EEOC Appeal 2020001631

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bao S.,1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 2020001631
Hearing No. 470-2019-00225X
Agency No. FS-2018-00432
DECISION
On December 20, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 7, 2019 final order 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 relevant time, Complainant worked as a Teacher Supervisor, GS-1710-11, at the
Agency’s Forest Service, Pine Knot Jobs Corps Civilian Conservation Center in Pine Knot,
Kentucky.
On June 15, 2018, Complainant filed a formal EEO complaint alleging the Agency subjected her
to harassment/a hostile work environment based on sex (female) and in reprisal for 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.

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1. 	on March 8, 2018, she was asked to perform duties outside of her position description;
2. 	on February 16, 2018, she received a Decision on Proposed Suspension and was suspended
for 3-days without pay from March 7, 2018 to March 9, 2018;
3. 	on or around October 2017, she received a performance rating of “Fully Successful” on her
Fiscal Year 2017 Performance Evaluation, which she considered unfavorable; and
4. 	on several dates, she was subjected to various incidents of harassment, including, but not
limited, when she complained about harassment in July 2017 to management and they did
not conduct a management inquiry.
After the investigation, Complainant timely requested a hearing before an EEOC Administrative
Judge (AJ). 	Thereafter, the AJ held a hearing on September 10 and 11, 2019. 	Following the
hearing at which nine witnesses testified, the AJ issued a decision finding no discrimination. The
Agency, in its final order, adopted the AJ’s finding of no discrimination.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” 	Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact-finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).
To establish a claim of discriminatory 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 her 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).

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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 Complainant’s position would
have found the conduct to be hostile or abusive. 	Complainant must also prove that the conduct
was taken because of a protected basis – in this case, her sex or retaliatory animus. 	Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself.
In his decision, the AJ determined that the following evidence was presented during the
investigation into the formal complaint and at the hearing, that established that responsible
management official articulated legitimate, non-discriminatory reasons for the disputed actions.
During the relevant period Complainant was a Teacher Supervisor, also referred to as the
“Academic 	Manager,” 	at 	the 	Agency’s 	Forest 	Service, 	Pine 	Knot 	Jobs 	Corps 	Civilian
Conservation Center in Pine Knot, Kentucky. Complainant supervised five teachers and four other
staff members.
Complainant’s supervisor was the Center Director and the Assistant Director was Complainant’s
second-line supervisor.
Complainant claimed that on July 12, 2017, her protected EEO activity began when she sent an
email to an Employee Relations (ER) Specialist. 	Specifically, Complainant emailed the ER
Specialist because she was under the impression that the supervisor was threatening to file a
harassment complaint against Complainant if she continued to criticize an employee not under the
scope of her supervision.
The AJ noted that on July 7, 2017, the supervisor sent an email to Complainant stating that she
needed to stop “out of [her] way to point out things that [Center Standards Officer] isn’t doing, is
not doing correctly or [she] wants to complain about…This needs to stop immediately or you could
be faced with possible harassment charges.”
Regarding claim 1, Complainant asserted that on March 8, 2018, she was asked to perform duties
outside of her position description.
The AJ determined that Complainant was not discriminated against when on March 8, 2018, she
was asked to perform additional duties that were within the scope of her department. 	The
supervisor stated that he assigned the tasks to Complainant because they fell within the department
which Complainant managed, and he had concerns how her department was executing the mission.
The responsibility of maintaining on board strength (OBS) through recruiting fell within the scope
of the Career Preparation Period Coordinator’s duties because she was the point of contact for the
contractors.
The AJ further noted that the responsibility for job placement falls within the Vocational
Development Specialist’s positions “as the Vocational Specialist.

