Alline B.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Sep 18, 2019

2019004677 (E.E.O.C. Sep. 18, 2019)

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

Alline B.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Health Agency),
Agency.

Appeal No. 2019004677

Agency No. DHANCER-19-0007

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated July 1, 2019, dismissing her complaint of
unlawful 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Health
System Specialist, 0679, GS-9 at the Agency’s Fort Belvoir Community Hospital facility in Fort
Belvoir, Virginia.

On March 8, 2019, Complainant filed a formal complaint alleging that the Agency subjected her
to an ongoing discriminatory hostile work environment, beginning August 2015, on the bases of
race (African-American), sex (female), and/or reprisal for prior protected EEO activity when the
following actions occurred:

a. On or about July 13, 2015, her first-line supervisor required her to report to work at
6:00 am, which is earlier than Complainant’s official work schedule;

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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b. On December 22, 2015, her second-line supervisor questioned her to see if the first-
line supervisor was aware of Complainant’s planned dental appointment;
c. On January 28-29, 2016, the first-line supervisor did not allow Complainant the
opportunity to investigate allegations from a contract employee, resulting in the
contract employee’s termination;
d. On July 13, 2016, the first-line supervisor expressed dissatisfaction of Complainant’s
briefing preparation and presentation even though the intended recipient was
impressed;
e. On September 6, 2017, the first-line supervisor was determined to remove one of
Complainant’s clerks based on an allegation and without full investigation until
Complainant conducted an investigation, clearing the clerk of any wrongdoing;
f. On December 1, 2017, the first-line supervisor questioned and denied Complainant’s
overtime request and implied that the Lt. Colonel believed the request to be
fraudulent and later denied Complainant’s request to address her concern with the Lt.
Colonel;
g. On February 14, 2018, the first-line supervisor questioned Complainant about her
alternate work schedule (AWS) even though Complainant had previously discussed it
with her and all required steps had previously been followed properly;
h. On February 22, 2018, the first-line supervisor denied Complainant’s request to
investigate complaint allegation against one of Complainant’s clerks, which resulted
in the clerk’s removal from the department;
i. On February 27, 2018, the first-line supervisor raised on-going concerns (i.e., the
smell of smoke) about a contract clerk and tried to pressure Complainant into
removing the clerk from her position;
j. On March 2, 2018, Complainant was advised by Human Resources that the first-line
supervisor would be the immediate supervisor of the new Medical Support Assistant
instead of Complainant;
k. On August 29, 2018, the first-line supervisor misled Complainant (and others on the
interview panel) into believing that there was only one MSA vacancy, when there
were actually 2 vacancies;
l. On November 15, 2018, the first-line supervisor intentionally misled and delayed
Complainant’s (and other interview panel members’) recommendations/selection of
their top candidate;
m. On December 3, 2018, the first-line supervisor trained two new employees on
performance of office duties, which had previously been Complainant’s
responsibility;
n. On December 7, 2018, the first-line supervisor intentionally prolonged approving an
overtime request for another employee;
o. On February 4, 2019, Complainant learned that the first-line supervisor had changed
Complainant’s Higher Level Reviewer for her performance evaluations to another co-
worker, even though the first-line supervisor was aware that the co-worker was
retiring/retired by the end of January 2019;

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p. On February 13, 2019, the first-line supervisor questioned Complainant and
expressed unawareness of Complainant’s attendance to a Leadership Academy class
that same day, even after Complainant had previously informed her about
Complainant’s planned attendance; and
q. On February 14, 2019, Complainant learned that the first-line supervisor changed the
date for her to provide briefing slides a day earlier and justified her actions by
accusing Complainant of having an advantage over other co-workers.

On May 6, 2019, she amended her complaint with the following claim:

r. On April 30, 2019, Complainant was discriminated against on the basis of race and
gender when the first-line supervisor gave Complainant a 2019 performance appraisal
rating of 4.2, “Fully Successful,” which limited her changes of receiving a
performance award.

The Agency dismissed the complaint in its entirety. It dismissed claims (a) through (q) pursuant
to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant was not
aggrieved within the meaning of EEO regulations. It also dismissed claims (a) and (f), which
occurred on or about July 13, 2015 and on or about December 1, 2017, 2017, pursuant to 29
C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. It dismissed claim (r) pursuant to
29 C.F.R. § 1614.107(a)(5), as moot or alleging that a proposal to take a personnel action or
other preliminary step to a personnel action is discriminatory.

The instant appeal followed. On appeal, Complainant reiterates her claim that the Agency has
subjected her hostile work environment and alleges an additional incident that occurred on June
28, 2019. She asks for an investigation of her complaint. In response, the Agency reiterates its
reasons for dismissing the claims and adds that claims (b) through (e) and (g) through (k) were
also untimely brought to the attention of an EEO counselor.

ANALYSIS AND FINDINGS

Failure to State a Claim

An agency shall accept a complaint from any aggrieved employee or applicant for employment
who believes that he or she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The
Commission's federal sector case precedent has long defined an "aggrieved employee" as one
who suffers a present harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). When the complainant does not allege he or she is aggrieved within the
meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim
pursuant to 29 C.F.R. § 1614.107(a)(1).

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Here, insofar as claims (a) through (q) raise discreet discrimination claims, each fails to state
claim. None of these claims independently alleges sufficient facts which would establish that
Complainant suffered harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Therefore, none of them states a viable claim of discrimination.
However, these allegations are still relevant to Complainant’s claim of ongoing harassment.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is
actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's
employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court
in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand
comments, and isolated incidents (unless extremely serious) will not amount to discriminatory
changes in the ‘terms and conditions of employment’.” Following a review of the record, we
find that in the instant case, viewing the allegations together and assuming they occurred as
alleged, Complainant fails to state a viable claim of a discriminatory hostile work environment.
The actions alleged, without more, generally concern Complainant’s disagreement with her
supervisor’s managerial decisions and dislike of her supervisor’s management style. The actions
alleged, without more, are insufficiently severe or pervasive to state a valid claim.

Mootness

EEOC Regulation 29 C.F.R. § 1614.107(a)(5) provides that the agency shall dismiss a complaint
that is moot. To determine whether the issues raised in a complainant's complaint are moot, the
factfinder must ascertain whether (1) it can be said with assurance that there is no reasonable
expectation that the alleged violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles
v. Davis, 440 U.S. 625, 631 (1979); Kuo v. Department of the Navy, EEOC Request No.
05970343 (July 10, 1998). When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.

With respect to claim (r), the record shows that the Agency reissued Complainant’s 2019
Performance Appraisal. The new Performance Appraisal shows a summary rating of 4.6 and a
rating of record of 5, “Outstanding,” which is the highest available rating. Therefore, we find that
claim (r) has been rendered moot, as there is no reasonable belief this will recur, and the new
rating eradicates any effects of the alleged lower rating.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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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. 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.

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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

September 18, 2019
Date