Kathleen Mulligan v. Equal Employment Opportunity Commission 01A21675 June 19, 2003 Kathleen Mulligan, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency. Appeal No. 01A21675 Agency No. 0-9900102-LA DECISION BACKGROUND Complainant timely initiated an appeal from an agency decision concerning her complaint of unlawful 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. The complaint was initially filed on October 26, 1999, and was amended on April 25, 2000, and on June 1, 2000. Complainant did not request a hearing before an EEOC Administrative Judge (AJ), and the agency issued a final decision on November 14, 2001, finding no discrimination. The instant appeal is from the agency's November 14, 2001 decision. The record reveals that during the relevant time, complainant was employed as a GS-14 Trial Attorney, and was originally assigned to the agency's San Diego Area Office (SDAO). Complainant's duty station was located at the SDAO, and complainant's supervisor, the Regional Attorney (RA), was located in the Los Angeles District Office (LADO), which manages the SDAO. .As an initial matter, there is a dispute over the framing of the claims raised in complainant's complaint. The agency's decision defines the complaint as claiming that complainant was discriminated against and harassed on the bases of sex (female), race (White), and in retaliation for prior EEO activity, when: (1) Management and employees of the SDAO refused to participate in professional communications with complainant about agency business; (2) The Area Director of the SDAO (Area Director), violated complainant's right to privacy when he removed documents from complainant's office in late September 1999; (3) The RA of the LADO and the Area Director made defamatory statements about complainant and refused to follow her legal advice; (4) On August 10, 1999, complainant was issued a Letter of Warning (LOW) and referred to the Employee Assistance Program (EAP) by the RA of the LADO; (5) Complainant was placed on 28 hours of absent without leave (AWOL) during the period from March 13, 2000 through March 21, 2000, by the Acting Regional Attorney (Acting RA); (6) On May 14, 2000, the agency's General Counsel (GC), and the Acting RA extended complainant's detail to the LADO for four months; and (7) On May 31, 2000, the GC and the Acting RA selected a less qualified male attorney as the Acting Supervisory Trial Attorney (Acting STA) in the LADO..On appeal, complainant asserts that the agency's final decision misstated her claim. Complainant defines her claim on appeal as "a continuing violation of Title VII's prohibitions of sex discrimination and of unlawful retaliation, from April of 1999 and continuing." Complainant contends, "[T]he Agency has improperly defined the issues in the case, by splitting a continuous course of conduct into isolated allegations of adverse treatment." The Commission notes the agency, when defining complainant's claims at the beginning of its final decision, fragmented complainant's claim of harassment by dividing the claim into separate incidents or allegations. Upon reviewing complainant's complaint and subsequent amendments, we determine that complainant claimed that she was discriminated against on the bases of sex (female) and in retaliation for prior EEO activity when: (1) Complainant was subjected to a hostile work environment, including: (a) threats; (b) a physical assault; (c) repeated false reports to superiors and defamatory statements made about complainant to other agency lawyers by the Area Director of the SDAO and by the RA of the LADO; (d) insulting and demeaning comments; (e) refusal by the Area Director and others in the SDAO to participate in professional communications with complainant about Commission business; and (f) refusal by the RA of the LADO and the Area Director to follow complainant's legal advice; (2) Other female employees were subjected to retaliation by the agency when they provided testimony in support of complainant's complaint; (3) Complainant's privacy rights were violated by the Area Director when he removed documents from complainant's office in late September 1999; (4) On August 10, 1999, complainant was issued a LOW and an EAP referral by the RA of the LADO; and (5) On or about May 14, 2000, the GC and/or the Acting RA extended complainant's detail to the LADO for four additional months. Additionally, we find that complainant claims that she was discriminated against on the bases of sex (female), race (White), and in retaliation for prior EEO activity when: (6) Complainant was placed on AWOL by the Acting RA of the LADO for 28 hours, between March 14, 2000 and March 21, 2000. On appeal, complainant argues that the agency's November 14, 2001 decision should be reversed, or, in the alternative, her case remanded to the agency for a good faith investigation and compliance with the agency's alternative dispute resolution (ADR) policy. On appeal, complainant contends that the agency's investigation was deficient. Specifically, complainant claims that the agency ignored evidence that the GC and Acting RA discriminated against every female attorney within the LADO in 1999 and 2000, all of whom opposed discrimination. Additionally, complainant claims that the agency failed to consider violations of its internal policies regarding adverse treatment of female attorneys in the LADO. Complainant also claims that the agency failed to consider evidence of harassment of women by the Area Director of the SDAO that has occurred continuously since at least 1994. Complainant further claims that the agency did not conduct a fair and neutral investigation regarding the LOW issued to her on August 10, 1999, and withheld the investigative file from complainant. In a December 22, 1999 memorandum from the GC to complainant, the GC states that shortly after the agency received a letter dated August 27, 1999, from complainant's attorney regarding complainant's allegations, an Assistant GC, a Supervisory Program Analyst, and an Independent Contractor conducted an on-site inquiry into the allegations raised by complainant. According to the memorandum, the team jointly interviewed 22 staff members in the SDAO and the LADO, as well as staff in the agency's Office of Human Resources (OHR). They subsequently issued a comprehensive report of their