Enola L.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 24, 2019

0120180217 (E.E.O.C. Apr. 24, 2019)

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

Enola L.,1
Complainant,

v.

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

Appeal No. 0120180217

Hearing No. 532-2013-00079X

Agency No. ARDETRICK11DEC05522

DECISION

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 October 2, 2017 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.

BACKGROUND

Complainant was hired on September 11, 2011 as a probationary Transportation Officer, GS-2102-
12, at the Agency’s Logistics Directorate which is located within the Garrison in Fort Detrick,
Maryland. She was one of three division chiefs in the Logistics Directorate, the other two being
the Operations Chief, a White male, and the Supply Chief, a White female. In an EEO complaint
filed on February 7, 2012 (and amended on March 12, 2012), Complainant alleged that the Director
of Logistics, her immediate supervisor (S1) and the Deputy Garrison Commander, her second-
level supervisor (S2) discriminated against her and subjected her to a hostile work environment on
the bases of race (African-American) 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 4, 10-13, and 23-27, 2011, S1 did not select Complainant to serve as
the acting logistics director;

2. On January 13, 2012, S1 issued Complainant a counseling statement; and

3. On March 9, 2012, S2 terminated Complainant during her probationary period.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of
the investigative report (IR) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested
a hearing. In accordance with her request, the AJ held a hearing on May 27 and 28, 2015, and
issued a decision on August 8, 2017 finding that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order fully adopting the AJ’s decision. The instant appeal followed.

Incident (1):

Complainant testified that S1 did not select her to serve as acting logistics director on November
4 and 10-13, 2011, and instead chose the Operations Chief. She further testified that S1 again did
not select her to serve as acting logistics director during November 23-27, 2011, this time in favor
of the Supply Chief. Complainant maintained that she was better-qualified and had more seniority
than the other two division chiefs. IR 448-51, 454-56; Hearing Transcript (HT1) 8, 11. S1 testified
that all three division chiefs were probationary, and that the Operations Chief came on board first,
followed by the Supply Chief and then Complainant, the Transportation Chief. S1 also testified
that she rotated the three chiefs into acting assignments in accordance with their seniority within
her division, that Complainant served as acting logistics director from December 27-30, 2011, and
that the appointment of an acting director was a matter of the Logistics Director’s discretion. IR
153, 489-92, 585, 611-12; HT2 197-99.

Incident (2):

In a memorandum addressed to Complainant dated January 13, 2012 and entitled “Counseling
Statement,” S1 expressed her concern regarding Complainant’s lack of proper communications
with her subordinates, customers, and her. S1 stated that she had received complaints from various
sources, and that when she had attempted to discuss these matters with Complainant, Complainant
responded in a manner that S1 characterized as “unprofessional and inappropriate communications
via email and in person.” S1 cited as an example an incident in which Complainant contested
charges to customers on January 3, 4, and 11, 2012, and had refused to accept assistance in
resolving the matter. S1 also cited another incident in which Complainant accused her of
harassment when she asked Complainant to remove vehicles from the premises. IR 162-63, 250-
64. Complainant testified that there was no basis for the counseling statement, which she
considered to be disciplinary in nature. IR 456-58. S1 denied that the counseling statement was
an adverse action, testifying that she was trying to resolve concerns that were raised by multiple
parties regarding Complainants’ issues with communications. IR 494, 612-13, 617; HT 200-06.
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Incident (3):

