Sharon R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 12, 2017

0120150838 (E.E.O.C. Dec. 12, 2017)

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

Sharon R.,1
Complainant,

v.

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

Appeal No. 0120150838

Agency No. ARPOLK12JUL02914

DECISION

On December 6, 2014, 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
November 6, 2014, 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 et seq., Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo.
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 a Child Youth
Program Assistant at the Child Development Center at Fort Polk, Louisiana.

Complainant initiated contact with an EEO Counselor on July 19, 2012. On November 9, 2012,
Complainant filed an EEO complaint wherein she claimed that the Agency discriminated against
her on the bases of her national origin (German), disability (knee injury), age (52), and in reprisal
for her prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act. She
made the following claims:

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. Complainant claimed age and national origin discrimination when on May 9, 2012,
her Supervisor issued her an annual performance appraisal with an overall rating of
“Satisfactory” in her employment with the Directorate of Family, Morale, Welfare
and Recreation.

2. Complainant claimed that she was discriminated against on the basis of her national
origin when from June 12, 2012 to July 19, 2012, her Supervisor harassed and
subjected her to a hostile work environment, and her coworker removed German
language posters from the classroom walls and caused lesson plans to only be in
English and Spanish.

3. From July 16-27, 2012, her Supervisor scheduled her for fewer hours and later shifts
than a Hispanic coworker.

4. Complainant claimed that she was subjected to reprisal when on August 6, 2012, the
Faculty Director reassigned her from Room 120 to Room 118 of the Child
Development Center.

5. Complainant claimed that she was discriminated against based on her disability when
on October 25, 2012, the Faculty Director harassed her by calling her slow.

Claims (1-5) were accepted for investigation. Complainant also raised two additional claims:
receiving on December 12, 2011, a written counseling regarding CPR certification; and from
January 17, 2012 to February 2, 2012, a coworker signing Start Smart childcare logs with
Complainant’s name without her permission. The Agency dismissed these two claims pursuant
to 29 C.F.R. § 1614.107(a)(2), on the grounds that Complainant failed to initiate contact with an
EEO Counselor in a timely manner.

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). In accordance with Complainant’s request, the Agency issued a final
decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected her to discrimination
as alleged. The record reveals that Complainant had been a Child Youth Program Assistant since
April 2010. With regard to her rating of “Satisfactory” on her performance appraisal,
Complainant claimed that many of her coworkers received a rating of “Outstanding.”
Complainant’s Supervisor denied that she prepared the performance evaluation and stated she
only signed it. Complainant’s Second-level Supervisor asserted that the “Satisfactory” rating
was more than appropriate considering Complainant’s regular tardiness and unfriendly
relationships with her colleagues which affected work quality.

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With respect to the removal of German posters from the classroom wall, the Supervisor stated
that the posters on the wall with numbers in German were not removed. According to the
Second-level Supervisor, numerical words in German were added to the wall but German words
were not removed by the Supervisor. The Second-level Supervisor further stated that the items
Complainant chose to hang on the walls and ceilings were not always in accordance with
regulations. The Second-level Supervisor noted that Complainant hung paper birds from the
ceiling that were made by her daughter. According to the Second-level Supervisor, this created a
safety hazard because they blocked camera views within the room. Additionally, they violated
regulations which state that they should have been made by the children in the room. The
Second-Level Supervisor stated that Complainant was reminded to take them down, but she did
not comply. The Second-level Supervisor explained that she boxed them up after they were
observed by the CYS Coordinator.

As for the lesson plans, Complainant stated that she had been in charge of Room 120 but that
after she missed several days of work, a Hispanic coworker was sent to work in the room.
According to Complainant, the coworker was placed in charge of the classroom and she required
that all lesson plans be in either English or Spanish. Friction soon developed between
Complainant and her coworker with disagreements taking place in front of the children.
Complainant claimed that the former Director promised her the Lead position in the classroom.
Complainant also resented the fact that the Supervisor and the coworker would speak Spanish in
her presence in the classroom. According to the Supervisor, upon receiving complaints from
Complainant, she corrected the coworker and asked Spanish-speaking employees to be mindful
about speaking Spanish when others are around. The Supervisor asserted that Complainant
never informed her that she believed she was harassing her.