findings in late October 1999, in which they did not find sufficient evidence that the Area Director harassed or discriminated against complainant on the basis of her sex, or created a hostile work environment in the SDAO. The investigative team also concluded that the LOW and EAP referral letters were not issued for retaliatory purposes. According to complainant, the investigators did not interview employees with evidence contradicting management's allegations against complainant unless those employees approached the investigators and requested to be heard. Complainant contends that the investigators did not ask appropriate questions. She asserts that the investigators asked leading questions suggesting that there had been no sex discrimination or reprisal against complainant; rather, she asserts, the investigators suggested that there had been a mere "personality conflict" with management. Additionally, complainant claims that the agency never obtained or considered testimony of individuals present during the alleged discriminatory events, other than that of management, and, the agency failed to interview witnesses that complainant identified. Specifically, the agency did not interview the RA and the STA. Complainant asserts that even a cursory interview of these management officials would have provided confirmation of their conversations and electronic mail (e-mail) exchanges. In its final decision, the agency states that the RA resigned from the agency prior to the conclusion of the investigation of complainant's complaint, and that she did not respond to their request for information. Complainant asserts that any reasonable investigation of the STA would have included questions about her conversations with the RA, as well as an interview of the RA herself. Additionally, complainant claims that the agency has failed to participate in good faith ADR concerning the former GC's alleged discrimination and reprisal against female lawyers in the LADO. In her brief in support of appeal, dated March 1, 2002, complainant contends that the agency did not engage in mediation. Complainant also claims that the agency was not engaging in good faith settlement efforts when it refused to release her "Outstanding" performance evaluation, and instead, offered a "neutral" reference letter. ANALYSIS AND FINDINGS The Commission has thoroughly examined the record, including all statements submitted by the parties, and, for the reasons discussed below, the Commission affirms the agency's final decision. Complainant claims that the record is deficient as a result of the agency's failure to interview and gather information from the RA and the STA. The record shows that on appeal, complainant has submitted documents both drafted by, and regarding, the STA. Therefore, we conclude that complainant had access to this former management official and/or documents regarding this former management official, that would allow complainant to offer evidence in support of her position. Moreover, the investigation was not completed until on or about September 28, 2000, after the RA resigned from the agency in December 1999 or early in the year 2000. Accordingly, we find that the investigation was conducted in good faith, and that the record is an impartial and appropriate factual record upon which to make findings on the claims raised by complainant in her complaint and amendments to that complaint. See 29 C.F.R. . 1614.108(b). Furthermore, complainant has not shown that any of the evidence that she wants in the record, as she advocates on appeal, would change the ultimate result and lead to a finding of discrimination. An agency decision not to engage in ADR, or not make ADR available for a particular case, or an agency failure to provide a neutral, cannot be made the subject of an EEO complaint. See EEOC Management Directive 110 (EEO-MD-110), Ch. 3(II)(A)(4) (November 9, 1999). The record shows that the parties engaged in settlement negotiations, although they have been unsuccessful. Pursuant to 29 C.F.R. . 1614.603, the agency must make reasonable efforts to voluntarily settle discrimination complaints as early as possible, but, there is no requirement that the agency settle the case. There has been no impropriety regarding the agency's failure to settle the instant matter. Claim (1) Complainant was subjected to a hostile and offensive working environment, including (a) threats; (b) a physical assault; (c) repeated false reports to superiors and defamatory statements made about complainant to other agency lawyers by the Area Director of the SDAO and by the RA of the LADO; (d)insulting and demeaning comments; (e) refusal by the Area Director and others in the SDAO to participate in professional communications with complainant about Commission business; and (f) refusal by the RA of the LADO and the Area Director to follow complainant's legal advice. (a) Threats According to complainant, the Area Director verbally abused and physically threatened her, screamed at her, and shook papers violently in her face. Complainant also claims that the Area Director's behavior included "ranting and raving" about her, storming around his office and flailing his arms in a violent and threatening manner close to staff members. Complainant has not identified the date(s) on which these events occurred. Although the Area Director denies that he made threats to complainant or other female employees, the agency, in its November 14, 2001 decision, admits that in April 1999 or May 1999, an Investigator in the SDAO, whose office was about 15 to 20 feet away from complainant's office, heard the Area Director scream loudly at complainant, while complainant's door was closed. The Investigator describes this incident in her October 24, 2000 declaration. The Investigator testified that she could not hear what the Area Director was saying to complainant, but that complainant did not shout back at the Area Director. (b) Physical Assault On May 28, 1999, complainant, the Area Director, CRTIU Supervisor, and Enforcement Supervisor met in an effort to issue a subpoena that evening. The Area Director, CRTIU Supervisor, and Enforcement Supervisor attest that at the meeting, complainant screamed and yelled at the Enforcement Supervisor, shook her finger in the Enforcement Supervisor's face, and struck the Enforcement Supervisor