Complainant,v.Ashton B. Carter, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Sep 10, 2015

01-2013-0987-0500 (E.E.O.C. Sep. 10, 2015)

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

,
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense,
Agency.

Appeal No. 0120130987
Hearing No. 570-2011-00570X
Agency No. 2010WHS059

DECISION

Complainant filed an appeal from the Agency’s November 29, 2012, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq. The Commission deems the appeal timely and accepts it pursuant to
29 C.F.R. § 1614.405(a). For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as the Director,
Resource Management, GS-0501-14, Raven Rock Mountain Complex (RRMC), Directorate of
Washington Headquarters Services (WHS), located in Washington, DC. On July 9, 2010,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of sex (female) and age (66) when: (1) on or about mid May 2010, her first-line
supervisor, the Chief of Staff, (S1) set her up for failure by insisting on submitting vague and
subjective objectives for her performance plan; (2) on or about April 19, 2010, she became
aware that she was singled out for Time and Attendance Review; (3) on April 12, 2010, her
second-line supervisor, the Deputy Commander, (S2) complained that it took her six days to
process his $168 travel voucher while never making an issue of a comparison employee (C1)
(male, significantly younger) leaving $2000-$3000 vouchers unauthorized for up to two weeks;
(4) on March 18, 2010, during a Program Budget Administration Committee (PBAC) meeting,
as Complainant was explaining the difference between a commitment and an obligation in
response to a question, S2 interrupted her in a condescending manner and told her to “move
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on;” (5) on March 5, 2010, S1 cancelled Complainant’s meeting with the Directors to go over
their Program Objective Memorandum (POM) submissions and requirements; (6) on March 4,
2010, she was presented with a Voluntary Early Retirement Authority/Voluntary Separation
Incentive Pay (VERA/VISP) retirement packet by S2 even though she never indicated an intent
to retire; and (7) since October 2009 to present, S1 and S2 have undermined her authority by
continually bypassing her, directly assigning tasks to her staff, and making decisions under her
area of responsibility without informing or involving her; (8) on July 5, 2010, S1 and S2
undermined her authority by relocating her staff and providing them new furniture without
informing or conferring with her; (9) on May 20, 2010, she attended a Common Access Card
(CAC) contract meeting (that S2 tried to exclude her from), at which time she became aware
that S2 had pulled the CAC function out of her area; (10) on or about May 2010, S2 cancelled
the hiring action submitted by her for a Management Assistant for the CAC program; (11) on
October 13, 2010, S1 and S2 removed the Human Resources (HR) and Manpower and
Management functions from her and transferred them to two other Directorates without her
knowledge.1

We note that Complainant raises new facts for the first time on appeal which includes her
retirement in January 2011, and the withdrawal of a job offer on January 24, 2011 after her
references were contacted. Complainant also appears to be raising a constructive discharge
claim and an additional basis for hostile work environment. We note that Complainant did not
seek counseling on these matters in January or February 2011, nor did she raise them with the
Administrative Judge after the Acknowledgement Order was issued on October 18, 2011.
Accordingly, such matters are not properly before us on appeal.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but the
AJ denied the hearing request on the grounds that Complainant and/or her representative failed
to perform three directives2 that were part of the Scheduling Notice and Order dated December
1, 2011. After providing Complainant an opportunity to explain why sanctions should not be
issued, the AJ dismissed the hearing request and remanded the complaint to the Agency.3

1 Complainant also alleges reprisal (based upon participation in EEO activity) with respect to
Claims 8-11.

2 Complainant did not file a Pre-Hearing Conference Report, she did not notify the Agency
Representative of a telephone number at which to contact her and/or her representative, and
she was not present for the Pre-Hearing Conference.
3 In response to the Show Cause Order, Complainant argued that: (1) her representative did not
expect his request for continuance of the hearing to be denied; (2) her representative was in the
process of ascertaining the extent and nature of her emotional harm; and (3) her representative
was also investigating an Inspector General complaint that she filed. We agree with the AJ
that nowhere in her response is there an explanation as to why Complainant and/or her
representative were unable to attend the Pre-Hearing Conference, or were unable to file a Pre-
Hearing Conference Report. Accordingly, we find that the dismissal order was not an abuse of
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Thereafter, 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.

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”).

In the final decision, the Agency concluded that Complainant failed to establish a claim of
hostile work environment or disparate treatment because she did not show how any of the
actions were related to any of her protected classes. In addition, the Agency found that the
off-handed remark (if made) by S2 during the POM meeting may have offended Complainant,
however, it does not appear patently offensive nor does Complainant assert the conduct was
repeated. The Agency also noted that Complainant asserts other actions taken by S1 and S2
were an attempt to force her to leave, but found that such assertion is not borne out by the
record. Management explained that the basis for cancelling the POM meeting was that the
majority of the intended attendees were not available. The Agency noted that Complainant had
not rebutted this assertion. In addition, the Agency noted that management submitted, and the
record reflects, that the reorganization was approved by the RRMC Commander and in
accordance with the Secretary of Defense's efficiency initiatives. The Agency further noted
that Complainant did not show that the offering of VERA/VISP to eligible candidates and
realignment of duties were not related to the efficiency initiatives and/or approved at higher
levels.

We agree with the Agency’s analysis and conclusions. Specifically, the preponderance of the
record simply does not establish that Complainant was subjected to an objectively hostile work
environment and the record does not support the conclusion that any responsible management
official held discriminatory or retaliatory animus toward Complaint.

discretion. We also agree with the Agency that the denials by the AJ to postpone the hearing
and recuse himself from the proceedings are moot.
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CONCLUSION

Accordingly, 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.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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.
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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 Complainants Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

__________________________
Carlton M. Hadden, Director
Office of Federal Operations

September 10, 2015
Date