Narcisa D.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 3, 2018

0120162582 (E.E.O.C. May. 3, 2018)

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

Narcisa D.,1
Complainant,

v.

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

Appeal No. 0120162582

Agency No. ARREDSTON14FEB00904

DECISION

On August 8, 2016, 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
September 14, 2016, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-14 Supervisory
Management Analyst/G1 Deputy Director at the Agency’s U.S. Army Security Assistant
Command (USASAC) facility in Redstone Arsenal, Alabama. Her first-level supervisor was
USASAC’s G1 Director, also a GS-14. Her second-level supervisor was USASAC’s Chief of
Staff.

On April 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her on the basis of sex (female) when:

1. On September 9, 2013, the Director tried to forcefully pull and grab an award
from Complainant’s hand while yelling, "Turn it loose!";

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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2. On December 16, 2013, the Director gave Complainant a harsh look and stormed
into his office;
3. On December 17, 2013, the Director sent Complainant an email listing other
tasks to be worked on instead of working on a critical, sensitive disability
retirement case. The Director sarcastically told Complainant he did so in order
for a Team Lead to work on the disability case instead of her;
4. On January 14, 2014, the Director told the Deputy Director not to speak to
Complainant because Complainant did not know information that management
knew; and
5. On January 15, 2014, the Director called Complainant "stupid and childish" and
beat his hand on his desk.

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). In accordance with Complainant’s request,
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.

Overall, the Agency found that Complainant had not been subjected to a hostile work environment
or discrimination based on sex because she had not suffered any adverse action or demonstrated
that the alleged conduct affected a term, condition, or privilege of employment or created an
abusive work environment. The Agency also decided that even if a hostile work environment
existed, management met its obligation to take prompt action once Complainant reported that she
was subjected to harassment. The Agency found that the Chief of Staff attempted to meet with
both Complainant and the Director to discuss the matter. Additionally, the Agency noted that the
Chief of Staff launched an internal investigation to gather the facts surrounding Complainant’s
claim and he initiated a climate survey to get information and recommendations about the work
environment. Lastly, the Agency found that Complainant did not show that the Director’s reasons
for his actions were a pretext for discrimination.

With respect to Claim 1, the Agency decided that the Director’s explanation that he was only
joking when he grabbed Complainant’s award from her hands was legitimate and
nondiscriminatory, and that Complainant offered no evidence that it was because she is a female.

Regarding Claim 2, the Agency found that the Director was admittedly upset about Complainant’s
failure to show up to the Christmas party at a restaurant, but he denied giving her a harsh look,
storming into her office, or discussing her absence with her after he returned to the office. The
Director stated that once he and the other employees returned to the office, everyone participated
in a gift exchange.

As for Claim 3, the Agency found that the Director sent a list of tasks to Complainant as the
Supervisor for Human Resources and to the male team lead for Workforce Development, which
was a common practice that he did on a weekly basis.
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The Director acknowledged that the list of tasks for Complainant was greater based on the nature
of the work under Complainant’s purview (civilian HR, recruitment actions, hiring, military
personnel, and awards) than the tasks for Workforce Development, but that he expected that
Complainant would delegate work to her staff.

With respect to Claim 4, the Agency observed that the Director asserted that the "don't talk to her"
comment was taken out of context. He stated he was on his way out of the office when the G5
Deputy Director of Studies and Analysis Directorate stopped by to talk about training, which was
not Complainant’s area of responsibility. The Director stated that the G5 Deputy Director told
him he needed to discuss a personnel issue with Complainant and he subsequently left to attend
his appointment. The Director denied that his comment was made in a derogatory manner or that
he spoke to Complainant differently than his male subordinates. The Agency further noted that,
while the G5 Deputy Director confirmed that the Director said "don't talk to her [Complainant]"
and that he considered the Director’s treatment of Complainant as "marginalizing," he could not
declare with certainty that the Director’s behavior was based on Complainant’s sex. Instead, the
G5 Deputy Director stated that he believed that the Director was uncomfortable because
Complainant had the institutional knowledge of the organization and most senior leaders went to
Complainant on civilian personnel issues.

Finally, with regard to Claim 5, the Agency noted that, according to the Director, he did not call
Complainant “stupid.” Rather, Complainant came into his office, told him the incident with
respect to him telling a manager not to talk to her was embarrassing, and asked him "[w]hat do
you think, I'm stupid?" The Director maintained that he said "[l]et's stop being childish and let's
talk about this" after which Complainant slammed her hand on the desk and abruptly left the office.
He asserted that he tried to follow up with Complainant about the incident several times but she
didn't want to talk about it. He denied discriminating against Complainant or subjecting her to a
hostile work environment. The Agency also noted that the Senior Human Resources
Noncommissioned Officer (NCO), a male, maintained that the relationship between Complainant
and the Director was strained, and that he overheard the Director call Complainant “stupid and
childish.” However, the NCO maintained that while he believed the work environment was hostile
he did not believe it was based on gender but it was a "superiority thing." The Agency further
observed that the Workforce Development lead, who was male, also stated that there was a hostile
work environment which was created from the start of the Director’s tenure, but that he did not
believe that Complainant’s treatment was because of her sex. He believes the hostility was the
Director’s way of asserting his power. The Agency concluded that the Director’s behavior was
nondiscriminatory.

On the whole, the Agency decided that asserting one's authority is not equivalent to illegal
discrimination; an employer is entitled to make his own business judgments; and Title VII does
not protect an employee against adverse or harsh treatment due simply to a supervisor's personality
quirks or autocratic attitude. It also found that Complainant failed to show that the explanation of
the Agency for its actions was simply a pretext for discrimination. Thus, the Agency found that
Complainant was not subjected to discrimination or harassment.

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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”).

On appeal, Complainant requests that summary judgment be entered in her favor because the
Agency failed to submit a final decision in a reasonable timeframe. The Agency counters that the
appeal should be dismissed as premature since it was filed before the Agency issued its decision.
The Agency has now issued its decision and we find the appeal properly before us. Furthermore,
we caution the Agency of its obligation to timely issue final decisions.

We find, however, that even if the Director’s remarks and behavior toward Complainant were
motivated by her sex, Complainant has failed to prove that the Director’s conduct was sufficiently
severe or pervasive as to alter her work environment or that she suffered any adverse action as a
result of the Director’s treatment. Rather, the alleged behavior, even if assumed to be true as
alleged, constituted isolated incidents too infrequent to support a hostile work environment claim.
Moreover, we find that, based on the statements of Complainant, management, and eyewitnesses,
the hostility between Complainant and the Director, which manifested as office squabbles and
discourteous treatment, originated from personality conflict, poor communication, and an
autocratic managerial style, not discriminatory animus. We find that Complainant failed to show
by a preponderance of the evidence that she was subject to a discriminatory hostile work
environment.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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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. 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.
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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

May 3, 2018
Date