on the arm. Following these events, they corroborate that the Enforcement Supervisor grabbed complainant's hand and held it. Complainant and an Investigator, who did not attend the meeting and was not in the room, claim that the Enforcement Supervisor, not complainant, was the aggressor and had a history of assaulting employees. Complainant also claims that the Enforcement Supervisor has been disciplined in the past for assaulting other co-workers. The agency admits in its November 14, 2001 final decision that two female Investigators, in their October 2000 declarations, stated that the Enforcement Supervisor assaulted an SDAO employee in the mid 1990s, and that she was forbidden to have contact with that employee thereafter. (c) Repeated false reports to superiors and defamatory statements made about complainant to other agency lawyers by the Area Director and the RA of the LADO Complainant claims that the Area Director made repeated false statements about her to the RA and the former Senior Trial Attorney (STA). Specifically, she claims that the Area Director lied to them when he told them that complainant violated his "rule" by speaking with an investigator during an on-site investigation without including the Area Director as a party to the conversation. Additionally, according to complainant's declaration, on or about September 5, 1999, complainant sent an electronic mail (e-mail) message to the RA about continuing harassment by the Area Director. Complainant asserts that retaliation followed on or about September 10, 1999, when the RA threatened to withdraw her permission for previously approved travel for complainant's participation as a faculty member in a broadcast video-seminar presented by the American Law Institute - American Bar Association. Complainant claims that the time frame establishes a retaliatory motive because the RA knew of the seminar and had previously approved it. Complainant also claims that the RA falsely criticized her legal work and case management skills, told others of acts which complainant never committed, and then never corrected her libelous statements. Complainant neither specifies the date(s) on which these incidents occurred, nor describes the incidents in further detail. The Area Director responded that other than his report to the LADO about the May 28, 1999 assault incident, described above, he made no written reports to the RA about complainant; however, he acknowledges that he spoke with the RA on occasion about complainant's role in the office and her interactions with the staff. (d) Insulting and Demeaning Comments Complainant also claims that the Area Director has publicly stated that complainant is a "prima donna," and referred to himself as complainant's "master," and called complainant "impotent." Complainant states on appeal that a statement provided by the STA corroborates the instances where the Area Director called complainant "impotent" and said that he was her "master." Complainant has not specified the dates on which these incidents occurred, or provided any further detail regarding these alleged comments. (e) Professional Communications Complainant further claims that the refusal by the Area Director and others in the SDAO to acknowledge electronic mail (e-mail) messages or return telephone calls regarding Commission business establishes a prima facie case of retaliation. For example, the Area Director allegedly ignored complainant's July 28, 1999, August 4, 1999, and August 5, 1999, telephone calls expressing concern that the Enforcement Supervisor had provided incorrect supervision to an investigator. Complainant claims that the Area Director ignored a July 26, 1999 memorandum outlining a prompt response to a conciliation proposal on a 1994 charge. Additionally, complainant claims that the Area Director did not read a memorandum that complainant submitted to him on July 24, 1999, until July 28, 1999. The Area Director denies refusing to communicate with complainant regarding agency business. (f) Refusal to Follow Legal Advice Complainant claims that she was subjected to harassment when the Area Director refused to follow her legal advice. She maintains that the Area Director ignored her warning that he should stop others from engaging in conduct to cover-up their misconduct of falsely exaggerating the success of an employee's mediation efforts. According to the agency, complainant failed to establish a prima facie case of harassment on the bases of sex or in retaliation for prior EEO activity. The agency maintains that the record shows that complainant frequently disagreed with the Area Director's management of the SDAO and was upset by his refusal to follow her legal advice. The Commission notes that in his declaration, the Area Director denied that he refused to follow complainant's legal advice. The agency also submits that complainant was upset because the Area Director spoke to her supervisor about her interactions with the SDAO staff, and the Area Director ordered her to review particular cases, although he was not her supervisor. The agency concedes that the record shows that complainant and the Area Director did not have a cooperative relationship, but argues that complainant did not offer any evidence to show that the Area Director harassed her on the bases of sex or in retaliation for prior EEO activity. Complainant claims that she was harassed on the bases of sex and reprisal. On appeal, complainant emphasizes the absence of harassment of the "similarly-situated," less experienced male attorney in San Diego, who had not engaged in prior EEO activity under Title VII. In determining whether an objectively hostile or abusive work environment exists, the trier of fact should consider whether a reasonable person in complainant's circumstances would have found the alleged behavior to be hostile or abusive. A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. Ford v. Department of Veterans Affairs, Appeal No. 01984630 (January 2, 2002). