Julietta K.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120171937 (E.E.O.C. Dec. 11, 2018)

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

Julietta K.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120171937

Hearing No. 461-2016-00025X

Agency No. ARCENORL15JUL02395

DECISION

On May 12, 2017, 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
April 12, 2017, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as an Automation Assistant, GS-0303-05 at the District Office of the Corps
of Engineers in New Orleans, Louisiana. On August 17, 2015, Complainant filed an EEO
complaint in which she alleged that the Deputy Chief of the Construction Division, her first-line
supervisor (hereinafter referred to as “S1”) subjected her to disparate treatment and harassment
because of race (African-American), sex (female), disability (persistent mild depression), and
reprisal (prior protected EEO activity) between April and August 2015.

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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At the conclusion of the 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). Complainant timely requested a hearing.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 9, 2016
motion for a decision without a hearing, and issued a summary judgment decision in favor of the
Agency on March 20, 2017.

Complainant initially averred that on unspecified dates since she began her employment with the
Agency in April 2015, S1 had given her much more work than he had given to a non-disabled
White Female Automation Assistant within the office. The AJ found that Complainant was in
training at the time, and that it was S1’s intention to have Complainant learn as many of the
administrative tasks as possible in case she was ever called upon to perform those functions. The
AJ noted that the comparative employee’s retirement was imminent. AJ Decision, pp. 15-16.

Next, Complainant averred that on June 11, 2015, S1 offered her a demotion to a GS-4 trainee
position because he did not understand her disability before he hired her. She also averred that S1
made the offer after she had informed him of harassing behavior she had seen in the office. The
AJ found that S1 was concerned about Complainant’s lack of computer knowledge for an
administrative assistant. S1 was also concerned about the amount of training Complainant needed
on normal administrative duties and automation. S1 had hoped that if Complainant had accepted
the demotion, he would be able to evaluate her as a trainee rather than at the full performance level
of Automated Office Assistant. AJ Decision, p. 16.

Third, Complainant averred that between May and July of 2015, S1 made comments she found
objectionable. She stated that during the last week of May 2015, she had discussed with S1 the
inappropriate behavior of one co-worker that was witnessed by another co-worker. S1 stated that
he witnessed this occurrence, that he took it as a joke, and that he did not believe the other co-
worker was offended. IR 624. Complainant also stated that on June 19, 2015, while teaching a
suicide prevention class, S1 used her as an example and said, “and that’s what I was talking about,
[Complainant] and the cake knives.” S1 replied that he was saying that if Complainant was a
person that he had fears about, he would have reason to be concerned since Complainant had a
cake knife in her possession. IR 646-47. S1 denied stating or implying that Complaint was suicidal
and maintained that he was just using that as an example of how one would remove an object that
someone could use to injure themselves. IR 647. He also stated that he apologized to Complainant
when he found out that she had been offended by his remark. IR 649-50. Further, Complainant
stated that on July 24, 2015, S1 commented to Complainant that it was his personal observation
that no one liked her. S1 stated that this was not accurate, and that after Complainant reported to
him that she was having conflicts with several of her co-workers, he told her that it was just an
observation, but that it seemed like Complainant was having difficulties dealing with her co-
workers and that he could not always be there to resolve her issues for her. IR 651-52. The AJ
found that Complainant had not shown that any of these incidents were motivated by a
discriminatory or retaliatory animus on the part of S1. AJ Decision, p. 17.

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Fourth, Complainant averred that on July 14, 2015, while she was on a developmental detail and
after she filed an informal EEO complaint on July 6, 2015, S1 ended her detail prematurely. The
AJ found that S1 had done so after he had learned from one of Complainant’s detail supervisors
that Complainant was not communicating well with him and that she was having conflicts with
her co-workers. The AJ also found that Complainant had been on the detail for over six weeks,
and. consequently, S1 believed that Complainant had made sufficient contacts from her detail that
if she needed assistance, she had access to a network of people to whom she could turn for help.
AJ Decision, pp. 16-17.

Fifth, Complainant averred that S1 had refused to evaluate her performance until after a face-to-
face meeting with the EEO Manager that was supposed to have taken place on July 24, 2015. The
AJ found that Complainant's rating cycle was due to end in December 2015, and that S1 had
planned on giving Complainant a mid-year evaluation in August 2015, but Complainant had
resigned before that evaluation could be completed. AJ Decision, p. 17.

Finally, Complainant averred that she was forced to resign from the Agency on August 17, 2015,
the same date on which she filed her formal EEO complaint. The AJ found that Complainant had
resigned from the Agency on that date, and she failed to establish that her resignation from the
Agency was tantamount to a constructive discharge. The AJ noted that the Agency had offered
Complainant a settlement in order to resolve her complaint, and held that a settlement offer did not
create working conditions so intolerable that a reasonable person in Complainant’s position would
have felt it necessary to resign. The AJ further noted that the settlement offer included a
reassignment to the Engineering Division that S1 had not been involved in. IR 653-54. AJ
Decision, pp. 17-18.

