassment program and that Complainant told him she felt “harassed” because of the Deputy Administrator’s disagreement with her. See ROI at 213. The Anti-Harassment Program Manager, who is one of Complainant’s subordinates (Program Manager) stated that the Deputy Administrator “abruptly interrupted” Complainant during an EEOC technical assistance meeting when Complainant was speaking about the ADR program. See ROI at 224. She asserted that she felt the Deputy Administrator’s behavior was inappropriate and unprofessional. See ROI at 225-26. The Director of Diversity and Data Analytics (Diversity Director) explained that the Agency decided to realign the ODEO organizations across the Agency years ago, but the pandemic stalled the reorganization. However, after the state of emergency over the pandemic was lifted, the efforts to move forward with the reorganization restarted. See ROI at 234. He further stated that ODEO consulted with the Office of the Chief Human Capital Officer as well as other key stakeholders and senior officials in the Office of the Agency Administrator. See ROI at 234. He asserted that the Deputy Administrator is not the decision maker in the reorganization but has only provided input consistently with his position along with other administrators. See ROI at 235. The Director of the Complaints Management Division who is one of Complainant’s coworkers (Coworker 1) stated that he does remember the Deputy Administrator interrupting Complainant at an EEOC technical assistance meeting but that “it would not be out of the ordinary for him,” noting that the Deputy Administrator has a tendency to interrupt people at times. See ROI at 251-52. 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, or a final decision from the agency. When Complainant requested a final Agency decision, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
2024002688 5 The decision initially dismissed claims 2, 8, and 9 as discrete incidents pursuant to 29 C.F.R. §1614.107(a)(1) for failure to state a claim. The decision concluded that Complainant did not prove that the Agency subjected her to discrimination as alleged. Complainant then filed the instant appeal. On appeal, Complainant, among other things, argues that the Agency erred in dismissing three of her claims because she did suffer harm as a result of those actions as they subjected her and her staff to unnecessary staff, lowering their morale, and also eroded her status as a leader within the organization. On the merits, she insists that the Agency has subjected her to continuous harassment in an environment where only men were in leadership positions. The Agency filed a brief in response arguing that its final decision should be affirmed. 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 (EEO MD-110), at 9-16 (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”). We will initially discuss Complainant’s challenge to the Agency’s dismissal of three of her claims for failure to state a claim. The Agency dismissed Complainant’s allegations concerning her non-selection for the Deputy Director position under a vacancy announcement that was cancelled and her assertions that the Deputy Administrator sent her emails threatening her division’s funding and attempted to reassign one of her subordinate employees for failure to state a claim because Complainant had not suffered any direct and personal harm as a result of those actions. The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We find that the Agency properly dismissed these claims for failure to state a claim. Generally, the Commission has stated that claims of non-selection fail to state a claim where no selection was made.
2024002688 6 See Windy H. v. Dep’t of Commerce, EEOC Appeal No. 2025000555 (May 14, 2025) (When no selection made for vacancy at issue, matter failed to state a claim). With respect to the other two claims, Complainant does not allege that she suffered any concrete harm, only that these actions caused her and her team stress, lowering morale. However, allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant asserts damages as a remedy. See Herman F. v. Dep’t of Transp., EEOC Appeal No. 2022003450 (Feb. 6, 2023); Larotonda v. U.S. Postal Serv., EEOC Appeal No. 01933846 (March 11, 1994) (claim that an allegedly discriminatory incident caused mental harm not sufficient to create an actionable claim). To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A 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). 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). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a 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). We further find that the evidence in the record does not establish that Complainant was subjected to unlawful harassment as alleged. While Complainant insists that there is a “boys club” in that the leadership positions are all held by men, that is not supported by the record as the ODEO Administrator, who was the Deputy Administrator’s supervisor, is a woman and in any event, the mere fact that many of the director positions were held by men is not evidence of any discriminatory motive as we decline to assume an unlawful motive absent actual evidence of discrimination. See Julieta B. v. U.S. Postal Serv., EEOC Appeal No. 2025000691 (Sept. 30, 2025). Complainant’s primary allegations concern the proposed reorganization, which she insists, without evidence, is intended to impact her disproportionately. However, the mere fact that Complainant disagrees with the proposed reorganization is not evidence of pretext.
2024002688 7 We find that all the alleged incidents of harassment amount to little more than routine workplace occurrences such as disagreements over work assignments, procedures, and personnel matters which are not sufficiently severe or pervasive to constitute a hostile work environment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant’s race, sex. or age). While Complainant clearly feels that the Deputy Administrator has treated her disrespectfully, it is well-settled that EEO laws are not a civility code. 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). Complainant’s subjective perception of the Deputy Administrator’s treatment of her is not sufficient to satisfy the objective standard required to establish an unlawful hostile work environment. See Mattson v. Dep’t of Homeland Sec’y, EEOC Appeal No. 0120052563 (July 3, 2007) (stating that a hostile work environment is established by an objective standard and not a complainant’s subjective perceptions). Therefore, based on our review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision.
2024002688 8 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 their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, 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 OFS 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 their 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(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124) 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 their full name and official title.
2024002688 9 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: T. Gimbrere ___________ Gul Chaudhry’s signature T. Gimbrere, Acting Director Office of Federal Sector September 23, 2026 Date
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