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Id. (citing Harris v. Forklift Systems, 510 U.S. 17 (1993)). To establish a prima facie case of hostile environment harassment, the 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 the statutorily protected class; and (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. Humphrey v. United States Postal Service, EEOC Appeal No. 01965238 (October 16, 1998). Evidence of the general work atmosphere, involving employees other than the complainant, also is relevant to the issue of whether a hostile environment existed in violation of Title VII. See id. The record shows that while the Area Director does not supervise complainant as an attorney, he also is not required to follow the advice of agency attorneys assigned to his office. Moreover, complainant has no supervisory authority with regard to the Area Director's duties and responsibilities. We find that complainant failed to show that she was the victim of a hostile work environment. None of the described actions were sufficiently severe or pervasive to alter the conditions of her employment. See Maccue v. Department of the Interior, EEOC Appeal No. 01944412 (February 1, 1996) (finding that complainant was not subjected to sexual or racial harassment where complainant failed to show that a physical assault occurred and where the remaining actions primarily involved criticisms of complainant's work). Furthermore, the Commission finds that none of the alleged acts of harassment were taken because of any of complainant's protected bases. Claim (2) Other female employees were subjected to retaliation by the agency when they provided testimony in support of complainant's complaint. The Commission finds that claim 2 fails to state a claim, pursuant to 29 C.F.R. . 1614.107(a)(1). Complainant claims that reprisal occurred when the Senior Investigators who provided testimony in support of complainant's complaint were excluded from closing "cause" cases. Complainant identifies these as "easy, no work closures," which she claims the Area Director later used to justify monetary rewards. Complainant also claims that the Area Director refused to agree to award money based on performance to any investigator who talked to the Headquarters investigation team in support of complainant's complaint. She further claims that the Enforcement Supervisor and Area Director deliberately gave one of the Investigators the wrong legal standard to apply in order to frustrate her having a solid cause case. She also claims that two of the Investigators were assigned the most complex, difficult cases and did not receive proper credit, while another Investigator was denied outreach opportunities in the Hispanic community. Retaliation is prohibited "against someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights." EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 at 8-II(B)(3) (c) (May 20, 1998) (footnote omitted). We find that these co-workers do not meet the standards contained in our Compliance Manual. Therefore, claim 2 is dismissed for failure to state a claim, as complainant does not have standing to raise a claim on behalf of these co-workers. Claim (3) Complainant's privacy rights were violated by the Area Director when he removed documents from complainant's office in late September 1999. Complainant claims that at the end of September 1999, the Area Director searched her office in order to locate memoranda critical of himself and other agency employees. In a February 7, 2000 memorandum, drafted in response to a request for information and documents submitted by the agency's Director, Complaints Processing Division, the Area Director denies searching or removing anything from complainant's office. In its final decision, the agency argues that complainant has not identified any witnesses to the event, or identified what he allegedly removed. The Commission finds that complainant has not shown that the event occurred, and, assuming that it did occur, complainant has failed to show by a preponderance of the evidence that this incident was motivated by discrimination. Claim (4) On August 10, 1999, complainant was issued a retaliatory Letter of Warning, and an Employees Assistance Program referral by the RA of the LADO. The May 28, 1999 incident regarding the physical confrontation between complainant and the Enforcement Supervisor is described in detail earlier in this decision. The week following the May 28, 1999 incident, the Area Director, CRTIU Supervisor, and Enforcement Supervisor notified the LADO District Director, in writing, of the incident. The Enforcement Supervisor also orally reported the incident to the STA and the RA on June 1, 1999. On August 10, 1999, complainant was issued a Letter of Warning (LOW) for exhibiting inappropriate and disruptive behavior on May 28, 1999. Complainant was also issued a letter urging her to contact the EAP due to her unprofessional conduct. Both the LOW and the EAP referral were withdrawn from complainant's records, and all copies destroyed, pursuant to the December 22, 1999 memorandum issued to complainant by the GC and the Director, Office of Field Programs (OFP). In the memorandum, the GC and the Director, OFP, concurred with the findings of the agency's investigative team, which concluded that although the LOW and EAP referral letters were "poorly timed," they were not issued to complainant for retaliatory purposes. According to complainant's Request for Counseling, dated September 1, 1999, on August 5, 1999, complainant informed her immediate supervisor, the Supervisory Trial Attorney (STA), that she intended to file an EEO "charge or grievance" (EEO complaint) against the Area Director. She claims that on August 11, 1999, the STA told complainant that she informed the RA, via an electronic mail (e-mail) message, on August 8, 1999, of complainant's intention to file an EEO complaint against the Area Director. These e-mails are not contained in the record. Nevertheless, the agency does not dispute that these e-mails were sent; rather, the agency disputes the date on which the RA knew of complainant's intention to file an EEO complaint. The agency claims that the RA was on vacation at the time that the STA sent her the e-mail message, thereby raising doubt as to whether the RA knew of complainant's intent to file the EEO complaint prior to the issuance of the LOW and EAP referral. The Commission notes that there is no record of the RA's scheduled leave contained in the file. Complainant believes that the issuances of the LOW and the EAP referral were retaliatory because they were issued on August 10, 1999, less than 48 hours after the RA learned of complainant's