Celeste P.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120172411 (E.E.O.C. Oct. 31, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Celeste P.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120172411

Hearing No. 570-2015-00958X

Agency No. YU-12-0031

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2017
final order 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a contract
administrator, 1102, GS-11 at the Agency’s Belleview Parkway facility in Manassas, Virginia.

On July 8, 2011, Complainant received a Letter of Warning and Instruction (LOWI) concerning
her performance and conduct, which according to the applicable union agreement, was to remain
in Complainant’s file for 12 months from its issuance. The LOWI noted Complainant’s reports
were late in March, April, May, and June.

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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On November 10, 2011, a member of the Agency’s management documented that, of the 596
contracts administered by Complainant’s team, 226 were for one of Complainant’s contractors.
On November 30, 2011, Complainant’s supervisor (SVR) placed her on a performance
improvement plan (PIP). Complainant’s performance improved, she “passed,” and received a
“fully successful” rating for 2012.

Prior to and during the PIP period, Complainant submitted a series of leave requests; SVR did
not approve Complainant’s request on February 15, 2012 for leave on February 17, 2012. On
February 17, 2012, Complainant took leave without approval. On or about February 24, 2012,
SVR issued Complainant a Letter of Warning for unauthorized leave.

Complainant initially contacted an EEO counselor on February 9, 2012. The EEO counselor’s
report indicates Complainant initially alleged she had been subjected to a hostile work
environment and discrimination based on race (Black/African-American) relating to her
evaluation/appraisal. She alleged that between August 2011 and March 2011, SVR subjected her
to a hostile work environment when (1) on or about April 2012, he denied Complainant training;
(2) on February 22, 2012, he issued Complainant a Letter of Discipline; (3) on February 17,
2012, he disapproved Complainant’s leave request; and (4) on November 30, 2011, he issued
Complainant a PIP. She alleged that, between July 22, 2011, a contracts director (CD) failed to
act on on the alleged hostile work environment incidents after Complainant informed and instead
she laughed and apologized. She alleged that, between May and July 2011, her former supervisor
(FSV) subjected her to a hostile work environment when (1) on July 14, 2011, he gave her a
failing performance appraisal; (2) on June 22, 2011, he issued her a LOWI and yelled at her at
least three (3) times in one day for going to a legal office, resulting in Complainant visiting the
emergency room; and (3) between May 9 to 19, 2011 and June 24 and 27, 2011, he disapproved
Complainant’s leave requests.

A letter from Complainant to the Agency, dated March 9, 2012, indicates Complainant was filing
her EEO complaint due to discrimination, harassment, a hostile work environment, and bullying.
She generally alleged that from March 2009 until February 2012, several supervisors subjected
her to various and multiple acts of harassment and intimidation including unfair treatment and
workload distribution, belittling, pressure and bullying relating to tasks that were not given
adequate time for completion, yelling and screaming, constant time monitoring, receiving an
unfair evaluation without a review of her individual performance plan, and denial of leave.

In April 2012, the Agency provided training in cost accounting standards. Complainant requested
to attend the training. SVR denied her request but Complainant attended a portion of the training
without approval. Six (6) other employees (4 Caucasian, 1 African-American, and 1 non-white)
on Complainant’s team did not attend the training.

On April 5, 2012, Complainant submitted a formal EEO complaint, attaching the March 9, 2012
letter discussed above.

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The Agency issued a partial acceptance letter, dated May 16, 2012, indicating Complainant
alleged discrimination on the basis of race (Black/African-American) when:

a. between August 2011 and March 2012, SVR (Caucasian) subjected Complainant to a
hostile work environment when: (1) on or about April 2012, SVR denied
Complainant training, (2) on February 22, 2017, SVR issued Complainant a Letter of
Discipline, (3) on February 17, 2017, SVR disapproved Complainant’s leave request,
and (4) on November 30, 2011, SVR issued Complainant a PIP;

b. on July 22, 2011, CD (Hispanic) failed to take action on the alleged hostile work
environment incidents after being informed and, in return, just laughed and
apologized; and

c. between May and July 2011, FSV subjected Complainant to a hostile work
environment when (1) on July 14, 2011, FSV gave Complainant a failing
performance appraisal, (2) on June 22, 2011, FSV issued Complainant a LOWI and
yelled at her at least three (3) times in one (1) day for going to a legal office, resulting
in Complainant visiting the emergency room.

