Sade M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 13, 2017

0120160003 (E.E.O.C. Dec. 13, 2017)

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

Sade M.,1
Complainant,

v.

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

Appeal No. 0120160003

Hearing No. 420-2014-00233X

Agency No. ARREDSTON11OCT04482

DECISION

On August 31, 2015, 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
final decision2 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as a Public Affairs Specialist at the Agency’s United States Army Security
Assistance Command (USASAC) in Redstone Arsenal, Alabama. On December 2, 2011,

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.
2 The Agency did not issue its final decision until December 4, 2015. Complainant had
requested a hearing, but on November 20, 2014 withdrew her request. She filed her notice of
appeal with the Office of Federal Operations after failing to receive a response to her request that
the Agency take final action following the withdrawal of her hearing request. Although the
appeal was prematurely filed, it ripened when the Agency issued its final decision.
0120160003

2
Complainant filed an EEO complaint in which she alleged that numerous members of her chain
of command subjected her to harassment and disparate treatment because of her sex (female),
disability (partial hearing loss; post-traumatic stress disorder), and age (43) in connection with
eleven incidents that occurred between April 2008 and October 2011. She identified the
following individuals as the responsible management officials:

1. First-level supervisors (S1s):

- Chief of Staff – April 2008 through June 2009 (S1a). Investigative Report (IR) 821.
- Chief of Staff – June 2009 through June 2010 (S1b)3.
- Command Information Officer4 – November 2010 through November 2013 (S1c). IR
783, 1028, 1065.

2. Second-level supervisors (S2s):

- Deputy to the Commander – February 2008 through June 2009 (S2a). IR 336.
- Chief of Staff – November 2010 through November 2013 (S2b). IR 784.

3. Third-level supervisors (S3s):

- Commanding General – September 2007 through July 2009 (S3a). IR 782, 1176.
- Commanding General – September 2009 through September 2011 (S3b). IR 1244.

Complainant identified the following incidents as comprising her claim:

1. In April 2008, S1a and S3a failed to prevent her from being verbally threatened as a
result of an incident she reported.

2. In late September 2008, during a change-of-command ceremony, S3a grabbed
Complainant and moved her forcefully.

3. In October 2008, S3a verbally degraded Complainant.

4. In September 2009, S1b failed to prevent Complainant from being verbally degraded.

5. In October 2009 and 2010, S1a and S1b failed to prevent Complainant from being
verbally degraded by a Sergeant and by S3a during a symposia hosted by the Association
of the United States Army (AUSA).

3 There is an inconsistency in the record. S1b testified at a fact-finding conference that he
assumed the Chief of Staff position in June of 2008. IR 882.
4 This was a newly-created supervisory position for which Complainant competed but was not
selected. IR 357-418. The incumbent reported to the Chief of Staff.
0120160003

3
6. From October 2010 through June 2011, Complainant was repeatedly harassed about her
whereabouts, yelled at, stalked, denied union representation, told to apply for positions
outside USASAC, and threatened.

7. In June and July 2011, Complainant was subjected to violent outbursts, openly degraded,
mocked, yelled at, threatened and physically blocked by her supervisor at the time, S1c.

8. On July 5, 2011, S1c requested that she provide a detailed report of her time on a daily
basis with supporting documentation to validate compensatory hours earned during her
trip to the Paris, France International Air Show.

9. In July 2011, Complainant became aware that S1c kept extensive records of her
personally identifiable information (PII) and movements.

10. In July 2011, Complainant became aware that she was given a score of 75% on her
annual appraisal (Level 2 fully successful) without midpoint counseling.

11. On October 9, 2011, Complainant became aware that an employee’s supervisor had
instructed that employee to shred Freedom of Information Act (FOIA) documents
requested by the Complainant when she was not selected for the GS-14 position of
Command Information Officer.

12. On October 21, 2011, Complainant became aware that S1c had completed a second
annual performance appraisal on October 4, 2011, without her knowledge, after she had
signed the original document on July 21, 2011.

Complainant’s formal complaint was dismissed on December 28, 2011, but in EEOC Appeal No.
0120121472 (June 12, 2012), request for reconsideration denied, EEOC Request No.
0520120569 (Nov. 7, 2013), the Commission reversed the Agency’s dismissal and remanded the
complaint for processing. In accordance with our order, the Agency conducted an extensive
investigation which included a fact-finding conference. At the conclusion of the investigation,
the Agency provided Complainant with a copy of the investigative report and notice of her right
to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested
a hearing but, as previously noted, subsequently withdrew her request. See supra n. 2.
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.