protected activity; but, they were based on an event which had allegedly occurred, and of which the RA knew, more than two months earlier. According to complainant, the issuance of the LOW was contrary to the recommendation of the STA, who conducted an investigation at the request of the RA. Furthermore, on appeal, complainant claims that although the RA issued the LOW on August 10, 1999, during November 1999, the RA informed agency headquarters that she wished to withdraw the LOW, because she had obtained additional evidence that the witnesses were not credible. The Commission has been unable to locate in the record any supporting documentation for complainant's assertions. As detailed in complainant's September 1, 1999 Request for Counseling, as well as the agency's November 14, 2001 decision, complainant claims that the Area Director of the SDAO has been aware of her opposition to sex discrimination since April 1, 1999, when she made an internal complaint to the RA of the LADO, in which she claimed that the Area Director was sexist. Complainant also claims that she made a similar complaint to the LADO District Director in early May 1999. Additionally, complainant claims that she expressed her opposition to the Area Director's sexist behavior towards herself and other female staff members in the SDAO during a conflict resolution session between July 20, 1999, and July 22, 1999. Finally, complainant asserts that even if the allegations regarding the May 28, 1999 incident had been true, the issuance of a LOW to a ten-year Commission employee with a spotless record would be retaliatory. Although the agency contests that the RA knew of complainant's intent to file an EEO complaint against the Area Director prior to August 10, 1999, the agency concludes that it cannot refute that complainant had made internal complaints regarding the Area Director's alleged discriminatory conduct in April 1999, May 1999, and July 1999. The agency found that the proximity of complainant's internal opposition to the Area Director's behavior, and the issuance of the LOW by the RA, created a sufficient nexus between complainant's protected activity and the employment action, to establish a prima facie case of retaliatory disparate treatment. However, the agency maintains that it has articulated legitimate, non-discriminatory reasons for issuing complainant a LOW. The statements made by the eye witnesses to the May 28, 1999 altercation are consistent, and, all of the witnesses reported that complainant apologized for the alleged assault shortly thereafter. On appeal, complainant denies that she apologized for the alleged assault, contending that she was only being conciliatory about expecting too much work from the Enforcement Supervisor. The agency contends that there is no evidence that the RA disbelieved the witnesses' statements when deciding to discipline complainant, and, there is no evidence beyond the testimony of complainant, that the statements were falsified or prepared to discredit complainant. In a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997). The Commission's policy on retaliation prohibits adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Villias v. United States Postal Service, EEOC Appeal No. 01A04472 (September 14, 2001) (citing EEOC Compliance Manual, Section 8, "Retaliation," No. 915.003 at 8-13 - 8-14 (May 20, 1998)). The causal connection may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner as to infer a retaliatory motive. See id. (citing Devereux v. United States Postal Service, EEOC Request No. 05960869 (April 24, 1997)). Once a prima facie case of retaliation is established, the burden of production shifts to the agency to articulate a legitimate non-retaliatory reason for the adverse treatment. The complainant retains the ultimate burden of proof to demonstrate that, more likely than not, the agency's proffered reason is a pretext for retaliatory motive. See Coffman, EEOC Request No. 05960473. We find that complainant has established a prima facie case of reprisal regarding the LOW. Complainant had engaged in prior protected activity, of which the agency was aware. Complainant has claimed that she was subjected to adverse treatment when she was issued the LOW. Additionally, as admitted by the agency, the temporal proximity of complainant's opposition to the Area Director's behavior, as well as the temporal proximity in which the RA allegedly became aware that complainant intended to file an EEO complaint against the Area Director, to the time when complainant was issued an LOW by the RA, was sufficient to establish a nexus between complainant's protected activity and the adverse employment action. Complainant, however, retains the ultimate burden of proving retaliatory motive. Although the temporal proximity asserted by complainant, and admitted to by the agency, establishes a prima facie case, it does not alone prove that the agency's actions were motivated by retaliatory animus. We conclude that the agency has met its burden of production by articulating a legitimate, non-discriminatory reason for issuing complainant a LOW. The agency asserts that the statements made by the Area Director, CRTIU Supervisor, and the Enforcement Supervisor are consistent in their description of the May 28, 1999 altercation between complainant and the Enforcement Supervisor, and, it is based on this altercation that the RA claims to have issued the LOW. Furthermore, we find that complainant failed to submit sufficient evidence to show that the agency's reason was untrue or that the issuance of the LOW was motivated by retaliation. Therefore, we agree with the agency's conclusion that complainant failed to prove, by a preponderance of the evidence, her claim that she was issued the LOW in retaliation for prior EEO activity. