EEOC Appeal 2019005190

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Enriqueta T.,1
Complainant,
v.
David Bernhardt,
Secretary,
Department of the Interior
(Bureau of Land Management),
Agency.
Appeal No. 2019005190
Agency No. DOI-BLM-18-0352
DECISION
On July 8, 2019, 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
June 11, 2019, 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
At the time of events giving rise to this complaint, Complainant worked as a Information
Receptionist (OA), GS-4, at the Agency’s BLM Idaho State Office, Branch of Land, Mineral,
and Water Rights facility in Boise, Idaho.
On May 25, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her
to discrimination and/or harassment on the bases of race (Native American), national origin
(Hispanic), sex (female), disability (intellectual), and reprisal for prior protected EEO activity
when:
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.

2019005190	2
1. On April 4, 2018, she was issued a letter of reprimand.
2. From April 4, 2018 through the present, the Agency
a. Failed to follow FMLA procedures or protect her medical information;
b. Subjected her to unwanted comments;
c. Dictated how she was to participate in meetings;
d. Interfered with her work and medical appointment schedule;
e. Failed to act upon her allegations of harassment;
f. Negatively affected her duties and assignments and micro-managed her; and
g. Illegally searched her work area.
The Agency accepted the complaint and conducted an investigation, which produced the
following pertinent facts:
Regarding her bases of retaliation/reprisal, Complainant alleged that she was retaliated against
by her first-line and second-line supervisors (Supervisor1 and Supervisor2, respectively) due to
her reports involving the targeting of a disabled colleague and her participation in the instant
complaint. Complainant indicated that she first addressed management regarding the alleged
discrimination against a disabled colleague on April 3, 2018.
Supervisor1 identified himself as “of Latin descent,” of unknown race, and male, with no
identified disabilities. Supervisor2 was identified as Hispanic/Mexican, Caucasian, and female,
with no identified disabilities.
On April 4, 2018, the Agency issued Complainant a letter of reprimand. Supervisor1 attested that
Complainant was given the letter because of her failure to meet standards. He explained that
Complainant was late for work from January 18 to April 3, 2018 and he had attempted several
times to work with her on a schedule that would enable her to be on time. He further explained
that reliable attendance and adherence to the prescribed work schedule is required for
Complainant to meet the Fully Successful performance standard and he gave her verbal and
written warnings about failing to meet standards. Supervisor1 provided a list of times
Complainant was late, from January 18 to April 3, 2018, ranging from 6 minutes to 2 hours late,
for various reasons offered by Complainant, including no explanation, waking up late, husband
late from work, traffic, and not feeling well/stomach ache. Supervisor1 attested that he consulted
with his management and the Employee Relations Specialist (ER Specialist) several times
leading up to the issuance of the letter. Supervisor2 confirmed that the letter was issued by
Supervisor1 due to Complainant’s pattern of tardiness.
Complainant attested that she was informed that she should notify Supervisor1 prior to arriving
late and that she had been apprised of “late procedures.” She also acknowledged that she was
told that if she did not follow procedures regarding appropriately notifying Supervisor1 prior to
being late, it could result in disciplinary action. Complainant alleged that all 14 late events were
acknowledged and approved and were in accordance with Supervisor1’s request that he be
notified in advance.

2019005190	3
Complainant also attested that the events were not coded as AWOL but were coded against her
annual or sick leave balances and she had an FMLA agreement that was effective April 17, 2017.
She supplied a log of her absences and late arrivals from December 27, 2016 through April 4,
2018, noting the reasons for the events, including those relating to maternity bed rest and caring
for her prematurely born baby. Her log indicates that she returned to work full time on June 18,
2018 and indicates numerous late arrivals after that date.
The record shows that, on April 17, 2017, Complainant was approved for leave from March 27,
2017 to June 27, 2017. The approval indicates she was approved for accrued annual and sick
leave for care of family member and FMLA leave for birth/adoption/foster care. Complainant
alleged that from January 18 to April 3, 2018, her baby had several illnesses that required
constant care and alleges that her FMLA was active during this time.
With respect to her allegations of harassment, Complainant alleged that the Agency failed to
follow proper FMLA procedures and protect her medical information. She asserted that her
FMLA agreement was approved to take care of her premature baby, as Supervisor1 and
Supervisor2 were aware. She acknowledged that her FMLA agreement was for a limited time
and she alleged that she was told it expired on April 16, 2018. She alleged that the Agency lied
to her about the FMLA being expired and exposed her personal medical/disability information.
Supervisor1 and Supervisor2 denied having knowledge of Complainant’s FMLA status or
medical information.
Complainant also alleged that Supervisor1 subjected her to unwanted comments, such as stating,
“I have some puzzles for you to work on,” and “Do you know why Moms milk their calves?
Because of caffeine.” Supervisor1 denied making unwanted comments to Complainant, but he
acknowledged that the joke about the milk and calves sounds similar to a joke he shared with
staff. He also recalled an incident when a family came to the Visitor’s Center and a young child
played with the Agency’s puzzle and could not put it back together and, while he did not recall
asking Complainant to put it back together, he did not think it would have been unreasonable to
do so.
Complainant also alleged the Agency dictated how she was to participate in meetings and
interfered with her work and medical appointment schedule. She described mandatory meetings,
including a performance review meeting, that were scheduled prior to her being asked about the
time and date with more notice and included other employees. Supervisor1 denied interfering
with Complainant’s work or medical appointments.
Complainant also alleged the Agency failed to act upon her allegations of harassment, largely in
reprisal for her protected EEO activity as described above.
Complainant also alleged that the Agency negatively affected her duties and assignments and
micromanaged her. She generally alleges that her duties were changed from those in her position
description to those in a Letter of Expectation, dated July 17, 2018. Management explained that
due to a change in business practices in the front lobby, Complainant was changed from an

