EEOC Appeal 2024002688

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