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a complainant may establish a prima facie case of sex discrimination by showing that: (1) complainant is a member of a protected group; (2) she was subjected to an adverse employment action; and (3) she was treated less favorably than other similarly situated employees outside of her protected group. We note that it is not necessary for complainant to rely strictly on comparative evidence in order to establish an inference of discriminatory motivation necessary to support a prima facie case. See O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, n. 4 (September 18, 1996). Complainant was a member of a protected group (female). Complainant was subjected to an adverse employment action when she was issued a LOW, and, complainant has asserted that someone outside of her protected group (male) had been treated more favorably than she. According to complainant, the similarly situated employee, a male attorney in the SDAO, had a confrontation with the Enforcement Supervisor. The male attorney was accused by the Enforcement Supervisor of work-related misconduct. He became "visibly upset" and accused the Enforcement Supervisor of lying. According to complainant, this confrontation was witnessed by the RA, who did not issue the male attorney a LOW. Although complainant has shown evidence that someone outside of her protected group who was involved in a confrontation was not issued a LOW, this confrontation is distinguishable from the confrontation between complainant and the Enforcement Supervisor, because there has been no allegation, or even reference, to physical contact between the parties. The record shows only that it was a verbal confrontation. Consequently, we do not find that complainant and the male attorney were similarly situated in this circumstance. Therefore, we find that complainant has failed to establish a prima facie case of discrimination on the basis of sex. Even assuming, however, that complainant did establish a prima facie case of discrimination on the basis of sex, we find that the agency has articulated a legitimate, non-discriminatory reason for issuing complainant a LOW, which was the physical confrontation between complainant and the Enforcement Supervisor. Furthermore, complainant has failed to show by a preponderance of the evidence that the issuance of the LOW by the agency was motivated by prohibited discrimination on the basis of sex. Therefore, we also agree with the agency's finding that the agency did not discriminate against complainant on the basis of sex when it issued her a LOW. On August 10, 1999, the same day that complainant was issued the LOW, complainant was also issued an EAP referral by the RA. The EAP referral states that complainant's conduct on May 28, 1999, towards the Enforcement Supervisor was abusive and unprofessional, and that complainant has exhibited "less than professional" conduct on prior occasions. The RA expresses concern for complainant's personal and professional welfare and urges her to contact an EAP counselor. The RA emphasizes that the EAP referral does not constitute a disciplinary action, and that her participation in the counseling program is voluntary. The Commission has ruled that a referral to EAP which is not part of a harassment claim fails to state a claim. See Hansen v. United States Postal Service, EEOC Request No. 05980707 (April 29, 1999). In the instant case, however, complainant claims that she has experienced a pattern of harassment. A fair reading of complainant's claim is that her referral to EAP and issuance of an LOW were part of a series of actions taken by the agency to harass her because of her sex and in retaliation for prior EEO activity. See Lebron v. United States Postal Service, EEOC Request No. 05960609 (July 18, 1997). Complainant has failed to persuade the Commission that the agency's description of the May 28, 1999 incident and corresponding witness statements were concocted to discriminate against complainant. The Commission finds that complainant has failed to show that the issuance of the EAP referral and LOW to complainant were taken because of any of complainant's protected bases. The record suggests, rather, that the issuance of the EAP referral and LOW were a result of the unprofessional conduct that complainant exhibited on May 28, 1999, as documented by the agency. Claim (5) On or about May 14, 2000, the General Counsel (GC) and/or the Acting RA extended complainant's detail to the LADO for four additional months. Although complainant's original duty station was in the SDAO, complainant began a detail to the legal unit in the LADO, effective February 14, 2000. Another attorney (male), was also detailed from the SDAO to the LADO on that same day. On May 18, 2000, the GC extended complainant's detail to the LADO for 120 days, effective May 14, 2000. On May 20, 2000, the legal unit in the SDAO was closed, and complainant was permanently reassigned to the LADO legal unit by the GC. According to complainant, her detail was extended in order to prevent her return to the SDAO where she had been elected union steward and was acting in protected concerted activity with other women employees to oppose sex discrimination and retaliation by agency managers and supervisors. She also claims that her detail was extended so that the agency could subject her to continuing sex discrimination and retaliation, and ultimately force her to leave the agency. Complainant's claim is supported by an April 22, 2000 letter from the STA to the agency's former Chair. In that letter, the STA states that the Acting RA has acted in a discriminatory manner, clearly intending to force the STA and complainant out of the agency. The STA writes that complainant was detailed to the LADO after complaining of sex discrimination in the SDAO. The Commission notes that the extension of complainant's detail on May 14, 2000, not her initial detail in February 2000, is the only claim related to her detail that was raised in her complaint and the subsequent amendments. On appeal, complainant claims that the GC not only detailed and later transferred complainant to the LADO to retaliate against complainant for protected EEO activity, but he also closed the legal unit in San Diego in retaliation as well. According to complainant, the admission by the GC, in writing, that the reason for the temporary closure of the San Diego legal unit was due to conflict in the office, as well as the short period of time between complainant's protected activity and her transfer, should cause the Commission to infer discrimination. Complainant adds that the evidence shows that the male attorney who was transferred to the LADO had requested a transfer, in contrast to complainant, who repeatedly requested that she be allowed to return to the SDAO. The agency does not dispute that the GC was