Becky P.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Nov 22, 2017

0120150857 (E.E.O.C. Nov. 22, 2017)

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

Becky P.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120150857

Agency Nos. 5D0M09006F10,
5D0M09006

DECISION

On December 29, 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
December 1, 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 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 Deputy Disbursing
Officer, GS-501-11, in the Financial Services Office of the Finance Management Office at
Homestead Air Reserve Base, in Florida.

On June 3, 2009, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her when she was subjected to a hostile work environment on the basis of
her sex (female) when:

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. On several occasions between September 2008 and March 5, 2009, Complainant’s
Supervisor sent numerous e-mails to Complainant belittling and threatening action
against her;

2. On several occasions between July 2008 and March 5, 2009, the Supervisor told other
employees in the 482 Fighter Wing Comptroller’s Office that she was not in charge of
them when he was gone, and put another person, who was of a lower grade to
Complainant, in charge of the office;

3. On several occasions between July 2008 and March 5, 2009, the Supervisor
conducted surveillance of Complainant’s office by writing down the times of every
person entering or leaving Complainant’s office; and

4. On March 5, 2009, the Supervisor threatened to give Complainant a letter of
reprimand when she flexed her lunch hour by fifteen minutes after a customer had
delayed her lunch hour.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). When Complainant did not request a
hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. With regard to claim (1), the first e-mail referenced by Complainant dated October 9,
2008, from her Supervisor stated:

I frequently ask you to assist me in problem areas and you seem to ignore my requests or
just walk away. This is an issue you need to resolve. There is nothing more important
ever on your table that [sic] to help me, your supervisor. You’re the Deputy FSO and as
such you need to be professional and help me work issues that originated during your
management period.

The second e-mail dated February 25, 2009, to eight civilian employees, including Complainant,
stated that effective February 25, 2009, at 8:00 a.m., “[Deputy Financial Services Officer] is the
only authorized official in the 482 FW/FMF to approve leave (annual or sick) in my absence”
and that employees were referred to the [Comptroller] when both the Supervisor and the Deputy
Financial Service Officer (DFSO) are absent on the same day. A third e-mail, also sent on
February 25, 2009, was sent to fifteen individuals, including Complainant. This e-mail identified
the individual who is the DFSO and Chief of Military Pay and that Complainant is the Deputy
Disbursing Officer and Travel Pay Manager. The fourth e-mail was sent on March 5, 2009, to
Complainant with a copy to the Comptroller (Complainant’s second-line Supervisor). This e-
mail indicated that on March 3 and 4, 2009, Complainant took lunch from 12:15 p.m. to 1:15
p.m. without obtaining her Supervisor’s approval rather than taking lunch from her elected lunch
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period of noon to 1:00 p.m. The Supervisor stated this was in violation of the 482 FW Work
Attendance Policy. Further, the Supervisor indicated that he would be monitoring Complainant’s
compliance with the work attendance policy and that he intended to take disciplinary action
should she later fail to comply.

The Agency noted that Complainant explained that the first e-mail was belittling as it made her
feel subservient to her Supervisor. Complainant maintained that the second e-mail was belittling
because she had previously performed the duty of approving leave requests when the Supervisor
was absent. According to Complainant, the third e-mail was belittling due to the fact she had
been considered the DFSO since 2002 and now there was a new individual designated as DFSO.
As to the final e-mail, Complainant argued it was belittling and threatening because the
Supervisor stated that he has been monitoring her attendance and he said that he would take
disciplinary action against her.

The matter at issue in the second incident pertains to the e-mail that was sent on February 25,
2009, that informed the FSO and Budget personnel of the identity of the DFSO. The Agency
noted that this e-mail was resent on March 11, 2009, which it points out is outside the time
period that Complainant claimed she was subjected to a hostile work environment.

With respect to the third incident, Complainant stated that on several occasions between July
2008 and March 5, 2009, the Supervisor conducted surveillance of her office by writing down
the times of every person entering or leaving her office. The e-mail at issue names specific
individuals who did not sign in to the vault area as required and requested that controls be
implemented to ensure that all personnel sign in as required. Access to the vault area
subsequently became more restricted.

In terms of the fourth incident at issue, the Agency stated that Complainant explained the
previous Comptroller stopped by her office to say hello and that she went to lunch fifteen
minutes after her normal lunch time. The Agency noted that as a result of this incident, the
Supervisor issued Complainant a letter of counseling which the Comptroller removed after the
Supervisor left the office later that month.

