Latoyia B.,1 Complainant,v.David S. Ferriero, Archivist of the United States, National Archives and Records Administration, Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0120140527 (E.E.O.C. Jun. 8, 2016)

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

Latoyia B.,1
Complainant,

v.

David S. Ferriero,
Archivist of the United States,
National Archives and Records Administration,
Agency.

Appeal No. 0120140527

Hearing No. 560-2013-00118X

Agency No. 1222STL

DECISION

On November 6, 2013, Complainant filed an appeal from the Agency’s October 24, 2013,
final decision concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e 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 an Expert Archives
Technician, GS-1421-8, in the Military Personnel Records division of the National Personnel
Records Center at the Agency’s work facility in St. Louis, Missouri.

On July 31, 2012, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her race (African-American) and sex (female) when
on April 20, 2012, she received a counseling letter documenting her alleged insubordination
and disrespectful behavior.

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
report of investigation and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing
but subsequently withdrew her request. Consequently, the Agency issued a final decision
pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. Complainant’s Supervisor stated that Complainant was issued the
counseling letter based on three incidents. The Supervisor asserted that he informed
Complainant that Expert Technicians such as herself should not assign the easier cases,
separation documents cases, to themselves. According to the Supervisor, Complainant
nevertheless assigned herself these easier cases. The Agency noted that the Supervisor
attempted to give Complainant such cases because her numbers were low one week and
Complainant claimed she did not need them. The Supervisor claimed that Complainant
mocked him by repeating his policy back to him. The Supervisor stated that some tension
existed between him and Complainant because she was not providing him with what he needed
for his morning reports.

The Supervisor further noted that some tension existed between Complainant and the other
Expert Archives Technicians. The Supervisor claimed that Complainant refused to assist a
coworker and reported on her shortcomings. The Supervisor stated that the counseling letter
was issued following a dispute with Complainant concerning a case she had given him to
authorize the issuance of medals. According to the Supervisor, Complainant wanted him to
issue the awards but he first wanted Complainant to do a morning report search. The
Supervisor asserted that Complainant refused to perform the search and instead suggested that
he speak with a coach with expertise in fire issues.2 The Supervisor claimed that he spoke to
the coach but that did not resolve the situation. The Supervisor maintained that he again
sought assistance from Complainant but she refused to cooperate. According to the
Supervisor, Complainant went in his personal space and kept repeating in a loud fashion that
she was not going to do it. The Supervisor stated that he believed Complainant was trying to
intimidate him. Complainant’s second-line supervisor, the Manager, stated that he counseled
Complainant for being insubordinate and intimidating to her Supervisor. The Manager
asserted that Complainant spoke loudly enough to cause one of the other team members to
bring it to his attention.

The Agency noted that Complainant claimed that she told her Supervisor to assign the
separation document cases to other technicians since he previously had a problem with her
doing them. Complainant denied mocking her Supervisor and instead asserted that she
repeated back to him exactly what he told her. Complainant argued that she refused her
Supervisor’s instruction concerning the medal case because his directions were not suitable for
2 Fire-related cases were those cases involving files that were damaged in the 1973 fire at the
National Records Processing Center. These cases involve more research into additional record
sets and are an Expert Technician’s responsibility.

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that type of case. Complainant claimed that she had been working on fire-related cases for
years and that a procedural change mandated that employees have the Supervisor authorize the
issuance of medals. Complainant stated that she advised the Supervisor to confer with the
coach who handles fire-related cases. Complainant asserted that the Supervisor authorized the
issuance of the medals based on the information she provided to him. While Complainant
disputed the characterization of her conduct in the counseling letter as disrespectful and
insubordinate behavior, the Agency found that Complainant failed to establish that these
reasons were pretext intended to hide discriminatory motivation.

ANALYSIS AND FINDINGS

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
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).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination
under the alleged bases of race and sex with regard to the matter at issue. The Agency stated
that the counseling letter was issued based on Complainant’s failure to behave appropriately
toward her Supervisor when she disregarded his orders for an assignment of work, her refusal
to assist another team member, and when she argued with her Supervisor concerning
appropriate procedure for researching a veteran’s medal request. We find that the Agency
articulated legitimate, nondiscriminatory reasons for the issuance of the counseling letter.

Complainant attempts to establish pretext by focusing on alleged disparate treatment she
suffered in comparison to two Caucasian employees. However, this argument lacks merit
given that the Caucasian female at issue did not exhibit the resistance to authority demonstrated
by Complainant. As for the Caucasian male cited by Complainant, no showing was made that
he directly refused to comply with a Supervisor’s instruction. Complainant contends that had
she followed her Supervisor’s direction, she would not have been addressing the veteran’s
request in a suitable manner. However, even assuming that would have been the case, the
situation reflects that Complainant refused to comply with her Supervisor’s order and was
therefore insubordinate. Complainant also does not dispute that she declined to provide
assistance to her coworker. Complainant believes that her coworker should not have needed

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her assistance but the attitude adopted by Complainant was negative and not conducive to a
cooperative office mentality. Upon consideration of the remaining arguments presented by
Complainant and the entirety of the record, we find that Complainant failed to establish that the
Agency’s stated reasons for issuing the counseling letter were pretext intended to mask
discriminatory motivation.

CONCLUSION

The Agency’s determination that no discrimination occurred is AFFIRMED.

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

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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

June 8, 2016
Date