Lyda F.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 20, 2016

0120140832 (E.E.O.C. Oct. 20, 2016)

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

Lyda F.,1
Complainant,

v.

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

Appeal No. 0120140832
Hearing No. 410-2012-00026X
Agency No. ARGORDON10DEC05751

DECISION

Complainant filed an appeal from the Agency’s November 13, 2013, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory IT
Specialist, GS-2210-14, at the Fort Gordon Network Enterprise Center (NEC) located in Fort
Gordon, Georgia. On April 25, 2011, 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 prior protected EEO activity when: (1) her senior rater (S1) negatively
influenced her final rating; (2) she received her annual performance appraisal for rating period
October 1, 2009 through October 31, 2010, which rated her overall performance in Part VI
"Excellence 25-74%; (3) during her 2011 midpoint counseling for the current rating period, S1
stated she had unsatisfied customers; (4) S1 sent harassing e-mails; (5) she was subjected to
harassment when S1 denied her compensatory time and delayed approval of her requested
leave; (6) she was issued a Counseling Statement on June 29, 2011; (7) S1 challenged the
evaluations Complainant gave to two of her employees; (8) on September 22, 2011, she
received an unfair rating of “satisfactory” for the period November 1, 2010 through June 30,

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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2011; (9) S1 failed to provide Complainant with any data related to the criteria he used to rate
her; (10) S1 constantly created discord, preventing her from accomplishing the NEC mission;
(11) S1 failed to timely provide her performance standards for the new rating period that began
July 1, 2011; and (12) S1 failed to "initial off" as senior rater on two of her employees' ratings
as of October 12, 2011.

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.
Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 27,
2012, motion for a decision without a hearing and issued a decision without a hearing on
August 28, 2013. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

FACTUAL BACKGROUND

For the rating period from October 1, 2009 until October 31, 2010, Complainant's rater was
the Deputy Director, Area Support Team 3 (DD). S1 was Complainant's senior rater for that
rating period and served as the Director, Area Support Team 3. For the rating period from
November 1, 2010 until June 30, 2011, Complainant's rater was S1. Complainant’s senior
rater for that rating period was the Commander (CO). S1 supervised three other NEC
directors (D1, D2 and D3) in addition to the Complainant. The record also shows that S1
became aware of Complainant’s EEO complaint on or about January 24, 2011, when the EEO
office called to inform him. CO became aware of the EEO complaint in March 2011

Performance Appraisal for the Period October 1, 2009 until October 31, 2010

Complainant takes issue with the rating that DD gave her on Objectives 2 (Deliver IT Services
and Support the Customer) and 3 (Business Management and Planning) of her Senior System
Civilian Evaluation Report Support Form. DD rated her as "Success" on those two areas
rather than "Excellence" and rated her performance as “Excellence 25-74% Obj."
Complainant believes that S1 negatively influenced the ratings issued by DD. DD had rated
Complainant as "Excellence'' on Objectives 1 and 2, as she believes she deserved.
Complainant testified that, prior to S1 coming on board as a supervisor in or about June or
July 2010, she had a good working rapport with DD. She also testified that, following S1
becoming the Area Support Director over the Fort Gordon NEC, everything changed.
Complainant acknowledges that she had a contentious relationship with S1.

Complainant asserts that in midpoint evaluation discussions with DD, she was provided with
very positive comments. However, Complainant acknowledged that she has no evidence that
S1 influenced DD’s rating. Additionally, Complainant acknowledged that the senior rater
bullet comments are not negative comments and that her overall performance rating of "2" is a
"Successful" rating.

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DD testified that S1 did not negatively influence his rating of Complainant. While he did
discuss his proposed evaluation of Complainant with S1, he was not pressured to rate her in
any particular way. In support of his rating, DD testified about the performance of
Complainant. Specifically, he highlighted several challenges that she and the Fort Gordon
NEC had in supporting customers, including the negative perceptions of some customers
regarding the Fort Gordon NEC, as well as in business management and planning. Compared
to the other NECs, DD's assessment was that Complainant's Fort Gordon NEC was not as
proactive in dealing with customers. According to DD, Complainant did not get involved with
customers so that they understood the effort that her organization was putting into dealing with
their issues. On the business side, DD had some problems with contracts coming out of the
Fort Gordon NEC and regarding working space issues. DD stated that he did not treat
Complainant any differently than the other NEC directors in the ratings that they received. If
they had had the same performance as her, he would have rated them the same.