Complainant testified at the fact-finding conference that she had a partial hearing loss in her left
ear. She also testified that although she told S1a, S1c, and S2a about her hearing loss, she did
not provide medical documentation to any of the officials named in her complaint. IR 788-93.
She also admitted that S1c would have become aware of her hearing loss in March 2012, after
the events at issue in her complaint. IR 1028-29. S3a likewise testified that he was not aware of
Complainant’s hearing loss and had not seen any medical documentation concerning her hearing
0120160003

4
loss. IR 1179. S1a testified that she was not aware that Complainant had limitations on any
major life activity, that she never saw anything in Complainant’s work performance to indicate
that she had a disability, and that she ultimately did not consider Complainant to be disabled. IR
923.

Complainant also testified that she suffered from post-traumatic-stress disorder which began in
2008, after she had accompanied a Sergeant to pick up S3a at a strip club, an occurrence which
became part of incident (1), described in detail below. She testified that when she experienced
an episode, she found it difficult to concentrate and perform her job, and that she provided
doctors’ notes to S1c and S2b. IR 953. Complainant had submitted notes dated August 4, 2010
and August 1, 2011, from two different physicians indicating that she had presented feelings of
overwhelming anxiety due to work-related stress, and that she had exhibited such symptoms as
headaches, hives, and stomach ulcers. IR 329-30. S1c testified that she was aware that
Complainant had been under stress, but that she had seen nothing to indicate that Complainant’s
medical condition was chronic or permanent. IR 1069-73.

Incident (1): Complainant testified that in April 2008, S3a called a Sergeant and ordered the
Sergeant and her to pick him up at a strip club. When asked by the EEO investigator why she
believed this incident created a hostile environment, she replied that she did not feel comfortable
going there, that she was being taken there against her will, and that the Sergeant had threatened
her with repercussions if she ever talked about the incident. In particular, she testified that the
Sergeant threatened her when she reported the incident to S1a. However, she admitted that she
was never asked to go into the strip club, only to wait in the car. IR 794-801. S1a testified that
she did recall Complainant informing her about the incident but not about being threatened by
the Sergeant or that the Sergeant was creating a hostile work environment. IR 827-28. In a
rebuttal statement, Complainant maintained that although she might not have used the word
hostile in describing the incident to S1a, she definitely conveyed her concerns about the
situation, particularly the Sergeant’s ongoing threats. IR 833-34, 838-39, 841-42. S3a testified
that he did not go into the strip club, and all that the Sergeant and Complainant had done was to
pick him up in front of the establishment. He also testified that he ordered the Sergeant to escort
Complainant to the front door of her hotel because he thought the hotel was in an unsafe area. IR
1183-1184. In addition, S3a stated that the incident had been investigated by the Department of
the Army Inspector General, and that no wrongdoing had been found. IR 1186. Finally, he
testified that neither Complainant nor S1a had raised any concerns to him regarding the
Sergeant’s behavior. IR 1183-85.

Incident (2): Complainant testified that on an unspecified date in September 2008, S3a forcibly
grabbed her and yanked her by the arm. However, she admitted that she did not report the
incident until October 2011, more than three years later. IR 801-05. S3a testified that the
alleged occurrence took place in September 2009, not September 2008. IR 1179. He denied that
he grabbed Complainant or pulled her by the arm, and stated that the Inspector General had
thoroughly investigated the incident and found the claim to be unfounded. IR 1179-82. In
addition, he testified that while he was in Complainant’s chain of command, Complainant had
never informed him that she was being subjected to a hostile work environment. IR 1192.
0120160003

5

Incident (3): Complainant averred that the Sergeant and S3a made derogatory remarks toward
her, using expletives. According to Complainant, S3a said at the 2009 AUSA conference, “could
this sign be any fucking smaller,” in reference to a display that she had prepared. Complainant
further testified that S3a questioned her competency as a Public Affairs Officer, saying, “What
kind of fucking public affairs officer are you,” and that she had spoken to S1a about the incident
on a number of occasions. IR 808-16. S1a testified that Complainant had contacted her about
the situation, and that she was aware that S3a was upset about the display. She also testified that
Complainant did not characterize S3a’s conduct regarding the display as threatening or belittling,
noting that if Complainant had raised a concern about a hostile work environment, she “would
have done something about it.” She further stated that she saw no indications that Complainant’s
work performance was being negatively impacted. IR 826-29. S3a testified that this incident
had also been investigated by the Inspector General and was found to have no merit. IR 1186. In
response to Complainant’s rebuttal statement, S1a testified that she did not consider S3a’s
outburst about the display as hostility toward Complainant. IR 833-35.