In a memorandum dated March 9, 2012, S2 informed Complainant that her employment would be
terminated during her probationary period. S2 stated that although she had been informed of
numerous instances of performance inadequacies and improper conduct, she based her action on
the following 12 occurrences which are summarized as follows: (a) missing a meeting with the
Chief of Staff and the general manager of a transportation contractor on November 18, 2011; (b)
a complaint from a supervisory traffic manager received on November 29, 2011 regarding
Complainant’s repeated failures to respond to her concerns; (c) an unprofessional interaction with
a representative of the Technology Application Office on December 1, 2011; (d) a discourteous
response to S1 on December 20, 2011, regarding paperwork prepared in connection with a
soldier’s use of a vehicle; (e) failure to follow up after being notified of a travel account deficiency
on January 5, 2012; (f) failure to account for a shortage of funds in the amount of $8,700 on January
9, 2012; (g) failure to follow instructions from S1 on January 9, 2012 that she fix a problem with
the “Speed Pay” payment system; (h) failure to follow up with supervisor’s response to her request
for assistance in processing overdue invoices that she had made on January 10, 2012; (i) per her
counseling statement dated January 13, 2012, ongoing failure to properly communicate with staff,
with customers, and with S1; (j) failure to provide updated power point slides to Garrison
Commander by January 27, 2012, despite specific instructions given to her by S1 via email dated
January 23, 2012; (k) accusing S1 of harassment on February 10, 2012, when she was merely
trying to communicate with her regarding critical issues necessary to carry out the Agency’s
mission; and (l) failure to follow S1’s instructions by attending a mandatory training for
supervisors on February 23, 2012. S1 stated that as the Deputy Garrison Commander, she had
determined that Complainant’s conduct demonstrated a breach of minimally acceptable standards
of conduct for an installation Transportation Officer, and consequently had decided to terminate
her employment after consulting with the Human Resources Office. IR 267-76, 285, 288, 355-56,
372-73, 380-96, 406-11, 462-81, 495-98, 500-14, 544-64, 577-79, 587-93, 614-16; HT2 85-90,
92-93, 99, 164, 206-08, 260-72

STANDARD OF REVIEW

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.

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ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as these, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802 (1973). Her first step would generally be to 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. Corp. v. Waters, 438 U.S. 567, 576
(1978).

The prima facie inquiry may be dispensed in this case, however, since S1 and S2 articulated
legitimate and nondiscriminatory reasons for their actions with regard to the assignment to details
as acting logistics director in November 2011, the January 2012 counseling statement, and the
March 2012 probationary termination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the explanations provided by S1 and S2 are unworthy of credence and therefore a
pretext for discrimination. Reeves v. Sanderson Plumb. Products, Inc., 530 U.S. 133 (2000); St.
Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Without sufficient evidence of unlawful
motivation on the part of officials responsible for making the personnel decisions at issue, the
Commission cannot second-guess those decisions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 259 (1981).

When asked why she believed that she had been subjected to discrimination and reprisal in
connection with the incidents comprising her claim, Complainant testified that the other two chiefs
in the logistics division were White, and that the counseling statement was issued about three
weeks after she contacted an EEO counselor. IR 457-58. As to the termination, Complainant
maintained that she was terminated because of her race, that S1 and S2 were both aware of her
informal EEO activity, that the individual hired to replace her was white, and that the termination
occurred two and a half months after she contacted the EEO counselor. IR 460, 477, 481-82. In
addition to her own testimony, Complainant presents that of two of her subordinate employees.
These individuals testified, in essence, that they did not experience problems in communicating
with Complainant and found her to be a good supervisor. HT2 6-82. However, the AJ had the
opportunity to observe witnesses called by both parties and had issued his decision after assessing
the credibility of those witnesses by personal observation. 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).

After reviewing the evidentiary record in its entirety, we find that the documentary and testimonial
evidence presented by Complainant is not sufficient to undermine the credibility of S1, S2 or any
of the other Agency witnesses.
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Complainant has likewise presented neither hearing testimony, affidavits, declarations or unsworn
statements from witnesses other than herself nor documents that contradict the explanations
provided by S1 and S2 for their actions, or which call their veracity into question. Ultimately, we
find that substantial record evidence supports the AJ’s finding that Complainant failed to show
that the Agency’s reasons for its actions were pretext for unlawful discrimination or reprisal.

Hostile Work Environment

Complainant also argues that S1 and S2 subjected to her discriminatory harassment. To the extent
Complainant contends that the above-described incidents created a hostile work environment, the
Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S.
17 (1993), such a claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc.,
EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded
by our determination that Complainant failed to establish that any of the actions taken by the
Agency were motivated by discriminatory animus on any of her alleged bases of race and reprisal.
See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, 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.
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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. 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 24, 2019
Date