Vernita L.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

May 3, 2017

0120150763 (E.E.O.C. May. 3, 2017)

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

Vernita L.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120150763

Hearing No. 450-2014-00073X

Agency No. AAFES-13.040

DECISION

On December 12, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 12, 2014, 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., 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. For
the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Motor Vehicle Operator (MVO) Foreman at the Agency’s Distribution
Center in Waco, Texas. On February 7, 2013, she filed an EEO complaint in which she alleged
that the Fleet Manager, her first-line supervisor (S1) and the Regional Fleet Specialist, her
second-line supervisor (S2) discriminated against her on the bases of sex (female), disability
(inflamed colon, ruptured discs in back and neck), age (57), and in reprisal for prior protected
EEO activity. Her claim consists of the following incidents:

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. Between March 6 and April 6, 2012, Complainant received eight written
communications from S1;

2. S2 erroneously completed Complainant’s annual performance evaluation rating
(PER) and in so doing, referred to her as “Mrs.” in the comments section of the
appraisal form;

3. In April 2012, S1 forced Complainant to take a road test notwithstanding that she
had already taken one in December 2010, and during the road test S1 referred to
her as “baby doll”; and

4. On May 18, 2012, with the support of S2, S1 forced Complainant to resign from
the Agency.

At the conclusion of the 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.
The AJ assigned to the case granted the Agency’s May 16, 2014, motion for summary judgment
over Complainant’s objections, and issued a decision on October 28, 2014, without holding a
hearing. The Agency subsequently issued a final order adopting the AJ’s finding that
Complainant failed to prove that the Agency subjected her to discrimination as alleged.

Complainant reported that she was one of two female Foremen under S1’s direct supervision and
that she and the other female Foreman were both over the age of fifty. IR 100, 106. She also
reported that at the time the incidents occurred, she suffered from diverticulitis, an inflammation
of the colon, as well as ruptured discs in her back and neck. She averred that because of these
conditions, she was unable to sit, stand, or walk for extended periods of time, but was taking
medication for pain and other symptoms. IR 101-03. Finally, Complainant reported that she
filed an EEO complaint against S1 on March 29, 2012. IR 43, 48, 63, 100-02.

Complainant averred that she received 14 communications from S1, the last eight of which were
received between March 6 and April 6, 2012. IR 63. She stated that communications were
write-ups for infractions. IR 103. Between March 6 and April 6, 2012, S1 had sent Complainant
eight formal written communications. Some of them were complimentary but most addressed
particular instances in which Complainant failed to carry out instructions from her supervisor,
failed to provide appropriate oversight for the Drivers under her supervision, or was otherwise
deficient in one or more aspects of her performance as a Motor Vehicle Operator Foreman. S1
and S2 denied that the communications were of a disciplinary nature. S1 averred that they were
private between himself and the Foremen who received them. IR 72-84, 119-21, 130-31.

Complainant averred that it was inappropriate for S2 to prepare her PER because he did not have
enough information about her performance and because she had a previous supervisor who she
was under for eleven months of the rating period. She maintained, that since her prior supervisor
had prepared her mid-term appraisal, he should have been the one to prepare her PER. IR 62-63,
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105-06. S2 responded that when Complainant’s previous supervisor had received a promotion,
he was told by the Human Resources Office that he had to prepare Complainant’s PER, and that
he was familiar enough with her performance, having observed her directly on numerous
occasions. IR 133. S2 had given her an overall PER score of 12 out of 30, which corresponded
to an overall rating of “Marginal.” He based his rating upon his assessment of Complainant’s
performance as measured against six job elements. IR 58, 68, 132-33. He commented, inter alia,
that Complainant’s supervisory knowledge was below what was expected, that Complainant was
unable to provide accurate information on her assigned Drivers, and she exhibited a reluctance to
accept guidance, correct Drivers’ performance, or make sound decisions. In the comments
section of the PER, S2 did refer to Complainant as “Mrs. (Complainant’s last name),” even
though Complainant was not married. IR 68. S1 averred that he had not been Complainant’s
immediate supervisor long enough to do the rating himself, and that S2 was often present to
witness the issues concerning Complainant’s performance. IR 122.