Incidents (4) and (5): Complainant testified that the Sergeant yelled at her, accused her of being
in his office without permission, and called her a “pussy.” She also testified that when she
reported the incident to S1b, S1b said he would take care of it but never did. IR 842-45. In
addition, she testified that at the AUSA Conference in October 2010, the Sergeant was making
inappropriate remarks toward her, yelling about the size of the display, as S3a had allegedly done
the year before. IR 851. S1b testified that he did not recall Complainant reporting that the
Sergeant had called her a pussy. He stated that the Sergeant could be headstrong and “rough,”
and that he had told the Sergeant that if he had any problems with Complainant’s work, the
Sergeant should speak to S1B about it. S1b also noted that he had given Complainant two
quality step increases for excellent performance. IR 891, 893, 896. S3b testified that the
Sergeant was never threatening or intimidating, but merely demanding that Complainant get her
work done, and that the Sergeant yelled at other people as well as Complainant. IR 1246-52.

Incident (6): Complainant testified that between October 2010 and June 2011, S1b was having
people watch her to keep track of her whereabouts. She stated that someone told her that “S1b is
looking for you and he asked us to watch when you came back and to let him know when you
returned.” When asked by the investigator how this could be considered stalking, Complainant
replied, “perception is my reality; and that’s what it was.” IR 854-71.

Incident (7): Complainant testified that in June and July 2011, she was subjected to violent
outbursts by S1c, openly degraded, mocked, yelled at, threatened with discipline for
insubordination, and physically blocked by S1c while trying to leave S1c’s Office, and that all of
this had occurred in the presence of her co-workers. She stated that when she reported to S1c
that she had an injury, S1c made the comment, “you have a doctor’s note for everything.” She
also stated that S1c accused her of going into her office without permission, yelled at her, and on
one occasion, blocked her path while screaming at her as she was trying to leave. IR 1029-32.
S1c testified that the friction between her and Complainant began when Complainant submitted
her list of accomplishments for her annual performance appraisal. S1c stated that she did not
0120160003

6
believe that Complainant was meeting all of her performance objectives, and that Complainant
became very upset. In particular, S1c pointed out that Complainant had asked for a quality-step
increase, and that she had told Complainant that the she was not performing at a level that would
justify such an increase. She testified that Complainant got very upset and accused her of
picking on her. S1c acknowledged that she might have raised her voice during the incident, but
only in response to Complainant raising her voice. IR 1073-79. S1c also denied making the
statement about Complainant having a doctor’s note for everything and blocking Complainant as
she left her office. IR 1081-81.

Incident (8): Complainant testified that on July 5, 2011, after she had returned from the Paris Air
Show the month before, S1c asked for a detailed report on her time at the Air Show in order to
receive compensatory pay. She provided the requested information, but maintained that she was
being held to a different standard than a male coworker who also attended the show but did not
have to submit such a report. IR 1034-39. S1c testified that this male coworker was not under
S1c’s supervision, and that Complainant was able to validate her hours, and that she had
forwarded Complainant’s report to S2a, who certified Complainant’s time and authorized her
compensatory pay. IR 1081-82.

Incident (9): Complainant testified that sometime in July 2011, she had found a record book,
which she referred to as the “green book,” on the floor of the lobby in her work area.
Complainant thought that it was her notebook and took it back to her office. This notebook
contained a great deal of Complainant’s personal information, including her medical
information. However, it turned out that the green book in question belonged to S1c. She stated
that when she confronted S1c about the matter, S1c, “went totally off,” on her, accusing
Complainant of going into her office. She testified that she believed that S1c had deliberately
left the green book with her medical information in the open. When asked by the investigator
why she believed this, Complainant replied that it was S1c’s comment that she had a medical
excuse for everything as well as the fact that she had found her notebook out in the open. IR
1039-43. S1c denied that she had left Complainant’s green book in the lobby. She testified that
she normally kept the green book in her office and that it had been missing for two weeks. She
admitted getting into an altercation with Complainant about the matter, acknowledging that she
had accused Complainant of taking it from her office after Complainant had accused her of
leaving it out in the open. S1c admitted that she had no evidence that Complainant had taken the
green book from her office. IR 1084-87.

Incidents (10) and (12): Complainant was rated for the period between November 8, 2010, when
S1c first took over as her first-line supervisor, to June 6, 2011. S1c was Complainant’s primary
rater and S2b was her senior rater. She had an initial discussion with S1c regarding her
performance on January 21, 2011, and a midpoint counseling session on April 21, 2011, both of
which were routine. IR 359. Her performance objectives included: developing and
recommending a program to plan, implement, and evaluate media activities and relations;
develop and implement a crisis communications program; organize interviews with media
outlets; oversee congressional relations program; and complete training as per individual
development plan. IR 359. The midpoint counseling session took place on April 21, 2011, as
0120160003

