Cherilyn C.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 26, 2019

0120180297 (E.E.O.C. Apr. 26, 2019)

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

Cherilyn C.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120180297

Hearing No. 570-2016-00197X

Agency No. ARHQOSA14NOV04239

DECISION

On October 30, 2017, 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
September 29, 2017, final action 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. 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 action finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Information
Technology (IT) Specialist (PLCYPLN), GS-2210-13, in the Information Architecture Division of
the Architecture, Operations, Networks and Space Directorate (AONS), within the Chief
Information Officer (CIO) of the Headquarters, Department of the Army (HQDA), Deputy Chief
of Staff, G-6. During the relevant time, Person A, Chief, Information Architecture Division,
CIO/G-6 was Complainant’s first line supervisor. Person B, Director, Army Architecture
Integration Center was Complainant’s second line supervisor.

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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Prior to joining Person A’s team, Complainant was an IT Specialist with the Policy and Resources
Directorate, Policy & Governance Division (P&G), CIO/G-6. While working in P&G,
Complainant was issued and served a five-day suspension for Creating a Disturbance and
Discourtesy for making a rude, unmannerly, and impolite remark.

On June 27, 2014, CIO/G-6 received a “tasker” subject: Staffing of the Mission Command
Network (MCN) Modernization Way Ahead. The tasker stated, “All agencies tasked are required
to submit 3-star General Officer/Senior Executive Service (GO/SES) staffing on the enclosed
memo and enclosures. All agencies are tasked to review the draft memorandum (enclosure 1) and
provide critical comments, using the comments . . . at enclosure 2, as well as
concurrence/nonconcurrence, and the name of the 3-star GO/SES approving official.”

On July 1, 2014, the AOD received the MCN tasker to review and comment for Lieutenant General
D, the CIO/G-6. The tasker was forwarded to Complainant and three others, with a deadline of
July 2, at 0900.

Person E, Person F, and Person G, coworkers of Complainant, all issued written statements that
Complainant stated loudly enough for various individual around her to hear that it was not her job
to do three-star work. Person F reminded Complainant it was everyone’s job to support and
provide input to the GIO/G-6 three-star leadership. Complainant again asserted that she did not
get paid to review three-star tasks. Complainant repeated this statement multiple times to Person
E, who tried to convince her otherwise. Complainant replied to the tasker that she “concurred and
had no comment.”

On July 10, 2014, Person A conducted a one-hour training session for his team to agree on proper
submission of Department of Army (DA) Form 5, the Army Staffing Form. As Person A called
on each team member to provide input, Complainant’s standard answer was “Awaiting your
guidance,” or words to that effect.

On July 24, 2014, Person B met with Complainant. Complainant again stated that it was not her
job to provide comments on a three-star level tasker. Complainant admitted during her oral reply
to the proposed suspension that she had, indeed, made these remarks, although she claimed it was
in jest.

On August 25, 2014, Complainant received a request for a waiver for Mid-Tier Networking
Vehicular Waiver (MNVR). On the morning of August 26, 2014, Person A followed up with
Complainant, requesting a status update. Complainant replied, requesting procedures on how to
complete this type of request. Person A responded that Complainant had the procedures, pointed
out a prior waiver Complainant had completed, and gave her step by step instructions, including
that she must provide the initial analysis on the waiver.

Complainant again replied that she did not have the procedures from him, that she had found prior
examples herself, and that she had sent the request to CERDEC (another division) for analysis.
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Person A replied, directing her to, “execute the original guidance” he had provided, and to conduct
the initial analysis herself. CERDEC provided the analysis for the MNVR waiver request on
September 24, 2014.

On October 1, 2014, Person A approved Complainant’s leave request. The Automated Time and
Attendance Program (ATAAPS) sent an automatically generated approval message to both
Complainant and the team lead, Person G. Complainant emailed Person A requesting Person G’s
name not be put on her leave request notification because Person A was her supervisor.

Person A replied, that ATAAPS automatically generates an email once a supervisor approves leave
and explained that the original email came from ATAAPS. He stated he did not create the email
and he believed it was a system error.

Person A attempted to follow up on this issue with Person H, copying Complainant on the email.
Complainant’s response was to email Person A noting she did not need to be included in the string
of emails in reference to ATAAPS and stating “What happened to the Employee/Supervisor
relationship? Oops, I just remembered this is [Complainant] and there is none.”

On October 8, 2014, an AOD Team Meeting was held. During this meeting, Complainant asked
that her name be taken off the Agency for team meetings because she was not a team lead. Person
E and Person F pointed out that they were also not team leads, but were on the agenda as it was
for all team members, not just team leads.

On October 17, 2014, the customer requested a status update on the MNVR waiver request.

