Complainant,v.Chuck Hagel, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Mar 20, 2013

0120114197 (E.E.O.C. Mar. 20, 2013)

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

,
Complainant,

v.

Chuck Hagel,
Secretary,
Department of Defense,
(Defense Contract Audit Agency),
Agency.

Appeal No. 0120114197

Agency No. DCAA-H10-10

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
August 25, 2011 final Agency decision (FAD) 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.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a re-employed
annuitant Training Support Aide in the Training Branch at the Agency’s Defense Contract
Audit Agency, Defense Contract Audit Institute in Memphis, Tennessee. On September 16,
2010 (and twice amended), Complainant filed a formal complaint alleging that the Agency
discriminated against her and subjected her to a hostile work environment on the bases of race
(African-American) and age (51) when:

1. On September 16, 2010, she became aware that her manager (M1) did not consider
her and her co-workers for a detail to GS-07;

2. On September 10, 2010, M1 accused Complainant of being disruptive and creating
discontent when she allegedly sent an inappropriate email requesting a detail be
created for the GS-07 position;

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3. On September 9, 2010, Complainant became aware that she and the other African-
American females in the Training Department received lower performance
appraisals;

4. On September 1, 2010, Complainant was told by the Deputy Assistant Director of
Operations (S3) that she should be more concerned with being “pushed out” of the
Agency by a stopper list than concerned about another job or duties;

5. On August 27, 2010, Complainant learned that she was denied a request for a 90-
day rotational detail to the Administrative Resources Branch; and

6. On August 27, 2010, Complainant learned that she and the other African-
Americans in the Training Branch were not afforded an opportunity to apply or be
equally considered for a 120-day detail to a GS-09 supervisory position.

Additionally, Complainant alleged that she was subjected to discrimination and a hostile work
environment based on her race (African-American) and in reprisal for prior protected EEO
activity when:

7. On October 22, 2010, S3 and M1 asked Complainant to justify her request for
extended sick leave by providing additional medical information pertaining to her
injury;

8. On or about November 22, 2010, S3 and M1 gave her an unfair and inaccurate
performance appraisal rating (“Exceeds Fully Successful”) and failed to discuss
with her the appraisal rating and her performance standards;

9. On December 6, 2010, she became aware that M1 and S3 did not consider her and
other African-American females in the Training Branch for paid 120-day temporary
promotion to a GS-08 supervisor position; and

10. On February 4, 2011, she was terminated from the position of Training Support
Aide.1

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with her request, the Agency issued a FAD pursuant
to 29 C.F.R. § 1614.110(b).

1 The Agency dismissed one additional claim pursuant to 29 C.F.R. § 1614.107(a)(1) for
failure to state a claim. The Commission notes that Complainant does not challenge the
Agency’s dismissal of this claim on appeal; therefore, the Commission declines to address the
matter further in the instant decision.
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In the FAD, the Agency assumed arguendo that Complainant had established a prima facie
case of discrimination and reprisal as to all claims and found that management had articulated
legitimate, nondiscriminatory reasons for its actions. Specifically, as to claims (1) and (2),
management stated that initially there was no intent to create a detail to the position in
question. Subsequently, management decided to rotate 60-day details between three
employees, all of whom are African-American. Ultimately, management was advised by the
Human Resources Office that GS-5s could not be detailed to the GS-7 position, so no formal
details took place. Management further added that Complainant was not considered for the
detail in question because they had been advised by Human Resources that as a re-employed
annuitant, Complainant was not eligible for details.

Regarding claim (3), management noted that Complainant did not come on board until May
2009, and during the 2008-2009 evaluation period, she received a "Fully Successful" rating.
Management testified that the Training Section had varying degrees of experience at that time,
including four employees with more than 12 years of experience and the remaining three had
six months or less and were still learning on the job. Management emphasized that each
employee’s performance was rated individually without consideration of race.

With respect to claim (4), S3 admitted making the comment; however, she contended that she
did not intend to dissuade Complainant from filing an EEO complaint. As to claim (5), (6),
and (9) management maintained that they had been advised by Human Resources that as a re-
employed annuitant, Complainant was not eligible for details.

Regarding claim (7), Management confirmed that it was Agency policy to request medical
documentation to support absences in excess of three days. M1 stated that he initially did not
believe a note from the Complainant’s chiropractor was sufficient medical documentation.
After further consultation with Human Resources, M1 determined that the documentation was
acceptable. As to claim (8), M1 stated that Complainant reviewed and signed for her
performance standards and that Complainant’s evaluation was fair and accurate in light of her
mid-year review, and M1’s direct observation of Complainant’s development from the
previous year.

Finally, with respect to claim (10), management affirmed that Complainant was terminated
because they decided to reduce the number of TSAs due to budgetary constraints. S3 noted
that Complainant had behavior issues, regularly questioned management’s decisions, and had a
habit of including all employees on emails irrespective of their need to know the details of a
particular issue. Management noted that despite her claims, Complainant’s position has not
been filled; rather, one employee was selected for promotion to a GS-06 position and another
employee was selected to fill the GS-05 Training Support Aide position that employee vacated.

