Tara M.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 30, 2019

0120180165 (E.E.O.C. Apr. 30, 2019)

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

Tara M.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120180165

Agency No. 9MOR14005F15

DECISION

On October 11, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
September 14, 2017, 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.

ISSUE PRESENTED

The issue presented is whether the preponderance of the evidence in the record establishes that
Complainant was subjected to discrimination based on race and/or reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Readiness Support
Assistant, GS-0303-07, at the Agency’s Military and Family Support Center (MFSC) facility at
Joint Base Elmendorf-Richardson, Alaska. Complainant’s first-level supervisor was the MFSC
Director (S1, Caucasian), and her second-level supervisor was the Flight Chief (S2, Caucasian).
The MFSC facility was referred to as the “Log Cabin.”

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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Complainant is African-American. According to Complainant, she engaged in protected EEO
activity when she met with the union and with S2 in the fall of 2013 to complain about the way S1
was treating her and when she initiated the instant EEO complaint in January 2014.

Complainant alleged that since November 7, 2013, S1 hovered near her desk, using his presence
to intimidate her. According to Complainant, S1 would approach her work area and stare or glare
at her or interrupt her while she was assisting clients in person or over the phone. S1 denied
hovering over Complainant or attempting to intimidate her. According to S1, Complainant’s work
station was in a high traffic area. A coworker (C1, Caucasian) stated that S1 hovered when she
covered Complainant’s duties for breaks. Another coworker (C2, Caucasian) stated that S1 stood
over her at her desk until she asked him to stop.

Complainant averred that she was singled out by S1 for tardiness, which Complainant stated was
caused by inclement weather and base exercises. According to Complainant, S1 did not address
her coworkers when they arrived late. S1 denied singling Complainant out. S1 stated that he
privately counseled all employees when they arrived late. S2 averred that S1 consulted her about
Complainant because Complainant consistently arrived five to fifteen minutes late for work, which
was especially noticeable since she sat at the front desk.

Complainant stated that she complained to S1 that employees were not covering the front desk for
her breaks but that even after she complained S1 failed to ensure coverage on November 19,
November 22, and December 2, 2013. According to Complainant, when she complained to S1 that
the employee who was supposed to relieve her had not shown up, S1 would make excuses and did
not follow through to make sure the problem did not recur. S1 stated that he created a schedule to
cover the front desk for Complainant’s breaks and that he reminded employees at staff meetings
about this responsibility. Although C1 confirmed that S1 reminded everyone about the schedule,
C1 stated that there were no consequences for failing to cover the front desk as scheduled.

On December 10, 2013, S1 issued Complainant a non-disciplinary Letter of Admonishment (LOA)
based on a negative Interactive Customer Evaluation (ICE) comment directed at Complainant. S1
stated that the ICE comment stated that Complainant was rude to her and waved her finger in her
face. According to S1, he interviewed the customer and three employees, who all stated that
Complainant had acted unprofessionally towards the customer. Complainant alleged that the
customer who submitted the negative ICE comment was a personal acquaintance of S1’s. S1 stated
that the individual in question was a client.

Complainant served as the Records Custodian (RC) for the MFSC. On May 20, 2014, Complainant
was assigned to be the Functional Area Records Manager (FARM) as well. According to
Complainant, these two duties created a conflict of interest for her, although she did not explain
how the duties created a conflict of interest. S2 stated that she assigned the FARM duties to
Complainant because she had done a good job as the RC.

On June 9, 2014, S1 issued Complainant a performance appraisal with a “meets standards” rating,
which meant that Complainant did not receive any performance awards.
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Complainant stated that she deserved a higher rating because she was praised by customers and by
management. S1 stated that Complainant did not exceed expectations. S1 averred that he received
both positive and negative feedback about Complainant’s performance. According to S1, he also
gave the same rating to C1, who is Caucasian.

On June 11, 2014, Complainant texted S1 that she would not be coming to work that day because
she had to “take care of some personal things.” On June 12, 2014, S1 issued Complainant a
Memorandum for the Record (MFR), which stated that annual leave needed to be approved in
advance and that unscheduled annual leave requests would be considered absent without leave
(AWOL). Complainant stated that the only leave policy for the Log Cabin was to call or text S1 to
let him know that she was taking leave. According to S1, the MFSC policy was that annual leave
needed to be requested and approved in advance.

In July 2014, Complainant timely applied for a GS-0101-9 Work/Life Specialist position
advertised under vacancy announcement number 9M-AFPC-1170583-154925-KLD. According to
Complainant, she was not initially referred because the vacancy announcement mistakenly
required one year of GS-9 experience instead of GS-7 experience. A Human Resources Specialist
(HR1, African-American) stated that this was a mistake generated by an automated system, and
HR1 added that neither S1 nor S2 were responsible for inputting data into the system to generate
the vacancy announcement. Complainant averred that she complained to the local Civilian
Personnel Office and Air Force Personnel Center (AFPC) and that she was subsequently referred.
S2, the selecting official, convened a three-person panel to evaluate the candidates’ resumes and
selected the highest-ranked candidate for the position (C3, Caucasian). S1, one of the three
panelists, averred that Complainant only had one year of relevant experience, whereas C3 had
three years of experience in a GS-9 Work/Life Specialist position.