With respect to allegedly receiving later shifts and fewer hours than her coworker, Complainant
stated that the fewer hours occurred from July 16-27, 2012. The Supervisor stated that they were
scheduled to work the same number of hours. The Faculty Director stated that Complainant
received a few more hours one week and the coworker a few more hours the other week during
this time period. As for Complainant being assigned a later shift, the Supervisor asserted that
Complainant was observed arriving late when she was scheduled for an 8:00 a.m. shift, therefore
the Faculty Director instructed her to assign a later starting time to Complainant.

As for Complainant’s reassignment from Room 120 to Room 118, Complainant maintained that
she had been promised the Lead position in Room 120 by the former Director and the assignment
of her Hispanic coworker to the classroom usurped her position. The Faculty Director noted
there was continuing conflict between Complainant and her coworker. Despite holding a
meeting with the two of them where he explained their duty assignments and expected conduct,
the conflict continued. The Faculty Director explained that as a result he moved Complainant to
a different classroom and the coworker to a different facility. The Faculty Director further
explained that he had received a full-time employee and Complainant was part-time, and thus he
decided to place the full-time employee in Room 120 so that he would not need two people, as a
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full-time person could stay in that classroom from the time the facility opened to when it closed
for hourly care.

With regard to Complainant’s claim of disability discrimination, Complainant stated that she
sustained an on-the-job injury that resulted in torn knee ligaments to both of her knees and
limited her ability to kneel or walk at a fast pace. Complainant asserted that the Faculty Director
harassed her when he said she was very slow and that it took her thirty minutes to change a
diaper. Complainant stated that due to the injury to her knees, she is unable to get on her knees
to assist children with using the toilet. The Faculty Director stated that a parent complained that
Complainant was slow changing diapers and walking. The Agency noted that Complainant
acknowledged that since her injury, she moves more slowly and cannot perform certain aspects
of her job without pain.

The Agency assumed arguendo that Complainant set forth a prima facie case of discrimination
under each of the alleged bases with respect to each claim. As to her performance appraisal, the
Agency determined that Complainant failed to establish that she received a less favorable
performance appraisal based on her age or national origin. The Agency noted that the Hispanic
coworker in Complainant’s classroom also received a “Satisfactory” rating. The Agency also
noted that the Supervisor could not have discriminated against Complainant since the Second-
level Supervisor issued the rating. With respect to the German language posters on the walls, the
Agency stated that some of the material was taken down because it violated regulations
regarding classroom decorations. As for the lesson plans, the Agency determined that in addition
to English, Complainant conducted some lessons in German and the classroom coworker
conducted some lessons in Spanish. The Agency determined that Complainant’s working
conditions were not less favorable than those of her classroom coworker.

With respect to the number of hours that Complainant worked, the Agency stated that in some
weeks Complainant received more hours than her classroom coworker and in other weeks it was
the opposite, but the hours generally evened out. According to the Agency, the allotment of
hours was based on the mission of the organization. As for the reassignment of Complainant to a
different classroom, the Agency stated that Complainant and the classroom coworker were
reassigned after continually having conflict while working together. Further, the Agency stated
that the assignment of a full-time employee permitted that employee to remain in the room for
the entire time it was open, which management believed was an effective use of personnel.

With regard to the Faculty Director allegedly calling Complainant slow, the Faculty Director
denied this but the Agency determined that even if he used the word “slow” to describe the speed
at which she changed a diaper, such a comment would not constitute disability discrimination.
The Agency found that the description of how long it took Complainant to change a diaper
stemmed from a report to management by a parent. The Agency determined that it articulated
legitimate, nondiscriminatory reasons for its actions at issue. The Agency further determined
that the environment created within Complainant’s workplace was not sufficiently severe or
pervasive to constitute a hostile work environment. Finally, the Agency determined that
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Complainant failed to prove that its reasons for the actions at issue were pretext intended to hide
discriminatory motivation.

CONTENTIONS ON APPEAL

On appeal, Complainant raises issues that occurred subsequent to the filing of this complaint.
Complainant appears to argue that she was denied reasonable accommodation for her disability
and she challenges her termination.

