0120141105
06-15-2016
Merideth C.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Merideth C.,1
Complainant,
v.
Eric K. Fanning,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120141105
Agency No. AREAMA12JUN02789
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 31, 2013 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
During the period at issue, Complainant worked as a Maintenance Test Branch Supervisor at the Agency's Army Test and Evaluation Command, Maintenance Division Yuma Proving Ground in Yuma, Arizona.
On September 14, 2012, Complainant filed the instant formal complaint. Therein, Complainant claimed that she was subjected to harassment and a hostile work environment on the bases of sex (female) and in reprisal for prior EEO activity when:
a. her supervisory differential pay was not paid;
b. her wages were garnished in the amount of $6,069.93, for alleged unofficial cell phone usage;
c. she received an informal counseling at her new assignment as a result of the investigation regarding unofficial cell phone usage while she was employed by the USAG-J Directorate of Logistics, Camp Zama, Japan.
After the investigation of the claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 31, 2013, pursuant to 29 C.F.R. � 1614.110(b).
In its December 31, 2013 final decision, the Agency found no discrimination. The Agency found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of sex and reprisal. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.
Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on sex and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Complainant, on appeal, argues that the Director "never has shown me the investigation nor did I ever know one was being conducted till the packet arrived at my new Command. [Director] spoke to me for 15 minutes before I left Japan and that is the only time he ever spoke to me about the phone usage. I have never had the opportunity to defend myself against false accusations[,] and laws protect people against the abusive behavior that I was subject to."
The instant appeal followed.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim (a), Complainant stated that from October 2010 to March 2012, she was the Facility and Equipment Maintenance Manager, GS-1601-13, at the Agency's Directorate of Logistics, U.S. Garrison Japan. Complainant stated at that time, she was the only female division chief and was intentionally left out of important meetings involving her division and gatherings with higher command officials while male counterparts were included. Complainant was a General Schedule (GS) supervisor who supervised Wage Grade (WG/WS) employees. One of those employees received a higher pay than Complainant. Complainant further alleged that when a GS supervisor makes less than a WG/WS employee whom the GS supervisor supervises, the supervisor must be paid 3% more than the highest paid WG/WS employee. In August 2011, Complainant requested Supervisory Differential Pay but it was denied after her departure in March 2012.
The Director, Directorate of Logistics, stated that during the relevant time he was Complainant's first level supervisor. The Director stated that he was the recommending official that Complainant's request for Supervisory Differential Pay be denied based on her technical competence after consulting with the Civilian Personnel Advisory Center (CPAC). Specifically, the Director stated that after Complainant requested the Supervisory Differential Pay, he submitted her request through various levels of Agency management including the CPAC. The Director stated that after discussing Complainant's request with a CPAC official, it was determined that Complainant did not qualify for Supervisory Differential Pay. Specifically, the Director stated that per 5 CFR 575 agencies 'may grant supervisory differential pay to an employee who is responsible for providing direct, technical and administrative supervision over GS employees supervised;' also IAW AR 690-990-2, S3-3, in order to be granted Supervisory Differential, the Supervisor must provide more than administrative supervision."
Further, the Director stated "knowing very well the operation and the technical expertise that, [Complainant] possesses, she could not, in my professional opinion, be providing this individual the direct and technical advice that is required. As the Maintenance Division Chief, [Complainant] only provided Personnel administrative advice." The Director stated that while Complainant had a strong automotive background and average supply background, she had limited knowledge of industrial type work.
Moreover, the Director stated while the CPAC official provided Complainant an explanation why her requested was denied, he met with Complainant that his recommendation "for denial was based on her not meeting the criteria for the pay; that she was not able to provide the technical advice necessary."
Regarding claim (b), the Director stated that Complainant's wages were garnished in the amount of $6,069.93 because she repeatedly used a Government cell phone for personal use, resulting in thousands of dollars of cost to the Government. The Director stated at that time, he was directed by higher headquarters to determine what the phone bill would be once the organization completed its transition. The record reflects that when the 78th Signal Battalion reviewed the billing information for cell phones assigned to the organization, Agency officials identified a cell phone that grossly exceeded the monthly allocated time. The subject cell phone was later identified as being assigned to Complainant. The Director stated that he asked Complainant about her cell phone usage and "she failed to provide a satisfactory explanation for the excessive number of calls stating that some of the calls were made in her capacity as a Suicide Counselor, which I later found out was not true." The Director noted the Army Community Services "stated that [Complainant] was [in] no way a Suicide Prevention Counselor. I also check[ed] with CPAC, and there was nothing in her file."
Further, the Director then directed an investigation into Complainant's cell phone usage during which she was uncooperative. The Director stated that he told Complainant verbally that if she did not cooperate and justify the unauthorized usage, she would be responsible for the unauthorized usage. The Director stated that the cost of the phone use "was going to be much higher, but based on the findings of the investigation and what we could determine without [Complainant's] cooperation, I used a 60/40 split; 60% official and the rest unofficial." The Director stated that following the investigation, a form was filled out and sent to DFAS to begin the garnishment. The Director stated that the Command tried to reach a settlement with Complainant "for a lesser amount and she rejected it."
Moreover, the Director stated the misuse of the cell phone was based on the AR 690-700, Chapter 751 and AR 25-1, 6-1, D(3). The record reflects that AR 690-700 provides "disciplinary action or a first offense of misuse of government property ranging from a written reprimand to removal depending on several factors." The record further reflects that AR 25-1 "authorizes Commanders to recover charges for use of government cell phones for unofficial business."
Regarding claim (c), the Human Resources Officer (HR Officer) stated that she was not aware of any informal counseling. The HR Officer stated that after the investigation into Complainant's unauthorized cell phone usage had been completed, a draft letter of reprimand was prepared and "after consulting with our Regional MER SME and local legal office, I directed my staff member to send the packet to the CPAC that services [Complainant's] in her new position/organization at Yuma, [Arizona]."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a "reasonable person" in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases -- in this case, sex and retaliation. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents alleged by Complainant occurred because of her sex and prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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 (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 15, 2016
__________________
Date
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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