S1 testified that he did not influence DD's rating of Complainant. He stated that he only
briefly discussed the evaluation with DD. In arriving at his own rating as the senior rater, S1
focused on the support form provided by Complainant (which did not justify a higher rating)
and did not rely on outside information. In addition, S1 notes that had all of the customer
complaints been documented, Complainant’s rating could have been lower. However,
considering the complexity and the organization where she is located, he believed rating her in
the "2" block was fair.

Alleged Harassment by Denying Leave and Compensatory Time

Complainant acknowledged that S1 approved the leave at issue about a month after she
submitted the request. She also stated that S1 had never denied a leave request before that. In
addition, Complainant testified that she has had no problems with leave approvals
subsequently. Complainant also could not explain how the slow approval of her leave had
affected her work environment, conditions of employment, or performance.

S1 testified that he never denied Complainant leave. He explained that the reason for the slow
approval on the leave request in question was that he was awaiting a response from
Complainant about coverage at the Land War Net conference which was scheduled to occur
during her leave. When she provided the explanation of coverage on December 13, 2010, he
approved the leave. With regard to compensatory time, Complainant testified that S1 had
denied several requests for compensatory time which she discussed in her testimony. S1
testified that he denied two requests for compensatory time that pertained to work during
lunchtime. Those requests were for October 25 and October 28, 2010, but were not submitted
until November 5, 2010. S1 stated that Complainant had not requested those in advance as
required and that he would never force someone to work through lunchtime. S1 did state that
he would approve a person's compensatory time if it was pre-coordinated and if it was related
to requirements above and beyond the normal day-to-day duties expected of an employee. S1
also denied a request by Complainant for compensatory time on January 26, 2011. According
to an email, S1 explained to Complainant at that time that “comp-time is to be planned in
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advance for foreseen mission requirements that cannot be accomplished during a normal work
day. The only other time I will approve comp-time will be when I have directed you to
complete tasks that are required to meet mission requirements as directed by me or higher.
Please accept my decision and try and schedule your time accordingly." Complainant has not
articulated a negative impact to her from the denial of compensatory time by S1.

Claims of Reprisal

Complainant claimed that she was subjected to reprisal for her EEO activity and testified that
she received several harassing emails from S1. She identified the dates of the emails as
January 14, 2011, January 20, 2011, March 31, 2011, and June 29, 2011. S1 testified that he
had no intent to harass Complainant with his email communications and does not remember
Complainant ever complaining about his tone in the emails. He acknowledged that he agreed
with Complainant's assessment that they had a contentious relationship and that relationship is
reflected in some of the email traffic between them.

Complainant also testified that during her midpoint counseling for the rating period ending in
2011, S1 stated that she had unsatisfied customers. Complainant testified that during a
telephone conversation with S1 he mentioned that some customers were satisfied with her
service and some were not. She testified that she asked him to share more details about that
but he never provided the information to her. Complainant testified that she did not know if
S1 would have made that comment if she had not filed her EEO complaint.

S1 testified that the midpoint counseling occurred on March 24, 2011. During that counseling,
he mentioned to Complainant that he had some customer complaints, and Complainant asked to
see those. S1 stated that he told her that he would think about it, but that he has not provided
the information. His reasons are that he did not believe that it would build the professionalism
of the NEC in providing good customer service. He also stated that the customer complaints
were not included in her evaluation. He simply wanted to let her know about them so that she
could strive to do better in the area of customer support and customer satisfaction. S1 testified
that he did not make the comment about the customer complaints because of her race, gender,
or EEO activity.

June 29, 2011 Counseling Statement

Complainant the issuance of the June 29, 2011 counseling statement was retaliatory.
Complainant acknowledged that the counseling was not entered in her permanent personnel
records. S1 testified about the validity of the concerns raised in the counseling statement.
Specifically, S1 addressed Complainant hanging up of the telephone on him on two occasions,
not following reporting procedures for Commanders Critical Information Requirements
(CCIRs), disrupting a meeting by walking out, and not following the chain of command. S1
also testified that Complainant admitted to him that her staff had bypassed the processes and
had gone directly to the Signal Command.

