Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 15, 2015

0120133089 (E.E.O.C. Jan. 15, 2015)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120133089

Hearing No. 451-2013-00064X

Agency No. ARBLISS12APR01691

DECISION
On August 30, 2013, Complainant filed a premature appeal of the Agency’s final decision
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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. § 621 et seq. The Agency had not issued its final decision until
October 8, 2013. Despite the procedural irregularity, the Commission deems the appeal timely
and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND
The Agency hired Complainant in March 2012, as a Dental Hygienist at the Chambers Dental
Clinic in Fort Bliss. On May 29, 2012, she filed an EEO complaint in which she alleged that
various commissioned and non-commissioned officers in her chain of command harassed her
and ultimately terminated her because of her race (Caucasian), sex (female), age (58), and
previous EEO activity between April 12 and May 24, 2012. She listed the following incidents
in her complaint:

1. On April 12 and April 13, 2012, the dental clinic’s Practice Manager slapped
Complainant’s hands when Complainant asked a question about the computer input
system known as CDA.

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2. On April 13, 2012, the Non-Commissioned Officer-in-Charge of the dental clinic
(NCOIC) influenced Complainant’s eventual termination by writing her up for
various infractions.

3. On April 13, 2012, the Commissioned Officer-In-Charge of the dental clinic (OIC)
influenced Complainant’s termination by directing his non-commissioned officers to
write her up.

4. On April 13, 2012, the OIC publicly humiliated Complainant by ordering his non-
commissioned officers to reprimand her, particularly for an incident in which she
was written up for making an incorrect entry into the CDA.

5. On April 14, 2012, the OIC and the Commander of the dental clinic influenced
Complainant’s termination when they got together and plotted against her in
connection with her workload not being entered into the CDA.

6. On May 14, 2012, the NCOIC wrote Complainant up for making a mistake in
entering workload information into the CDA.

7. On May 24, 2012, the Chief of Dental Surgery issued Complainant a notice of
termination without listening to anything she had to say.

At the conclusion of the ensuing 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, but on June 18, 2013, the
AJ assigned to the case issued an order denying Complainant’s request and ordering the
Agency to issue a final decision on the grounds that Complainant had engaged in numerous ex
parte communications despite repeated warnings not to do so. As previously noted,
Complainant filed her appeal before the Agency issued its final decision, in which it concluded
that Complainant failed to prove she was harassed or otherwise subjected to discrimination.

ANALYSIS AND FINDINGS
In order to prevail on her discrimination and discriminatory harassment claims, Complainant
would have to prove, by a preponderance of the evidence, that her race, sex, age, or EEO
activity were factors in the decision to terminate her and the events leading up to that decision.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Wibstad v. United
States Postal Service, EEOC Appeal No. 01972699 (Aug. 14, 1998). Since Complainant was
a probationary employee, she could be terminated at the Agency’s discretion so long as the
officers involved the incidents which preceded the termination, as well as the termination
decision itself, were not motivated by unlawful considerations of her race, sex. age, or EEO
activity. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981);
Tortorelli v. Department of the Air Force, EEOC Request No. 05920285 (May 7, 1992).
Evidence of unlawful intent can take the form of discriminatory statements or past personal
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treatment, comparative or statistical data, unequal application of Agency policy, or deviations
from standard procedures without explanation or justification. See Hovey v. Department of
Housing & Urban Development

, EEOC Appeal No. 01973965, (Aug. 31, 2000).
Complainant initially contends that the clinic’s Practice Manager slapped her on the hand on
April 13 and again on April 14, 2012. Investigative Report (IR) 131-34. According to
memoranda prepared by various eyewitnesses and the testimony of the Practice Manager at a
fact-finding conference, the Practice Manager was attempting to demonstrate how to enter data
into the CDA using a computer mouse, and that she tapped Complainant’s hand so that she
could take the mouse. The first time she did so, Complainant did not say anything. The
second time, Complainant told the Practice Manager that she did not want to be touched. The
Practice Manager apologized. A number of witnesses, including the Practice Manager,
characterized Complainant’s attitude as rude, self-centered, disrespectful, and lacking
professionalism. IR 131, 142-48, 660, 673-74, 756-57, 1123-28, 1186-88.

Complainant next contends that on April 13, 2012, both the OIC and the NCOIC wrote her up
in order to get her fired, and that the OIC directed the NCOIC and other non-commissioned
officers to write her up. Both officers testified that the non-commissioned officers were
responsible for documenting employees’ failures to adhere to the clinic’s established standards,
policies, and procedures. Several memoranda of record prepared by the NCOIC and other
non-commissioned officers uniformly state that Complainant had to be counseled for “jumping
her chain of command” and failing to enter workload reports into the CDA. The witnesses
further stated in their memoranda of record and at the fact-finding conference that while being
counseled by the NCOIC, Complainant became defensive and belligerent, interrupting the
NCOIC and causing the counseling session to last for over two hours. This necessitated the
cancellation of several of Complainant’s appointments with dental patients. IR 85-94, 661-64,
670-72, 752-56.

Complainant maintains that in April and May 2012, the OIC and the Commander of the dental
clinic colluded in an effort to get her fired over her failure to properly enter her workload
information into the CDA. The OIC and the Commander both testified, however, that they
never met to discuss Complainant’s CDA issues or her termination. One non-commissioned
officer who had observed Complainant on a number of occasions testified that Complainant
was counseled and written up in accordance with the clinic’s established policies for not
entering her workload accomplishment data on at least two occasions, despite being advised of
the importance of doing so. IR 95-106, 138-40, 669-70, 753-61, 924, 1056-57.

On May 24, 2012, the Chief of Dental Surgery issued Complainant a notice of termination
during probation, effective immediately. According to the notice, Complainant failed to verify
the identity of the patient that she was treating, and that as a result, she had administered dental
treatment to one patient based on information contained in the chart of a different patient. She
then tried to cover up her error by asking a tech specialist to shred the record of dental
treatment. The Dental Surgery Chief testified that he consulted the Civilian Personnel Office
prior to issuing the termination notice, and that he acted based upon the advice given to him by
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that office. IR 107-29, 165-67, 275, 565-76, 668-69, 682-90, 753-54, 761-67, 925-27, 980-
86, 1201, 1207-10.

The testimony of the OIC, the NCOIC, and the Dental Surgery Chief is amply corroborated by
the testimony of various witnesses and by contemporaneously prepared memoranda
documenting Complainant’s performance deficiencies, as well as her belligerent behavior.
While Complainant expressed her belief that the acts of these commissioned and non-
commissioned officers constituted discrimination and discriminatory harassment, she has not
presented any sworn statements from other witnesses or documents which contradict the
explanations they provided or which call their veracity into question Unsupported assertions
are not sufficient evidence of illegal motive. Porter v. Department of the Navy

, EEOC
Petition No. 03800087 (January 14, 1981). We therefore agree with the Agency that
Complainant has not sustained her burden of proof on the motives of the OIC, the NCOIC, or
the Dental Surgery Chief in documenting Complainant’s performance problems and ultimately
terminating her.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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), at 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 77960, Washington, DC 20013. 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.
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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

(Z0610)
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 from the Court that the Court appoint an attorney to represent you
and that the Court also 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
with the Court 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:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
January 15, 2015