aware of complainant's instant complaint, filed on October 26, 1999, before he extended her detail on May 14, 2000; however, the agency concludes that the GC's reasons for extending complainant's detail are legitimate and non-discriminatory. According to the agency, the GC extended complainant's detail because he thought it best to consolidate resources in the LADO, since he had approved another attorney's request for permanent assignment to the LADO, and the SDAO lost its Paralegal Specialist to another EEOC office. The GC then elected to reassign complainant permanently to the LADO because the SDAO had no professional legal staff and there was an Acting RA and Acting STA managing the legal unit of the LADO. In the Acting RA's affidavit, dated September 22, 2000, the Acting RA states that he was not involved in the decision to extend complainant's detail in the LADO. Complainant does not offer any information that contradicts the Acting RA. The Commission notes that involvement in union activities is not a protected basis under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. . 2000e et seq. Additionally, the Commission finds that complainant has failed to prove that she was subjected to sex discrimination or retaliation by the agency when her detail was extended and when she was eventually permanently reassigned to the LADO. In its decision, the agency assumes that complainant established a prima facie case of discrimination on the bases of sex and reprisal, but maintains that the reasons offered by the GC were legitimate, non-discriminatory reasons. Even assuming that a prima facie case on the bases of sex and reprisal was established, we find that complainant has not proven by a preponderance of the evidence that the reasons provided by the agency for extending complainant's detail and eventually closing the legal unit in the SDAO, were a pretext for discrimination. Claim (6) Complainant was placed on AWOL by the Acting RA of the LADO for 28 hours, between March 14, 2000 and March 21, 2000. On March 21, 2000, the Acting RA issued complainant a memorandum placing complainant on AWOL because she was not at her LADO duty station during 28 business hours from March 14, 2000 through March 21, 2000, and, she had not submitted leave slips for those hours. According to the agency, the specific hours for which complainant was found to be AWOL were the following: March 14, 2000 (4 hours); March 15, 2000 (4 hours); March 17, 2000 (8 hours); March 20, 2000 (8 hours); and March 21, 2000 (4 hours). It is undisputed that complainant was detailed to the LADO when she was placed on AWOL. Complainant maintains that she was issued a travel authorization (TA) to go to the SDAO during the precise time period when she was declared AWOL, and that she was authorized to make a medical appointment in San Diego for March 14, 2000. In the April 25, 2000 amendment to her complaint, complainant claims that on both March 14, 2000, and March 15, 2000, she called the Acting RA to tell him that she would be using sick leave. According to complainant, prior to beginning the detail to the LADO on February 14, 2000, the agency's Office of General Counsel (OGC) told her that it was appropriate to schedule medical appointments in her home area, San Diego, rather than in Los Angeles. Additionally, complainant contends that after receiving an e-mail message concerning her assignments for the upcoming week, which did not tell her to cancel the trip to the SDAO, complainant immediately called the Acting STA and left a voice mail message asking for clarification, but the call was never returned. Complainant also notes that she had been directed to cancel other travel, and did cancel such travel. She claims that there is no evidence that she was ordered to cancel the TA for medical treatment and/or sick leave; nevertheless, on March 15, 16, and 17, 2000, she attempted to contact the Acting RA by electronic mail (e-mail) and facsimile, to make sure that she was not expected to return to the LADO for the remainder of the week, but she received no response. Complainant claims that she notified the Acting RA that she could not send or receive e-mail from outside the LADO. We note that the file contains a memorandum dated March 17, 2000, that was faxed from complainant to the Acting RA on that date. In the March 17, 2000 memorandum, complainant states that she worked four hours on each of the two days that she was sick, which the Commission deduces from the record were March 14, 2000, and March 15, 2000, and, she claims to have worked more than eight hours on March 16, 2000, and March 17, 2000. Complainant left another message for the Acting RA that she would be working in the SDAO through Monday, March 20, 2000, but she again received no response. Therefore, complainant remained in the SDAO and worked there on Monday, March 20, 2000, as well as through the prior weekend. Complainant returned to the LADO on March 21, 2000. Although complainant claims that she was working in the SDAO during the time that she was charged with AWOL, and that she may have signed in, the time keeper of the SDAO stated that legal unit employees had never signed in or out for work, and that the SDAO had no sign-in or sign-out sheets for the period March 14, 2000 to March 21, 2000. Nevertheless, the STA confirmed by letter to the former Chair of the agency, dated April 22, 2000, that the Acting RA ignored the STA's communications with him and declared complainant AWOL after she advised him that complainant was working in the SDAO and was awaiting his response to her e-mail messages. Complainant compares herself to an African-American male who has a blanket TA that allows him to travel between the SDAO and LADO whenever he wishes. He has not received AWOL and has regular communication with the Acting RA. According to the agency, complainant's supervisor instructed her to perform her duties in the LADO. The agency asserts that there is no evidence that complainant obtained permission to work in the SDAO on March 14, 15, 17, and 20, 2000. In his affidavit, the Acting RA testifies that the only communications he received from complainant concerning her leave status between March 13, 2000 and March 21, 2000, were two voice mail messages on March 14 and 15, 2000, in which complainant mentioned sick leave, and a faxed