Taunya P.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120172082 (E.E.O.C. Nov. 21, 2018)

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

Taunya P.,1
Complainant,

v.

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

Appeal No. 0120172082

Hearing No. 560-2015-00041X

Agency No. ARSILL14JAN00159

DECISION

On May 23, 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
April 28, 2017, final order concerning her equal employment opportunity (EEO) complaint
alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant (MSA), GS-0679-04 at the Agency’s Department of Behavioral Health, Reynolds Army
Community Hospital in Fort Sill, Oklahoma.

On March 21, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of disability (generalized
anxiety disorder) and in reprisal for prior protected EEO activity when:

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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1. on November 12, 2012, the Agency denied Complainant’s repeated requests for
training;

2. in July 2013, the Agency issued Complainant an unsatisfactory rating on her
performance appraisal without any training or counseling;

3. on July 29, 2013, the Agency suspended Complainant for five days;

4. on January 7, 2014, the Agency placed Complainant on a 90-day Performance
Improvement Plan (PIP); wrongly accused Complainant of recording a
conversation with her first- and second-line supervisor (S1 and S2); and the Agency
assigned Complainant to shadow a coworker (CW1) who was uncooperative;

5. on January 17, 2014, an unknown person removed Complainant’s personal notes
from her locked desk without her consent. S2 returned the notes without explaining
how he obtained the notes; and

6. on January 23, 2014, Complainant was forced to resign and was therefore
constructively from her employment.

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 timely requested a hearing. The AJ assigned to the matter held a hearing on
January 24, 2017, and issued a decision on April 17, 2017.

The Behavioral Health Non-Commissioned Officer was Complainant’s first-level supervisor (S1).
The Health Systems Specialist was Complainant’s second-level supervisor (S2). The Behavioral
Health Department Chief was Complainant’s third-level supervisor (S3). The Deputy Commander
for Clinical Services at Reynolds Army Community Hospital was Complainant’s fourth-level
supervisor (S4).

Complainant initially worked at the Agency’s Army Substance Abuse Program and filed an EEO
complaint prior to her move to Behavioral Health. Around that time, Complainant suffered a panic
attack and went to the emergency room. Complainant went on leave from October 25, 2012 until
November 19, 2012. Upon her return from leave, Complainant accepted a transfer to Behavioral
Health. Immediately upon reporting to Behavioral Health, Complainant asked for advanced leave.
S2 denied the request because Complainant had no paid leave available. S2 did, however, permit
Complainant to use Leave Without Pay (LWOP). Utilizing LWOP, Complainant remained out
until early December 2012. The AJ found that the record contained no evidence Complainant put
her supervisors on notice of her medical impairment. While Complainant submitted FMLA
paperwork to the Agency’s Human Resources department that listed her disability, the AJ found
that Complainant provided no testimony or evidence that her medical information was
communicated from Human Resources to any of her supervisors at Behavioral Health.

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As to claim (1), the AJ concluded that the record evidence demonstrated that Complainant received
training, just not the type she wanted. The record showed that Complainant received eight days
of training on how to use Armed Forces Health Longitudinal Technology Application (AHLTA)
from one of her first supervisors in Behavioral Health. AHLTA is a software program that
combines and streamlines digital medical records and medical appointments. S2 testified that upon
Complainant’s arrival to Behavioral Health, she had another MSA provide Complainant with
training on AHLTA, including how to check patients in, how to perform “T-cons,” how to cancel
a patient, when to cancel a patient, and additional duties. A T-cons is a note in AHLTA to alert a
physician of an issue with a patient. The record included a list of training courses that Complainant
completed. Although none of the course titles were specific to AHLTA, testimony established that
the training Complainant received pertained to all the components of AHLTA. S1 also confirmed
that employees needed a log-in and password to access the AHLTA system, and it was highly
unlikely that Complainant would have received her log-in and password had she not sufficiently
completed training when she first came on board. Complainant’s coworker (CW1) further
confirmed that other than the initial training on AHLTA, there was no continuing education
available. Despite this, one of Complainant’s initial first-line supervisors trained her on AHLTA
for eight days and expressed concern via email that she still was unable to sufficiently operate the
system. Testimony from both Complainant and her supervisors demonstrated that Complainant
had difficulty entering T-cons. In one instance, Complainant used a sticky note instead of entering
the information, which resulted in a potential breach of patient safety.

