Posted: 12:33 am ET
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Via eeoc.gov

At the time of events giving rise to this complaint, Complainant worked as a Foreign Affairs Officer, GS-11 at the Agency’s Office of Intelligence and Threat Analysis, Bureau of Diplomatic Security facility in Rosslyn, Virginia. Complainant was terminated during her two-year probationary period, effective November 25, 2013. Management indicated that after a very good start, Complainant’s work product deteriorated in that her written articles required substantial editing. Complainant was advised to take basic writing and analysis courses to help correct her deficiencies. Complainant maintained that management’s comments about her writing were unsupported as the complaints she received were arbitrary and style comments and not comments regarding substance. On June 13, 2013, Complainant and a Special Agent had a disagreement when Complainant made a comment about Special Agents and he took offense. He yelled and cursed at Complainant while she was at her desk. Complainant indicated that she felt threatened because he had his gun on his waist. Following this argument, the Special Agent reported the incident to management. Management informed the Special Agent that his conduct was not acceptable. Management also spoke with Complainant, and the two apologized to each other. Therefore, management believed that the incident was over. Two days later, the Special Agent was made the team leader of Complainant’s unit. Complainant believed that, based on the verbal assault, his promotion was in retaliation against her. Complainant also maintained that after she filed her EEO complaint management engaged in other conduct which ultimately led to her termination.

On August 16, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:

1. On July 15, 2013, her portfolio responsibilities for Turkey were removed;
2. On July 31 and August 5, 2013, her requests for training were denied;
3. On August 1, 2013, she received a negative memorandum that served as her mid-year review regarding her performance;
4. On August 6, 2013, she was reassigned to the DS/Public Affairs Office;
5. On August 8, 2013, management informed her that her SCI security clearance and partial building access would be removed; and
6. Effective November 25, 2013, she was terminated from Employment.

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. When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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 reprisal as alleged.

Specifically, the Agency determined that even if it assumed Complainant established a prima facie case of reprisal, there were legitimate, nondiscriminatory reasons for its actions.

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to reprisal is AFFIRMED.
[…]
To show pretext, Complainant argued that reprisal was a factor in Management’s action in Claim 1 because her portfolio was changed after she informed management of her intent to file an EEO complaint regarding the Special Agent incident. With respect to Claims 2 – 6, Complainant asserted that the manner in which she was treated with regard to training, her performance review, her detail, her security clearance and her termination was in retaliation for her initiation of an EEO complaint. The FAD found that Complainant’s subjective beliefs, without any evidence to support those beliefs were not evidence of pretext. No evidence in the record supported Complainant’s claim that any of the described actions were taken due to her EEO activity. According to the Agency, the record strongly supported management’s account of the events. Therefore, the Agency found that Complainant could not meet her burden of proving by a preponderance of the evidence that management’s reasons were untrue or unworthy of credence.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates her contention that two days after she reported the verbal assault by the Special Agent, he became her team leader, which she believes was undoubtedly an act of retaliation. Complainant maintains that on July 1, 2013, she reported to management that her working conditions were intolerable and that she was contacting the EEO office. Complainant also indicates that after she filed her complaint all adverse performance related issues were documented. On July 15, 2013, she maintains that she received an Unacceptable Performance Memorandum, indicating that her writing style was too academic. Complainant contends that she was held to a higher standard than needed and that in order to keep her job she needed only to get a fully successful rating, not an outstanding. Complainant also asserts that she should have been placed on a PIP before she was removed. Finally, Complainant maintained that work was late only when the Agency had not properly staffed the unit and she was there in the unit alone doing the work of three people. Complainant again asserts that in retaliation for her EEO complaint she was terminated on November 25, 2013.

In response, the Agency requests that the FAD be affirmed as Complainant did not show that the Agency erred in finding that she did not prove her case.

ANALYSIS AND FINDINGS

Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions as addressed above. To show pretext, Complainant, among other things, maintained that the comments made about her written work product were arbitrary and concerned matters of style. She maintained that after she filed her EEO complaint criticisms about her work product increased. We find however, that the record supports the Agency’s position that Complainant was repeatedly spoken to regarding her work product and she did not conform to management’s concerns.

With respect to Complainant’s arguments on appeal, we find that other than her conclusory statements she has not provided persuasive evidence that she was subjected to reprisal. Complainant asserts that the Special Agent that assaulted her verbally was promoted to the team leader in order to retaliate against her. Notwithstanding the lack of evidence to support this contention, we note that the record indicates that the Special Agent never took the position. Complainant also maintained that if there were real concerns about her work that she should have been placed on a PIP. We find however that the Agency adequately explained that probationary employees do not have access to the PIP program. Finally, Complainant also maintained that due to a lack of staff on several occasions she was left alone and during those times she needed to request extensions for her work. While this may be true, we find that Complainant did not show how this was related to her claim of reprisal. Complainant acknowledged that she was left alone because her coworkers got off work at an earlier time than she did. With regard to Complainant’s termination during her probationary period, the Commission has long held that an Agency has broad discretion in terminating an employee during their probationary period as long as it is not for discriminatory reasons. In the instant case, we find no persuasive evidence of a discriminatory motivation.

CONCLUSION

Accordingly, the Agency’s FAD which found that Complainant did not demonstrate that she was subjected to reprisal is AFFIRMED.

Read in full here.

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