7
scheduled, and was documented by a detailed hand-prepared memorandum that included the
signatures of both Complainant and S1c. IR 364. At the end of the rating period, Complainant
prepared and submitted a list of her significant contributions to the mission of the USASAC. IR
360. The performance appraisal was issued on July 21, 2011. It was signed by S1c as the
primary rater but not by S2b as the senior rater. She was given a primary rating of “Excellence –
25%-74%,” which was the second highest possible rating that could be given. IR 357-58. On
October 4, 2011, the appraisal was reissued. It was unchanged except for the fact that it now
included a rating from S2b as the senior rater. S2b awarded Complainant a senior rating of 2 on
a scale of 1 through 5, with 1 being outstanding. IR 355-56. According to S1c and S2b, the
reason she did not receive the highest rating is that she did not complete all of her performance
objectives, particularly the creation of a crisis communication plan. IR 983, 985-86, 989-95,
1005-06, 1014, 1048-50, 1087-93, 1095, 1098-99, 1104-05.

Incident (11): Complainant had unsuccessfully applied for the Command Information Officer
position for which S1c was ultimately selected. IR 1103-04. In November 2010, she submitted
a Freedom-of-Information-Act (FOIA) request, the scope of which included the documentation
pertaining to that particular selection. Complainant had filed a grievance on the matter and was
seeking the documentation in order to support her position. She received an initial response to
her request on December 15, 2010. IR 357-399. She received a second response on August 15,
2011. IR 400-418. Complainant testified that on October 9, 2011, the Network and Switch
Division Chief, who served as the chair of her grievance board, came to her and informed her
that another employee had shredded some of the documents pertaining to the selection process.
IR 1052-56, 1190-95. However, when asked about this by the EEO investigator, the Network
and Switch Division Chief responded that she could not recall ever hearing about the shredded
documents. IR 1215-19.

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”).

To establish a claim of 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 classes; (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
0120160003

8
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).

To ultimately prevail her harassment claim, Complainant must show 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. Only if Complainant satisfies her
burden of proof with respect to both of these elements, motive and hostility, will the question of
Agency liability for harassment present itself.

Complainant established the first element of a claim of harassment by virtue of her gender and
her age. For purposes of analysis, we will assume that she is an individual with a disability as
defined by the Rehabilitation Act. We would also agree that the conduct by the various officials
named in her complaint is unwelcome from her own subjective perspective, which is enough to
satisfy the second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No.
0120150737 (Apr. 27, 2017).

In order to establish the third element of a claim of harassment, Complainant must show that at
least one of the responsible management officials identified in her complaint relied on
considerations expressly proscribed by Title VII, the ADEA, or the Rehabilitation Act in taking
the actions that comprise her harassment claim. See Aldaberto P. v. Dept. of Veterans Affairs,
EEOC Appeal No. 0120142387 (Mar. 29, 2016). After reviewing Complainant’s testimony at
the fact-finding conference, we find that she has not done so. With respect to her claim of age
discrimination, she has neither demonstrated that any of the named officials were aware of her
age nor rebutted their testimony that they did not know her age. IR 786-788, 823, 883-85, 949,
981-82, 1068-69, 1178. Throughout the conference, when the investigator asked Complainant
what evidence she had to support her claim regarding discriminatory motivations on the part of
the responsible management officials, Complainant replied that she had no idea, or words to that
effect. IR 787-88, 832-35 849-50, 949-50, 968-72, 1045-47, 1050. In other instances, she
responded by merely repeating that the officials’ actions were discriminatory. IR 852-56, 858-
59, 874-75. With respect to incidents (10) and (12), Complainant admitted that she did not
develop the crisis communications program that would have warranted her receiving a higher
appraisal rating. IR 1022-24. As to incident (4), Complainant admitted that she did not know
whether the Sergeant who allegedly harassed her was even aware of her age or medical
condition. IR 849-850. Concerning incident (6), she bases her sex discrimination claim on a
statement made by S1b that it “must be hard being a single parent,” which S2b admitted to. IR
874-75, 897.

Other than her own testimony at the fact-finding conference, Complainant has not presented
affidavits, declarations, or unsworn statements from witnesses other than herself or documents
that expose any weaknesses, inconsistencies, or contradictions in the explanations provided by
any of the named officials to such an extent that a reasonable fact finder could rationally find
0120160003

9
those explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC
Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No.
0520080211 (May 30, 2008). We therefore find, as did the Agency, that Complainant has not
established the existence of a discriminatory motive on the part of any of the officials named in
her complaint with respect to the events described therein. Because Complainant has not
established a connection between her protected status and the incidents in question, no further
inquiry is necessary as to whether those incidents rose to the level of harassment or constituted
separate acts of discrimination under disparate treatment theory. Tynisha H. v. Dept. of State,
EEOC Appeal No. 0120141395 (March 17, 2017).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that she was discriminated
against or 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.
0120160003

10
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

December 13, 2017
Date