Rosemarie G.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Information Systems Agency), Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

0120182380 (E.E.O.C. Aug. 29, 2019)

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

Rosemarie G.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Information Systems Agency),
Agency.

Appeal No. 0120182380

Hearing No. 570-2016-00981X

Agency No. DOD-DISA-13-011

DECISION

On June 6, 2018, 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
May 7, 2018, 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.

ISSUES PRESENTED

The issues presented are whether Complainant established that she was subjected to a hostile work
environment and whether she was subjected to discrimination when she was constructively
discharged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract
Specialist, GS-1102-14, at the Agency’s Procurement and Logistics Directorate in Bahrain, from

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.
0120182380

2
December 18, 2011 through December 2012. Following her one-year probationary period,
Complainant returned to the position of Contract Specialist, GS-1102-12, effective December 16,
2012.

On March 17-18, 2012, a Climate Assessment was conducted in response to accusations of a
hostile work environment that were received from one of Complainant’s employees. Report of
Investigation (ROI), at 639-647, 682-690, 813-821. The Climate Assessment findings indicated
that Complainant micromanaged her subordinates; Complainant’s subordinates described
Complainant as lacking experience; Complainant did not follow her own polices; Complainant
utilized a rotational employee Contracting Specialist as a Secretary/Administrative person; and
Complainant was guilty of maltreatment of another subordinate. Id.

On June 20, 2012, Complainant submitted a warrant application. In a letter dated August 16, 2012,
Complainant’s fourth-line supervisor, the Director of Procurement and Chief, Defense Information
Technology Contracting Organization (DITCO) (DP) informed Complainant that she was in
possession of information gained from several publicly available documents that was relevant in
consideration of Complainant’s warrant application. ROI, at 164. Specifically, the Agency
learned that Complainant had prior warrant revocations. DP noted that she wanted to provide
Complainant with the opportunity to address the information no later than September 5, 2012. Id.
A warrant was never approved during the relevant period.

On October 8, 2012, Complainant’s second-line supervisor (S2) placed Complainant on
administrative leave while an Office of Inspector General (OIG) investigation was conducted.
Complainant remained on administrative leave through November 25, 2012. ROI, at 271. On
November 26, 2012, Complainant was detailed to a position that management felt would help her
utilize her contracting skills with vendors with whom Complainant had worked in the past. Id.

On December 18, 2012, Complainant’s first-line supervisor from August 2012 through February
2013 (S1) issued Complainant notice that she had failed to satisfactorily complete her supervisory
probationary period. ROI, at 166-168. The notice stated that management had notified
Complainant of performance deficiencies and provided Complainant with an opportunity to correct
those deficiencies, however, Complainant’s performance failed to improve. Id. Noted deficiencies
included problems with Complainant’s judgment and ability to manage her subordinates. Id. The
notice referenced the March 2012 Climate Assessment findings; described Complainant’s refusal
to comply with specific instructions from her immediate supervisor regarding a work assignment
for one of Complainant’s subordinates; and stated that Complainant disregarded rules applicable
to DOD personnel on official DOD business as further evidence of Complainant’s poor judgment.
Id. The notice concluded that Complainant would be changed to a lower graded position, Contract
Specialist, GS-1102-12, effective December 16, 2012. Id.

On January 6, 2013, S1 issued Complainant permanent change of station (PCS) orders to Stuttgart,
Germany, with a report date of January 14, 2013. Complainant informed S1 that the report date
was not enough time and Complainant’s report date was extended to February 10, 2013.
Complainant’s request for an additional 120 days to prepare for the move to Germany was denied.
0120182380

3

On February 10, 2013, Complainant resigned from the Agency. Complainant stated that she was
not able to independently perform her job duties and supervise her staff during her probationary
period. Complainant testified that from December 17, 2011 to February 10, 2013, the combination
of the actions taken against her by her supervisors and the negative working conditions led to
constructive discharge.

Following Complainant’s resignation, an OIG Report, dated March 1, 2013, found that seven of
eight allegations against Complainant were substantiated. ROI, at 609-636, 783-811. Specifically,
the OIG investigation revealed that Complainant used her personal passport to enter the United
Arab Emirates on October 1, 2012, while travelling on official government duty, knowing that her
country clearance request had not been approved; ignored guidance from the Commander; did not
follow regulatory guidance; manipulated facts and wasted government resources; yelled at
subordinate employees; directed a subordinate to provide inaccurate information in official agency
communications; and misrepresented the operational status of her government-issued cell phone.
Id.

