Sylvia B.,1 Complainant,v.Ryan D. McCarthy, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 30, 2019

0120182335 (E.E.O.C. Aug. 30, 2019)

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

Sylvia B.,1
Complainant,

v.

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

Appeal No. 0120182335

Hearing No. 560-2015-00303X

Agency No. ARFTLWOOD14DEC04658

DECISION

On June 16, 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
May 11, 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.

ISSUES PRESENTED

The issues presented are whether Complainant established that the Agency subjected her to
reprisal when she received a counseling memo; was not selected for a position; was reassigned;
and received an untimely performance evaluation.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nurse (Admin/Case
Management) prior to being reassigned as a Nurse (Clinical/Admin), GS-0610-11, at the

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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Agency’s Medical Department Activity, General Leonard Wood Army Community Hospital in
Fort Leonard Wood, Missouri.

Complainant asserted that on August 28, 2014, her first-line supervisor (S1) issued Complainant
an unwarranted counseling statement. Report of Investigation (ROI), at 141-149. In the
statement, S1 referenced an August 4, 2014 interaction between S1 and Complainant. Id. S1
stated that Complainant informed her of what Complainant would and would not complete over
the next two days during her duty hours. Id. S1 claimed that Complainant demonstrated no
professionalism or restraint during the interaction. Id. She added that secondary to
Complainant’s refusal to cover her assigned population two days prior to taking leave, S1 had
less than three-hours’ notice to provide coverage. Id. The counseling statement indicated that
corrective actions would include redistribution of Complainant’s inpatient responsibilities for 90
days and Complainant would focus on outpatient services for her assigned population. Id.

In contrast to the counseling statement, Complainant contended that she was only reminding S1
of her prior leave request and requested a cap on her caseload so that she could handle the
patients already requiring follow-up. ROI, at 437-438. Complainant stated that she informed S1
that she did not want to see any new patients when she was already unable to take care of the
patients that were assigned. Complainant testified that she saw approximately 25 patients in the
two days prior to beginning leave but did not see any new patients.

In late September 2014, Complainant applied for the position of Nurse (Clinical/Case
Management), GS-0610-12, Vacancy Announcement SWKA142839001212511. ROI at 245.
The position was created because the department’s GS-11 positions were being abolished, and
Complainant and her coworkers were required to compete for two vacancies. Complainant was
among seven candidates referred for the position. Id. at 256-258. Despite making it to the
interview stage along with two other candidates, Complainant was not selected for the position.
Complainant stated that the interviews coincided with the settlement of her prior EEO activity
and multiple interview questions referenced handling conflict, EEO reporting, and union activity.
Id. at 445-446.

On December 16, 2014, the Chief of Ambulatory Nursing issued Complainant notice of
reassignment. ROI, at 165-166. Complainant was reassigned from Nurse (Admin/Case
Management), GS-0610-11, Case Management, to the position of Nurse (Clinical/Admin), GS-
0610-11, Behavioral Health, with a December 28, 2014 effective date. Id. The notice indicated
that the reassignment would not impact Complainant’s career status in the competitive service,
salary, or benefits. Id. Complainant testified that she was reassigned because management
created two Nurse (Clinical/Case Management), GS-0610-12, positions to replace the GS-11
positions, which were abolished. Complainant stated that her caseload increased up until
December 28, 2014.

Complainant testified that her 2014 performance rating was untimely. S1 stated that the
personnel office advised management to extend the rating period for Case Managers.
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As a result, Complainant’s rating period ended November 30, 2014, rather than September 30,
2014. Complainant did not receive her rating until January 2015. Id. at 182-184.

On January 30, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the basis of reprisal for prior protected EEO activity arising under
Title VII when:

1. On August 28, 2014, she received a counseling statement from S1 for requesting a
cap on her caseload and her caseload increased with lack of direction to reporting;

2. She was not selected for the position of Nurse (Clinical/Case Management), GS-
0610-12, Vacancy Announcement SWKA142839001212511;

3. On January 12, 2015, she reported to the management-directed reassigned
position in the Behavioral Health Department; and

4. During the month of January 2015, she received an untimely performance
evaluation.

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 timely requested a hearing but subsequently withdrew
her request. Consequently, 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.

