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

Equal Employment Opportunity Commission

May 25, 2018

0120162198 (E.E.O.C. May. 25, 2018)

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

Christal G.,1
Complainant,

v.

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

Appeal No. 0120162198

Hearing No. 480-2014-00090X

Agency No. DMCA-P8-13-0005

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the May 24, 2016 final agency
decision (FAD) 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. The Commission’s review is de novo. For the following
reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electronics
Engineer, GS-0855-12, at the Agency’s Western Regional Command in Los Angeles, California.
Between June 2012 and October 2012, Complainant claimed that she was subjected to verbal
abuse by her supervisor (S1-1) and acting supervisor (AS-1). Complainant alleged that AS-1
yelled at her on a weekly basis and S1-1 spoke to her in angry tones and intimidated her by
email. Complainant believed that there was a conspiracy at the Agency’s Los Angeles office to
harass her.

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.
0120162198

2
S1-1 subsequently went out on maternity leave and Complainant believed that S1-1 ordered AS-
1 to give her a hard time while she was on leave. Complainant claimed that her second-level
supervisor (S2) took no action against S1-1 and AS-1 after she reported their actions.
Complainant claimed that S1-1 approved her for telework in January 2012. On June 18, 2012,
Complainant alleged that AS-1 canceled her telework under the direction of S1-1. Complainant
claimed that no other engineer had his or her telework canceled.

In June and July 2012, Complainant transferred to the Carson facility and claimed that
management increased her workload to set her up to fail. Complainant alleged that she was
required to work on both the Air Operations Command (AOC) program and the Mission
Planning Enterprise Contract (MPEC) II program, which included four complex programs.
Further, Complainant claimed that management rushed her to complete the system engineering
and surveillance plan in a short period of time and denied her request for additional time to
complete the task. In September 2012, S1-1 notified Complainant that AS-1 would be taking
over the Air Operations Command (AOC) program. Complainant stated that she did not ask to
be taken off the program and believed that S1-1 did this to place AS-1 in position for a
promotion.

In August 2012, Complainant claimed that S1-1 removed her name from a report she had
submitted for the AOC program and placed AS-1’s name on the report instead. Complainant
alleged that S1-1 later did the same thing to a plan she submitted for the MPEC II program in
February 2013. On October 9, 2012, Complainant alleged that she updated a monthly report
from a contractor’s slides based on instructions she had received and S1-1 later accused her of
incorrectly completing the report.

On October 11, 2012, S1-1 issued Complainant a Memorandum for Record regarding her work
performance. The memorandum stated that S1-1 had previously identified numerous
deficiencies in Complainant’s work performance including errors in reports, S1-1’s receipt of a
customer complaint regarding engineering support, and Complainant’s need to focus on her tasks
and clearly communicate in her reports. Complainant’s performance did not improve and, on
November 1, 2012, S1-1 issued Complainant a Letter of Warning and Instruction for Conduct
and Performance. The letter noted that S1-1 had received customer complaints regarding
Complainant’s engineering support, including her failure to respond to customer requests for
information. Further, the letter stated that Complainant had submitted reports that did not
include sufficient independent analysis. In addition, the letter stated that Complainant was
argumentative and unprofessional in her email communications to S1-1 and other employees.

At the end of 2012, Complainant claimed that she had four weeks of “use or lose” leave.
Complainant requested to use that leave for the entire month of December 2012, to care for her
ill parents. S1-1 denied the request and required her to change the leave dates to one week in
November 2012 and three weeks in December 2012, to cover for AS-1 who had taken off the
entire month of December 2012.

0120162198

3
In December 2012, while she was out on leave, Complainant claimed that S1-1 accused her of
not updating the shared drive with required information from January to May 2012.
Complainant denied failing to update the drive. Complainant stated that she reported to the Help
Desk that files had been lost from the drive, but no one was able to recover the documents or
identify who deleted her information.

On February 4, 2013, S1-1 issued Complainant her performance appraisal. Complainant alleged
that S1-1 lowered her score from “Outstanding” to “Fully Successful.” Complainant claimed
that when she attempted to write rebuttal notes, S1-1 pulled the document away and would not
allow her to make any additional notes.

In April 2013, S1-1 issued Complainant a Proposed Letter of Reprimand. In the proposed letter,
S1-1 stated that Complainant failed to follow the instructions/directives to work on completing
the MPEC II Event Based Surveillance Table and update the Systems Engineering Surveillance
Plan with the necessary language for MPEC II by February 7, 2013. S1-1 extended the deadline
for Complainant to provide the requested data and information by February 28, 2013. The
information Complainant subsequently submitted required corrections. On May 13, 2013,
Complainant’s third-level supervisor (S3) issued a Decision to Reprimand upholding the reasons
stated in the proposed notice.