2019005190	4
Administrative Support Assistant, supporting the Safety Officer in the Division of Support
Services.
Complainant also alleged the Supervisor1 illegally searched her work area when she was not
present. She alleges that cameras documented him searching her work area. Supervisor1 attested
that Complainant was out of the office and the back-up receptionist needed to find the
conference room schedule and he assisted her by looking through the folders on the desk.
Supervisor2 attested that, on several occasions, she has opened the reception desk drawers for the
tool to unlock the front building doors and office supplies, and to retrieve office supplies.
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 (AJ). 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.
The instant appeal followed. On appeal, Complainant makes numerous statements concerning
the facts surrounding her allegations, including noting the proximity in time between her
protected class activity and the adverse letter of reprimand towards her claims of retaliation, the
fact that her performance reviews indicate her performance was fully satisfactory in opposition
to the allegation that she failed to meet performance standards, and her medical problems and
FMLA approval; asserting that tardiness was never an issue for others; and disputing
management’s statements about her schedule, proposed changes, and counseling.
In response, the Agency reiterated its findings in its final decision argues that Complainant failed
to demonstrate discrimination, reprisal, or harassment. It asks that we deny the appeal and affirm
its decision.
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”).

2019005190	5
Disparate Treatment Claims
Complainant has alleged that the Agency treated her disparately in issuing her a letter of
reprimand. 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 a complainant to
prevail, she 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 Constr. 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 Tex. 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 Ctr.
v. Hicks, 509 U.S. 502 (1993).
Even if we assume that Complainant established a prima facie case of discrimination, her claim
ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for
its actions. The Agency explained that the letter was in response to Complainant’s multiple
instances of tardiness and her failure to adhere to procedures regarding late arrivals. We note that
Complainant did not deny being frequently late and acknowledged that she was. We also note
that the April 17, 2017 letter regarding FMLA leave approval indicates that it expired on June
27, 2017. We find the Agency’s actions of issuing a letter of reprimand under these
circumstances to be legitimate. Therefore, although Complainant has alleged discrimination, she
has not established by a preponderance of the evidence, that the legitimate, non-discriminatory
reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by
some unlawful discriminatory animus with respect to her claim.
Harassment Claim
Complainant has alleged the Agency subjected her to harassment, noting several alleged
instances. To establish a claim of hostile environment harassment, Complainant must show that:
(1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his 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 Agency. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also,
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8,
1994).
In other words, to prove her harassment claim, Complainant must establish that she was
subjected to conduct that was either so severe or so pervasive that a “reasonable person” in her
position would have found the conduct to be hostile or abusive.

2019005190	6
She must also prove that the conduct was taken because of a protected basis – in this case, her
race, national origin, sex, disability, and/or prior protected EEO activity. Only if she establishes
both of those elements – hostility and motive – will the question of Agency liability present
itself.
Although Complainant asserts that the Agency acted discriminately, there is insufficient
evidence to support the allegation that any of Complainant’s protected statuses played any role in
the incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to support a
claim of discriminatory harassment.
Complainant’s harassment allegations can generally be described as relating to managerial
decisions, such as time and attendance matters, scheduling of meetings, and re-assignment due to
a change in policy, or as relating to being told things or spoken to in ways she did not like.
Without evidence of an unlawful motive, we have found that similar disputes relating to
managerial decisions do not amount to unlawful harassment. 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); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10,
2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances
between a supervisor and a complainant do not rise to the level of harassment).
We have also found allegations relating to statements a complainant found unpleasant or
inappropriate may be insufficiently severe or pervasive to have altered the conditions of his or
her employment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July
12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one
occasion, attempted to charge him with AWOL, and disagreed with the time the complainant
entered into a sign in log, were found to be insufficient to state a harassment claim). The
allegations, assuming they are true, were isolated incidents that are insufficient to support a
prima facie case of harassment. See Rennie v. Dalton, 3 F.3d 1100 (7th Cir. 1993). Thus, her
harassment claim fails as well.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision.

2019005190	7
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. 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.

2019005190	8
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
May 7, 2020
Date