0120110245
03-22-2012
Damita Reed, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Damita Reed,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120110245
Hearing No. 430-2008-00555X
Agency No. ARBRAGG07NOV04496
DECISION
Complainant timely filed an appeal from the Agency’s September 2, 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 on appeal is whether the decision of the
Administrative Judge, finding that Complainant did not establish her claim
of race, sex, and reprisal discrimination, is supported by substantial
evidence of record.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Supervisory Industrial Hygienist and Chief, Industrial Hygiene Service
(IHS) in the Department of Preventative Medicine (DPM), Womack Army
Medical Center (WAMC), Fort Bragg, North Carolina. Her duties included
managing the facility’s industrial hygiene program, conducting surveys
and evaluations to ensure that operations conformed to occupational and
health laws, and supervising IHS employees. Report of Investigation
(ROI), at 98-107. For a while, Complainant’s duties also included
serving as the Deputy Chief of DPM. See id. at 105 (Position Description
noting that the Deputy Chief duty was removed from position).
On December 20, 2007, Complainant filed an EEO complaint alleging that
the Agency discriminated against her on the bases of race (Black) and sex
(female) when:
1. on November 7, 2007, awards for Complainant's subordinates
were downgraded;
2. on November 14, 2007, Complainant's award was rescinded; and
3. on November 28, 2007, Complainant's duties as Deputy Chief of
Preventative Medicine were removed.
Complainant subsequently amended her complaint to add allegations that
the Agency had subjected her to a hostile work environment on the bases1
of race (black), sex (female), and reprisal for prior EEO activity when:
1. on April 18, 2008, she was prevented from leaving a meeting;
2. on May 16, 2008, she was issued a reprimand;
3. on May 30, 2008, she was issued a Notice of Unacceptable
Performance; and
4. she received a rating of " 1" on her annual performance evaluation
for the rating period December 4, 2007, through September 30, 2008.
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. The AJ held a hearing on December 15 and
16, 2009, and issued a decision in favor of the Agency on August 27,
2010. The Agency subsequently issued a final order adopting the AJ’s
finding that Complainant failed to prove that the Agency subjected her
to discrimination as alleged.
The AJ found the following facts were established during the
investigation and at the hearing: On September 11, 2007, the Agency
replaced Complainant’s first-level supervisor, the Chief of DPM
(S1), with a new Chief of DPM (S2). S2 told Human Resources to hold
all pending performance awards in DPM and asked the Chief of DPM’s
Hearing Conservation Service (S3) to review the awards. ROI at 3;
Hearing Transcript (Hr’g Tr.) at 25-26.
Complainant had recommended $1200 and $800 awards for two Industrial
Hygienists she supervised. On November 7, 2007, S3 notified Complainant
that she had reduced the awards to $500 each because the written
justifications Complainant had submitted were insufficient. Complainant
submitted additional justifications for the awards on December 13,
and S3 approved additional $700 and $300 awards for the employees on
December 18. 2007. ROI at 256, 261-64.
On September 28, 2007, S1 recommended that Complainant receive a
$1500 cash award. S3 stated that she rescinded the award because S1
was no longer the Chief of DPM when she submitted the recommendation
and Complainant was covered by the National Security Personnel System
(NSPS). ROI at 11; Fact-Finding Conference (FF) at 138-39; Hr’g Tr. at
104-05. Under NSPS, awards were governed by a pay pool. ROI at 91b.
After learning that S1’s recommendation of a 24-hour time-off award
for the Chief of Occupational Health (Comparator 1) (White male) had
been processed,2 S3 approved a 24-hour time-off award for Complainant.
Hr’g Tr. at 108. Complainant later received a $3176 performance
increase and a $257 performance award from the NSPS pay pool. ROI at 195.
On November 27, 2007, S2 announced that he had appointed S3 as
Deputy Chief of DPM. When she became Deputy Chief, S3 also became
Complainant’s first-level supervisor and rating official. ROI at 3.
On April 18, 2008, S2 held an offsite meeting with DPM managers to
discuss low employee morale in the department. During the meeting, S2
accused Complainant of making a face at him, and Complainant accused S2
of pointing at her. Complainant became upset and started to leave the
room, and S2 ordered Complainant to stay in the meeting. Complainant left
the meeting. FF at 36-37, 100-04; Hr’g Tr. at 45-49, 117-19; 177-81.
On May 16, 2008, S2 gave Complainant a Notice of Reprimand for failing
to follow his orders to stay at the meeting. ROI at 204.
