U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angelique H.,1 Complainant, v. Christopher C. Miller, Acting Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 2020000148 Hearing No. 560-2018-00290X Agency No. DFAS-00075-2017 DECISION On October 4, 2019, 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 4, 2019 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Military Pay Technician, GS-0545-06 at the Agency’s Defense Military Pay Office in Fort Leavenworth, Kansas. On July 28, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American) and reprisal for prior protected EEO activity when: 1. since January 2017, Complainant’s work was manipulated by management resulting in negative consequences for her and customers, management failed to 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. 2020000148 2 provide pertinent information about policies and processes, management disallowed her leniency related to processing cases on time, and she was not included in the majority of briefings; 2. on June 26, 2017, Complainant was issued a Letter of Warning; and 3. on August 16, 2017, Complainant was issued a Letter of Reprimand. Complainant argued, with respect to Claim (1), that her cases were sabotaged when her supervisor (S1) and her second-level supervisor (S2) went behind her back and closed her cases without her knowledge, and misled individuals on her cases resulting in negative outcomes for her customers. In one situation, Complainant objected to being relayed instructions from S2 that Complainant was to redo an assignment and said that she told S1 that she was “not a child and was not to be ‘told’ anything.” Complainant claimed that she had not been warned that she was entering the tracker wrong, and she had been trained to enter the tracker via Adobe when she first started with the Agency. Complainant explained that she received a modified schedule to accommodate her need to take her children to school, and that the schedule ended “whenever [her] children were not in school.” Complainant contended that she was subjected to reprisal when her modified schedule ended in May 2017. Complainant claimed that S2 would then hold weekly meetings before she arrived at work, causing her to miss information. In addition, Complainant alleged that S2 changed her tracker every three months after she complained about her tracker. Complainant asserted that S2 began changing other employee’s trackers immediately after he would change Complainant’s as an afterthought. According to Complainant, hers was always changed first. Complainant’s immediate supervisor (S1) denied retaliating against Complainant. S1 explained that the Agency’s policy is to process all work within 72 hours of receipt. Therefore, work still needed to be completed even if an employee is absent from work. S1 denied that Complainant missed meetings with S2 because of her schedule; she only missed meetings if she was late or took leave. The Letter of Warning in Claim (2) referenced two incidents on June 6, and June 8, 2017. On June 6, 2017, S2 noticed that Complainant did not correctly annotate the cycle tracker with the cycle number. “Rather than using the form as it is formatted, [Complainant] typed the cycle number in after it was in the .pdf format.” S2 met with Complainant, instructed her to pull up the form and to type the cycle number in the form. When Complainant questioned S2’s instructions, he said that it was the way he wanted the cycle number to be done. On June 8, 2017, S2 noticed Complainant continued to use the incorrect format, and informed S1. S1 met with Complainant, who again questioned the directive, and rejected S1’s explanation that it was the way S2 wanted things done. As a result of her failure to follow instructions, Complainant was warned. Complainant asserted that she informed S2 twice that she was unable to use the tracker because it was locked, and because of this, she could only enter the tracker in Adobe format. 2020000148 3 Complainant claimed that S2 would not tell her why it was necessary she enter the tracker in Excel format rather than Adobe and would only tell her that it was because he said so. Complainant objected that S2’s order was not in the “SOP” and it was not clear that his order was mandatory. The record contains an email from Complainant to herself on June 8, 2017, in which she says it did not make sense since she would still have to convert the form back to Adobe and print it off. Complainant also objected, in the email, that it would add unnecessary time to her work. Nowhere in the email does Complainant assert the tracker was locked. S1 explained that S2 noticed Complainant was not following policy regarding the cycle tracker. According to S1, S2 “went to her and explained what he wanted.” S2 later noticed that Complainant still was not entering the cycle tracker to his specifications. S1 explained to Complainant “that if she continued to refuse to fill out the cycle tracker the way [S2] had explained to her that [S1] would have no choice but to assign the work to another technician. . . . [S1] also told her that refusal could result in further disciplinary action.” S2 confirmed the substance of the Letter of Warning. The Reprimand in Claim (3) charged Complainant with (a) rude and unprofessional behavior; and (b) failure to follow instructions. In Charge (a), on August 10, 2017, Complainant gave a solider one set of instructions but S1 indicated the instructions was incorrect. Complainant then told the soldier S1 did not know what she was talking about. In Charge (b), on the same day, S1 was working with a customer and directed Complainant to assist Complainant with changing a code on the customer’s form. Complainant refused because the customer already certified his basic allowance for housing. S1 explained that Complainant’s behavior in front of a customer portrayed the facility in a negative light, and that she was only allowed to refuse an order if it would result in a crime or if she believed she would be in physical danger. Otherwise, Complainant was to comply with the order and file a grievance afterward. Complainant argued that the Reprimand was based on a lie; S1 lied when she said that Complainant said S1 did not know what she was talking about in front of a customer. Rather, S1 lied to the customer about what the customer needed to do. As a result, Complainant refused to do what S1 ordered. S1 explained that Complainant was arguing with her in front of a customer, so she walked away rather than continuing the argument in front of the customer. Further, Complainant refused to follow a lawful order from S1 to correct certain codes on a customer’s paperwork. S2 confirmed the substance in the Reprimand. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing request and remanded the complaint to the Agency, and 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 or reprisal as alleged. 2020000148 4 CONTENTIONS ON APPEAL On appeal, Complainant contends that the investigation was biased. Further, Complainant argues that the Agency’s decision did not take into account her witnesses and instead relied on hearsay from other witnesses. Complainant maintains the tracker was locked and denies that she was not complying with management’s orders. Complainant contends that the evidence shows that she was subjected to discrimination. Accordingly, Complainant requests that the Commission reverse the final decision. 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”). As an initial matter, the Commission will address Complainant’s argument on appeal regarding the fairness of the investigation. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or biased. Thus, despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. Disparate Treatment - Claims (2) and (3) Turning to the merits of the instant matter, to prevail in a disparate treatment claim, 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 he 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 at n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. 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. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. In this matter, the Agency explains that Complainant did not comply with S2’s directives regarding her entry of the tracker, which led to the Warning. 2020000148 5 Additionally, Complainant openly argued with S1 in front of a customer, which led to the Reprimand. Both are legitimate, non-discriminatory reasons. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not provide evidence that tends to establish, by a preponderance of the evidence that she was subjected to unlawful discrimination. To the contrary, with respect to the Letter of Warning, the record contains contemporaneous evidence from Complainant that corroborates the Letter of Warning. Further, Complainant does not dispute that she argued with S1 in front of a customer. Rather, she argues that she was correct and S1 was wrong. That is not a judgment for us to make; only whether S1 acted with discriminatory or retaliatory intent, and Complainant has not provided evidence supporting her allegation. Complainant has failed to prove that the Agency's explanations for its actions were mere pretext designed to conceal discriminatory or retaliatory animus. Accordingly, the Commission finds that Complainant did not establish by a preponderance of the evidence that the Agency subjected her to discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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 a protected basis -- in this case, because of her race or for engaging in prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2020000148 6 Upon review of the incidents at issue, we note that EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Even assuming, arguendo, that the totality of the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. In so finding, we note that the record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Thus, Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. 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 final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020000148 7 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 January 11, 2021 Date
