Ileana R.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 8, 2020

Appeal No. 2019002411 (E.E.O.C. Jan. 8, 2020)

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

Ileana R.,1
Complainant,

v.

Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 2019002411

Hearing No. 450-2016-00275X

Agency No. ARRRAD15JUL02507

DECISION

On March 19, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 13, 2019 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 Heavy Mobile
Equipment Mechanic, WG-11, at the Agency’s Red River Army Depot located in Texarkana,
Texas.

On October 20, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American) and sex (female) when:

1. effective August 23, 2015, the Chief, Combat/Travel Division (S1)
suspended Complainant for seven days, citing (a) absence without leave
(AWOL) for 1.6 hours on June 23, 2015, (b) 5.6 hours of AWOL and

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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failure to follow established leave procedures on June 24, 2015, (c) 1.1
hours of AWOL on June 25, 2015, and (d) submitting a false leave record
on June 15, 2015; and

2. on June 24, 2015, the Chief, Boat Section (S2) charged Complainant 5.6
hours of AWOL, which negated her eligibility for a pending temporary
duty assignment (TDY).

The Agency accepted Complainant’s complaint for EEO investigation.

During the investigation, Complainant denied being AWOL as alleged in (a) June 23 and (b)
June 24. Specifically, for June 24, Complainant stated that she forgot to sign back-in after
training. Conversely, Complainant acknowledged that she was AWOL as alleged in (c) June 25.
For June 25, Complainant stated that she was conversing with other employees to obtain
information and failed to log in and out. As to (d), Complainant stated that she signed her
timesheet but left a code for training blank because she did not know it. She stated that a
manager later entered the training code.

The Combat/Travel Chief, S1, stated that he decided a seven-day suspension was appropriate
based on three AWOL charges and because Complainant’s statement that she was not AWOL
was unsubstantiated. (That was a reduction from the proposal of a 14-day suspension.) S1 noted
that there is a Maintenance policy that any one discipline within two years will exclude an
employee from TDY assignments. Management stated that it conferred with Human Resources
before proposing and implementing the suspension. The Boat Section Chief, who was
Complainant’s immediate supervisor, S2, stated that he walked the workroom floor and did not
see Complainant after training on June 24. S2 stated that he looked for Complainant and she did
not return to work that day.

Following the EEO investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. The assigned AJ found “no material facts in
dispute,” and, on February 1, 2019, issued a summary judgment decision finding no
discrimination. The AJ found that the evidence of record did not show that management’s
actions were based on Complainant’s protected classes. Subsequently, the Agency 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 from Complainant followed.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a).
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See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter
9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence and must further establish that such facts are material under applicable law. Here,
Complainant has failed to point with any specificity to particular evidence in the investigative
file or other evidence of record that indicates such a dispute. For the reasons discussed below, we
find that, even construing any inferences raised by the undisputed facts in favor of Complainant,
a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly
issued a decision here by summary judgment.

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For 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
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant
must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination
based on race or sex, the Agency articulated legitimate, nondiscriminatory reasons for its actions.
The Agency stated that a seven-day suspension was appropriate based on three AWOL charges
and because Complainant’s statement that she was not AWOL was unsubstantiated.
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The Agency noted that the seven-day suspension was a reduction from the 14 days proposed.
The Agency stated that any one discipline within two years excluded an employee from TDY
assignments. Complainant acknowledged that there were occasions that she did not sign back-in
or failed to log in and out. Complainant did not prove, by a preponderance of the evidence, that
the reasons proffered by the responsible Agency officials for the disputed actions were a pretext
masking discrimination.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.

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

January 8, 2020
Date