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Complainant, in turn, was the direct supervisor of both [Career Preparation Period Coordinator]
and [Vocational Development Specialist]. Thus, Complainant would be the first person to whom
the 	Center 	Director 	would 	address 	tasks 	dealing 	with 	her 	staff 	and 	her 	department’s
responsibilities.”
Moreover, the AJ noted that there was no discriminatory animus when Complainant was assigned
with additional duties that fell within the scope of her department.
Regarding claim 2, Complainant alleged that on February 16, 2018, she received a Decision on
Proposed Suspension and was suspended for 3-days without pay from March 7, 2018 to March 9,
2018.
The supervisor acknowledged issuing Complainant a Notice of Proposed Suspension dated
December 12, 2017, in which he placed her on notice that he was proposing her to be suspended
for three days for Conduct Unbecoming a Federal Supervisor. 	The proposal had nine
specifications. 	The supervisor noted, for example, that Complainant had shown inappropriate
behavior toward the Social Services Assistant (“SS Assistant”) (Center Standards Officer (CSO)).
He asserted that 	the SS Assistant reports directly to him. 	The supervisor stated, however,
Complainant “has inappropriately recommended [SS Assistant, as she is not his supervisor, for
camp crew duty when she didn’t want her employees to go. She has directed that [SS Assistant]
provide her with an updated list of students with all of their disciplinary color cards, which is
something her counselors should provide. She also directed [SS Assistant] to take an additional
step in notifying the counselors when he issues a color card for behavior, which is discussed in the
Behavior Management Meetings, morning meetings, and sent out in the CSO Daily Reports. It is
the responsibility of her and her staff to get this information updated.”
Further, the supervisor noted that Complainant directed the SS Assistant to reduce students’ color
card even though there was no documentation and “she attempted to change [SS Assistant’s]
Dining Room Monitoring Schedule without consulting the person responsible for the Schedule,
[SS 	Assistant], 	or 	his 	supervisor…this 	is 	intentionally 	interfering 	with 	[SS 	Assistant’s]
responsibilities, duties, and chain of command. As it has been frequently repeated, her behavior is
not conductive to conduct becoming a federal supervisor. This is a serious offense and does not
support the efficiency of the service.”
The supervisor further stated that on February 16, 2018, he issued Complainant a Notice of
Decision on Proposed Suspension. The record contains a copy of the February 16, 2018 Notice of
Decision on Proposed Suspension. 	Therein, the supervisor noted that Complainant provided a
written reply to the proposed notice on December 29, 2017, and an oral reply on February 13,
2018. 	The supervisor stated “as for the level of the discipline proposed, I have decided to
implement the proposed 3-day suspension. I conclude this suspension is necessary to correct your
conduct and to promote the efficiency of the Service.”

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Regarding claim 3, Complainant alleged that on or around October 2017, she received an
unfavorable performance rating of “Fully Successful” on her Fiscal Year 2017 Performance
Evaluation.
The AJ noted that Complainant believe she received a lower annual rating than she deserved in
retaliation for her e-mail to the ER Specialist in July 2017.
The supervisor testified that he had discussed with Complainant and other managers that fully
successful “means that you’re meeting expectations. It is not a negative performance review. To
be able to move into a superior or an outstanding rating, you have show that you’re going above
and beyond normal expectations. And the way I conduct my rating reviews is that I will go off
based off of my observations and then I provide each employee the opportunity to submit any
significant accomplishments, along with trainings, just strengths and weaknesses for their
departments. And then I review all that information and you know, of course, evaluation is going
to be judgmental. But that’s how I base my decisions.”
Regarding claim 4, Complainant claimed that on several dates, she was subjected to various
incidents of harassment, including, but not limited to on or around July 2017, when she complained
about harassment, management did not conduct a management inquiry.
The record reflects that the various incidents of harassment complained of are a failure to conduct
an adequate management inquiry; the non-recommendation for a detail to a Center Director
position; an email about a counselor quitting because of Complainant; an email stating that a
student incident behavior was improperly handled; an email to a former Deputy Center Director
stating that Complainant was asserting authority she did not have; the follow up to a safety
complaint hotline; and a statement to ER that Complainant had side conversations, texts and was
not a team player.
In his testimony, the supervisor stated that he did not recommend Complainant for the detail
because she did not effectively communicate and work collaboratively as a team, and did not have
a strong administrative background on budgetary issues and “human resources type things.”
Furthermore, the supervisor further testified that his expectations that managers keep him
informed, but Complainant “tends not to [do so]. She typically tries to initiate things on her own
without discussing it with me first. And, I’ve had these discussions with her multiple times that
[that] was not my desire for our relationship and my expectations as far as what I expected of her.”
The AJ noted that in his email to Complainant, the supervisor noted “I’ve also received information
on why [SS Assistant] quit, that does not shine a good light on you.” The supervisor also expressed
his concerns with the way Complainant handled an alleged student assault and subsequently failed
to properly report it.
Moreover, the AJ noted that the November 2018 non-recommendation was “more troubling.
However, management as articulated a legitimate, non-discriminatory reason.

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This is supported in part through the testimony of Complainant’s own witness, [former Deputy
Center Director], who testified that Complainant had a more direct management style which did
not go over well with some of her staff.”
In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
there is adequate support the AJ’s determination that the responsible management official clearly
articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond her bare
assertions, Complainant has simply provided no evidence to support her claim that her treatment
was the result of her sex or prior protected activity. A case of discriminatory hostile work
environment is precluded based on our findings that Complainant failed to establish that any of
the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal
Service, EEOC Appeal No. 019982923 (Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s final order, implementing the AJ’s 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.

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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.
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.

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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 26, 2020
Date