In analyzing the hostile work environment claim, the Agency determined that the alleged
incidents occurred, although not as often as alleged in the second incident and not exactly as
claimed in the fourth incident. The Agency stated as to the fourth incident that the Supervisor
indicated he intended to take disciplinary action rather than issue a letter of reprimand for any
future violation by Complainant. The Agency determined that none of the incidents at issue
were based on Complainant’s sex. The Agency noted that although the Supervisor retired and
did not complete an affidavit, he informed the EEO Counselor that Complainant and he were not
cordial to each other, but that he treated Complainant no differently than other employees in the
office. The Supervisor asserted that he believed Complainant did not know her job as well as she
should, did not make eye contact with him, she would cut short communication with him and she
acted as though he was intruding. The Agency noted that the Supervisor believed the poor
relationship was related to Complainant wanting the job that he held.
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According to the Comptroller, the Supervisor was gruff in his treatment of employees, but it was
not personal and that he was the same with everyone. The Comptroller stated that the Supervisor
was very direct and she instructed him to tone it down because he sent abrupt e-mails to other
employees. The Comptroller noted that the Supervisor hired females while he was a Supervisor.
According to the Comptroller, Complainant is very sensitive and she seemed to have a
personality conflict with the Supervisor in part due to Complainant’s nonselection for the
Supervisor position. The Comptroller noted that Complainant had filed a complaint when she
did not receive the position.

The Agency provided examples of several critical e-mails from the Supervisor that were sent to
male employees. The Agency noted that the Chief of Military Pay (male) stated that he was left
in charge of the office in the Supervisor’s absence because he had knowledge of military pay and
travel pay and showed strong leadership. According to the Chief of Military Pay, Complainant’s
sex was not a factor in how she was treated in light of the Supervisor’s recommendation that a
female Staff Sergeant receive an achievement medal for outstanding work, as well as praise for a
female Senior Airman for work she performed during her annual tour with the FSO. The Chief
of Military Pay maintained that the Supervisor was effective and that he pushed people to excel,
noting that if you worked hard, he rewarded you for it, and if you did not, he let you know about
it.

The Agency observed that a female Lead Travel Technical Accounting stated that she believed
that the Supervisor’s treatment of Complainant was related to her sex and that he treated males
better than females. This employee characterized the relationship between Complainant and the
Supervisor as cold and very uncomfortable.

The Supervisor explained that as to the first incident, Complainant seemed to ignore his requests
for assistance or simply walk away from him. The Agency noted that the Quality Assurance
Manager testified that the e-mails at issue may have just been the Supervisor’s personality and
that she also stated he had an abrasive management style. The Agency acknowledged that
Complainant responded to the argument that the Supervisor was rude to everyone by saying he
took this attitude to another level toward women. The Agency, however, pointed to the
Comptroller’s assertion that she had no problems with the Supervisor and she believed he did not
treat women differently. The Agency determined that the Supervisor’s actions in the first
incident were not motivated by Complainant’s sex.

With respect to the second incident, the Supervisor stated that he did not believe that he usurped
Complainant’s authority given that she was not a supervisor. The Agency stated that the
Supervisor had confidence in the DFSO’s ability and did not feel comfortable leaving
Complainant in charge. The Comptroller stated that the Supervisor lacked confidence in
Complainant in part because he believed she failed her duties with the result being an ongoing
travel fraud case. The Agency determined that Complainant failed to demonstrate that the
Supervisor’s actions in the second incident were attributable to her sex. The Agency cited the
aforementioned examples of when the Supervisor praised female employees, including
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Complainant, to support its position that he did not treat female employees worse than male
employees.

As for the third incident, the Agency stated that the area where Complainant worked was
controlled because it contained the vault and safe. According to the Agency, on October 15,
2008, the Supervisor sent Complainant an e-mail wherein he informed her that she left the vault
open and unsecured when she went to lunch the day before and he asked her to make sure it was
secured at all times in her absence. The Comptroller explained that the Supervisor sent a March
15, 2009 e-mail to Complainant on the same subject because the log did not show that people
had signed in and out as required. The Agency noted that the Quality Assurance Manager
asserted that the Supervisor was not monitoring who was visiting Complainant, and instead was
acting to ensure compliance with the sign in/out requirement. The Agency determined that the
Supervisor’s actions with regard to the third incident were not motivated by sex but rather these
actions constituted his efforts to secure the controlled area.

In terms of the fourth incident, the Agency stated that the Comptroller asserted that due to
customer complaints, she established a policy of lunch periods to occur between 11:00 a.m. and
1:00 p.m. The Comptroller stated that after the Supervisor sent the email on March 5, 2009, she
instructed Complainant that if a customer keeps her past her lunch start time, then she should tell
the customer that she had to go to lunch. The Comptroller explained that all employees have
been allowed to adjust their times after coordinating with their supervisors. According to the
Comptroller, the Supervisor watched everyone’s lunch times and informed people they were
accountable for their time. The Agency stated that a Civilian Pay Technician told the EEO
Counselor that the Supervisor goes after issues, not people, and that he had a major problem with
anyone who is tardy.

The Agency observed that Complainant argued that the Supervisor was critical of everything she
did and that it seemed he scrutinized her work constantly. Further, Complainant took note of the
Supervisor “picking on” the Lead Travel Technical Accounting and stated that she did not want
to be his next target. The Quality Assurance Manager, however, stated that the Supervisor
monitored the Lead Travel Technical Accounting because she frequently was late to work and
extended her lunch period without approval, not because of her sex. The Agency determined
that the Supervisor’s actions toward Complainant with regard to the fourth incident were not
motivated by Complainant’s sex but rather they reflected his efforts to enforce the lunch period
policy.

