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

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-2036-0500 (E.E.O.C. Aug. 14, 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. 0120132036

Hearing Nos. 570-2011-00262X; 570-2012-00362X

Agency Nos. ARMYER10FEB00625; ARMYER11APR01435

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s March 19, 2013 final action 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical
Nurse at the Agency’s Andrew Rader U.S. Army Health Clinic in Arlington, Virginia. On
March 17, 2010 (and amended on August 19, 2010), Complainant filed an EEO complaint
[Agency No. ARMYER10FEB00625] alleging that the Agency discriminated against her and
subjected her to a hostile work environment on the bases of race (African-American), sex
(female), and in reprisal for prior protected EEO activity as evidenced by multiple incidents
including, inter alia, she was verbally counseled regarding a customer comment card; she
received a counseling statement for leaving work early when she delivered a file to a doctor;
she received a counseling statement for returning to work late from lunch and for saying “shut
the hell up” to a co-worker; she received a counseling statement for receiving four customer
comment cards; a supervisor asked her and a co-worker questions about their personal lives;
her supervisor removed all documents and folders from her desk and put them in her office;
her supervisor removed all files from the file cabinet in her office and placed them in a co-
worker's office; she received a performance rating in February 2010 that was not reflective of
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her actual work performance; she learned that management maintained a file on her EEO
activity; she was never issued keys to the department whereas other employees were; and she
was not allowed to write on a room heater the identity of her work area whereas a white
female was allowed to write on her heater.

On May 11, 2011, Complainant filed a second EEO complaint [Agency No. ARMYER11APR
01435] alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the same bases as evidenced by multiple incidents including, inter alia, her
supervisor yelled at her about her union duties in front of her peers; she was charged 30
minutes of Absence without Leave (AWOL) for being late; she received a Memorandum of
Leave Restriction; and she received a Memorandum of Reprimand.

At the conclusion of the investigation, the Agency provided Complainant with copies of the
reports of investigation and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, and the AJ assigned to the case consolidated the complaints on September
17, 2012. The AJ subsequently granted summary judgment in favor of the Agency, and issued
a decision on February 26, 2013.

In his decision, the AJ determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the alleged incidents were based on discriminatory or retaliatory animus. For
example, Complainant was counseled regarding customer comments because clinic patients
complained about Complainant’s work, specifically about her attire and treatment of them.
Management counseled Complainant for leaving work early to deliver files to a doctor in
another building because there was no other staff in the building when she left. A patient was
inconvenienced because Complainant failed to ensure there was coverage. Regarding the
counseling statement involving her co-worker, Complainant did not deny that she told a co-
worker to “shut the hell up.” The AJ found no evidence regarding Complainant’s claim that a
supervisor asked Complainant and a co-worker personal questions, and neither party included
the claim in their briefs.

With respect to her claim that files were removed from her office, Complainant’s supervisor
(S1) removed files from Complainant’s office because Complainant had left them on her desk
when she left for the day. As Complainant’s office was not properly secured, leaving them
there would violate patient privacy. Additionally, S1 had another specialist move files into his
own secure area. As to her performance rating, Complainant received a 3 out of 5 on her
evaluation for the year 2009-2010. Regarding the EEO file, the AJ noted that it appeared have
been a file left over from 2007 when Complainant was involved with other employees’ EEO
complaints. The old cases had nothing to do with Complainant’s current supervisors.

As to her claim regarding keys, when Complainant’s work station was temporarily relocated,
Complainant was not given a key to the facility. Of the four keys available, S1 had one, the
Lead Nurse of the Specialty Clinic had one (a Black female), and the other two were issued to
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emergency personnel. Complainant did not need her own key to the clinic, though she did
have a key to her own office. With respect to the room heater, there were problems with heat
in the temporary location and staff received room heaters. When Complainant wrote on hers
for identification, S1 told her that was wrong. As it turned out, S1 was wrong, and staff
members were allowed to mark their space heaters.

As to her union duties, Complainant was not correctly reporting her time when she was
involved with union business. S1 instructed Complainant to submit a leave slip, rather than
just sending her an email. With respect to Complainant being placed on leave restriction and
being charged with AWOL, S1 found that Complainant had submitted multiple requests for
unscheduled sick leave over a five-month period and consistently had failed to comply with the
Agency’s leave policies. As a result, she was issued a Memorandum of Leave Restriction.
While on leave restriction, Complainant returned late from lunch on March 11, 2011, and had
not sought permission to do so. Consequently, S1 did not allow Complainant to take annual
leave for her time, instead charging her with AWOL. Finally, Complainant was issued a
reprimand for wearing open-toed shoes in violation of the Agency’s dress code. When she was
instructed to change her shoes, she became argumentative. As a result, management issued
Complainant a Memorandum of Reprimand.

The AJ concluded that Complainant objected to being supervised by her supervisor, being
given instructions on how to do her job, to improve or correct her conduct, and give better
care to her patients. The AJ noted that rarely was Complainant given any discipline for her
transgressions, and only when her misconduct rose to a level that needed formal attention did
her supervisor have to memorialize the problem. Whether considered individually or
collectively, the numerous incidents complained were never sufficiently severe as to alter
Complainant's working conditions. In addition, Complainant failed to present any evidence
showing that any of these legitimate, nondiscriminatory and non-retaliatory reasons were
pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged.

The Agency subsequently issued a final action fully implementing the AJ’s decision. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency as genuine issues of material fact remain in dispute. Complainant argues that she
has proven a prima facie case of retaliation and she has suffered harassment as a result.
Complainant contends that the harassment manifested itself through a series of disciplinary and
non-disciplinary acts including placement on leave restriction, written reprimand, a lower-than-
deserved rating and a frivolous charge of AWOL. In addition, Complainant claims that she
was treated less favorably than other employees under S1’s supervision and that her protected
EEO activity was the cause. Accordingly, Complainant requests that the Commission reverse
the final action.
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ANALYSIS AND FINDINGS

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). 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 a protected basis (in this case, race, sex,
or prior protected activity. Only if Complainant establishes both of those elements, hostility
and motive, will the question of Agency liability present itself.

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Here, Complainant alleged that based on her protected classes,
management continuously subjected her to a hostile work environment as evidenced by
multiple incidents. The Commission concurs with the AJ's determination that, even when
viewing all of the alleged incidents and evidence in the light most favorable to Complainant,
the record does not show that the Agency subjected Complainant to a discriminatory or
retaliatory 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,
managerial discipline, personality conflicts, and general workplace disputes and tribulations.
Finally, to the extent that Complainant is alleging disparate treatment with respect to her
claims, the Commission finds that she has not shown that the Agency's reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds no
basis to disturb the AJ's summary judgment decision finding 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 action, because the Equal Employment Opportunity Commission
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Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

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.

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.
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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 Complainants 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

August 14, 2015
Date