The Agency concluded that Complainant had not shown that management’s reasons for its
actions were pretextual. Further, the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Accordingly, the Agency held that
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Complainant had not been subjected to discrimination, retaliation, or a hostile work
environment as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency’s reasons for its actions are not legitimate.
Complainant argues that the Agency has not submitted any documentation in support of its
interpretation of its policy regarding reemployed annuitants. Further, Complainant contends
that management has provided no evidence that she displayed a temperament that required
discipline or termination. Additionally, Complainant argues that the Agency’s stated reason of
budget cuts for her termination contradicts what actually happened. Accordingly, Complainant
requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, 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. Corp. v. Waters, 438 U.S. 567, 576 (1978). The
prima facie inquiry may be dispensed with in this case, however, since the Agency has
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). 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 Plumbing Products, Inc., 531) U.S. 133.143 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502. 519 (1993); Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256 (1981).

In the instant case, the Commission finds that the Agency has articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, regarding claims (1) and (2), M1
affirmed that Complainant sent an email to management and her co-workers inquiring about a
detail assignment to an upcoming vacant GS-7 position, and he explained to her and others that
there were no plans to detail anyone to the GS-7 position at the time. ROI, at 721. M1
expressed to Complainant’s his concern about her practice of broadcasting every workplace
issue to co-workers before management had an opportunity to address the issue. Id. at 721-22.
Subsequently, management created a detail assignment to the GS-7 position and two GS-5 co-
workers were chosen for detail assignments. Id. at 721. Management later learned that
employees needed to be at least at the GS-6 level for a detail assignment into a GS-7 position,
and management was unable to formally detail them into the position. Id. at 721-22.
Nonetheless, Complainant was not considered for the a detail assignment because Human
Resources had advised management that Complainant had been hired as reemployed annuitant
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specifically to perform the duties assigned to the Training Support Aide position and she was
not eligible for temporary detail assignments. Id. at 722.

Regarding claim (3), M1 affirmed that Complainant was hired in May 2009 and received a
rating of “Fully Successful” for the short period of May to September 2009. ROI, at 724.
While Complainant claimed that CW1 had an “anti-deficiency violation” during the fiscal year
and still received a higher rating, M1 noted that the violation actually occurred outside of the
rating period and was not a performance issue. Id. Nonetheless, M1 maintained that
employees in the Training Support Branch had wide experience variances and each employee,
including Complainant, was evaluated in accordance with Agency guidelines. Id. at 724-25.

As to claim (4), S3 affirmed that she made the comment in reference to Complainant’s status
as a re-employed annuitant and not to dissuade Complainant from filing an EEO complaint or
going through other avenues to address her concerns. ROI, at 748. S3 admitted that she could
have phrased it more tactfully; however, she had spoken with the Human Resources Office
earlier and was informed that Complainant’s position was vulnerable anytime a Priority
Placement occurred. Id. With respect to claims (5), (6), and (9) M1 stated that Human
Resources advised management that Complainant, as a reemployed annuitant, was not eligible
for placement on temporary details. ROI, at 727. As a result, Complainant was not
considered for detail assignments.

In regard to claim (7), M1 stated he initially did not believe a statement from Complainant’s
chiropractor was sufficient under Agency policy in support of her request for extended sick
leave. ROI, at 728-29. However, after discussing the issue with Human Resources,
management determined that it was sufficient. Id. at 729. As to claim (8), M1 affirmed that
he rated Complainant for the 2010 reporting period as “Exceeds Fully Successful” based on his
observations that Complainant had gained experience and developed during her second year.
Id. at 731. Complainant had received and signed her performance standards in October 2009
and clearly knew what her standards were for the rating period. Id. at 730. Complainant
informed him that she believed she deserved an “Outstanding” rating, but never came to him
to discuss anything specific. Id. at 731.

Finally, as to claim (10), the Acting Manager (M2) affirmed that he made the decision to
terminate Complainant based on the Agency’s need to reduce its spending. ROI, at 772.
Management decided that it would need to cancel at least 40 training classes for the remainder
of the year which resulted in less work for Training Support Aides. Id. Management then
decided to terminate Complainant’s appointment. S3 noted that Complainant’s behavior issues
were considered, but were not the major reasons management decided to terminate her
appointment. Id. at 756.

Because the Agency has proffered legitimate, nondiscriminatory reasons for the alleged
discriminatory events, Complainant now bears the burden of establishing that the Agency's
stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC
Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the
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Agency's proffered explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. at 256.

The Commission finds that the record is devoid of any evidence that Complainant's protected
classes were factors in any of the Agency’s actions. At all times, the ultimate burden remains
with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons
were not the real reasons and that the Agency acted on the basis of discriminatory or
retaliatory animus. Complainant has failed to carry this burden. Thus, based on the evidence
presented herein, the Commission concurs with the Agency that Complainant failed to prove
management's reasons for its actions were pretext for unlawful discrimination or reprisal.

Finally, to the extent that Complainant contends that she was subjected to a hostile work
environment with respect to the matters herein, the Commission finds that under the standards
set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), 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). The Commission finds that the alleged
incidents were not sufficiently severe or pervasive to rise to the level of a hostile work
environment. Moreover, a finding of a hostile work environment is precluded by the
Commission's determination that Complainant failed to establish that any of the actions taken
by the Agency were motivated by discriminatory or retaliatory animus, as discussed above.
See Oakley v. U.S. Postal Serv., 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 final decision because the preponderance of the evidence of record does not
establish that discrimination or reprisal occurred.

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.

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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 (Nov. 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
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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

March 20, 2013
Date