In the final agency decision (FAD), the Agency found that Complainant did not show that the
counseling statement resulted in a harm or loss with respect to a term, condition, or privilege of
her employment. The Agency added, however, that it offered legitimate, nondiscriminatory
reasons for its actions. Regarding claim 1, the Agency explained that management believed that
Complainant was disrespectful in her language and tone and showed a lack of professionalism.
As for Complainant’s claims of an increased caseload, the Agency noted that Complainant’s
caseload was capped and S1 rearranged everyone else’s schedule. The Agency asserted that
Complainant did not see any new patients.

With respect to the non-selection, the Agency stated that Complainant’s response to an interview
question about dealing with conflict in the workplace did not demonstrate a commitment to
teamwork. The Agency found that the ability to work as a member of a team is a legitimate,
nondiscriminatory consideration in the selection process and Complainant became less
competitive based on her voluntary statement that she had an ongoing conflict with her
supervisor. Management officials stated that Complainant’s voluntary statement carried more
weight than the fact that Complainant possessed certification that was not mandatory for the
position, and Complainant failed to establish that her qualifications were plainly superior to those
of the selectees.
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As for Complainant’s reassignment, the Agency explained that since Complainant was not
selected for a promotion to GS-12 and her position was abolished, it was necessary to reassign
her to a GS-11 position for which she qualified. The position in Behavioral Health met the
requirements.

Considering Complainant’s performance evaluation allegations, the Agency found that
Complainant failed to show that she was treated less favorably than similarly situated
comparators because the rating periods were extended for everyone in preparation for
reorganization. The Agency added that although it routinely exceeded the 45-days specified in
their regulations for completing appraisals, the history of Complainant’s ratings did not show a
significant difference in the timeliness of the 2014 rating. Moreover, Complainant failed to show
that the delay resulted in harm to a term, condition, or privilege of her employment and that she
was, therefore, an aggrieved employee.

The Agency determined that Complainant produced no evidence from which a reasonable
factfinder could conclude that management’s explanations were pretext for unlawful
discrimination.

CONTENTIONS ON APPEAL

Complainant did not submit a brief or statement in support of her appeal. In response to the
appeal, the Agency asserted that claim 1 was untimely and Complainant failed to show that she
was an aggrieved employee. Specifically, the Agency argues that the alleged discriminatory
events occurred on August 28, 2014 but Complainant did not initiate EEO counseling until
December 10, 2014, which was more than 45 days after the incident. The Agency claims that
Complainant did not show that the counseling statement resulted in harm or loss with respect to a
term, condition, or privilege of employment.

The Agency stresses that Complainant failed to establish a prima facie case of reprisal with
respect to claims 2 and 3. The Agency argues that only one hiring panel member knew about
Complainant’s prior EEO activity and there was nothing to show how or in what manner the
other panel members could have been influenced. The Agency maintains that the hiring decision
was based on independent scoring of interview question responses, which overwhelmingly
favored the other three finalists. The Agency claims that there was nothing unusually suggestive
about the timing between a June 2014 conversation with S1, who was not on either hiring panel,
and the November 2014 hiring decision.

The Agency contends that Complainant failed to identify any disparate treatment or harm related
to her delayed performance appraisal, stating that it is undisputed that the performance rating
period was extended from September to October for all members of the case management
department, including those without prior EEO activity. The Agency claims, thus, if any harm
came from the decision to extend the rating period, it applied equally to all case managers.
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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”).

Complainant has alleged that the Agency subjected her to reprisal. A complainant may establish
a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the
Agency was aware of the protected activity; (3) subsequently, she was subjected to adverse
treatment by the agency; and (4) a nexus exists between the protected activity and the adverse
treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