On April 21, 2008, S2 asked Complainant to conduct an air quality and
noise survey for Building 2-2010. Complainant had subordinates conduct
air quality surveys on April 22 and several days thereafter. On April
23, Comparator 1 sent the Deputy Commander of Clinical Services and
S2 an e-mail stating that some test results showed elevated levels
of formaldehyde. Employees moved out of the building on April 23.
ROI at 47-48, 339, 341-42.
In a May 1, 2008, e-mail to the Facilities Manager, S2 asked when
employees could move back into the building. The Facilities Manager
replied that he had asked for a report from IHS a week earlier but
had not received it. S2 then sent an e-mail asking Complainant to
provide the report to the Facilities Manager as soon as possible, and
Complainant sent the report that day. In a May 5, 2008, e-mail to S2
and S3, Comparator 1 stated that, based on his review of the report and
test results, he believed the formaldehyde problem had been resolved.
Employees returned to the building on May 6. ROI 352-55, 357-58, 366-69.
On May 29, 2008, S2 sent Complainant and Comparator 1 an e-mail stating
that employees in the building were experiencing symptoms and asking why
follow-up surveys had not been conducted. When Complainant replied that
her staff had been unable to conduct a survey that afternoon because
of patients, S2 asked why surveys had not been conducted earlier.
Complainant answered that she had planned to conduct monthly follow-up
surveys starting June 9, 2008. ROI 381-84.
S1 told S3 to issue Complainant a written counseling and, on May 30, 2008,
Complainant received a Notice of Unacceptable Performance. The Notice
stated that Complainant should have followed a more proactive monitoring
plan and directed Complainant to submit a written plan explaining how
monitoring would be conducted during the next eight weeks. The Notice
also directed Complainant to submit weekly status reports to S2. ROI 52,
56, 337-38.
On December 10, 2008, S3 gave Complainant her performance appraisal for
the period December 4, 2007 - September 30, 2008. S3 gave Complainant
ratings of “2” for Objective 1 (Leadership), “1” for Objective
2 (Customer Focus), “3” for Objective 3 (Resource Management), and
“3” for Objective 4 (Technical Proficiency). The appraisal stated
that Complainant had failed Objective 2 “to the full extent.”
It also stated that Complainant had been counseled in May 2008 for
failing to schedule follow up air-quality surveys in a timely manner,
had not provided a June ergonomic report to a customer until receiving a
September inquiry about it, and had received two very negative reports of
customer service. Because an employee who receives a rating of “1”
in any objective automatically receives an overall rating of “1,”
Complainant’s overall rating was “1.” Joint Hearing Exhibit 1.
Based on these facts, the AJ concluded that the Agency had articulated
legitimate, nondiscriminatory reasons for its actions and Complainant
had not shown that the reasons were a pretext for discrimination based
on race, sex, or reprisal.3
With respect to the performance awards, the AJ found that S2 credibly
testified that he stopped the processing of all pending awards to permit
review of them and that S3 credibly testified that she reduced the awards
for two of Complainant’s employees because Complainant had not provided
sufficient justification for such large awards. The AJ also found that
S3 credibly testified that she rescinded Complainant’s recommended
award because Complainant was covered by NSPS and any award should come
through the pay panel. The AJ noted that S3 and an Administrative Support
Technician stated that the award for Comparator 1, a White male, was not
among the pending awards because it had already been processed. ROI at
79-80; FF at 139; Hr’g Tr. at 106. Noting that S1 awarded Complainant
a 24-hour time-off award after learning that Comparator 1 had received
one, the AJ concluded that Complainant had not produced probative evidence
showing that S2’s or S3’s reasons were a pretext for discrimination.
In addition, the AJ found that S2 credibly testified that he chose
S3 to be Deputy Chief of DPM because S3 was a member of the military
and S2 wanted to establish a military chain of command. The AJ noted
that Complainant testified that, when S2 announced S3’s selection,
he stated that he wanted military leaders to get more experience and
wanted his right-hand person to be military. Hr’g Tr. at 171. The AJ
also found that S2 credibly testified he did not know Complainant’s
position description included Deputy Chief duties and that S2 would
have made the same decision even if he had known. Concluding that S2
and S3 thought a military rather than civilian person should occupy
the position, the AJ found that Complainant had not provided probative
evidence of discriminatory or retaliatory motivation.