The Agency determined that the Supervisor had legitimate, nondiscriminatory reasons for the
actions he took and Complainant did not demonstrate that these reasons were untrue or a pretext
for discrimination. The Agency reasoned that the Supervisor had a blunt manner of
communicating, but that he was that way with all of his employees, not just Complainant.

The Agency further determined that the incidents at issue did not rise to the level of a hostile
work environment, or otherwise unreasonably interfere with Complainant’s job performance.
The Agency concluded that the Supervisor’s actions were reasonable actions taken in the course
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of discharging his supervisory responsibilities such as assigning work, delegating duties,
enforcing policies and procedures and maintaining workplace discipline. The Agency notes that
the first e-mail at issue reminded Complainant that it was her job to work for the Supervisor.
The Agency states that two other e-mails were sent to employees to notify them about office
administrative matters, those being that only the DFSO was authorized to approve leave in the
Supervisor’s absence and the duty titles of the DFSO and Complainant. The Agency stated that
the Supervisor’s surveillance of the controlled area including Complainant’s office was effected
to maintain security which had been found to be lacking after a DFAS inspection. The Agency
concluded that Complainant’s failure to comply with the mandatory lunch period resulted in the
e-mail reminding her of the requirement to comply with office policy. Finally, the Agency noted
that Complainant acknowledged that she never told the Supervisor that she felt she was being
subjected to a hostile work environment.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Supervisor did not acknowledge that she was doing
the jobs of several people by training the incoming Civilian Pay Clerk and backing up and
training the Accounting Liaison Officer for Vendor Pay and Travel Pay. Complainant states that
the Supervisor also did not acknowledge that she had done his job for one year prior to his
arrival. Complainant argues that in light of her Supervisor’s escalating treatment toward her, he
should not have been allowed to work in an area alone with her. With respect to the lunch break
issue, Complainant maintains that past practice in the office had allowed for the flexing of lunch
hours as well as duty report and departure times. Complainant maintains that the Supervisor
targeted her by denying her a lunch break and requiring her to work through the lunch period.
Complainant contends that he disparaged her character, had an aggressive manner toward her,
and engaged in constant bullying.

In response, the Agency reiterates the arguments and evidence presented in its final decision.

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
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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).

Complainant claims that she was subjected to harassment by management officials. 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);
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6
(March 8, 1994).

We shall assume arguendo that Complainant set forth a prima facie case of discrimination based
on her sex with regard to the matters at issue. The Agency explained that the Supervisor’s e-mail
in the first incident was in response to Complainant ignoring his requests for assistance or simply
walking away from him. As for the second incident, the Agency stated that the Supervisor had
confidence in the DFSO’s ability and did not feel comfortable leaving Complainant in charge.
With respect to the third incident, the Agency stated that there was a need to secure the
controlled area because the vault and safe were there. The Supervisor informed Complainant
that she left the vault open and unsecured when she went to lunch the day before and he asked
her to make sure it is secured at all times in her absence. The Quality Assurance Manager stated
that the Supervisor was not monitoring who was visiting Complainant, and instead was acting to
ensure compliance with the sign in/out requirement. In terms of the fourth incident, Complainant
received a letter of counseling for going to lunch fifteen minutes after her normal lunch time.
The Agency stated that the Comptroller developed the lunch break policy and the Supervisor
watched everyone’s lunch times and informed people they were accountable for their time. We
find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in the
matters at issue.

Complainant maintains that she was belittled, bullied and treated in a subservient manner by her
Supervisor based on her sex. Complainant contends that the surveillance of her work area and
the letter of counseling concerning her lunch break reflected the Supervisor’s constant scrutiny
and tendency to criticize everything she did. Complainant argues that she was not given
sufficient acknowledgement by the Supervisor for all the work she was doing and for the fact
that she served in his position for a year before he arrived.

Upon review of the record, it is evident that the Supervisor and Complainant had a strained,
uncomfortable working relationship. It is also evident that the Supervisor was abrasive and gruff
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in general toward his staff. The record indicates that the Supervisor rebuked male personnel as
well as female staff, including Complainant. The Supervisor’s approach and attitude toward
Complainant were at times abrasive and exacting but we find that this was not attributable to
Complainant’s sex. The record supports the conclusion that the Supervisor was a managerial
official who exercised tight control over his staff and was particularly mindful of both office
security and employees adhering to their work hours and the defined lunch period. We find that
the arguments advanced by Complainant with regard to the incidents at issue do not refute the
Agency’s explanations for its actions. Complainant has failed to establish that the Agency’s
stated reasons were pretext intended to hide discriminatory motivation based on Complainant’s
sex.

Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift
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 of 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 Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).

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 determination that no discrimination occurred.

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
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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

November 22, 2017
Date