On February 22, 2013, 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 in reprisal for prior protected EEO activity arising under Title VII when:

1. The Agency, specifically Complainant’s first, second, and fourth-line supervisors,
would not allow Complainant to independently perform her job duties and
supervise her staff, beginning on December 18, 2011, and through her constructive
discharge on February 10, 2013;

2. Complainant’s first-line supervisor from December 2011 through August 2012
(Major), was only willing to approve Complainant’s warrant for $10 million when
it should have been unlimited as of September 2012; a warrant was never approved;

3. S2 placed Complainant on administrative leave from October 8, 2012 through
November 25, 2012, while an OIG investigation was conducted.

4. As of November 26, 2012, S2 detailed Complainant to work in the DISA TNC
Office in a different location with different performance requirements;

5. On December 18, 2012, S1 issued Complainant a “Failure to Satisfactorily
Complete Supervisory Probationary Period” letter dated December 16, 2012, that
included a downgrade from GS-1102-14 to GS-1102-12 and notice that
Complainant was being reassigned to a position in Stuttgart, Germany as a Contract
Specialist, GS-12;

6. S1 issued Complainant a PCS order dated January 6, 2013, with a report date to
Stuttgart, Germany of January 14, 2013;
0120182380

4

7. On January 10, 2013, S1 changed Complainant’s report date from January 14, 2013
to February 10, 2013, after Complainant complained to the Director, but denied her
request for 120 days to prepare for the move to Germany;

8. S1 and S2 purposely delayed Complainant’s travel advance request to assist with
her relocation to Stuttgart, Germany;

9. Complainant was denied requested use of annual leave and compensatory time in
contravention of usual Agency practice and procedures by S1, a Colonel, and the
Director. Complainant claims this denial deviated from the Agency’s customary
practice and procedure;

10. Complainant reported harassment, abuse, and retaliation to the Director at the
advice of the OIG, but the Director did nothing to stop it; and

11. Complainant was constructively discharged on February 10, 2013.

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). On January 15, 2015, the AJ assigned to the case dismissed Complainant’s hearing request,
finding that the Commission did not have jurisdiction over Complainant’s mixed case complaint
and remanding the matter for a final agency decision (FAD) with appeal rights to the Merit Systems
Protection Board (MSPB). On August 14, 2015, the Agency issued a final decision finding no
discrimination. Complainant timely appealed the decision to the MSPB. On December 17, 2015,
the MSPB issued an initial decision finding that it lacked jurisdiction over the matter. On January
28, 2016, Complainant filed an appeal with the Commission and requested that the Commission
remand the matter for a hearing before a Commission AJ. See EEOC Appeal No. 0120161153
(April 13, 2018) (appeal premature as hearing request was pending at time of appeal).
Complainant subsequently withdrew her hearing request and the AJ dismissed Complainant’s
hearing request on January 29, 2018, pursuant to her request. Consequently, 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 as alleged.

In the FAD, the Agency found that assuming, arguendo, that Complainant’s allegations are true,
there were legitimate, nondiscriminatory reasons for the actions at issue. Further, Complainant
did not identify similarly situated individuals outside of her protected classes who were treated
more favorably. Regarding Complainant’s claim that a White male subordinate received more
favorable treatment when he was granted a warrant and Complainant was not, the Agency noted
that the individual was not an appropriate comparator because he was not Complainant’s peer.
The Agency argued that Complainant failed to acknowledge that requests were made in connection
with her warrant application because the Agency discovered that Complainant failed to disclose
her prior warrant revocations. Moreover, there was no record or accusation that the comparator
failed to disclose any warrant revocation issues with DISA or any other agency.
0120182380

5

With respect to the individuals Complainant believed OIG investigated without their placement on
administrative leave during the pendency of an investigation, the Agency determined that those
individuals were not similarly situated to Complainant. Additionally, the Agency found that other
than Complainant’s assertions, there was no evidence in the record that any of the identified
individuals were ever the subject of an OIG investigation or that they occupied the same or similar
position as Complainant. The Agency asserted that Complainant failed to establish an evidentiary
link between membership in her protected class and the adverse employment actions.