The AJ concluded that Complainant failed to show that she was subjected to discrimination or a
hostile work environment as alleged. The Agency subsequently issued a final order fully adopting
the AJ’s decision. The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil
Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court
determines that, given the substantive legal and evidentiary standards that apply to the case, there
exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence
of the non-moving party must be believed at the summary judgment stage and all justifiable
inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.
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In her appeal, Complainant states that she is submitting new evidence to dispute the AJ’s findings.
Appeal Brief, p. 4. As a general rule however, no new evidence will be considered on appeal
unless there is an affirmative showing that the evidence was not reasonably available prior to or
during the investigation. Violet F. v. Soc. Sec. Admin., EEOC Appeal No. 0120171231 (July 27,
2018) citing Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). See also e.g. Feitshans v. U.S. Postal Serv., EEOC
Appeal No. 01996239 n. 5 (Dec. 21, 2001).2 Complainant has not made such a showing.

We also note that Complainant is attempting to raise for the first time on appeal that she had been
denied a reasonable accommodation. Appeal Brief, pp. 6-7, 14-15. In determining whether the
AJ erred in issuing a decision without a hearing, we will not consider arguments raised for the first
time in Complainant's, or the Agency's, appeal brief. Koslow v. Nat’l Labor Relations Bd., EEOC
Appeal No. 01A12763 n. 4 (Mar. 7, 2002). Accordingly, we will not consider Complainant’s
arguments regarding denial of reasonable accommodation.

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). This analysis applies to disparate treatment claims brought under the Rehabilitation Act
as well as Title VII. Prewitt v. U.S. Postal Serv., 662 F. 2d 292, 310 (5th Cir. 1981).

As a first step, Complainant would normally establish a prima facie case by demonstrating that she
was subjected to an adverse employment action under circumstances that would support an
inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima
facie inquiry may be dispensed in this case, however, since the Agency articulated legitimate and
nondiscriminatory reasons for S1’s conduct in the various incidents at issue in this complaint. See
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983).

With regard to the workload incident, S1 stated that he wanted to give Complainant the opportunity
to learn as many administrative tasks as possible while she was in training. Concerning the offer
of demotion, S1 was concerned about the difficulties Complainant was having performing the
administrative duties of the position at the GS-5 level.

2 [W]hen reviewing the propriety of an AJ's decision not to hold a hearing, we will not consider
evidence presented for the first time on appeal. The relevant inquiry is whether AJ made the
correct decision not to hold a hearing based on the evidence in front of him at the time the decision
was made. Thus, a Complainant must present the administrative judge with relevant evidence
necessary to preclude summary judgment before the administrative judge issues his or her decision
without a hearing.

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As to his response to Complainant’s reporting of the incident between two of her co-workers, S1
stated that he did not believe that anyone had been offended by the incident. As to the “cake knife”
comment, S1 admitted to referencing Complainant having a cake knife in her cubicle and cited the
situation as something to be concerned about if Complainant was wont to injure herself. He
subsequently apologized to Complainant for having offended her. As to the “nobody likes you,”
comment, S1 stated that he merely pointed out to Complainant that she seemed to have difficulty
in resolving conflicts with her co-workers. With regard to S1 ending Complainant’s developmental
detail, he stated that he had done so because of Complainant's communications and conflict issues
with her coworkers on the detail, and that he believed Complainant would be able to seek help if
she encountered problems on the job. Finally, with respect to Complainant’s performance
evaluation, S1 stated that Complainant had resigned before he could give her a mid-year
evaluation.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that S1’s
explanations for the various incidents are pretexts for discrimination. Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be
demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in S1’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), req. for recons. den’d EEOC Request No. 0520080211 (May 30,
2008). On appeal, Complainant contends that the AJ’s decision contains numerous errors and
omissions and repeats many of the arguments that the AJ considered but ultimately rejected.
However, she has presented neither affidavits, declarations or unsworn statements from witnesses
other than herself or documents that contradict the explanations provided by S1 for each of the
incidents comprising her complaint or which call S1’s veracity into question. Accordingly, the
Commission finds that Complainant has not shown that the Agency’s reasons for its actions were
pretextual.

Hostile Work Environment

As to Complainant’s claim of discriminatory harassment the Commission finds that under the
standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of
hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems,
Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is
precluded by our determination that Complainant failed to establish that any of the actions taken
by the Agency were motivated by discriminatory animus on any of her alleged bases. See Oakley
v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

Constructive Discharge

Finally, we address Complainant’s claim of constructive discharge. To establish that she had been
constructive discharged, Complainant would have to show that: (1) a reasonable person in her
position would have found the working conditions intolerable; (2) the conduct that constituted
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discrimination against Complainant created the intolerable working conditions; and (3) her
involuntary separation, retirement, or resignation resulted from the intolerable working conditions.
Clemente M. V. Dep’t of Veterans Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing
Caron-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002) and Walch v.
Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). None of the alleged incidents,
either singly or collectively, are sufficiently severe or pervasive enough to rise to the level of a
hostile work environment. Moreover, even if the first element of a constructive discharge were
established, Complainant’s claim would still fail on the second element, since there is no evidence
that any of the conduct at issue was based on discriminatory animus.

To summarize, we agree with the AJ that Complainant has not presented evidence sufficient to
raise a genuine issue of material fact on her claims of unlawful discrimination that would warrant
a hearing.

CONCLUSION

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

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.
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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.
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.

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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

December 11, 2018
Date