Phyllis W.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

0120182549 (E.E.O.C. Nov. 5, 2019)

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

Phyllis W.,1
Complainant,

v.

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

Appeal No. 0120182549

Hearing No. 420-2016-00087X

Agency No. ARREDSTON15JAN00404

DECISION

On July 13, 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
June 13, 2018, 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 Complainant has shown by a preponderance of the evidence that
the Agency subjected her to a hostile work environment and discrimination based on her race,
color, and sex.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology (IT) Specialist at the Agency’s Army Material Command, Enterprise Services
Management Division, Services Support Branch, at the Redstone Arsenal in Alabama.

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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On April 17, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to
a hostile work environment and discriminated against her on the bases of race (African-American),
sex (female), and color (light skinned) by her supervisor, the Chief of the Service and Support
Branch, when:

1. since 2011, until present, the Chief of the Service and Support Branch (Caucasian,
white, male) (S1) allegedly has continued to deny Complainant an acquisition
position and the same training opportunities her white male coworkers have been
granted, which allegedly has decreased Complainant’s promotion potential;

2. since 2012, until present, S1 has allegedly tasked Complainant with heavier
workload and higher level of responsibilities than her white male counterparts;

3. since October 2014, S1 has allegedly been continually subjecting Complainant to
bullying, abrasive treatment, and micro-management, thereby creating a hostile
work environment in order to force Complainant to retire;

4. on October 28, 2014, S1 presented Complainant with two letters of counseling,
dated October 22, 2014 and October 23, 2014;

5. in November 2014, S1 gave Complainant a “Needs Improvement” on her 2014
annual performance evaluation but allegedly failed to advise Complainant of any
areas of her performance that needed improvement during her mid-point
performance review on February 18, 2014;

6. on December 5, 2014, S1 allegedly denied Complainant use or lose leave request;

7. on December 8, 2014, S1 gave Complainant a Letter of Counseling – Failure to
Follow Supervisory Instructions; and,

8. on January 6, 2015, S1 allegedly questioned Complainant about why she sent an
email to three tasker managers to tell them she had been granted an extension on a
tasker. Complainant believes this is an example of bullying, harassment, and
micromanagement.

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 requested a hearing, but subsequently failed to timely comply with the AJ’s
instructions. The AJ dismissed Complainant’s hearing request and remanded the complaint to the
Agency. 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.

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CONTENTIONS ON APPEAL

Complainant did not provide any statement or brief in support of her appeal.

The Agency asserts that Complainant has provided no persuasive arguments on appeal as to why
the decision should be reversed. Regarding the claims, the Agency asserts that it has provided
legitimate, nondiscriminatory reasons for its actions. It notes that Complainant failed to
demonstrate that such provided reasons were pretext for discrimination. The Agency stands by its
final decision, and contends that the record is void of any evidence that the Agency’s actions were
motivated by discriminatory animus.

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 (EEO MD-
110), 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”).

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference
of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (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 its actions, 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 Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

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Unlawful Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). To establish this claim, 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.

The Supreme Court in Harris explained that an “objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently
severe to trigger a violation must be determined by looking at all the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.” Id. at 23.

A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the
complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 78 (1998).

With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for
harassment when it is created by a supervisor with immediate (or successively higher) authority
over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Analysis

Upon our review of the voluminous evidentiary record, which consists of numerous affidavits and
exhibits, and having fully considered and analyzed the Agency’s decision, which recites and
addresses each claim and identifies the evidentiary support on which it relied for its alleged actions,
we conclude that the preponderant evidence does not establish discriminatory animus.2

2 The record in this case is exhaustive and details numerous incidents in support of the claim. We
will not individually address each incident of alleged discrimination. Although the claims will
not be individually addressed, all matters which Complainant raised have been considered and
viewed in the context of all bases and in the context of disparate treatment and a hostile work
environment.
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Complainant’s allegations concern inappropriate and hostile behavior by her supervisor, the Chief
of the Service and Support Branch (Caucasian, white, male) (S1). She claimed specifically that
S1 denied her an acquisition position, and related training, which lead to less promotional
opportunities; tasked her with heavier than normal workloads and responsibilities, especially
compared to her white, male counterparts; presented her with targeted disciplinary actions; gave
her an inappropriately low performance evaluation; denied her usage of her earned leave; and,
subjected her to constant bullying, micromanagement, and abrasive treatment. The record contains
detailed and numerous documents concerning Complainant’s claims. However, despite the
documentation, Complainant has failed to show that the claims raised were causally connected to
unlawful discrimination on any basis or motivated by discriminatory or retaliatory animus.