As for Complainant’s allegations of reprisal, the Agency determined that while there was some
evidence that DISA employees were aware of Complainant’s prior EEO activity, those activities
were not close in time to the complained of actions and the actors had no reason to hold
Complainant’s EEO activity with the Department of the Army against her. While Complainant
attempted to link her EEO activity to her warrant application, the Agency found that the revocation
of the warrants was the basis for the non-issuance of a contracting warrant rather than the EEO
activity itself. The Agency concluded that there was no evidence that Complainant’s prior EEO
activity triggered any of the incidents at issue.

Regarding Complainant’s claim of constructive discharge, the Agency determined that
Complainant voluntarily resigned from the Agency, which was not an adverse action. The Agency
noted that Complainant failed to present any evidence that the Agency had any intent to force her
to resign and determined that Complainant’s workplace was not intolerable.

The Agency added that the record includes no evidence that the actions taken against Complainant
were based upon her protected status or that the actions had the purpose or effect of unreasonably
interfering with Complainant’s work performance or creating an intimidating, hostile, or offensive
work environment. Rather, the Agency noted, affidavits from Complainant’s subordinates and
superiors along with information contained in the OIG report fully rebutted Complainant’s claims
of harassment and hostile work environment. The Agency found that even if Complainant could
establish a hostile work environment claim, the Agency exercised reasonable care to prevent and
promptly correct any harassing behavior while Complainant failed to use corrective opportunities
and chose to resign.

CONTENTIONS ON APPEAL

On appeal, Complainant maintains that she found the Agency’s actions intolerable, severe, and
pervasive. Complainant contends that undermining one’s supervisory authority or micromanaging
is a form of harassment when considered in conjunction with her other allegations. Complainant
claims that Major’s decisions caused dissention and resentment toward Complainant because her
subordinates thought that Complainant was making decisions on her own accord. Complainant
asserts that the Agency provided contradictory reasons for her placement on administrative leave.
In support, Complainant states that employee surveys do not reflect complaints about her and the
administrative leave was prompted by an employee that Complainant sought to discipline for
illegal and improper conduct.
0120182380

6

The Agency proclaims that Complainant failed to serve it with the Notice of Appeal. The Agency
adds that Complainant, either purposefully or negligently, misrepresented a variety of facts. As to
Complainant’s contention that she submitted evidence and proffered facts that the Agency omitted
or misrepresented, the Agency argues that Complainant offers nothing more than conjecture and
unproven subjective speculations to make her case. The Agency maintains that Complainant failed
to establish discrimination or constructive discharge, and further failed to present evidence of
pretext. The Agency asserts that Complainant offered no reference to the record in her arguments
on appeal. The Agency argues that, in contrast, the FAD identified factual statements, that were
sworn, recorded, and made part of the record, and based the decision on information within the
record. Accordingly, the Agency requests that the Commission affirm the FAD.

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”).

Hostile Work Environment

To establish a claim of harassment a 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; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant’s] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 classes. Only if Complainant establishes both of
those elements, hostility and motive, will the question of Agency liability present itself.

0120182380

7
Construing the evidence in the light most favorable to Complainant, the alleged incidents were not
sufficiently severe or pervasive to establish a legally hostile work environment. The Commission
notes that Title VII is not a civility code. Rather, it forbids “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 that 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.

The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. For example, the record
includes evidence of disagreements about work assignments, as well as inappropriate supervisory
behavior on Complainant’s part and a contentious relationship between Complainant and her
subordinates, as evidenced by the Climate Assessment, the OIG Report, and multiple witness
statements. Id. at 280, 327, 336, 382, 389, 609-636, 783-811. Moreover, multiple witnesses
stressed that Complainant took issue with the lack of autonomy and did not welcome or respect
supervisor oversight. ROI, at 253, 327. Major testified that Complainant’s allowance to
independently perform her job was commensurate with her abilities. Id.at 328.