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Performance Appraisal for the Period November 1, 2010 until June 30, 2011

Complainant testified that she believes that she should have been rated as "Excellence" on
Objectives 2-4 based on her civilian evaluation support form and that S1 ignored her
accomplishments. She also testified that she queried S1 about the criteria used to rate her and
acknowledged that S1 responded that he used her support form. She also acknowledged that
she never complained to anyone in her chain of command about her rating.

S1 testified that he rated Complainant as "Successful" on Objectives 2-4 because she did not
exceed nominal expectations and did not go above and beyond in her performance. S1 stated
that he evaluated her based on her support form. He explained that Complainant’s support
form shows that she did a great job, but it does not demonstrate that she performed at an
exceptional level. S1 gave her the second highest rating that he could give her. CO agreed
with S1’s assessment.

Late Appraisal for the Rating Period Ending June 30, 2011 Received on September 22, 2011

Complainant testified that her evaluation should have been completed by August 15, 2011, but
she did not receive it until September 22, 2011. However, she acknowledged that she did not
submit her signed support form to S1 until August 12, 2011. CO testified that the rating was
not completed within the 45 days required by regulation. CO explained that the operational
tempo of his command was high and that the command had to deal with two natural disasters
during the period before the appraisal was completed.

Challenging Evaluations that Complainant Gave to Two of Her Subordinates

Complainant testified that S1 gave one of her subordinates (C1) a top block overall
performance rating even though her rating of C1 did not justify such a rating by a senior rater.
She also testified that S1 questioned the evaluation given to another subordinate (C2). She
made some changes to the evaluation for C2 and resubmitted it to S1 who then gave her a top
block overall performance rating. S1 testified that he did not concur with the evaluations
prepared for C1 and C2. He did not downgrade C2. He did, however, raise the evaluation of
C1 and believes that this decision was within his authority as a senior rater.

Creating Discord and Preventing Complainant from Accomplishing the NEC Mission

Complainant claimed that S1 made major changes to the Base Realignment and Closures
(BRAC) project, cancelled and lowered acquisition requests, and cancelled Temporary Duty
Yonder (TDY) requests. Complainant has not identified any mission the NEC did not
accomplish. Complainant did not identify any evidence of reprisal for her EEO activity.

S1 testified that he got involved in the BRAC project because coordination was not happening
under the suspension of Complainant. While S1 did not know what acquisition requests
Complainant was referring to, he testified that he did hold an acquisition to obtain validation
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for the request. He testified that he did downgrade certain emergency acquisition requests
because those should be used sparingly, and he did this at the Fort Jackson NEC as well. As
for the TDY training request, S1 determined that the training was scheduled for the last week
of the BRAC project and would have little utility. He was also aware that the training was
being offered online during FY12 and thus TDY costs could be saved. S1 denies that he
discriminated against Complainant in taking his actions.

Not Timely Providing the Complainant Standards for the New Rating Period that began July 1,
2011 and Failing to Sign off as Senior Rater on the Appraisals of Two Subordinates as of
October 12, 2011

Complainant claimed that she was subjected to reprisal because she was not timely provided
standards for the new rating period that began July 1, 2011. CO signed off on the new
standards on September 22, 2011, and acknowledged that the new standards for the rating
period were issued beyond the established time. Complainant has not identified any negative
impact of the late issuance of the new standards and has not identified any evidence indicating
that the late issuance of the new standards was motivated by retaliatory animus.

Complainant has also claimed reprisal for the late signatures on the appraisals for C1 and C2.
While the appraisals were not timely signed, the stated date of October 12, 2011 is incorrect.
C2 signed her civilian evaluation report on September 21, 2011. C1 signed his report on
September 13, 2011. Complainant has not identified any negative impact of the late signing of
the evaluation reports and has not identified any evidence that the late signing was motivated
by reprisal.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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.

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). Complainant must initially 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). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 pretextual. Reeves v.
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Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination, the Commission finds that Complainant failed to present evidence to
rebut the Agency's legitimate, nondiscriminatory reasons for its actions. Aside from
Complainant’s bare uncorroborated assertions, the record is devoid of evidence that she was
subjected to a hostile work environment or that any of the employment actions alleged were
motivated by discriminatory or retaliatory 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 decision which adopts the AJ’s
summary judgment in favor of the Agency.

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.

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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

October 20, 2016
Date