In response, with respect to the claim concerning Complainant’s work hours, the Agency noted
that for the pay period of July 26, 2012 – August 8, 2012, Complainant worked 61.25 hours and
the Hispanic classroom coworker worked 56.25 hours. The Agency notes that for the prior pay
period, Complainant worked 61.25 hours and the Hispanic classroom coworker worked 66.50
hours. The Agency notes that the Supervisor stated that Complainant and this coworker were
scheduled for the same number of hours, and that Complainant was scheduled for later hours
because she was late on several occasions and could be on time if she started later. As for the
change in structure and subsequent reassignment to a different classroom, the Agency asserts that
Complainant did not like that someone else from her perspective was taking over her classroom
after she returned from leave for her injury. The Agency maintains that the former Faculty
Director placed the Hispanic coworker as Lead in the classroom because Complainant had yet to
become a CYPA4 and could not do lesson plans. According to the Supervisor, the coworker had
been with the Agency longer than Complainant and had finished her training. The Supervisor
noted that Complainant had completed the training for Level 4, but the paperwork had not been
completed for her to be a CYPA4.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally 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, 411 U.S.
at 802 n. 13.

The prima facie inquiry may be dispensed with where the Agency articulated legitimate and
nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra;
Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

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Complainant claims that she was subjected to harassment by both management officials and
coworkers. To establish this claim, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In determining that a
working environment is hostile, factors to consider are the frequency of the alleged
discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it
unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems,
Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance at 6 (March 8, 1994).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination on
each basis with regard to each claim. The Agency explained as to Complainant’s “Satisfactory”
performance rating that it was based on Complainant’s frequent tardiness and her difficult
interactions with coworkers. The Agency asserted that the German language numbers at issue
were not removed from the wall but that the items designed by Complainant’s daughter were
removed because they violated regulations. They presented a security concern because they
blocked the camera view and the classroom also could be rated higher if it displayed work done
by its students. The Agency stated that lesson plans allowed for the teaching of English,
Spanish, and German. The Agency further asserted that it responded to Complainant’s concern
about Spanish being spoken around her by telling the classroom coworker to be mindful of
speaking in Spanish around co-workers. In terms of the work hours at issue, the Agency
maintained that at times Complainant received more hours and at other times the classroom
coworker received more hours. The Agency notes that Complainant’s work time shift was
moved back to accommodate her frequent tardiness so that she would now arrive on time. With
respect to the reassignment of Complainant from Room 120 to Room 118, the Agency asserted
that the ongoing conflict between Complainant and the coworker who became the Lead in the
classroom could not be resolved, thus necessitating the reassignment. The Agency noted that
they were arguing in front of the children in the classroom and parents were complaining. As for
the Faculty Director allegedly referring to Complainant as slow, the Agency denies that it
occurred but states that if it did, it was a factual description of Complainant’s current capacity to
perform some of her duties, which Complainant admits. We find that the Agency has articulated
legitimate, nondiscriminatory reasons for its actions at issue.

Upon review of Complainant’s arguments to establish pretext, we do not discern any persuasive
evidence that refutes the various reasons presented by the Agency. Complainant has not shown
that she merited a higher performance rating than ‘Successful’. There is no indication that
discriminatory intent was a factor in decorations being removed from the wall or in how the
lesson plans were developed. Complainant and her classroom coworker had roughly an equal
number of work hours during the relevant period.
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Complainant has not presented persuasive evidence to challenge the Agency’s reason for her
having a later shift. In terms of the classroom reassignment, it is clear that Complainant and her
classroom coworker were engaged in ongoing conflict and the Agency appropriately took
measures to resolve the situation. We observe that the coworker was also reassigned. We
discern no discriminatory motivation as a factor in Complainant’s reassignment. With regard to
the comment about Complainant being slow, although the remark was insensitive, it was
accurate in general. The record indicates that Complainant’s torn knee ligaments did slow her
down in terms of walking, made kneeling difficult and increased the time it took for her to
perform job duties such as changing a diaper. We do not find that the comment was uttered with
discriminatory motivation.

With regard to Complainant’s hostile work environment claim, we find that the aforementioned
incidents, including that of the classroom coworker talking Spanish with the Supervisor, were
not sufficiently severe or pervasive to constitute harassment. Further, we find that no
discriminatory motivation was involved in any of these incidents. Additionally, should
Complainant wish to pursue through the EEO complaint process matters raised in her appeal that
were not part of this complaint, she is advised to promptly contact an EEO Counselor.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision.

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),
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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.

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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

December 12, 2017
Date