Even if the claims occurred as alleged, Complainant failed to show that S1, or any other Agency
officials, were motivated by discriminatory animus. For example, regarding the alleged lack of
training and therefore lack of promotional opportunities, the record demonstrated that S1 was
willing to provide Complainant with a change to her position description to reflect acquisition
duties and responsibilities. However, the record also indicated that S1 did not want to put the
change into place until Complainant was certain that she wanted to add the additional
responsibilities. While Complainant had made her interest known, she did not inform S1 that she
desired to make the change official, despite his frequent follow throughs regarding her desire to
add acquisition duties.

Additionally, Complainant acknowledged that when she did suggest a training, she opted not to
submit a formal request because she felt that she had too much work and could not balance the
training and her workload. Complainant did not identify any training request denials. Complainant
asserted that acquisition work, and related trainings were an example of how two of her white,
male counterparts were treated better. However, the record demonstrated that these two colleagues
were part of different programs, and not appropriate comparators. For example, one main
difference was that the comparators both officially worked in acquisition, which Complainant did
not. Both comparators had acquisition-focused certificates and had to take mandatory training to
stay relevant in the acquisition field.

Regarding the October 22, and 23, 2014 counseling letters, Complainant acknowledged that she
received the letters after she had missed a meeting on July 30, 2014. Complainant stated that while
she knew of the meeting, she was unaware that attendance was mandatory. S1 disputed this,
asserting that he had informed Complainant that the meeting was mandatory. Complainant also
acknowledged that she occasionally reported late to work, but asserted that it was not on a regular
basis. S1 also disputed Complainant’s tardiness, and asserted that she was routinely tardy. We note
that regarding the tardiness, S1 offered Complainant a later start time to avoid being tardy, but
Complainant declined the option. Here, Complainant acknowledged to both missing the meeting,
and being tardy. It is clear that it was based on these reasons that S1 issued the counseling letters.

Complainant also asserted that she received a low performance evaluation in 2014 when she
received a Needs Improvement marking.
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Complainant asserted that during her February 2014 mid-year review, she was not informed of any
areas that needed improvement, and thus her annual review was a surprise. However, Complainant
acknowledged that she was informed during her mid-year was that her work on taskers needed
improvement. Moreover, the record contains a detailed explanation as to why Complainant was
given a Needs Improvement rating. For example, email correspondence around the time of the
mid-year demonstrated that S1 had informed Complainant that she needed to: focus on follow up
with designated taskers; and, increase her attention to detail on tasker updates, along with other
ways she could improve.

We find that the above actions taken by S1 were routine managerial actions, which, absent
discriminatory animus, will not be second-guessed by the Commission. Agencies generally have
broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc.
Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). It is clear from the record that the
Agency has articulated legitimate, nondiscriminatory reasons for its actions which Complainant
has failed to show were pretext for discrimination. While Complainant may not agree with the
business reason behind an action, a subjective dislike is not sufficient to demonstrate
discriminatory motive. Complainant must demonstrate that the articulated reasons are mere pretext
for discrimination.

Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin
W. v. Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question
is not whether the agency made the best, or even a sound, business decision; it is whether the real
reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext
for intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was
motivated by prohibited discrimination. Complainant has failed in this regard.

Regarding Complainant’s various claims supporting her hostile work environment claim, we find
that none of the examples provided, alone or all together, provide evidence of a pervasively hostile
work environment. Complainant asserted that S1 micromanaged, bullied, and harassed her. For
example, Complainant felt micromanaged and harassed when S1 questioned her about an email
sent to three tasker managers and when he questioned her about updates during staff meetings.
Neither incident would demonstrate an objectively hostile incident, or demonstrate a larger hostile
environment. We note that the discrimination statutes are not a civility code. What is prohibited is
“behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale,
523 U.S. at 81. We are mindful that the discrimination statutes do not create a right to work in a
pleasant environment, merely one that is free from discrimination. As a result, employees may
even experience unprofessional, inappropriate, and disrespectful treatment, but that is not the same
as discriminatory harassment. We note that the comparators both stated that S1 could come across
as abrasive, but that he was like that with everyone.

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In the instant matter, the record demonstrates that the incidents do not demonstrate that
Complainant was subjected to a hostile work environment, or discrimination. In sum, the evidence
does not support a finding of discrimination on any basis, the presence of discriminatory animus,
or the existence of a hostile work environment. The Commission notes that 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. See Oakley v. U.S.
Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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.
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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
Carlton M. Hadden, Director
Office of Federal Operations

November 5, 2019
Date