Jone A.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 8, 2016

0120143210 (E.E.O.C. Sep. 8, 2016)

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

Jone A.,1
Complainant,

v.

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

Appeal No. 0120143210

Agency No. ARRRAD13FEB00568

DECISION

Complainant filed an appeal from the Agency’s August 25, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s final
decision in part and VACATES and REMANDS the decision, in part.

BACKGROUND

Complainant worked as a Temporary Heavy Mobile Equipment Mechanic Supervisor at the
Agency’s Red River Depot in Texarkana, Texas. On April 1, 2013, Complainant filed an
EEO complaint alleging that the Agency discriminated against her on the bases of race
(African-American), sex (female), and in reprisal for a previous EEO complaint filed on
October 17, 2012,2 when:

1. On January 8, 2013, her Division Chief denied her the opportunity to be
noncompetitively promoted to permanent Heavy Mobile Equipment Mechanic
Supervisor;

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.

2 Complainant initially identified disability as a basis of discrimination, but later withdrew it.
Investigative Report 277-78.
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2. On January 9, 2013, her first-line Supervisor told his administrative assistant that
she had been fired; and

3. On January 14, 2013, the Division Chief reassigned her to a supervisor against
whom she had filed a previous EEO complaint, thereby engendering a hostile work
environment.

The Agency accepted allegation (1) but dismissed allegations (2) and (3) over Complainant’s
objections. At the conclusion of the ensuing investigation, the Agency provided Complainant
with a copy of the investigative report (IR) and notice of her right to request a hearing before
an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance
with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). On Page (2) of its decision, the Agency stated:

“The EEO Officer erroneously dismissed allegations (2) and (3) for failure to
state a claim. *** Since the record contains sufficient information to adjudicate
the entire claim, a supplemental investigation is not required.”

The decision ultimately concluded that Complainant failed to prove that the Agency subjected
her to discrimination as alleged in any of three incidents described in the allegations. In
reaching its decision on the merits of allegations (2) and (3), the Agency relied upon statements
made by the responding management officials to the EEO counselor. FAD, pp. 5-6. On
appeal, Complainant contests the Agency’s decision on its merits.

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). 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”).

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to prevail on her claims of discrimination and discriminatory
harassment, Complainant would have to prove, by a preponderance of the evidence, that the
Division Chief was motivated by unlawful considerations of her sex, race, or previous EEO
activity when allegedly thwarted her bid for noncompetitive promotion into a permanent
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position. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); Harris
v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). If Complainant fails to establish the
existence of discriminatory intent on the part of the Division Chief, no further inquiry would
be necessary as to whether the incidents complained of are severe or pervasive to rise to the
level of harassment or constitute separate acts of discrimination under disparate treatment
theory. Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October
15, 2015).

Complainant testified at a fact-finding conference that she had attempted to hand the Division
Chief her application for promotion to permanent Supervisor, but that the Division Chief told
her that the positions in question were designated for permanent employees only. IR 194-96.
When asked by the investigator why she felt that she should have been noncompetitively
promoted to a permanent supervisory position, Complainant testified that she was led to
believe by her chain of command that she could be converted into a permanent position that
she qualified for. IR 202-04. Both the Division Chief and a Human Resources Specialist who
were familiar with the incident testified that Complainant was not eligible for promotion
because she was in a temporary position that was not eligible for conversion. Their testimony
is corroborated by Complainant’s position description, which clearly states that the position is
of temporary duration with a term not to exceed one year unless extended. IR 47, 57, 186,
188, 190-92, 224-28, 248-49. Her detail was, in fact extend for a full year, from April 2013
to April 2014. IR 252.

When asked why she believed she was denied the opportunity for promotion to a permanent
supervisory position because of her race, sex, and prior EEO complaint, Complainant replied
that she was the only Black female in the entire division. IR 207-08. Beyond this bare
assertion, however, she has not provided any testimony or sworn statements from other
witnesses or documents that contradict the explanation provided by the Division Chief.
Likewise, she has not submitted any evidence that calls into question the veracity of the
Division Chief or the Human Resources Specialist. In fact, when asked if there was anything
other than the event of not being converted to a permanent supervisory position that suggested
the possibility of discrimination, Complainant replied, “no.” IR 216. We therefore agree
with the Agency that Complainant has not sustained her burden to prove the existence of a
discriminatory motivation on the part of the Division Chief.

As to allegations (2) and (3), the Agency reversed itself after initially dismissing these
allegations for failure to state a claim. The Agency failed to conduct a supplemental
investigation. Rather, it characterized statements made to and summarized by the EEO
counselor as sufficient evidence to support a finding of no discrimination on the merits. We
disagree. The EEO Counselor’s report is not as persuasive as a sworn statement, an affidavit,
or hearing testimony because it is not an actual statement by the witness, but is instead a
summary of the witness statement made by the EEO counselor. See Complainant v. General
Services Administration, EEOC Appeal No. 0120130973 (April 22, 2015) ([T]he EEO
Counselor’s report is not as persuasive evidence as an affidavit because it is not an actual
statement by a witness, and therefore, we do not examine the statements of witnesses which
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were summarized by the EEO Counselor in the Counselor’s report). In the absence of
affidavits, live testimony, or any other reliable evidence we find, contrary to the Agency, that
the record is not sufficient to support a decision on the merits of allegations (2) and (3).
Therefore, we remand these allegations for a supplemental investigation.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order as it pertains to allegation (1), we VACATE the Agency’s final decision
as it pertains to allegations (2) and (3), and we REMAND allegations (2) and (3) for
processing in accordance with our order below.

ORDER (E0610)

The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §
1614.108. The Agency shall acknowledge to the Complainant that it has received the
remanded claims within thirty (30) calendar days of the date this decision becomes final. The
Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
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of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.

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:
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 (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
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hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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

September 8, 2016
Date