The partial acceptance letter indicates that the Agency accepted only the allegations included
under claim a i.e., those allegations pertaining to SVR. The Agency dismissed claims b and c,
pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. It further indicates
that claim b was dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim.
Those claim c was also dismissed, pursuant to 29 C.F.R. § 1614.107(a)(5), as moot because FSV
is no longer Complainant’s supervisor or in her chain of command and it is, therefore, no
reasonable expectation that the alleged adverse actions will recur.

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 EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s March 20, 2016, motion for a
decision without a hearing and issued a decision without a hearing on April 27, 2017. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that there are genuinely disputed facts. She asserts that there is
evidence suggesting she was placed on a PIP unfairly since the terms were not consistent with
her individual performance plan and a reasonable person could conclude that the reasons
provided for placing her on the PIP were a pretext.
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She further asserts that a reasonable person could conclude that the Agency’s reason for denying
her leave was a pretext to mask discrimination. There is a genuine dispute as to whether
Complainant’s not having her assignment submitted was the real reason SVR denied her leave
request. Additionally, if Complainant had submitted it, SVR’s statement that he denied leave to
others who owed assignments was not evidence of similar treatment towards those outside of
Complainant’s protected class.

In response, the Agency asserts that Complainant cannot establish the Agency subjected her to a
hostile work environment or harassment on the basis of race. It is undisputed that there is no
evidence of record of any racial slurs or other racially-based conduct being directed at
Complainant, let alone any Agency behavior that rises to the level of severe or pervasive
harassment altering the conditions of Complainant’s employment. Complainant also has not
carried her burden of persuasion that the Agency’s legitimate, nondiscriminatory reasons for its
actions were a pretext for discrimination. It is undisputed that in the months preceding the PIP,
Complainant had difficulty meeting deadlines and performing her other duties in a timely and
adequate manner; there were no similarly situated employees with the same level of performance
problems and, while there were other African-American employees on Complainant’s team,
neither was placed on a PIP or issued a LOWI. With respect to the denial of leave, several other
employees outside of the protected class were also denied leave due to workload requirements.
Complainant did not communicate that she had completed her assignment when requesting leave
and she took leave without approval.

ANALYSIS AND FINDINGS

We must determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. §
1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that
summary judgment is appropriate where a court determines that, given the substantive legal and
evidentiary standards that apply to the case, there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary
judgment, a court’s function is not to weigh the evidence but rather to determine whether there
are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed
at the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable
fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23
(1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if
it has the potential to affect the outcome of the case. If a case can only be resolved by weighing
conflicting evidence, issuing a decision without holding a hearing is not appropriate.

Upon review of the record we find that the AJ properly found that the instant complaint was
suitable for summary judgment. The record is adequately developed and there are no disputes of
material fact.
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We note that, during the EEO investigation, Complainant declined to give sworn testimony in
support of her claim, in spite of the EEO investigator’s multiple requests. That said, Complainant
was given ample notice of the Agency's motion for a decision without a hearing, a
comprehensive statement of the allegedly undisputed material facts, the opportunity to respond
to such a statement, and the chance to engage in discovery. We find that, even assuming all facts
in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained below.
Therefore, we find that the AJ's issuance of a decision without a hearing was appropriate.

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 based on
race, her claim ultimately fails, as we find that the Agency articulated legitimate, non-
discriminatory reasons for its actions. SVR indicated that Complainant had multiple performance
issues that required the issuance of the PIP, including Complainant’s untimely completion of
tasks and responding to customer inquiries. With respect to the denial of leave on February 17,
2012, SVR indicated that the denial was so that Complainant could complete a work task. As
mentioned, Complainant took leave without approval. SVR indicated that the Letter of Warning
was needed because Complainant had a history of taking leave and requesting permission
afterwards. With respect to the training, SVR indicated he could only send one contract
administrator to the training and he did not select Complainant because she did not work on any
cost accounting standard issues. Complainant 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 Complainant’s allegations that the Agency subjected her to a hostile work
environment, we find that she has failed to establish a prima facie case. Even if her allegations
relating to yelling and screaming, time monitoring, etc. were true, we find they are insufficiently
severe or pervasive as to have altered the conditions of her employment.
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See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); Humphrey v. U.S. Postal Serv.,
EEOC Appeal No. 01965238 (October 16, 1998); and 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).

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 order.

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.
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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.
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
October 31, 2018
Date