On June 5, 2013, Complainant’s acting supervisor (AS-2) issued Complainant a Memorandum
for Record indicating that Complainant’s surveillance techniques and contractor interaction had
been brought to her attention. Among the issues cited, AS-2 noted that Complainant had
provided a contractor with an internal checklist. AS-2 indicated in the memorandum that
Complainant needed to be professional in dealing with the contractor and ask her co-workers if
she had questions.

In August 2013, Complainant requested telework from AS-2. AS-2 denied the request based on
the active Letter of Reprimand in her file, pursuant to the collective bargaining agreement.
Complainant claimed that it was a letter of warning in her file and that AS-2 was continuing the
pattern of harassment.

On December 31, 2012 (and amended multiple times), Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (Asian), national origin (Vietnamese), sex (female), and in
reprisal for prior protected EEO activity as evidenced by multiple incidents including, inter alia,
her second-level supervisor (S2) took no action on her claims of verbal abuse by management
officials; her acting first-level supervisor (AS-1) canceled her telework; her first-level supervisor
(S1-1) denied her use-or-lose leave in December 2012; she was removed from the Air Operations
Center program; S1-1 issued her a counseling statement; S1-1 removed her name from reports
and accused her of not updating the “shared drive;” her workload was increased with shorter
suspense dates; S1-1 did not allow her to include all of her notes on her performance appraisal;
S1-1 issued her a Memorandum for Record; her third-level supervisor (S3) issued her a Decision
to Reprimand; her new acting supervisor (AS-2) requested work from Complainant that she did
0120162198

4
not from others; AS-2 issued her a Memorandum for Record; and AS-2 denied her request to
telework.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing, but subsequently withdrew
her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that management
had articulated legitimate, nondiscriminatory reasons for its actions. More specifically, with
respect to Complainant’s claims that she was subjected to verbal abuse, S2 stated that he inquired
into the matter and could find no evidence substantiating Complainant’s allegations. In fact, S2
asserted that his inquiry disclosed that Complainant was rude, combative, and insubordinate.
AS-1 and S1-1 denied yelling at Complainant and stated they acted professionally toward
Complainant. Witnesses confirmed that AS-1’s voice naturally sounded loud; however, his
speaking voice did not constitute abuse.

Regarding her telework schedule, management officials explained that it was cancelled because
Complainant’s work was not adequate; she constantly questioned other engineers about work she
should have known how to perform; she missed deadlines and passed her work off to others to
perform; and she was difficult to reach by phone. Further, Complainant’s initial work in the
AOC program required her to have daily face-to-face contact with colleagues and with the
contract to perform efficiently; therefore, telework was not suitable.

As to the Memorandum for Record and Letter of Warning, S1-1 affirmed that she issued
Complainant the Memorandum for Record after providing her guidance and training in meetings
and by phone and email. S1-1 stated that Complainant had difficulty managing and prioritizing
tasks in the fast-paced AOC program and was unable to produce adequate and timely work
products. When Complainant’s performance did not improve, S1-1 confirmed that she issued the
November 2012 Letter of Warning.

With respect to Complainant’s claims regarding her workload and deadlines, management
officials denied Complainant’s assertions and stated that her workload was normal. S1-1 stated
that she assigned appropriate work which an engineer at Complainant’s pay grade should have
been able to accomplish with plenty of time to complete it.

As to her work on the AOC program, the Agency determined that Complainant worked on the
program from June to December 2012, but AS-1 replaced her as the Primary Engineer on
September 27, 2012, and Complainant became the Alternate Engineer in his absence.
Complainant was eventually removed from the AOC program in late-December 2012/early-
January 2013, and assigned to the MPEC II program in January 2013. The record evidence
showed that Complainant was removed from the AOC program due to complaints from a
customer and two Agency employees who stated that Complainant had difficulty managing and
0120162198

5
prioritizing tasks in the fast-paced program. S2 confirmed that management had received
complaints about Complainant’s performance in the AOC program and that Complainant was
given a normal workload with an appropriate amount of time to complete it. S1-1 stated that
moving Complainant to the MPEC II program decreased Complainant’s workload rather than
increased it.

