Nerissa S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 12, 2018

0120172858 (E.E.O.C. Dec. 12, 2018)

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

Nerissa S.,1
Complainant,

v.

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

Appeal No. 0120172858

Hearing No. 430-2015-00445X

Agency No. ARBRAGG15JAN00054

DECISION

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 July 25, 2017 final order
concerning her equal employment opportunity (EEO) complaint. She alleged 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

At the time of events giving rise to this complaint, Complainant worked as a Director of the ARC
Family Program Directorate at the Agency’s U.S. Army Garrison in Fort Bragg, North Carolina.

By way of background, Complainant had filed a prior EEO complaint against the Agency that
was the subject of EEOC Hearing No. 430-2014-00030X. In that complaint, she had claimed the
Agency subjected her to a hostile work environment during the period 2010 through 2012 and
removed her, effective October 10, 2014. Prior to her removal in 2014, the Agency conducted
several Army Regulation (“AR 15-6”) investigations into allegations of a “toxic work climate” at
the Family Programs Directorate, which Complainant managed. Among the named officials in

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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that complaint was the Agency’s attorney, who Complainant claimed initiated the investigations
and advised management on how to handle personnel matters for some employees under
Complainant’s supervisory chain of command and for Complainant herself. He also represented
the Agency in the EEO complaint filed by Complainant over these matters.

The Agency asserted that the named attorney was the Chief of Labor Law for the Office of the
Staff Judge Advocate (hereinafter referred to as the “Agency Attorney”). According to the
Agency, the Agency Attorney advised management on labor relations matters and represented
the Agency in litigation. The Agency Attorney’s responsibilities included advising management
on the AR 15-6 investigations.

On November 20, 2014, during a fact-finding conference for the previous EEO complaint,
Complainant alleged that she learned that the Agency Attorney had withheld from her the fact
that she (Complainant) was the target of the investigations. Complainant also alleged that the
Agency Attorney was responsible when her duties and responsibilities were reduced, she was
subjected to the imposition of harsher performance standards and several AR 15-6 investigations,
and he interfered with the EEO processing of her prior complaints.
On January 2, 2015, Complainant contacted an EEO Counselor and filed a formal EEO
complaint on February 12, 2015.
In her current formal complaint, Complainant alleged that the Agency, principally through the
Agency Attorney, “engaged in a continuous course of discrimination and ongoing harassment
against her” in reprisal for her prior and current EEO activity. In support of her complaint, she
identified the following examples of the alleged ongoing harassment against her based on her sex
and reprisal for prior protected Title VII EEO activity, when the Agency Attorney:

a. was responsible for intentionally amending Complainant’s earlier-filed
discrimination complaint allegations without a legal basis or legal authority,
which resulted in her rights to a full and fair fact-finding process being extremely
abridged;
b. while acting in an adversarial capacity as an attorney representing the Agency was
also engaging in a conflict of interest by guiding and providing legal advice to the
Agency’s EEO component;
c. was involved in the fashioning of the claims identified in the acceptance letters;
d. was involved in working as an advisory person having conflicting workplace
interests;
e. was involved in the decisions to deny her access to her work records and to her
employees;

f. was involved in the decisions to deny her the right to contact employees, such as
her deputy, to prepare a defense of the proposed removal, yet had knowledge of,
and encouraged, communications among employees who had provided
information to support the proposed removal;
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g. was involved in directing the information flow to the decision makers;
h. was involved in directing the information flow during the Army 15-6
investigations and participated in the development of issues to be investigated;
i. was involved in reviewing the Army’s 15-6 investigative drafts and in drafting
portions of the Army 15-6 investigations;
j. was involved in controlling the scope and direction of the Army 15-6
investigations;
k. was involved in preventing witnesses from appearing at the Army 15-6
investigation fact-finding conferences;
l. restricted the flow of information from decision-makers;
m. knowingly encouraged violations of the Army’s 15-6 investigation by deliberately
withholding from her the fact that she was the target of the Army’s 15-6
investigations;
n. intentionally participated in biased Army 15-6 investigations;
o. interfered with her authority as supervisor to counsel and discipline employees
assigned to her;
p. intentionally stopped her, as a supervisor, from exercising her discretionary
authority in imposing discipline against an employee;
q. withheld from the Administrative Judge the official Army’s 15-6 investigation
reports and emails, within the possession or control of the Agency, relating
directly to Complainant’s claims of ongoing discrimination and harassment;
r. intentionally withheld from her material evidence and documentation comprising
the Army’s 15-6 investigative reports, including the audio interviews and
documentation required to be included in the official Army’s 15-6 investigation
reports;
s. intentionally misled Complainant to believe that he had supplied to her all of the
material evidence and documentation comprising the Army’s 15-6 investigative
reports, including audio interviews, and the documents required to be included in
the official Army 15-6 investigative reports;
t. misled the Administrative Judge into believing that the Army Reserve had
produced the official Army’s 15-6 investigative reports and emails within the
possession and control of the Army Reserve relating directly to Complainant’s
claims of ongoing discrimination and harassment; and
u. intentionally filtered out essential information that would have otherwise been
provided from the Appointing Officials or other senior leaders, who reviewed the
finding and recommendation of the Army’s 15-6 investigation.