Complainant averred that in April 2012, S1 forced her to retake the road test she had originally
taken in December 2012. She also averred that S1 had called her “baby doll.” IR 107. S1
denied that he called Complainant “baby doll,” and averred that Complainant was required to
take another road test because she was applying for Driver positions. IR 122. On April 2, 2012,
Complainant sent S1 an email requesting a downgrade from MVO Foreman to MVO Driver. IR
73. S2 stated that the road test was a part of the process of applying for a Driver position. IR
135.

Complainant submitted paperwork indicating that her resignation would be effective on May 18,
2012. IR 50-51. She averred that it was S1’s and S2’s intent to make her look bad and prevent
her from moving up the career ladder, effectively forcing her to resign. She averred that S1 had
her GPS access taken away, that S1 had demanded that she and the other supervisors show him
the draft PERs they prepared for their Drivers before issuing them to the Drivers, that S1 ordered
her to counsel Drivers without cause, and that S2 barged into her office and ordered her to issue
write-ups to Drivers without first sending her an email to that effect. IR 108. S1 and S2 denied
that they forced her to quit, responding that none of the Foremen had GPS access, that all of the
Foremen were required to show their draft PERs to S1 before issuing them, that as supervisors,
Foremen were required to communicate the positive as well as the negative when it came to
Driver performance, and that they did not order Complainant to issue write-ups that were
unwarranted. IR 123-24, 136.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a summary judgment decision when he finds
that there are no genuine issues of material fact that would warrant a hearing. See 29 C.F.R.
§ 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder
could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986);
Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has
the potential to affect the outcome of the case. The evidence of the non-moving party must be
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believed at the summary judgment stage and all justifiable inferences must be drawn in the non-
moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

The Commission cannot second-guess an Agency’s decisions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for making those
decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Therefore, to warrant a hearing on her disparate treatment and harassment claims, Complainant
would have to present enough evidence to raise a genuine issue of fact as to whether S1 or S2
was motivated by unlawful considerations of her gender, age, disability, or previous EEO
activity in connection with the various incidents listed and described in her complaint. See 29
C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000);
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

Disparate Treatment

Complainant can raise a genuine issue of material fact regarding the existence of an unlawful
motive by utilizing the three-part evidentiary scheme fashioned by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 & n. 13 (1973). She would first have to
establish a prima facie case by demonstrating that she was subjected to adverse employment
actions under circumstances that would support an inference of discriminatory motive. Furnco
Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The burden would then shift to the Agency to
articulate legitimate, nondiscriminatory reasons for its actions. Burdine, supra at 253. These two
steps can be dispensed with in this case, however, since S1 and S2 had articulated an ostensibly
legitimate and nondiscriminatory reason for every incident described above. See United Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to the
communications that S1 sent to Complainant between March and April of 2012, S1 and S2 stated
that the communications were intended to give kudos as well as correct performance
deficiencies, that they were private, and nondisciplinary. As to Complainant’s PER, S2 stated
that he was told by Human Resources that he had to prepare the PER, and admitted to referring
to Complainant as “Mrs.” Regarding the road test, S1 and S2 both maintained that since
Complainant was applying for a Driver position in April 2012, she was obligated to take the road
test regardless of whether she had taken one before.

To go forward to a hearing, Complainant must present enough evidence to raise a genuine issue
of material fact as to whether the reasons articulated by S1 and S2 for their actions vis-à-vis
Complainant are pretext, i.e., not the real reasons but rather a cover for discrimination or reprisal.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). She can do so by showing such
weaknesses, inconsistencies, or contradictions in the Agency’s proffered reasons that a
reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S.
Postal Service, EEOC Appeal No. 0120060802 (Nov. 20, 2007), request for reconsideration
denied, EEOC Request No. 0520080211 (May 30, 2008).