Regarding claim (2), the parties did not dispute that Complainant received an unsatisfactory rating
in July 2013 as alleged. Further, Complainant did not deny that she had performance issues and
more than 15 individuals complained about her performance. Complainant was also aware that
she was suffering from performance deficiencies as evidenced by multiple meetings with her
supervisor. The AJ noted that Complainant denied she ever received counseling, only to admit
that she received counseling six and three months prior to her performance appraisal.

The record contained evidence that Complainant regularly refused to acknowledge receipt of
documents given to her by the Agency, including performance appraisals. Moreover, the AJ found
credible the Agency’s explanation that Complainant suffered from performance deficiencies
because the Agency received numerous complaints from a broad range of employees.

With respect to claim (3), management originally issued Complainant a Notice of Proposed
Removal in July 2013, because it had received multiple complaints about Complainant’s
performance.2 After Complainant appealed her removal, S4 reduced the removal to a five-day
suspension in October 2013. S4 had no notice of Complainant’s prior EEO activity or disability
and testified that he believed the documents supporting the notice of removal warranted some
discipline, but did not warrant removal. As a result, the AJ concluded that the Agency issued
Complainant the five-day suspension due to well-documented performance issues.

2 Complainant did not argue that the Notice of Proposed Removal constituted discrimination or
part of her hostile work environment allegation.
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As to claim (4), following her suspension, Complainant went out on FMLA leave. In January
2014, after she returned from FMLA leave, S4 determined that Complainant should be put on a
PIP. The PIP was intended to ensure that Complainant received new training and to track her
progress. Management normally engaged in the PIP process when an employee received an
unsatisfactory rating on his or her performance appraisal. Although Complainant received her
performance appraisal in July 2013, S3 testified that the Agency did not immediately begin the
PIP process because Complainant did not return to the department until January 2014. In July
2013, at approximately the same time Complainant received her unsatisfactory performance rating,
S3 temporarily transferred Complainant to another department,3 and Complainant took extended
leave before returning to Behavioral Health. Complainant resigned from employment before the
PIP could be implemented.

As to Complainant’s allegations that S1 and S3 accused her of recording a conversation, the AJ
accepted S1’s and S3’s testimony that they believed Complainant was recording a conversation
between the three of them, but that they made no accusations and did not pursue the matter. S1
specifically testified that Complainant sat down, took her phone out of her purse, pressed a button,
and set it down on her thigh. Conversely, the AJ found that Complainant’s testimony – that she
was on the phone with her husband and was ending the call – was not credible because she
contradicted herself and changed her story. Regarding her claim that she was assigned to shadow
a co-worker, the AJ found that Complainant’s assignment to her co-worker (CW2) for shadowing
and training was not improper.

The AJ concluded that claim (5) consisted of nothing more than speculation. Moreover,
Complainant did not dispute S3’s explanation at the hearing that Complainant left her notebook
behind at a meeting and S3 was simply returning the notebook to Complainant.

The AJ made credibility determinations based on the testimony. The AJ concluded that
Complainant’s testimony was “highly unbelievable” because she was unable to communicate
dates, times, and places, and denied ever receiving training despite the sensitive nature of her
position.

The AJ determined that Complainant failed to establish a prima facie case of discrimination and
reprisal. The AJ further determined that the Agency provided legitimate, nondiscriminatory
reasons for each action, and that Complainant failed to show these reasons were pretext for
discrimination. The AJ also concluded that Complainant failed to show that she was constructively
discharged as she failed to demonstrate that the conditions at her workplace were so intolerable
that she was forced to resign or that the Agency’s actions were based on discriminatory or
retaliatory animus. Thus, the AJ concluded that Complainant was not subjected to discrimination,
reprisal, a hostile work environment, or a constructive discharge as alleged.

3 S3 explained that he transferred Complainant to a position away from patients due to the sticky
note issue previously mentioned. S2 explained that Complainant had used a sticky note instead of
a T-cons to record a patient interaction, and did not give the sticky note to the medical provider
until days later. Complainant did not dispute her transfer or raise it as a claim in this complaint.
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The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.

