Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 22, 2013

0120120355 (E.E.O.C. May. 22, 2013)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120120355

Hearing No. 570-2007-00807X

Agency No. ARWRAM06JUL02748

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
September 15, 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 the Deputy Director
of the Telemedicine Division in the North Atlantic Regional Medical Command at Walter Reed
Army Medical Center in Washington, D.C. On August 28, 2006, Complainant filed a formal
complaint alleging that the Agency subjected her to a hostile work environment on the bases of
race (African-American), sex (female), age (54), and in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, her first level supervisor (S1)
criticized her performance and conduct in a meeting; some of her duties were removed; she
was denied training and advancement opportunities; and, she was harassed in an attempt to
force her into retirement.1

1 Complainant initially included religion as a basis of discrimination, but withdrew it at the
fact-finding conference.
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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). Complainant timely requested a hearing but subsequently withdrew
her request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that Complainant had not established a prima facie case of
harassment as there was no evidence that management’s actions were unlawfully motivated.
Specifically, the purpose of the May 2006 counseling meeting was to counsel Complainant
about her conduct towards two co-workers and to itemize her performance objectives.
Management explained that Complainant had problems interacting with some of the Directors.
Additionally, an internal review audit in 2004 revealed that there was a loss of confidence from
the Commanding General in Complainant and as a result, S1 was directed to make changes to
the organization. S1 acknowledged that the meeting became heated; however, he denied
berating Complainant. S1 stated that he had the Officer-in-Charge present during the meeting
because he was not comfortable counseling Complainant alone because she had previously
made accusations against other management officials.

Regarding the removal of her duties, Complainant claimed that the number of people she
supervised was reduced to one person and her project administration and funding decision-
making authorities were taken away. Management stated that the Agency underwent
restructuring as a result of the findings of an internal review audit. The purpose of the audit
was to bring the organization into compliance with new Department of Defense guidance. The
audit revealed that the Telemedicine Division needed to focus on operational telemedicine
within the Regional Medical Command. Functions involving investigations, information
management, fiscal matters, and contract negotiations were transferred to other directorates to
create an enterprise that showed a return on investment. Accordingly, many of Complainant’s
duties were removed and reassigned elsewhere because of downsizing of the Telemedicine
Division.

With respect to training and advancement opportunities, Complainant claimed that S1 would
not allow her to attend six courses in the Army Centralized training program and suggested
that she send a subordinate instead. Management affirmed that Complainant’s presence in the
office was mission critical as a command information resource. Further, the course was
targeted for employees at the GS-11 to GS-13 grade levels and Complainant’s subordinates
deserved priority for these courses.

Finally, as to Complainant’s belief that she was being forced to retire, S1 stated that he had
talked to Complainant about her retirement, but denied attempting to encourage her to retire.
S1 recalled one conversation with Complainant about her having to work five years longer than
she had originally planned because of her son’s education needs. S1 denied bringing up
retirement during Complainant’s training request or during her performance standards
counseling meeting.

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The Agency concluded that there was no evidence that management’s nondiscriminatory
reasons for its actions were pretextual. As a result, the Agency found that Complainant had
not been subjected to a discriminatory or retaliatory hostile work environment as alleged.
Complainant filed the instant appeal, but submitted no arguments or contentions in support.

ANALYSIS AND FINDINGS

Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). 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 at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

Here, Complainant asserted that based on her statutorily protected classes, management
continuously subjected her to a hostile work environment. Complainant alleged numerous
incidents of what she believed to be discriminatory and retaliatory harassment. The
Commission finds that Complainant has not shown that she was subjected to conduct
sufficiently severe or pervasive to rise to the level of a hostile work environment.

In addition, the Commission finds that Complainant failed to show that any of the alleged
incidents were unlawfully motivated. More specifically, S1 affirmed that management had lost
confidence in Complainant and he was ordered to make changes to the organization. ROI,
Fact-Finding Conference (FFC), at 79. Additionally, S1 had received complaints from other
employees about Complainant’s lack of cooperation. Id. at 81. As a result, S1 counseled
Complainant about her job performance, her expectations, and her lack of cooperation with
other directorates. Id. at 87. S1 stated that he had the Officer-in-Charge (OIC) witness the
counseling session because he did not feel comfortable counseling her alone. Id. Both S1 and
OIC denied that S1 berated or acted hostile towards Complainant during the counseling and
both described Complainant’s behavior as disrespectful. Id. at 87-88, 144.

With regard to the removal of some of her duties, S1 explained that many of Complainant’s
duties were removed as a result of an internal audit. ROI, FFC, at 92. The audit revealed that
the Telemedicine Division needed to focus on direct care delivery instead of many of the other
functions it had been performing. Id. at 131-32. As a result, the Agency began downsizing
the division and redistributing many of its functions. Id. at 93.
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Regarding training opportunities, S1 asserted that he denied Complainant’s training request
because he needed Complainant present as an information source and because the courses she
requested were targeted primarily for GS-11 to GS-13 employees. ROI, at 101. S1 noted that
Complainant was a GS-14 executive and he wanted Complainant to take care of her
subordinates more. Id. at 101-02. Finally, S1 denied telling Complainant that she needed to
retire. Id. at 104. S1 maintained that the only discussion about retirement that he recalled was
Complainant telling him that she would have to work five years longer than she originally
planned. Id.

The Commission concludes that Complainant has not shown that any of the Agency's actions
were based on discriminatory or retaliatory animus. Accordingly, the Commission finds that
the Complainant was not subjected to a hostile work environment as alleged. Further, to the
extent that Complainant is alleging disparate treatment with respect to her claims, the
Commission finds that she has not shown that the Agency's reasons for its actions were a
pretext for reprisal. As a result, the Commission finds that Complainant has not established
that she was subjected to reprisal or a hostile work environment as alleged.

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 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.

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
0120120355

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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:

______________________________ May 22, 2013
Carlton M. Hadden, Director Date
Office of Federal Operations