Complainant alleged that on November 26, 2014, she was talking to a client when S1 interrupted
their conversation said that Complainant did not know what she was talking about and that she had
provided incorrect information. According to Complainant, she found S1’s behavior belittling, as
it created the perception hat she did not know her job. S1 stated that he had initially been assisting
the client and Complainant was the one who interrupted him.

Complainant initiated contact with an EEO Counselor on January 9, 2014. On March 5, 2014,
Complainant filed an EEO complaint, which she subsequently amended, alleging that the Agency
discriminated against her on the bases of race (African-American) and reprisal for prior protected
EEO activity (previous union activity and initiating the instant complaint) when:

1. Since November 7, 2013, S1 stood over her desk, hovering, using his presence to
intimidate her;

2. From November 12, 2013, to January 15, 2014, S1 singled her out for tardiness due
to inclement weather and base exercises, even though her peers were also late;

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3. After being notified there was a problem, on November 19, November 22, and
December 2, 2013, S1 refused to ensure front desk coverage for breaks, lunch, and
short days;

4. On December 10, 2013, S1 presented her with a LOA based on an ICE comment;

5. On May 20, 2014, she was assigned to be the FARM, in addition to her RC role;

6. On June 9, 2014, she received an appraisal reflecting “meets standards” and did not
receive an award, even though she had been lauded as a superior performer by
management and customers;

7. On June 12, 2014, S1 issued her a MFR informing her that future annual leave that
was not approved in advance would be considered AWOL, even though there was
no official leave policy in place at the Log Cabin and she followed the protocol
provided to her by S1;

8. On November 26, 2014, S1 deliberately interrupted her conversation with a service
member and told him that Complainant did not know what she was talking about
and that the information she provided was not true, creating the perception that she
did not know her job; and

9. A GS-0101-9 Work/Life Specialist job announcement was manipulated to prevent
Complainant from being referred. When she notified AFPC of the discrepancy and
was properly referred, she was not selected for the position.

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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected her to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s final decision condones discrimination and
requests that the matter be remanded for a hearing.

In response to Complainant’s appeal, the Agency contends that Complainant failed to establish
that she was subjected to discrimination and requests that its final decision be affirmed.

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ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

As a preliminary matter, we address Complainant’s request that the matter be remanded for a
hearing. Pursuant to 29 C.F.R. § 1614.108(f), the Agency properly provided Complainant with a
copy of the investigative file and notice of the right to request a hearing on May 19, 2015.
Complainant requested a final Agency decision on June 22, 2015. There is no basis for remanding
the matter for a hearing. Accordingly, we turn to the merits of Complainant’s EEO complaint.

Disparate Treatment

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). She must generally establish a prima facie case by demonstrating that she was subjected
to an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry
may be dispensed with in this case, however, since the Agency has articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov.
13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence,
that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993);
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t
of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

Complainant alleged that she was subjected to discrimination when S1 issued her the Letter of
Admonishment. The Agency’s legitimate, nondiscriminatory reason for giving Complainant the
non-disciplinary LOA was that S1’s investigation substantiated that Complainant had been rude
to a customer. Although Complainant contends that the customer knew S1, the preponderance of
the evidence in the record does not establish this to be the case, and Complainant has not otherwise
established pretext for discrimination.

Complainant also alleged discrimination with respect to her performance appraisal and not
receiving a performance award. The Agency’s legitimate, nondiscriminatory reason for rating
Complainant as meeting expectations and not recommending her for a performance award was
that she received negative and positive feedback from customers and management.
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Although Complainant cites her positive feedback as evidence of pretext, this does not rebut the
negative feedback she received and establish that the Agency’s proffered reason was pretextual.

Finally, Complainant has alleged discrimination based on race and reprisal with respect to her non-
selection for the GS-9 Work/Life Specialist position. The Agency’s legitimate, nondiscriminatory
reasons for selecting C3 was that he had three years of experience in the position, whereas
Complainant had one year of GS-7 experience as a Readiness Support Assistant. As evidence of
pretext, Complainant cites to the fact that the vacancy announcement erroneously required one
year of GS-9 experience. However, HR1 explained that this was a mistake and that neither S1 nor
S2 were responsible for the mistake. A mistake made by an agency is not evidence of pretext unless
there is evidence that the mistake was based on a complainant’s protected classes. See Vickey S.
v. Dep't of Defense, EEOC Appeal No. 0120112893 (Nov. 17, 2015); Hsieh v. Dep't of Veterans
Affairs, EEOC Appeal No. 0120120980 (June 4, 2012); Carroll v. Dep't of Justice, EEOC Appeal
No. 01A20985 (Jan. 21, 2003). There is no evidence that the error was based on Complainant’s
race or protected EEO activity, and Complainant has not otherwise established pretext.

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). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Here, there is no evident connection between the alleged harassment and Complainant’s
membership in any protected class. For example, C1 and C2 testified that S1 hovered over their
desks while they were working in the same manner in which he hovered over Complainant. There
is also no evidence that S1 singled Complainant out with respect to her tardiness or the application
of the annual leave policy based on her race or protected activity. S2 indicated that she appointed
Complainant to be the FARM because she did a good job with her RC duties, and Complainant
has not established by the preponderance of the evidence that this assignment was actually based
on her race or protected activity instead. Accordingly, Complainant has failed to establish that she
was subjected to a hostile work environment.

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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 because the preponderance
of the evidence in the record does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
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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

April 30, 2019
Date