EEOC Appeal 2020000029

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gaynell A.,1
Complainant,
v.
David Bernhardt,
Secretary,
Department of the Interior
(Bureau of Reclamation),
Agency.
Appeal No. 2020000029
Agency No. DOI-BOR-18-0284
DECISION
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 July 26, 2019 final decision
concerning 	an 	equal 	employment 	opportunity 	(EEO) 	complaint 	claiming 	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.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Certified Officer in
Lakewood, Colorado.2
On July 7, 2018, Complainant filed a formal complaint alleging that the Agency discriminated
against her based on race (“not white”), national origin (multicultural), color (brown), and in
reprisal for prior protected EEO activity (opposing an alleged discriminatory incident and instant
complaint).
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 The record reflects that Complainant retired from Agency employment effective October 31,
2018.

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By letter dated October 29, 2019, the Agency accepted the formal complaint for investigation and
determined that it was comprised of the following claims:
1. 	During a staff meeting on March 22, 2018, two of [Complainant’s] co-
workers (C1 and C2) made fun of “afro hair.”
2. 	Because the comment made [her] uncomfortable, [she] no longer wanted to
have non-professional interactions with these co-workers. However on
April 6, 2018, her supervisor (S1) sent her an email chastising her for her
interactions with her co-workers, and on April 12, 2018, she was further
chastised in a meeting with Human Resources discussing the same issue.
3. 	On or around the week of June 7, 2018, [she was] excluded from a meeting
with certifying officers.
4. 	On or around June 5, 6, and 7, 2018, there were irregularities in the
certifications she received from one of [her] co-workers involved in the
aforementioned staff meeting incident.
5. 	On or around June 5, 6 ,7, 2018, [her] supervisor (S1) did not allow [her]
credit hours to complete work that was given to [her] shortly before [her]
tour of duty ended for the day.
After an 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 (AJ). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).
The decision found no discrimination. The Agency found Complainant failed to establish a prima
facie case of harassment. Specifically, the Agency stated that Complainant did not establish that
the alleged actions were based on her protected classes. The Agency further found that the alleged
Agency actions were not sufficiently or pervasive to constitute a hostile work environment. Under
a disparate treatment analysis, the Agency found that it articulated legitimate, nondiscriminatory
reasons for its actions which Complainant failed to establish was pretext for discrimination and/or
retaliation.
The instant appeal followed.
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

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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”).
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must
first establish a prima facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. 	See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). 	The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S.
502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether complainant has shown by a preponderance of the evidence that the
agency’s actions were motivated by discrimination. 	See U.S. Postal Serv. Bd. of Governors v.
Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No.
05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No.
05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May
31, 1990).
The Agency articulated legitimate reasons for its actions for claims (3) - (5) and that Complainant
failed to establish that the Agency’s articulated reasons were pretext for discrimination and/or
retaliation.
Regarding claim (3), that Complainant was excluded from a meeting, her supervisor (S1)
(Caucasian) asserts that Complainant was not excluded from a staff meeting with certifying
officers. S1 states that there was a project on which she assigned one certifying officer, CO1, and
one Account Technician to prepare and present the payment process to our external auditors. The
assignment was based on availability to complete the project. 	S1 reiterates that this was not a
training meeting. Report of Investigation (ROI), Exhibit (Ex.) F-2 at 4. 	Complainant, in her
affidavit, asserts that after she reached out to S1 regarding this matter, S1 subsequently invited her
to attend the meeting and that she did in fact attend the meeting. ROI, Ex. F-1 at 6.

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Regarding claims (4) and (5), S1, in her affidavit, asserts that she has no reason to believe that C2
purposely 	withheld 	work 	from 	Complainant 	in 	order 	to 	have 	an 	adverse 	impact 	upon
Complainant’s workload. S1 asserts that there are times when C2 has to work on special projects
that take precedence. ROI Ex. F-2 at 5. C2, in her affidavit, asserts that she did not withhold work
from Complainant during the period in question. 	C2 asserts that she did not know who was
certifying her work because she does not pay attention to the schedule of the Certifying Officers.
ROI, Ex. F-4 at 4.
Regarding the denial of credit hours, S1, in her affidavit, asserts that Complainant emailed her
with concerns of her workload on June 8, 2018, indicating that she did not want to work credit
hours but would do so. S1 states, in her affidavit, that because that the work did not need to be
immediately completed per policy, she denied the request. S1 states that the following Monday,
the other Certifying Officer was out of the office and she approved Complainant request to work
credit hours.3 ROI, Ex. F-2 at 5.
Upon review of the record, we find that Complainant failed to establish, by a preponderance of the
evidence, that the Agency’s reasons for its actions were pretext for discrimination and/or
retaliation.
Hostile Work Environment
To establish a claim of harassment 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." 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).
Complainant has not established her claim of harassment in violation of Title VII. Regarding
claims (3) - (5), we find that the Complainant has not established that the Agency’s actions were
based on her protected classes. As set forth above, we have already found that the Agency
articulated legitimate, non-discriminatory reasons for its actions, which Complainant failed to
establish was pretext for discrimination and/or retaliation.
3 The record contains an email from S1 to Complainant dated June 11, 2018. Therein, S1 stated
that credit hours were approved for that day. ROI, Ex. F-21.