In addition, Complainant has alleged that she was treated disparately. Where, as here, there is an
absence of direct evidence, a claim of discrimination is examined under the three-part analysis
originally enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McDonnell
Douglas initially places the burden on a complainant to establish a prima face case of
discrimination; shifts it to the agency to articulate a legitimate, nondiscriminatory reason for the
employment action; and then to the complainant to prove by a preponderance of the evidence
that the proffered reasons are a pretext for discrimination. Texas Dep’t of Comm. Affairs v.
Burdine, 450 U.S. 248, 253 (1981).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.
Regarding the counseling statement, S1 stated that the statement was issued because
Complainant’s behavior was very aggressive and demanding during their interaction. ROI, at
515. S1 stated that there had been general conversations with Complainant regarding similar
behavior. Id. at 506. As for Complainant’s caseload claims, S1 affirmed that she honored
Complainant’s request for a cap on her caseload, which required her to rearrange the schedule for
other nurses in the department. Id.at 505-506. Management officials asserted that they
requested an inquiry into the caseloads in response to complaints of high caseloads. Id.at 547.
However, they denied increasing Complainant’s caseload prior to her reassignment and noted
that the department received assistance from an employee in another department. Id. at 548.

Turning to the non-selection allegations, a panel member testified that each applicant was asked
the same questions and the hiring decision was based on a point system. ROI, at 549, 574. Panel
members scored the applicants’ responses and submitted them to the Major. Id. at 574, 577. The
Major stated that he added the scores and selected the individuals with the two highest scores.
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Id. at 597. A testifying panel member affirmed that Complainant was knowledgeable, but that
she fared poorly in relation to the other candidates when discussing how she handled conflict.
Id. at 578-579. Complainant testified that during her second interview, she discussed ongoing
conflict with her supervisor. Id. at 473. Scoring sheets revealed that Complainant’s scores
regarding conflict on the second interview ranged from fair to excellent while the selectees were
rated as good or excellent. Id. at 289-294, 305-310, 344-349. The panel member stressed that
there was concern about Complainant’s response that she would go directly to the union or
higher, adding that Complainant’s response was not something that she would look for in
someone trying to work in a team environment. ROI, at 289-294. She felt that Complainant
would have had a better outcome if she not did make the “union statement,” as Complainant’s
response was very different from the other candidates. Id. at 582.2 The Major recalled asking
how candidates would handle conflict but denied asking about union or EEO activity. Id. at 600-
601. Complainant did not provide any persuasive evidence that the rankings of the selectees
were based on Complainant’s prior EEO activity.

Regarding Complainant’s reassignment, a Human Resources representative testified that
Complainant’s position was abolished due to reorganization. ROI, at 373. The Chief of
Ambulatory Medicine explained that with the change to a Patient Center Medical Home,
everyone had to compete for jobs. ROI, at 544-545. Since Complainant was not chosen for one
of the vacancies, Complainant was able to be placed in the Behavioral Medicine Department and
allowed to maintain her same work schedule. Id. at 373, 544-545.

With respect to the untimely performance evaluation, management officials stressed that the
extended rating period applied to everyone in the department. ROI, at 557. S1 explained that the
Agency issued new operation orders for the facility, which resulted in the addition of a position
description but there was uncertainty regarding position alignment. Id. at 507. As a result, the
personnel office informed S1 that it would be easiest to extend the rating period so that
employees would be able to start on their new performance standards with their new supervisors.
Id. The Chief of Ambulatory Medicine affirmed that S1 was working with “upstairs” because
they did not want to give employees two short rating periods. Id. at 554. Complainant’s
coworker stated that she did not receive her evaluation until December. Id. at 620.

At all times, the burden of persuasion lies with Complainant to show that it was discriminatory
animus that motivated the Agency. See U.S. Postal Service Bd. Of Governors v. Aikens, 460
U.S. 711 (1983). We find that Complainant has not shown pretext for discrimination, and she
has not proven by a preponderance of the evidence that the Agency discriminated against her
based on reprisal for her protected EEO activity.

2 While we find that this comment does not on its face discourage an employee from
participating in the EEO process, we strongly urge the Agency to ensure that managers and
supervisors perform in such a manner “as to insure a continuing affirmative application and
vigorous enforcement of the policy of equal employment opportunity.” 29 C.F.R.
§ 1614.105(a)(5). Likewise, we strongly urge the Agency to ensure that all employees
understand their rights and responsibilities under EEO laws and respect the EEO process.
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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 decision finding that Complainant was
not discriminated against 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.
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.
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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

August 30, 2019
Date