Alvera L.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

0120181742 (E.E.O.C. Sep. 30, 2019)

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

Alvera L.,1
Complainant,

v.

Ryan D. McCarthy,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 01-2018-1742
Hearing No. 430-2018-00118X
Agency No. ARLEE17JUN02015

DECISION

On April 26, 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
March 21, 2018, final order 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 order.

ISSUES PRESENTED

Whether the EEOC Administrative Judge correctly granted summary judgment and whether
Complainant established that she was discriminated against based on reprisal (prior EEO activity)
when the Chief of Army Logistics University, International Military Student Office made
unspecified derogatory/disparaging comments about her to her former supervisor at Goodfellow
Air Force Base in Texas.
BACKGROUND

The record indicates that Complainant was a former employee of the Army Logistics University
(ALU), International Military Student Office (IMSO), Fort Lee, Virginia, where she worked as an
International Military Student Specialist, GS-0301-09, from October 2010 to July 2014.

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.
0120181742

2
In July 2014, Complainant voluntarily left her position at the ALU IMSO to take a similar IMSO
position with the Air Force at the Goodfellow Air Force Base in Texas. Complainant held her
position with the Air Force until October 2016. Complainant was not a Federal employee when
she initiated this complaint in June 2017.

When Complainant was employed at the ALU IMSO, her first-level supervisor was S1, who was
the Deputy Director, and the Chief of ALU IMSO. Her second-level supervisor was S2, Director.
When Complainant worked at the Goodfellow Air Force Base as a Field Studies Program
Coordinator, her first-level supervisor was A1, Chief, IMSO, and her second-level supervisor was
A2, Chief of Training Operations.

Complainant’s prior EEO activity was an EEO complaint filed with the Agency on October 11,
2012, Agency Number ARLEE12JUN02413. This complaint was later withdrawn by Complainant
in the Spring of 2014. S1 was named in that complaint, and therefore had knowledge of
Complainant’s activity.

Complainant filed a formal complaint on June 23, 2017. The Agency defined her claim as an
allegation that she was discriminated against based on reprisal for prior EEO protected activity
(EEO complaint: ARLEE12JUN02413) by S1 when, in the Spring 2016 timeframe, S1 allegedly
made unspecified derogatory/disparaging comments about Complainant to A1, former supervisor
of Complainant, at Goodfellow AFB, San Angelo, Texas.

Although she did not object to the Agency’s description of her claim, in her complaint,
Complainant indicated that A1 stated in an email to her that there were four supervisors who had
nothing good to say about her; that the Agency’s IMSO community was very small; and that the
Directors know each other and shared information, especially negative information. According to
Complainant, she felt that S1’s comments would damage her ability to ever be hired again in an
IMSO organization. During the investigation, Complainant admitted that she did not know what,
if anything, was specifically stated, but that her contentions were based, in part, on the fact that
she had discovered that S1 and A1 discussed her at an IMSO conference in January 2017, in San
Antonio, Texas.

S1 stated that she and A1 met briefly, for the first and only time, at the conference in January 2017,
in San Antonio, Texas, and had a brief conversation about Complainant. S1 stated that A1
approached her and introduced himself as a fellow former supervisor of Complainant’s. He then
proceeded to tell S1 that Complainant had filed a sexual assault charge against him – a charge
which A1 denied as false, and which had been dismissed. A1, according to S1, stated that the
allegation had resulted in great personal cost to him. He stated that it was the “worst experience
that any man could have to experience,” and that his fiancé wanted to call off the wedding because
of the accusation. He further indicated that he was in therapy because of the accusation, and that,
after going to court, the charges were determined to be unfounded, and he later got married.
According to S1, she replied, to A1 by saying, “I’m sorry.”

0120181742

3
A1 stated that they had a brief conversation at the IMSO workshop in San Antonio. According to
A1, he knew S1 was Complainant’s former supervisor because Complainant had told him, and that
he said hello to her. A1 stated that he told S1 that he thought that they shared a fellow subordinate,
and that S1 responded that she was “sorry.” According to A1, that was the extent of their
conversation, and that they did not specifically discuss Complainant.

Complainant alleged that S1 spoke to other IMSO directors and three other individuals “at a large
IMSO” about her but she did not identify the large IMSO and could not provide details on what
may have been stated. As she indicated in her formal complaint, Complainant maintained that
negative comments by S1 about her to others in the IMSO community has resulted in her being
unable to secure employment in that field. S1, however, denied that she ever talked with anyone
from any IMSO about Complainant.