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Regarding claim (1), Complainant alleges that, during a staff meeting, one co-worker (C1)
(identifies as Middle Eastern/Caucasian) said to another coworker (C2) (identifies as Caucasian)
that she should get “afro hair.” Complainant alleges that C1 and C2 laughed. Complainant further
asserts that she understood the comment to be directed at her because she is the only employee at
the meeting with “afro hair.” 	Complainant asserts that her supervisor (S1) did not address the
comment at the time of the meeting with C1 and C2. Complainant asserts that she did not object
to the comment during the meeting but emailed her supervisor the next day and indicated that she
found the comment to be inappropriate. ROI, Ex. F-1 at 3-4.
S1, in her affidavit, asserts that after Complainant emailed her, she met separately with C1 and C2
and told them to maintain professionalism in the office and to be mindful of others’ race, color,
national origin, age, sex and religion. ROI, Ex. F-2 at 3.
C1 and C2, in their affidavits, assert that C1 did not use the word “afro.” ROI, Ex. F-3 at 3. Ex.
F-4 at 3. C2, in her affidavit, asserts that C1 made a comment during a discussion about a move
to new office space. C2 said C1 was discussing unplugging computers and made a reference to
getting her finger stuck in a socket and her hair “puffing out.” ROI, Ex, F-4 at 3.
Assuming arguendo, that C1 made the comment as set forth by Complainant, we find that while
the comment may have been unprofessional and inappropriate, and certainly could be construed
as making a reference to characteristics associated with Complainant’s race, this isolated comment
was not sufficiently severe or pervasive to alter the conditions of Complainant’s employment and
create an abusive working environment.
Regarding claim (2), that S1 chastised Complainant in a meeting and an email regarding her
interactions with her co-workers, S1 states that Complainant sent an email indicating that she
would no longer maintain interactions with C1 or C2.4 After consulting with Human Resources,
S1 asserts that she asked Complainant to allow management to take appropriate action on the
incident at the staff meeting, and not to attempt to take corrective actions with respect to her peers.
ROI, Ex. F-2 at 3-4. S1 asserts that she met with Complainant, a human resources specialist, and
a union representative on April 16, 2018. S1 states that they discussed Complainant’s complaint
and encouraged her to maintain a professional and respectful attitude towards her co-workers.
ROI, Ex. F-2 at 4. In an email from S1 to Complainant dated April 24, 2018, S1 provided a
summary of the April 16, 2018 meeting. Therein, S1 stated that Complainant acted appropriately
by bringing her concerns about the comment by C1 to her attention. S1 further stated that it is the
supervisor’s responsibility to take any steps to hold an employee accountable. Finally, S1 stated
that employees should not take steps to hold each other accountable and that federal employees
should treat each with civility and respect. ROI, Ex. F-15.
4 The record contains an email from Complainant to S1 dated April 5, 2018. Therein, Complainant
stated that she told C1 and C2 that she does not want to have non-business conversations with
them. 	C1 and C2 assert, in their affidavits, that a few days after the March 22, 2018 meeting,
Complainant directed them not to speak to her. ROI Ex. F-3 at 3, F-4 at 3.

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With regard to S1’s actions in claim 2, while it is clear that Complainant was offended by what
she viewed as S1 lecturing her about civility in the face of her complaint about the offensive
incident by her coworkers, we again find that even considering S1’s response in conjunction with
the underlying incident involving the coworkers, these actions, without more, are not sufficiently
severe or pervasive to alter the conditions of Complainant’s employment in violation of Title VII.
CONCLUSION
Accordingly, we AFFIRM the Agency’s final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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 Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within which to submit a brief or
statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx.
Alternatively, complainant can submit his or her request and arguments to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to
P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE,
Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider
shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the
applicable filing period. See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.

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Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the request for
reconsideration. 	The Commission will consider requests for reconsideration filed after the
deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.
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
October 14, 2020
Date