0120103501
02-10-2011
Angel T. McShan, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Angel T. McShan,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120103501
Hearing No. 451-2010-00053X
Agency No. ARIMWE09MAR00932
DECISION
On August 20, 2010, Complainant timely filed an appeal from the Agency's
July 21, 2010, 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. The Commission accepts the appeal pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence supports the EEOC
Administrative Judge's (AJ) conclusion that Complainant failed to carry
her burden of proof to show that she was discriminated against on the
basis of race (African-American) when her Colonel (CC) and the Deputy
Commander (DC) subjected her to disparate treatment and a hostile work
environment, as alleged.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as an Education Services Specialist at the Agency's White Sands Missile
Range in New Mexico. Report of Investigation (ROI), EEO Counselor's
Report, at 1. Complainant also assisted with education services functions
at the U.S. Sergeants Major Academy (USASMA), located in Fort Bliss,
Texas. Fact-Finding Conference Transcript (FFC. Tr.), at 13-14. While
Complainant worked at USASMA, management received complaints from soldiers
that Complainant was inappropriately enrolling them into college. ROI,
Ex. F-8, at 107-108. The soldiers complained, among other things,
that Complainant was providing names, email addresses, and phone
numbers of soldiers to a university's enrollment advisors without
permission. Id. Managers, including the Chief of the Human Resources
division, told the Chief of Staff of Installation Management Command,
West Region, at Fort Sam Houston, of Complainant's conduct related to
the enrollment of soldiers into college. FFC. Tr., at 132. Afterward,
information and documentation related to Complainant's alleged conduct
was turned over to CC. FFC. Tr., at 132-133. On March 6, 2008, an
investigator was requested by CC to conduct an AR 15-6 investigation1 into
the allegations made against Complainant by soldiers at the USASMA. ROI,
EEO Counselor's Report, at 5.
On April 14, 2008, Complainant accepted a job offer for position
No. YA-1740-02 at Fort Gordon, Georgia. ROI, Ex. F-6, at 97. However,
on April 22, 2008, a Human Resources Specialist from Fort Gordon wrote to
Complainant by email that the job offer was withdrawn because of the AR
15-6 investigation. Id. The AR 15-6 investigation against Complainant
was completed on May 16, 2008, and found that, among other things,
Complainant: 1) continued her involvement with USASMA after she had been
directed to cease; 2) knowingly used computer passwords of soldiers; 3)
filled out International Business Machines (IBM) Corporation surveys using
soldiers' accounts; (4) showed a lack of professional courtesy and respect
in her email to USASMA soldiers and staff; and (5) shared study guides
and sample papers with soldiers for college courses. ROI, Ex. F-12,
at 177-178. From June 13 through July, 18, 2008, a second AR 15-6
investigation was conducted regarding allegations of sexual harassment
pertaining to another employee. ROI, Ex. F-14, at 282-283. As a result,
Complainant was questioned about her knowledge of sexual harassment
within the organization, but was never accused of any wrongdoing. Id.
Subsequently, on July 21, 2008, Complainant received a Letter of
Reprimand, which noted that Complainant defied CC's directive to have
no further contact with USASMA, and made rude comments via email to
staff and soldiers of USASMA. ROI, Ex, F-10, at 164-165. From July 29
through October 6, 2008, a third AR 15-6 investigation was conducted,
which addressed allegations of sexual harassment pertaining to another
employee. ROI, F-15, at 289. The investigation also partly focused on
Complainant's conduct while she was at USASMA. Id. The investigation noted
that Complainant overstepped the bounds of her position while she worked
at USASMA. Id. On February 23, 2009, Complainant received a second job
offer for the position of Education Services Officer in Belgium. However,
on April 3, 2009, the selecting official rescinded the job offer because
of the investigations against Complainant. ROI, Ex. F-6, at 98.
On April 13, 2009, Complainant filed an EEO complaint alleging that the
Agency subjected her to harassment on the basis of race (African-American)
when, between March 2008 and April 2009, she was subjected to AR 15-6
investigations that resulted in a Letter of Reprimand and the withdrawal
of two job offers.
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, which the AJ held on May 18, 2010. The AJ,
thereafter, issued a decision on May 20, 2010 in favor of the Agency. The
Agency subsequently issued a final order implementing the AJ's finding
that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.