As to disability discrimination, Complainant admitted to the EEO investigator that her medical
conditions were not a factor in any of the incidents. IR 104, 106, 107, 109. When asked by the
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investigator why she believed that her sex, age, and previous EEO complaint played a role in the
communications, the PER, and the road test, Complainant responded that it was because she was
an older woman in a workplace that was predominantly male, and that the incidents occurred
shortly after she had initiated her prior EEO complaint against S1. IR 62, 104, 106, 107.
Beyond these bald assertions, Complainant has presented neither affidavits, declarations or
sworn statements from witnesses other than herself, or documents that contradict the
explanations provided by S1 and S2 or which call into question their veracity as witnesses. We
therefore agree with the AJ that the evidence that Complainant submitted in support of her claim
of disparate treatment is insufficient to raise a genuine issue of material fact, and that she did not
establish that the Agency’s legitimate, nondiscriminatory reasons for its actions were pretext for
discrimination.

Harassment

Harassment of employees that would not occur but for their membership in statutorily protected
groups is unlawful if sufficiently patterned or pervasive. Wibstad v. U.S. Postal Service, EEOC
Appeal No. 01972699 (Aug. 14, 1998). To establish a claim of harassment Complainant must
show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome
verbal or physical conduct involving the protected class; (3) the harassment complained of was
based on his statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

We find that Complainant has satisfied the first prong of the harassment test in that she belongs
to classes protected by Title VII and the ADEA, and by virtue of having previously availed
herself of the EEO complaints process. We also find that Complainant has satisfied the second
prong since receiving negative performance write-ups, being given a performance appraisal
rating of “Marginal,” and having to take a road test she had previously taken was unwelcome to
her. However, since Complainant had not been able to raise a genuine issue of material fact as to
whether a causal connection exists between these incidents and her membership in protected
classes or prior EEO activity, no further inquiry is necessary as to whether the incidents
complained of rise to the level of harassment. See Nicki D. v. Department of Veterans Affairs,
EEOC Appeal No. 0120133247 (October 15, 2015).

Even if such a causal connection did exist, Complainant’s claim would still founder upon the
fourth prong. Anti-discrimination statutes are not general civility codes designed to protect
against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524
U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332
(Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty
annoyances between an alleged harasser and a Complainant do not rise to the level of
harassment). Instead, EEO laws address discriminatory conduct that alters the work
environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). The
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communications, the PER, and the road test requirement that Complainant characterizes as acts
of harassment are nothing more than routine work assignments, instructions, and
admonishments, which, by definition, are neither severe nor pervasive enough to rise to the level
of engendering a hostile work environment. Complainant v. Dept. of State, EEOC Appeal No.
0120123299 (Feb. 25, 2013). We find S2’s reference to Complainant as “Mrs.” in the PER and
S1 referring to her as “baby doll”, while clearly unwelcome to Complainant, not nearly enough
in the absence of other incidents to rise to the level of severe or pervasive such that a hostile
work environment existed. We therefore find, as did the AJ, that Complainant has not
demonstrated that she was subjected to discriminatory harassment.

Constructive Discharge

A discriminatory constructive discharge occurs when an Agency, motivated by discriminatory
animus, creates working conditions that are so difficult, unpleasant, or intolerable that a
reasonable person in Complainant’s position would feel compelled to resign. Byron E. v. U.S.
Postal Service, EEOC Appeal No. 0120143037 (Sept. 1, 2016). The Commission has adopted a
three-pronged test for establishing a constructive discharge. Complainant must show that: (1) a
reasonable person in his position would have found the working conditions intolerable; (2)
conduct which constituted prohibited discriminatory treatment created the intolerable working
conditions; and (3) Complainant’s involuntary resignation result from the intolerable working
conditions. Ileana R. v. Dept. of Homeland Security, EEOC Appeal No. 0120120394 (Nov. 24.
2015). As in her harassment claim, the conduct on the part of S1 and S2 that Complainant
considers to constitute intolerable working conditions consists of nothing more than the day-to-
day requirements of her position as a MVO Foreman. She has not shown that other Foremen
were allowed GPS access or not required to show their draft PERs for their Drivers to S1. She
has likewise not shown that she was being required to counsel her Drivers where such action was
not warranted. As previously noted, Complainant has been unable to raise a genuine issue of
material fact as to the existence of a discriminatory or retaliatory animus on the part of S1 or S2.
Consequently, her constructive discharge claim must also fail.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s finding of no discrimination as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:
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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. The requests 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
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).
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FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

May 3, 2017
Date