CONTENTIONS ON APPEAL

Complainant articulates numerous arguments on appeal. We summarize some of these arguments
herein, but take all arguments in consideration in this decision. Complainant argues that the AJ
made findings of fact, particularly as to Complainant’s credibility, that were contrary to evidence
in the record. Complainant insists that her workplace performance was favorable and her
demeanor was contrary to that found by the AJ. Complainant points to her satisfactory
performance with the Agency prior to her arrival at Behavioral Health and testimony by CW1 as
evidence that the AJ’s findings were incorrect. Complainant continues to deny she was trained on
AHLTA. Complainant also argues that the AJ did not consider that Complainant received
insufficient training on AHLTA in considering whether the Agency properly issued Complainant
an unsatisfactory performance appraisal. As to her five-day suspension, Complainant argues that
“[c]ase law is well settled that public agencies must follow a progressive discipline format,” but
cites no case law in support. Complainant insists that she was on a PIP when she returned to work
in January 2014 despite the AJ’s finding to the contrary; S3 and S1 placed her on an “oral 90-day
Performance Improvement Plan (PIP).” As to the removal of her notebook, Complainant argues
that CW1 provided testimony that established that she had a habit of keeping the notebook in a
locked drawer, not leaving it on a table as S3 testified. Complainant argues that a verbal attack by
one of the physicians in the Spring 2013 sufficiently established the basis for her constructive
discharge in January 2014. Accordingly, Complainant requests that the Commission reverse the
final order.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo
standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

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Based on a thorough review of the record and all arguments therein and on appeal, including those
facts and arguments not specifically mentioned here, we accept the AJ’s credibility determinations.
Further, Complainant’s arguments on appeal do not establish that the AJ’s decision is not
supported by substantial evidence in the record.

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). 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
804 n.14. 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).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the
factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the
ultimate issue of whether Complainant has shown by a preponderance of the evidence that the
Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159
(June 28. 1990): Peterson v. Dep’t. of Health and Human Servs., EEOC Request No. 05900467
(June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31. 1990).

In the instant complaint, the Agency articulated a legitimate, nondiscriminatory reason for each of
its actions. On claim (1), the Agency established that Complainant was given the same training as
any other MSA, and the Agency also gave her additional training. The Agency further provided
documentary evidence that one of Complainant’s first-line supervisors trained her for eight days
on AHLTA, but she still was unable to use the system. For claim (2), the Agency showed that
Complainant was the subject of multiple complaints and incorrectly conveyed information to
medical providers. In claim (3), S4 explained that evidence of Complainant’s misconduct
warranted Complainant’s suspension for five days. Regarding claim (4), the Agency established
that it was standard for an employee to be placed on a PIP if the employee received an
unsatisfactory performance appraisal. As to claim (5), substantial record evidence supports that
nothing was stolen from Complainant’s desk.

As the Agency articulated legitimate, nondiscriminatory reasons for its actions, Complainant has
the burden of demonstrating that these reasons are pretext for discriminatory animus. We find that
Complainant has not carried her burden.
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Accordingly, the Commission finds that substantial record evidence supports that Complainant
was not subjected to discrimination or reprisal as alleged.

Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) she is a member of a
statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct
involving the protected class; (3) the harassment complained of was based on the protected class;
(4) the harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. 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 (Mar. 8, 1994) (Enforcement
Guidance on Harris). An agency is liable for unlawful harassment by a co-worker if it knew or
should have known of the alleged harassment, unless it can show that it took immediate and
appropriate corrective action. 29 C.F.R. § 1604.11(d).

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

In this case, we find that substantial record evidence supports that Complainant was not subjected
to a hostile work environment. Where the Agency has articulated a legitimate reason for each of
its actions, these actions simply cannot form the basis of a hostile work environment. As
Complainant has failed to show that the Agency’s actions were motivated by discriminatory or
retaliatory animus, the Commission finds that Complainants’ hostile work environment claim must
fail.

Constructive Discharge

In Claim (6), Complainant alleges she was constructively discharged from her employment. The
Commission has established three elements which a complainant must prove to substantiate a
claim of constructive discharge: (1) a reasonable person in the complainant’s position would have
found the working conditions intolerable; (2) the conduct that constituted discrimination against
the complainant created the intolerable working conditions; and (3) the complainant’s involuntary
resignation resulted from the intolerable working conditions. Clemente M. v. Dep’t of Veterans
Affairs, EEOC Appeal No. 0120160661 (Mar. 11, 2016), citing Walch v. Dep’t of Justice, EEOC
Request No. 05940688 (Apr. 13, 1995). As stated above, the Commission finds that Complainant
has not demonstrated that the Agency’s actions were motivated by discriminatory or retaliatory
animus. Thus, the Commission finds that Complainant cannot establish the necessary elements to
prove constructive discharge.
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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 order.

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.
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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

November 21, 2018
Date