On October 17, 2014, Person A sent an email to the AOD team stating, “I will conduct TAPES
(Total Army Performance Evaluation System) counseling on Wednesday, 22 Oct. Please come
prepared with your DRAFT objectives.”

On October 22, 2014, Complainant attended her TAPES counseling. Person A asked her if the
MNVR waiver had been completed; she stated that she did not know.

On October 30, 2014, Person A asked Complainant to come to a meeting prepared to discuss the
MNVR waiver and gave her explicit tasks to follow. During the meeting, Complainant was talking
so loudly that individuals outside the office were able to hear her and some stopped in the hallway
due to the yelling. Those individuals stated Person A could not be heard.

On November 14, 2014, Person A issued complainant a Notice of Proposed 20-Day Suspension.
The proposed suspension was based on charges of failure to complete work assignments (July 1,
August 25, October 8, 2014), lack of candor (July 24, 2014) and discourtesy (July 1 and 10,
October 1, 8, 30, 2014).

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On February 10, 2015, Complainant responded orally to the deciding official, Person C, denying
the dishonesty and discourtesy specifications, and providing explanations as to the work
assignments. Complainant claimed she had completed the three-star tasker and that the MNVR
waiver was not her fault, but otherwise did not deny her other actions and statements.

On July 10, 2015, Person C decided to impose a 10-Day Suspension on Complainant. Person C
sustained the four specifications of failure to complete work assignments, and three of the five
specifications of discourtesy. Person C found insufficient evidence to support two specifications
of discourtesy and the specification of lack of candor. Complainant was suspended July 20, 2015
through July 29, 2015.

On January 23, 2015, Complainant filed an EEO complaint, which was subsequently amended,
alleging that the Agency discriminated against her on the bases of race (African-American), color
(black), age (55), and in reprisal for prior protected EEO activity when:

1. On November 14, 2014, Person A, Chief, Information Architecture Division,
CIO/G-6, issued Complainant a Notice of Proposed 20-Day Suspension.
2. On July 13, 2015, Complainant was given a 10-Day Suspension effective July 20-
29, 2015, administered by Person B, Director Army Architecture Integration
Center, HQDA, CIO-G6 and Person C, Director, Cyber Security, HQDA, CIO/G-
6.

During the investigation, the investigator attempted to obtain information from Complainant via
telephone. Complainant refused to respond without her attorney. The investigator then sent
Complainant a declaration to complete and return instead, requesting submission by July 6, 2015.

On July 9, 2015, when the investigator had not received Complainant’s statement, she gave
Complainant another opportunity to return her completed declaration. As of August 31, 2015,
Complainant had not provided the declaration.

The investigator also sent Complainant management’s statements for the purpose of giving her an
opportunity to rebut their testimony. Complainant did not provide a rebuttal.

In August 2015, Complainant amended her initial complaint. The investigator gave Complainant
another opportunity to submit a statement in support of her complaint. Complainant did not submit
a statement.

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). Complainant requested a hearing. Over
Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing and issued a decision without a hearing on September 27, 2017.

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In his decision, the AJ found Complainant failed to demonstrate a link between the Agency’s
actions and her protected classes. The AJ noted Complainant did not cooperate with the
investigator during the investigation by providing an affidavit, a rebuttal, or any evidence to show
discriminatory or retaliatory animus. The AJ noted Complainant’s Opposition also failed to offer
anything other than conclusory statements and bald accusations to support her claim. The AJ noted
Complainant makes general allegations that Caucasian male employees were not subject to
reprimand for yelling and screaming at managers; however, she failed to offer any specifics or
other legally sufficient evidence. Furthermore, the AJ noted Complainant’s focus on the Table of
Penalties is misplaced. The AJ noted the Table of Penalties clearly states that it is to be used as a
guide and may not list all offenses.

Additionally, the AJ noted Complainant admits to a number of actions that form the basis of the
suspension. The AJ noted Complainant attempts to explain her behavior by saying that certain
comments were made in jest or were justified given the circumstances. The AJ found, however,
that Complainant failed to show that discriminatory or retaliatory animus motivated any of the
Agency’s actions. The AJ stated it is reasonable for a manager to expect professional and
courteous behavior from a subordinate employee. The AJ concluded Complainant cannot succeed
on her claim whether under a hostile work environment theory or a disparate treatment theory.
Thus, the AJ found summary judgment must be granted in favor of the Agency.

The Agency subsequently issued a final action on September 29, 2017. The Agency’s final action
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.

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 EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9, § VI.A. (Nov. 9, 1999)
(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”).

Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We find that the record is adequately developed and there are no
disputes of material fact. We find Complainant failed to show by a preponderance of evidence
that the Agency’s actions were motivated by discriminatory or retaliatory animus.

CONCLUSION

Accordingly, the Agency’s final action finding no discrimination 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

April 26, 2019
Date