With regard to her 2012 performance appraisal, Complainant was rated as “Fully Successful,”
dropping from an “Outstanding” on the 2011 performance appraisal. Management officials
stated that Complainant’s performance did not merit an “Outstanding” rating. Management
provided numerous examples of Complainant’s performance deficiencies including her work on
the AOC program. S1-1 confirmed that she provided Complainant with the second page of her
performance appraisal to allow her to write down any comments she wished to attach to the
appraisal. S1-1 affirmed that Complainant returned the page to her after she had completed
writing her comments.

As to Complainant’s claims about the shared-drive, S1-1 confirmed that she informed
Complainant which documents were missing and which needed corrections. S1-1 stated that she
had no knowledge of Complainant’s documents being deleted from the drive and encouraged all
employees to save copies of their work on their hard drive. With respect to AOC program
reports, S1-1 denied removing Complainant’s name from the report and explained that she
simply added AS-1’s name when he replaced Complainant in the program. The record shows
that Complainant’s name remained on the report on the cover sheet and in the revision history.

Regarding Complainant’s use-or-lose leave, S1-1 stated that she approved Complainant’s request
on September 25, 2012, for four weeks of leave in November and December 2012. In October
2012, Complainant asked to modify her request and take the entire month of December 2012 off
instead. S1-1 affirmed that she explained to Complainant that AS-1 would not be transferring to
the engineering team until January 2013; therefore, he would not be able to perform AOC
program duties in her absence. S1-1 stated that she suggested that Complainant could have four
consecutive weeks of leave during the latter part of December and first part of January, but
Complainant subsequently took leave in accordance with her original request. S1-1 noted that
Complainant never mentioned her ill mother as the reason in her initial request in September
2012, but S1-1 approved an additional 52 hours of advanced sick leave in January 2013 to allow
her to care for her mother.

As to the May 2013 Notice of Proposed Letter of Reprimand, S1-1 issued it based on
Complainant’s failure to follow instructions. The notice cited Complainant’s failure to complete
a task in a timely manner. The Notice noted that Complainant had previously been counseled
about similar matters. On May 13, 2013, Complainant’s third-level supervisor (S3) upheld the
Letter of Reprimand for Complainant’s failure to complete the assigned task on time.

With respect to the June 2013 Memorandum for Record, Complainant’s new supervisor (AS-2)
stated that she issued it after Complainant inappropriately or unnecessarily gave the contractor a
list of 50 questions, provided the contractor with an internal Agency checklist, and asked the
0120162198

6
contractor for technical documentation that was already available through various sources. As to
AS-2’s August 2013 denial of Complainant’s request to telework, the record indicated that
Complainant had an active reprimand related to her failure to follow instructions which
disqualified her for telework under the collective bargaining agreement.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been subjected
to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal
followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that she has been subjected to a hostile work environment and
bullying in the workplace. Complainant claims that she was treated differently than male
engineers who were considered “favorite” engineers. Complainant argues that S1-1 provided
false statements regarding her difficulty managing and prioritizing tasks. Complainant contends
that management placed a heavy workload on her to accuse her of customer complaints about her
duties with no evidence. Complainant claims that S1-1 and S2 did not have good management
skills due to their lack of technical skills. Additionally, Complainant contends that the AJ
initially assigned to her case rushed her case along and did not have her best interests at heart.
Accordingly, Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

The Commission shall first address Complainant’s contentions on appeal regarding the manner
in which the AJ conducted the hearing phase. Complainant claimed that she felt the AJ rushed
her case and did not have her “interest at heart.” The Commission notes that AJs have broad
discretion in the conduct of hearings, including discovery and the determination of whether to
admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e);
Equal Employment Opportunity Commission Management Directive 110 for 29 C.F.R. Part
1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). The Commission has reviewed the record and
finds no abuse of discretion by the AJ. Further, the Commission is unable to find any evidence
of bias, or other reversible error, resulting from the manner in which the AJ managed this case.

Hostile Work Environment

To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
0120162198

7
Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 her protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

Complainant asserted that based on her protected classes, management subjected her to a hostile
work environment as evidenced by several incidents of what she believed to be discriminatory
and retaliatory harassment. The Commission finds that Complainant has not shown that she was
subjected to conduct sufficiently severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus. The record reflects that the alleged incidents were more
likely the result of routine supervision, personality conflicts, and general workplace disputes and
tribulations. For example, with respect to Complainant’s claims of verbal abuse, S1-1 and AS-1
denied yelling at or verbally abusing Complainant. ROI, at 1398-99, 1467. S2 stated that he
looked into Complainant’s allegations, and found her claims unsubstantiated. Id. at 1454. S2
affirmed that his inquiry determined that Complainant was the employee who had acted
unprofessionally and in an insubordinate manner. Id.