In support of her claim, Complainant provided copies of emails between she and A1. The emails
dated May 7 and 8, 2017, indicate a very contentious relationship between Complainant and A1.
On May 7, A1 wrote, in pertinent part, that:

So where does that leave you. You lied about me, so that means you should have
been fired. But, your [sic] too despicable to think about that. I’m sure God will find
a nice place for you. I can live with my future. I'm going on a wonderful cruise
myself. But, it is from my hard work. Maybe someday you will take a look back
and see you are the only common denominator in all your bad supervisors.

Complainant responded, in part, “[b]ad supervisors, that is what the problem was, losers who don't
have any business supervising.”

On May 8, A1 responded:

Actually, I was talking about your supervisors at Ft. Lee. It’s funny how [everyone]
else is the problem and not you. 4 straight supervisors have nothing good to say,
yet we are the problems.

When asked about his comments by the investigator, A1 stated that:

I did not mean the Fort Lee supervisors, and I was not referring to supervisors I
spoke to at the January 2017 IMSO workshop in San Antonio. I only made one
comment to [S1] about sharing a prior subordinate, but I did not know [S1’s] level
of supervision over complainant. In this email, I was referring to complainant
always complaining about her prior supervisors and complainant always stating
how her prior supervisors were the problems, not her.

At the conclusion of the investigation, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). By order dated December 12, 2017, the parties were to attend an Initial
Conference with the AJ, on March 6, 2018.
0120181742

4
The Order was mailed to Complainant’s representative at the address provided by Complainant
and was not returned as undeliverable. The Order provided specific instructions regarding the call-
in time as well as a dial in number and access passcode. At the appointed time, the AJ and counsel
for the Agency were present on the conference call but Complainant did not appear, nor did she
advise the AJ that she would be unavailable. On March 8, 2018, the AJ issued a Show Cause order
for her failure to appear and notice of intent to issue a decision without a hearing. Complainant
responded to the Show Cause Order by the due date. She stated that she believed the AJ was
supposed to contact her for the conference. Although the AJ did not find good cause for her failure
to attend the conference, he did not dismiss her hearing request. Instead, he made clear that he
reviewed her claim on the merits and issued summary judgment in the Agency’s favor.

The AJ, among other things, found there were no genuine issues of material fact for which a
hearing would be necessary, and that Complainant could not meet her prima facie burden of
establishing a materially adverse action in the form of disparaging/derogatory comments. The
Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to
prove that the Agency subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

Among other things, Complainant questions the AJ’s handling of her matter. She denies that she
ever had a representative, or that she was supposed to call for the conference call. She maintained
that she was subjected to negative statements by her Agency and Air Force supervisors and that
the AJ believed them and not her. Finally, she states that a hearing is necessary to uncover the
truth surrounding her allegations.

The Agency submitted a brief supportive of the AJ’s disposition of this matter and asks that the
final order be affirmed.

STANDARD OF REVIEW

In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”);
see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated.

0120181742

5
See id. at Chap. 9, § VI.A. (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”).

ANALYSIS AND FINDINGS

At the outset, we note that because the AJ did not dismiss Complainant’s hearing request, but
instead issued a decision addressing the merits of her complaint, we find that it is unnecessary to
address Complainant’s contentions surrounding the AJ’s actions in issuing the Show Cause Order.

We must next determine whether the AJ appropriately issued the decision without a hearing. The
Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there
is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing
regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The
U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine
issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine
whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the
summary judgment stage, the judge must believe the non-moving party’s evidence and must draw
justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one
that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S.
317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material”
fact has the potential to affect the outcome of a case.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute. We find that, even assuming all
facts in favor of Complainant, a reasonable fact-finder could not find in her favor, as explained
below. Ultimately, the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was
appropriate.

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially 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). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 804
n.14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
0120181742

6
To ultimately prevail, a 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, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Complainant can establish a prima facie case of reprisal by showing that: (1) she engaged in
protected activity; (2) the Agency was aware of the protected activity; (3) subsequently,
Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Department of the Air Force, EEOC
Appeal No. 01A00340 (September 25, 2000).

Here, we concur with the AJ that Complainant did not establish a prima facie case of reprisal
discrimination. Like the AJ, we do not find that she suffered an adverse action here. Although
Complainant speculates that S1 may have had conversations that resulted in her being unable to
find employment, she has not identified a single position for which she applied and was not
selected, allegedly, because of S1’s comments about her either in January 2017, or during any
other timeframe.2 Likewise, Complainant never heard the remarks that S1 made; therefore, she
can not establish that they involved her previous EEO activity. The Commission has long held
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). We find no such evidence of such behavior here.

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.

2 We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing,
a complainant’s opposition must consist of more than mere unsupported allegations or denials and
must be supported by affidavits or other competent evidence setting forth specific facts showing
that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324.

0120181742

7
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
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.

0120181742

8
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

September 30, 2019
Date