At the conclusion of the investigation, Complainant was provided a copy of the investigative file
and requested a hearing before an EEOC Administrative Judge (AJ). On February 13, 2017, the
AJ ruled on various motions from the parties, including dismissing portions of the complaint.
The AJ dismissed claims a, b and c, and q and t as “spin-off” claims. The AJ stated those claims
should have been addressed in the processing of a previously filed complaint.

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The Agency then moved for summary judgment. Complainant opposed the motion. On July 14,
2017, the AJ ruled in favor of the Agency by summary judgment, finding no sex discrimination
or unlawful retaliation.

Based on the evidence developed during the investigation into the current complaint, the AJ
reasoned that “Complainant has not shown that anything, other than the [Agency Attorney’s]
occupation as Chief of Labor Law for the agency, motivated his actions. She has not shown that
he discriminated against her based on sex or reprisal.” The AJ concluded, as a matter of fact and
law, that “based on his legal training and expertise, he advised the agency on how to respond to
allegations of a toxic work climate and to manage its personnel.” The AJ went on to conclude
that “these [Agency] reasons appear reasonable, legitimate, and not based on a discriminatory
motive. In essence, [the named] Attorney did his job.” The AJ found that Complainant “has not
refuted the fact that the named Attorney “was a legal advocate for his client.” The AJ stated that
“while Complainant may disagree with [Agency Attorney’s] advice, [his] dual capacity role with
the agency, and his zealous representation of the agency in her previous EEO complaints, her
disagreement alone is not proof of discrimination.”

The Agency’s final action implemented the AJ’s decision. The instant appeal from Complainant
followed.

ANALYSIS AND FINDINGS

As an initial matter, we note that the Agency, in response to this appeal, has requested that it be
dismissed, asserting Complainant has filed a civil action in the United States District Court for
the Eastern District of North Carolina (Civil Action No. 5:18-CV-339-H, filed on July 9, 2018)
on the same matter. However, our review of the Complaint in that civil action does not support
the Agency’s assertion that it involves the same claims as those raised in the instant
administrative EEO complaint. Therefore, we decline to dismiss this appeal.

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. In rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. §
1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on
a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that
an administrative judge’s determination to issue a decision without a hearing, and the decision
itself, will both be reviewed de novo).

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In order to successfully oppose a decision by summary judgment, a complainant must identify,
with specificity, facts in dispute either within the record or by producing further supporting
evidence, and must further establish that such facts are material under applicable law. Such a
dispute would indicate that a hearing is necessary to produce evidence to support a finding that
the Agency was motivated by discriminatory animus. Here, while Complainant has, in a very
general sense, asserted that facts are in dispute, she has failed to point with any specificity to
particular evidence in the investigative file or other evidence of record that indicates such a
dispute. We find that, even construing any inferences raised by the undisputed facts in favor of
Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ
properly issued a decision here by summary judgment.

First, we concur with the AJ’s decision to dismiss claims a, b, c, q and t. EEOC regulations at 29
C.F.R. 1614.107(a)(8) provide for the dismissal of claims alleging dissatisfaction with the
processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the
underlying complaint, not as a new complaint. See Management Directive 110 (MD-110), Chap.
5, Sect. III(F) (August 5, 2015).

Regarding the remainder of Complainant’s claims, we find that the weight of the evidence
establishes that the AJ correctly determined that the Agency Attorney was acting within his
capacity as the Agency’s labor advisor and litigation representative in all the actions in dispute.
While Complainant may disagree with the legal advice he gave to management officials
concerning how to respond to personnel situations within the program Complainant managed,
including a number of AR-15 investigations, and his zealous legal representation of the Agency
in defense of the complaints Complainant filed, she has not established that the Agency Attorney
was unlawfully motivated in his actions by her sex or prior EEO activity.

CONCLUSION

The Agency’s final order, adopting the AJ’s determination that no sex discrimination or unlawful
retaliation has been proven, is AFFIRMED.
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 tends 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.
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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.

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.
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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

December 12, 2018
Date