As to her claims regarding her workload and her removal from the AOC program, S1-1 affirmed
that Complainant was removed from the program in January 2013 and placed on the MPEC II
program due to customer and co-worker complaints. ROI, at 1402. S1-1 stated that MPEC II
was a low-risk, low-visibility program with fewer systems engineering requirements for
surveillance than the AOC program. Id. S1-1 emphasized that Complainant was not tasked any
differently than any other engineer. Id. S2 corroborated that Complainant had work
performance issues and that S1-1 properly removed Complainant from the AOC program. Id. at
1457. S2 confirmed that Complainant was assigned the same level of tasks as other engineers.
Id. at 1459. Similarly, AS-1 canceled Complainant’s telework schedule after consulting with S2
and Agency Counsel because she was not adequately completing her work. Id. at 1463-64. With
respect to the October 2012 Memorandum of Record, S1-1 affirmed that she issued it to address
Complainant’s performance deficiencies on the AOC program, including inadequate analysis in
her reports; reports that needed several revisions; customer complaints regarding her engineering
support; and her need to focus on her tasks and communicate clearly. Id. at 818, 1405-06. S1-1
later issued a Letter of Warning and Instruction for Conduct and Performance in November
2012, when Complainant’s performance did not improve. Id. at 802.

With respect to Complainant’s claims that her name was removed from reports and she was
accused of not updating the shared drive, S1-1 denied removing Complainant’s name from
0120162198

8
reports and documentation and replacing it with AS-1’s name. ROI, at 1406. Instead, S1-1
affirmed that she added AS-1’s name once he was assigned to the AOC program. Id. S1-1
confirmed that she provided Complainant with detailed information about what was missing
from the drive and what documents needed corrections/more information as she did with all the
engineers on her team. Id.

As to her 2012 performance appraisal, S1-1 rated Complainant as “Fully Successful.” ROI, at
546. S1-1 indicated to Complainant when she issued it that Complainant’s performance was not
adequate. Id. at 541. S2 confirmed that Complainant’s work was below standards as she had to
be constantly supervised and her submitted work product often needed revisions. Id. at 1456.
S1-1 affirmed that she provided Complainant with a sheet to include her comments in her
appraisal and Complainant submitted it. Id. at 1407.

Regarding her use-or-lose leave request, S1-1 explained that, in September 2012, Complainant
initially requested and S1-1 approved one week off in November 2012 and three weeks off in
December 2012. ROI, at 1404. S1-1 stated that Complainant later wished to take all four weeks
off in December 2012, but S1-1 explained to her that AS-1 would not yet be able to perform the
AOC duties in her absence. Id. at 1404-05. S1-1 provided Complainant an alternative, but
Complainant ultimately took leave as she originally requested. Id. at 1405. S1-1 affirmed that
Complainant did not indicate to her that she wanted to take the leave in December 2012 to care
for her mother; however, she did subsequently request and was granted advanced sick leave for
that use in January 2013. Id.

As to the Letter of Reprimand, S1-1 issued Complainant a Proposed Letter of Reprimand for
failure to complete MPEC II Event Based Surveillance Table and update the Systems
Engineering Surveillance Plan with the necessary language by February 7, 2013. ROI, at 538.
S1-1 had extended the deadline for Complainant to provide the requested data and information to
February 28, 2013, and what Complainant eventually submitted still required corrections. Id.
Complainant had previously been counseled regarding timely completing reassignments. On
May 13, 2013, S3 issued a Decision to Reprimand for the reasons stated in the proposed notice.
Id. at 534-35.

With respect to the June 2013 Memorandum for Record, AS-2 issued it based on Complainant’s
surveillance techniques and contractor interaction. ROI, at 1550. One of the incidents cited in
the memorandum was Complainant’s distribution of an internal checklist. Id. AS-2 instructed
Complainant to be patient and professional with the contractor and to work with other team
members when she had questions. Id. Regarding her July 2013 telework request, AS-2 affirmed
that she denied it based on active discipline in Complainant’s file pursuant to the collective
bargaining agreement. ROI, at 1543-44.

The Commission finds that, considering the totality of the circumstances, Complainant has not
shown that she was subjected to a discriminatory or retaliatory hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that, as discussed above, Complainant has not demonstrated that the Agency’s
0120162198

9
explanation for its actions was pretext for discrimination or reprisal. As a result, the
Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.
CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

0120162198

10
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

May 25, 2018
Date