memorandum on March 17, 2000, with two leave slips requesting four hours of sick leave on March 14, 2000, and four hours of sick leave March 15, 2000. The Acting RA considered complainant to be absent for all but the four hour periods on March 14, 2000 and March 15, 2000, for which she submitted leave slips. He maintains that there were no other requests for leave from complainant covering that period of time, and there had been no other form of approval for complainant's absences. Furthermore, the record contains a memorandum dated February 28, 2000, from the Acting RA to complainant, in which he describes complainant's written intentions not to be in the LADO on March 2 and 3, 2000, March 13 through 17, 2000, and March 27 through 30, 2000. The Acting RA writes that he has approved none of these absences. He advises complainant that without his approval, no such absences are authorized, and, that he expects complainant to report to the LADO. According to a leave slip in the file, which complainant signed and dated on February 29, 2000, complainant's absences from March 14, 2000 through March 17, 2000, were approved by the former STA; however, they do not contain the signature of the Acting RA, who, in his February 28, 2000 memorandum, made it clear that his approval was necessary to authorize these absences. In his affidavit, the Acting RA cites the March 10, 2000 memorandum from an Acting STA to complainant, which states, "'I am directing you to cancel your appearances with the ABA, and thereafter, to spend all your time addressing, in this office, [LADO,] the many litigation matters you described remain to be done on the Mondrian case, rather than traveling to La Jolla and Washington, D.C.' (emphasis added)." The Acting STA expressed concern that complainant's obligations to her client, the agency, would not be met if complainant engaged in extended absences from the office. On appeal, complainant claims that the adverse treatment of canceling previously approved litigation-related travel and public outreach followed immediately after her opposition to sex discrimination. Complainant claims that the March 13, 2000 memorandum from the former STA to the Acting RA is evidence that the Acting RA was aware of complainant's protected activity; however, a review of that memorandum does not reveal any prior EEO activity by complainant. In fact, that memorandum does not mention complainant. In its final decision, the agency concludes that there is no evidence that the Acting RA was aware that complainant had engaged in EEO activity when he placed her on AWOL in March 2000; therefore, complainant did not establish a prima facie case of reprisal. In his affidavit, the Acting RA claims to know nothing of a prior EEO complaint filed by complainant. The Commission finds that it is unclear whether the Acting RA is denying that he knew that complainant filed the instant complaint, or that he did not know whether complainant filed an EEO complaint prior to the instant complaint. The agency also contends that there is no evidence that the Acting RA placed other employees, male or female, on AWOL. The Commission notes, as described above, that the Area Director has been aware of complainant's opposition to the alleged discriminatory treatment since April 1999, and the District Director has been aware of complainant's claims of alleged discriminatory treatment since early May 1999. The GC was also aware of complainant's EEO complaint in the instant case. The Acting RA has not admitted, and complainant has not conclusively shown, that the Acting RA was aware of complainant's opposition to the alleged discrimination when he placed complainant on AWOL; however, we find it likely that the Acting RA was aware of complainant's opposition to the alleged discrimination at that time. Applying the standards set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473 (November 20, 1997), the Commission agrees with the agency's conclusion that complainant established a prima facie case of sex discrimination regarding complainant's AWOL claim. Additionally, even assuming that complainant established a prima facie case of discrimination on the bases of race and reprisal, the agency articulated a legitimate, non-discriminatory reason for placing complainant on AWOL. Complainant was not performing her duties at her assigned duty station on March 14, 15, 16, 17, 20, and 21, 2000, and, she did not submit signed and dated leave slips that had been approved by the Acting RA for the periods of time in which she was charged with AWOL. Both the February 28, 2000, and the March 10, 2000 memoranda, support the agency's position that complainant was not permitted to work in the SDAO on March 14, 15, 16, 17, 20, and 21, 2000. Furthermore, there is no documentation in the record expressing permission by the Acting RA for complainant to travel to the SDAO between March 14, 2000, and March 21, 2000. The agency has met its burden of production, and complainant has failed to show that the agency's action of placing her on AWOL, was motivated by prohibited discrimination. CONCLUSION The Commission finds that claim (2) is properly dismissed for failure to state a claim. Regarding the remainder of the complaint, regardless of whether we examine each of complainant's claims individually, as discrete acts, or whether we examine these acts as part of an overall claim of harassment, the Commission finds that complainant has not shown that any of the incidents were motivated by discrimination. Therefore, we AFFIRM the agency's final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. . 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 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 (S0900) 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 (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. . 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. .. 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Frances M. Hart Executive Officer Executive Secretariat June 19, 2003 __________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was eceived within five (5) calendar days after it was mailed. I certify that this decision was mailed to complainant, complainant's representative (if applicable), and the agency on: __________________ Date ______________________________ Equal Opportunity Assistant