Specifically, the AJ found that Complainant failed to establish that the
Agency's nondiscriminatory reasons were pretext for discrimination. AJ
Decision, at 9. The AJ noted that notwithstanding Complainant's contention
that CC subjected her to discrimination, testimony reflected the fact
that complaints about Complainant came from USASMA and not CC. Id. at
5. Further, the AJ noted that record evidence supported the Agency's
nondiscriminatory reasons; namely, that a review of electronic files
revealed a possible security breach with respect to Complainant's use
of soldiers' computer security passwords. Id. at 5. With respect to
the Letter of Reprimand, the AJ noted that Complainant did not dispute
the fact that she was guilty of two of the findings of the AR 15-6
investigation. Id. As to the rescission of the Fort Gordon position, the
AJ noted that there was no evidence that either CC or DC contacted Fort
Gordon in an effort to rescind the job offer. Id. at 6. The AJ further
noted that the second AR 15-6 investigation pertained to sexual harassment
allegations regarding another employee, not involving Complainant. Id. The
AJ also found no evidence that the third AR 15-6 investigation, which
partly was focused on Complainant, was motivated by discriminatory
animus. Id. Pertaining to Complainant's allegations that Caucasian
employees were not investigated or disciplined for misconduct, the AJ
noted that Complainant's actions were not comparable to the actions
of those employees. Id. at 8. The AJ also noted that the decision
not to investigate one Caucasian employee, accused of embezzlement,
came at the direction of the Agency's attorney. Id. at 7. As for the
rescinded Belgium job offer, the AJ noted that it was rescinded due to
the investigation against Complainant. Id. Therefore, the AJ found no
evidence that the Agency's nondiscriminatory reasons were pretext for
discrimination. Id. at 9.
CONTENTIONS ON APPEAL
On Appeal, Complainant contends that testimony stating that she was
improperly enrolling soldiers into college were untrue. Complainant's
Appeal Brief, at 5. Also, Complainant contends that other allegations of
misconduct against her were untrue, including testimony that she came
to USASMA uninvited and engaged in favoritism towards African-American
employees. Id. In that respect, Complainant contends that the AR 15-6
investigations against her and another African-American employee were
unsubstantiated. Id. at 6. Complainant also contends that her Supervisor,
who is African-American, testified that he issued Complainant the Letter
of Reprimand under duress from management. Id. at 7. Complainant further
contends that the Agency's nondiscriminatory reasons were pretext for race
discrimination. Id. at 10. Specifically, Complainant contends that the
only AR 15-6 investigations initiated by CC were against African-American
employees. Id. In that respect, Complainant contends that there were
allegations of fraud and theft against another Caucasian employee who,
however, was never subjected to an investigation. Id. at 11. Further,
Complainant contends that there were other Caucasian employees who used
profanity and committed adultery, but were never investigated. Id. Also,
Complainant contends that CC engaged in demeaning behavior towards
African-American employees. Id. As a result, Complainant contends that
CC and DC apply different standards to African-American employees. Id. at
14.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual
findings by an AJ will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Universal Camera Corp. v. National Labor Relations
Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding
whether or not discriminatory intent existed is a factual finding. See
Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's
conclusions of law are subject to a de novo standard of review, whether
or not a hearing was held. An AJ's credibility determination based on
the demeanor of a witness or on the tone of voice of a witness will be
accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable
fact finder would not credit it. See EEOC Management Directive for 29
C.F.R. Part 1614 (MD-110), Chapter 9, at � VI.B. (Nov. 9, 1999).
ANALYSIS AND FINDINGS
As an initial matter, the Commission notes that the AJ chose to hold
a video conference hearing. In Allen v. U.S. Postal Serv., EEOC
Appeal No. 01A51259 (August 21, 2006), the Commission determined
that videoconferencing provides an acceptable alternative to an
in-person hearing. The Commission identified a number of factors
that an Administrative Judge should consider before electing to
proceed via videoconferencing, including: the availability and
proximity to the participants of the videoconferencing facilities;
the adequacy of the available videoconferencing facilities, to include
any technological issues; the cost to the respondent agency (if any)
balanced against the savings in travel time for all parties, and the AJ;
the number of expected participants; and the objections of the parties,
if any. Id. In the instant case, there is no indication of objection to
the use of videoconferencing by either party. Under these circumstances,
the Commission concludes that the AJ did not abuse her discretion by
electing to hold a video-conference hearing.
We also note that one witness, who was located in Germany, testified
by telephone at the hearing. The Commission has held that testimony
may not be taken by telephone in the absence of exigent circumstances,
unless at the joint request of the parties and provided that specified
conditions have been met. See Louthen v. U.S. Postal Serv., EEOC Appeal
No. 01A44521 (May 17, 2006). We find that exigent circumstances existed
in this case that warranted telephonic testimony because the witness
was located outside of the country. Moreover, both parties agreed to
the telephonic testimony in writing. AJ Decision, at 1.
We further note that the AJ disallowed the testimony of one of
Complainant's witnesses. In that respect, we conclude that Complainant
failed to show that this witness would have provided relevant testimony
or substantiated his claim in this case. Administrative Judges have broad
discretion in the conduct of hearings. See 29 C.F.R. � 1614.109(e). In
sum, this is no evidence that the AJ abused her discretion.
