Debbra R,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0120140111 (E.E.O.C. Jun. 8, 2016)

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

Debbra R,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120140111
Hearing No. 531-2013-00144X
Agency No. ARASC11AUG03964

DECISION

Complainant filed an appeal from the Agency’s September 5, 2013, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s
final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Production
Controller, GS-2005-07, at Red River Army Depot in New Boston, Texas. On November 10,
2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her
on the bases of sex (female), age (57), and reprisal (prior protected EEO activity) when: (1)
she was transferred after 30 days of work in Afghanistan; and (2) subjected to a hostile work
environment from July 27, 2011 through August 17, 2011, in the following manner: (a) on
July 27, 2011, her first level supervisor (S1) told her she was "too little to do the job;" (b) on
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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July 30, 2011, she reported to S1 that her colleague (C1) took a picture of her and no action
was taken; (c) on August 5, 2011, she was denied on the job training (OJT) by C1 for telling
he took pictures of her; (d) on August 8 or 9, 2011, S1 said he would train her but never
followed through; (e) on August 9, 2011, S1 told her she would have to perform all of her
duties by herself; (f) on August 15, 2011, S1 made her take a "lift test" and told her she
"should be home taking care of her grandkids" and that he "wanted her out of the country
(Afghanistan) by August 17, 2011;" (g) on August 17, 2011, she was sent to the airport in
Camp Marmal without any documentation; and (h) on August 18, 2011, her second-level
supervisor (S2) falsified a release from assignment letter (LOR) by stating that she requested to
be released from duty.

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 May 1, 2013, motion for a
decision without a hearing and issued a decision without a hearing on August 21, 2013. 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.

CONTENTIONS ON APPEAL

Complainant alleges that the AJ and Agency were biased against her and refused to receive
"paperwork" while handling her Complaint. She also argues that her case was held in limbo
from 2011 unti1 2014 in bad faith by the Agency.

UNDISPUTED FACTS

During the time period relevant to her complaint, Complainant was reassigned to Tobyhanna
Army Depot and deployed to Afghanistan as a Logistics Management Specialist. Complainant
alleges that her prior EEO activity consists of her initial EEO contact on August 15, 2011.
Complainant also alleges that her prior EEO activity consists of her contact with a Chaplain
sometime between August 2, 2011 and August 8, 2011, at which time she tried to get the
Chaplain to contact EEO for her.

According to documentary and testimonial evidence, Complainant was involuntarily curtailed
from the Afghanistan Theater of Operations (ATO) because she could not and would not
perform the duties required of her. S1 denies telling Complainant that: (1) she was too little to
do the job; or (2) she should be at home raising her grandchildren. Management officials deny
requiring Complainant to perform any lift test on any occasion.

On or about July 30, 2011, C1 took one picture of Complainant and showed the picture to
Complainant. C1 took the picture because Complainant appeared to be sleeping on the job.
On or about July 30, 2011, Complainant informed S1 that C1 had taken a picture of her. After

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being informed about the picture, S1 instructed C1 to refrain from taking further pictures of
Complainant.

C1 was not responsible for training Complainant, or for providing her OJT. Complainant
received training, however, she could not comprehend what she was being taught. S1
provided both Complainant and C1 with training within days of their arrival in Afghanistan.
C1 never denied Complainant training. Complainant did not take notes during the training that
was provided to her by S1. During the investigation into this matter, Complainant admitted
that she received training, but that she felt the training was incomplete.

Prior to August 9, 2011, S1 informed Complainant that he and C1 would be departing their
duty station for 21 days and that Complainant would be responsible for completing the duties
there. S1 informed Complainant of this because that is the information he received from his
leadership. C1 ultimately did not depart the overseas duty station for 21 days and Complainant
did not have to perform the duties spoken of by S1 for 21 days.

There is no documentation required for an employee to go to the airport in Marmal,
Afghanistan. On August 15, 2011, S1 notified his chain of command of Complainant's
inability to perform the duties for which she was assigned and her reluctance to participate in
the Communications Electronics Command (CECOM) mission. When making the decision to
curtail Complainant from the ATO, the Southwest Asia Chief (S3) had no knowledge of
Complainant's age or EEO activity. S1 was not required to provide Complainant with
documentation to go to the airport.

On or about August 17, 2011, S1 verbally informed Complainant that she was being sent
home. On or about August 18, 2011, S2 informed Complainant via email that she was being
sent back to the continuous United States (CONUS). On approximately August 18, 2011,
Complainant received an email from the CECOM Site Lead at Bagram Airforce (BAF) (SL)
instructing her to request a travel date and indicating that once she had done so, she would
receive a confirmation of that travel date.

A LOR is a standard form required for all employees departing BAF. The Army Field
Support Battalion is responsible for generating LORs for departing employees. The LOR
about which Complainant complains, dated August 18, 2011, was generated by the Battalion,
not by S2. S2 denies falsifying any letter of release for Complainant and did not inform
anyone that Complainant requested to leave the ATO. Complainant was instructed by S2 to
out-process and obtain her LOR. When she failed to do so, S2 obtained Complainant's LOR
for her. The LOR generated by the Battalion for Complainant does not contain S2's signature.

Complainant is in possession of a Memorandum dated June 6, 2011, and entitled "Involuntary
Release of Department of the Army Civilian Personnel from Theater- Policy Letter #46" which
outlines the process for involuntary curtailments from theater. Complainant was reassigned
back to Tobyhanna on August 25, 2011.

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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

We agree with the AJ’s analysis and findings that assuming Complainant established a prima
facie case of discrimination or reprisal, the Agency proffered legitimate, non-discriminatory
reasons for its employment actions (i.e., that Complainant was reassigned based on her
inability to adequately perform her job). We also agree that aside from Complainant’s bare
and uncorroborated assertions, the record is devoid of evidence to support pretext or that any
responsible management official was motivated by discriminatory or retaliatory animus.

We also agree with the Agency in concluding that Complainant's appeal fails to provide
evidence of abuse of discretion by the AJ and does nothing more than make bare accusations
against the Agency and the AJ. Complainant has not provided evidence of bias on the AJ's
part or in his handling of her complaint. Complainant failed to identify any facts
demonstrating a conflict of interest, bias, or any other reversible error resulting from the
manner in which the AJ adjudicated her complaint. Additionally, Complainant's appeal
provides no evidence, other than her own subjective assertion, of bad faith on the part of the
Agency in its processing of her complaint.

CONCLUSION

Accordingly, 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 which
adopts the AJ’s findings of no discrimination/retaliation.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:

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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 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. The requests 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 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.

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

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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

June 8, 2016
Date