Larae S.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Nov 2, 2016

0120142328 (E.E.O.C. Nov. 2, 2016)

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

Larae S.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Finance & Accounting Service),
Agency.

Appeal No. 0120142328
Agency No. DFAS000852013

DECISION

Complainant filed an appeal from the Agency’s April 28, 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. 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Military Pay
Technician, GS-0545-06, at the Agency’s Debt Establishment Branch, Debt and Claims
Management Division in Indianapolis, Indiana. On June 12, 2013, a work-related discussion
between Complainant and her supervisor (S1) escalated into an argument and physical
confrontation. On August 2, 2013, Complainant filed an EEO complaint alleging that the
Agency discriminated against her and subjected her to hostile workplace harassment on the
bases of race (African-American), sex (female), color (black), age (49), and in reprisal for
prior protected EEO activity when:

1. ongoing, in staff meetings management officials pointed out her production errors,
did not provide her audit review training that they gave to her coworkers, made

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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negative comments to her, assigned her cases to a coworker, did not credit her with
work she completed, and accused her of mistakes that her peers made;

2. on June 12, 2013, a management official incited a confrontation with her; and

3. in July 2013, she was issued a Notification of Proposed Removal.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not
request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency
issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

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”).

Claim #1 (Criticism of Work, Denial of Training)

Complainant alleges that she was subjected to harassment in the performance of her duties. In
considering whether the alleged actions, whether individually or collectively, constitute
harassment, the Commission notes that in Harris v. Forklift Systems, the Supreme Court
reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that
harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the complainant's employment See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of
harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2)
she was subjected to unwelcome verbal or physical conduct involving the protected class; (3)
the harassment complained of was based on the statutorily protected class; (4) the harassment
had the purpose or effect of unreasonably interfering with her work performance and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See McCleod v. Social Security Administration, EEOC
Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

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The Commission has held that routine work assignments, instructions, and admonishments do
not rise to the level of harassment because they are common workplace occurrences. See Gray
v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) Unless it is
reasonably established that the common workplace occurrence was somehow abusive or
offensive, and was taken in order to harass Complainant on the basis of any of her protected
classes, we do not find such common workplace occurrences sufficiently severe or pervasive to
rise to the level of a hostile work environment or harassment as Complainant alleges. See
Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014)
Here, the alleged discriminatory acts were not so severe or pervasive as to alter the conditions
of Complainant's employment.

Claim #2 (Manager Incited Confrontation)

To avoid liability for hostile environment harassment, an agency must show that: (1) the acts
or conduct complained of did not occur; (2) the acts or conduct complained of were not
“unwelcome”; (3) the alleged harassment was not “sufficiently severe or pervasive” to alter
the conditions of the victim's employment and create an abusive working environment; (4)
immediate and appropriate corrective action was taken as soon as the employer was put on
notice; or (5) there was no basis for imputing liability to the employer under the agency
principles. See EEOC Enforcement Guidance: Vicarious Liability for Unlawful Harassment by
Supervisors (June 18, 1999).

According to the Agency, the confrontation described in Claim #2 was precipitated by
Complainant and involved Complainant physically striking her supervisor, S1, and throwing an
object at him. Complainant disputes that she initiated the incident or that she struck S1,
although she does admit having thrown an object in an effort to defend herself. ROI at 322.
Our review of the record evidence persuades us that the incident did not occur as Complainant
alleges and that S1 did not harass Complainant.

S1 testified that, on the date in question, he and Complainant engaged in a heated discussion
about problems with Complainant’s work performance. According to S1, Complainant struck
him in the side with her fist and threw a plastic pot containing a plant at him. The pot struck
S1 on the arm and cut his skin causing him to bleed. ROI at 114, 115. S1’s account is
corroborated by a coworker who witnessed the incident. ROI at 116. We find that the
preponderance of the evidence establishes that the allegedly harassing conduct directed against
Complainant, as alleged in Claim #2, did not occur.

Claim #3 (Notification of Proposed Removal)

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). She must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The
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prima facie inquiry may be dispensed with where the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No.
05950842 (Nov. 13, 1997). 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 (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); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14,
1995).

Here, the Agency explains that it proposed that Complainant be removed from her position
because, as discussed above, she physically assaulted S1 following an argument about the
performance of her duties. This is a legitimate, nondiscriminatory reason for the Agency’s
action. Complainant denies that she assaulted S1 but the evidence shows that the Agency’s
version of events is true. Complainant failed to show that the Agency’s explanation for its
action is a pretext designed to conceal discriminatory animus.

CONCLUSION

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 decision.

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
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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
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

November 2, 2016
Date