Disparate Treatment
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). Complainant
must initially 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, 441 U.S. at 804
n.14. The burden then shifts to the Agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail. Complainant
must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc.,
530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
519 (1993).
Assuming, arguendo, that Complainant established a prima facie case of
discrimination on the basis of race, we find that the Agency articulated
legitimate, nondiscriminatory reasons for its actions; namely, that there
were reports that Complainant had engaged in potential misconduct while
at USASMA. ROI, Ex. F-8, at 107-108. Specifically, the Agency indicated
that an investigation was bought against Complainant because management
received complaints from soldiers that Complainant was inappropriately
enrolling them into college. Id. The soldiers complained, among other
things, that Complainant was providing names, email addresses, and
phone numbers of them to a university's enrollment advisors without
permission. Id. The Agency also noted that Complainant was issued the
Letter of Reprimand because the first AR 15-6 investigation found that
Complainant continued her involvement with USASMA after she had been
directed to cease, and emailed unprofessional comments to staff and
soldiers of USASMA. ROI, Ex. F-10, at 164-164; FFC. Tr., at 250.
Complainant now bears the burden of proving by a preponderance of
the evidence that the Agency's articulated reasons were a pretext for
discrimination. Complainant may do this by showing that the Agency's
preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256.
In an attempt to show pretext, Complainant contends that CC and DC
subjected her to discrimination by improperly initiating investigations
against her. FFC. Tr., at 9. However, we concur with the AJ that
complaints about Complainant came from soldiers at USASMA and not from CC
and DC. ROI, Ex. F-8, at 107-108. In that respect, the record reflects
that USASMA management informed CC about the situation in order for
him to take action. FFC. Tr., at 132-133. We also note that the record
reflects that the second AR 15-6 investigation was directed at another
employee accused of sexual harassment and not Complainant. ROI, Ex. F-14,
at 282-283. Further, although the third AR 15-6 investigation partly
focused on Complainant, we find no evidence in the record that it was
motivated by discriminatory animus.
Further, notwithstanding Complainant's contention that she did not deserve
the Letter of Reprimand, Complainant did not dispute the fact that she
was guilty of two of the findings of the first investigation cited in
the Letter of Reprimand. FFC. Tr., at 37-38. In particular, Complainant
did not dispute the fact that she continued her involvement with USASMA
after she had been directed to cease, and sent an unprofessional email
to staff and soldiers of USASMA. FFC. Tr., at 38, 40-41. With respect to
the rescission of the Fort Gordon job offer, the selecting official, who
chose to rescind Complainant's job offer, testified that she never had any
communication with CC and DC. ROI, Ex. F-21, at 449-450. Pertaining to the
rescission of Complainant's job offer from Belgium, there is no evidence
in the record to indicate that either CC or DC informed Belgium management
of Complainant's investigation. Rather, the record reflects that Chief
of the Human Resources division reported Complainant's investigation to
the Chief of Staff at Belgium, with no direction from either CC or DC.
FFC, Tr., at 135-136.
Lastly, we note that Complainant contends that Caucasian employees
were not disciplined or investigated for their misconduct. FFC. Tr.,
at 9. In particular, a witness testifying on Complaint's behalf stated
that a Caucasian employee engaged in illegal activities, which included
the misappropriation of government funds, but was never subjected to an
AR 15-6 investigation. Hr'g Tr., at 33. However, we note that the Judge
Advocate General's (JAG) Corps attorney representing the Agency in that
case recommended against conducting an investigation because of the lapse
of time since the alleged illegal use of funds had occurred. Hr'g Tr.,
at 35. As such, the record reflects that it was neither CC nor DC's
decision not to investigate the employee.
Accordingly, we find that the AJ's findings are supported by substantial
evidence, and we discern no reason to disturb the AJ's findings that
Complainant failed to prove the Agency discriminated against her based
on race. Furthermore, we find that the record is devoid of any evidence
that the Agency's actions were motivated by discriminatory animus towards
Complainant's race.
Harassment
Finally, to the extent that Complainant is alleging that she was subjected
to a hostile work environment, we find under the standards set forth in
Harris v. Fork-lift Systems, Inc., 510 U.S. 17 (1993) that Complainant's
claim of hostile work environment must fail. See Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).
A finding that Complainant was subjected to 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 Serv., 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 herein, we AFFIRM the Agency's
Final Order implementing the AJ's decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 10, 2011
Date
1 An "AR 15-6 investigation" refers to an administrative fact-finding
investigation initiated pursuant to Army Regulation 15-6.
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0120103501
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103501