Regarding Complainant’s warrant application, Agency officials testified that additional
information was sought from Complainant once management learned that Complainant had prior
warrants revoked. ROI, at 253. As for Complainant’s request for an unlimited warrant, witnesses
affirmed that unlimited warrants are extremely rare for new employees. Id. at 360, 384. Evidence
in the record confirms that warrants were generally issued at $10 million, with three individuals
receiving smaller warrants and one individual, one of Complainant’s first-line supervisors during
the relevant period, receiving a $50 million warrant. Id. at 709, 839. Regarding her claim that
management officials used information from her prior EEO activity when considering her warrant
application, the record shows that management officials were concerned about Complainant’s
prior warrant revocations rather than Complainant’s EEO activity.

As for Complainant’s placement on administrative leave during the pendency of the OIG
investigation, management officials testified that Complainant was placed on administrative leave
while allegations of inappropriate behavior and mistreatment of DISA personnel were
investigated. ROI, at 271, 275. With respect to the subsequent detail assignment, Major denied
that Complainant was detailed to work in a different location with different performance
requirements during Major’s tenure with the office. However, S2 stated that Complainant was
detailed to work on a project that would allow her to work with vendors with whom she had worked
in the past since the OIG investigation was incomplete. Id. at 271, 275, 361. In this capacity,
Complainant remained in an adjacent building and supported DISA’s mission. Id. Complainant
subsequently received a downgrade and reassignment when management determined that
Complainant had not performed satisfactorily as a supervisor or leader. ROI, at 251, 271. DP
stated that Complainant was downgraded to a position equal to her position prior to her work at
DISA and transferred to the Defense Information Technology Contracting Organization (DITCO)-
Europe in Stuttgart, Germany, where she would be able to work at her reassigned grade level. Id.

0120182380

8
Regarding Complainant’s travel advance request, management officials asserted that
Complainant’s request was approved within a week of the request and Complainant subsequently
never travelled to Germany. ROI, at 271, 275. In any event, witnesses explained that travel
advances are not ordinarily issued, as employees are generally reimbursed for qualified expenses.
Id. at 361. As to the denial of Complainant’s leave requests, S1 stated that Complainant requested
leave shortly before her reporting date and he felt that it would be appropriate for Complainant to
request any needed leave once she arrived in Germany. ROI, at 289. S1 added that he viewed
Complainant’s request as a tactic to delay her reporting date. Id.

Moving to Complainant’s allegations that the Director did nothing to stop her reports of
harassment, abuse, and retaliation, the Director acknowledged that Complainant emailed him in
January and February 2013. ROI, at 319. However, he stressed that he responded to
Complainant’s January 2013 email, informing her that he took allegations of harassment and
retaliation seriously, and forwarded Complainant’s concerns to DP and another management
official. Id. The Director stated that when he forwarded Complainant’s February 2013 concerns
to DP, he learned that Complainant had departed Bahrain. Id. As for Complainant’s additional
allegations of non-response from management, DP affirmed that she held a mediation between
Complainant and Major when she learned of Complainant’s allegations. Id. at 255.

Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work
environment. We find that the complained of conduct did not have the purpose or effect of
unreasonably interfering with her work performance and/or creating an intimidating, hostile, or
offensive work environment. Moreover, to the extent Complainant claims that she was subjected
to disparate treatment, the Commission finds that, as discussed above, Complainant has not
proffered any evidence from which a reasonable fact finder could conclude that the Agency’s
explanation for its actions was pretext for discrimination or reprisal.

Constructive Discharge

Finally, to the extent that Complainant alleges that she was forced to resign because of the
Agency’s discrimination, the Commission notes that the central question in a constructive
discharge case is whether the employer, through its unlawful discriminatory behavior, made the
employee’s working conditions so difficult that any reasonable person in the employee’s position
would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003
(Apr. 17, 2002). As stated above, the Commission finds that Complainant has not shown that the
Agency’s actions were motivated by discriminatory or retaliatory animus, and thus Complainant
cannot establish the necessary elements to prove constructive discharge. As a result, we find that
Complainant was not subjected to discrimination, reprisal, a hostile work environment, or
constructive discharge as alleged.

0120182380

9
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 finding that Complainant was
not discriminated against, nor harassed, as alleged.

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.
0120182380

10
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

August 29, 2019
Date