Further, the AJ concluded that both Complainant and S2 were in an
emotional state during the April 18, 2008, meeting and that Complainant
had not shown that S2’s actions were motivated by discriminatory or
retaliatory animus. Similarly, the AJ concluded that Complainant had
not shown that the decision to issue the May 16 Notice of Reprimand
was discriminatory or retaliatory. Although S2 had not reprimanded
Comparator 1 for leaving a different meeting, the AJ found that the
informal ad hoc meeting that Comparator 1 left was not comparable to
the formal mandatory meeting that Complainant left.
The AJ also found that Complainant had not shown that the May 30, 2008,
Notice of Unacceptable Performance was discriminatory or retaliatory.
Noting that S2 was concerned about employees’ perceptions of the
safety of the building and the attention the incident had received from
upper management, the AJ found that S2 genuinely believed Complainant
should have been more proactive in ensuring that there were no more
problems with the building. In addition, based on S2’s testimony,
the AJ concluded that S2 assumed that Complainant would continue to
monitor the air quality after employees moved back into the building.
Finally, the AJ found that Complainant had not shown that her performance
rating resulted from discriminatory or retaliatory animus. Complainant
denied responsibility for the Notice of Unacceptable Performance and the
delayed ergonomic report, but she did not dispute that they had occurred.
The AJ noted that although S3’s failure to share the negative customer
service reports with Complainant was not a good management practice, the
evidence did not establish that S3’s actions were motivated by animus.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that the AJ erroneously found the
testimony of S2 and S3 to be credible. Noting that S1 testified that
S2 and S3 had complained to her about Complainant acting as Deputy
Chief of DPM, Complainant alleges that S2 and S3 were not truthful
when they said they did not know that she held the Deputy position.
In addition, referring to S1’s testimony that Comparator 1 had left
a meeting before it ended, Complainant argues that the AJ “ignor[ed]
a more egregious though similar action by a [W]hite male.” Finally,
Complainant argues that her placement under NSPS cannot be the reason
for the rescission of her performance award because a similar award was
approved for Comparator 1.
In response, the Agency contends that substantial evidence supports the
AJ’s findings. The agency argues that Complainant failed to establish
a prima facie case of discrimination with respect to her subordinates’
performance awards and failed to show that the Agency’s reason for the
rescission of her recommended cash award was pretextual. In addition,
the Agency asserts that the AJ correctly found S2’s testimony about the
Deputy Chief position to be credible and that S1’s testimony failed to
contradict S2’s claim that he did not know that Complainant’s position
description included Deputy Chief duties. The Agency also asserts that
the actions of Comparator 1, who left an informal meeting, were not
similar to those of Complainant, who left an offsite departmental-level
meeting. Finally, the Agency argues that Complainant has not raised an
inference of retaliation or proven pretext with respect to the Notice
of Unacceptable Performance and her annual performance rating.
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. See 29 C.F.R. § 1614.405(a). 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 (EEO MD-110),
Chap. 9, at § VI.B. (Nov. 9, 1999).
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). 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 Construction
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 burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of
Community 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
Center v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that the AJ’s decision that the Agency did not
discriminate against Complainant is supported by substantial evidence
of record. We assume for purposes of analysis, without so finding,
that Complainant has established prima facie cases of race, sex, and
reprisal discrimination.
Substantial evidence of record supports the AJ’s determination
that Complainant has not shown that the Agency’s reasons for its
actions were a pretext for discrimination. The record supports the
AJ’s determination that S3 initially reduced the performance awards
for Complainant’s subordinates because Complainant had not provided
sufficient justification for the awards. S3 approved additional awards
for the subordinates after Complainant provided additional justifications.
The record also supports the AJ’s conclusions that S3 rescinded
Complainant’s recommended cash award because Complainant was covered
by NSPS and that Comparator 1’s time-off award was processed before
S2 told Human Resources to stop processing pending awards. S3 awarded
Complainant a time-off award after she learned that Comparator 1 had
received one.
Substantial evidence also supports the AJ’s determination that S2
chose S3 to be Deputy Director because he wanted a military, rather
than civilian, person in the position. S1’s testimony that S2 and
S3 questioned why Complainant, a civilian employee, acted as Deputy
Chief does not establish that the AJ erroneously found that S2 credibly
testified he did not know Complainant’s position description included
Deputy Chief duties. Similarly, S1’s testimony does not undermine
the AJ’s conclusion that S2 would have made the same decision even
if he had known. On the contrary, S1’s testimony supports the AJ’s
determination that S2 placed S3 in the position because she was a member
of the military. Complainant has not shown that S3’s preference for
a military Deputy Chief was a pretext for discrimination.
In addition, substantial evidence supports the AJ’s conclusion
that S2’s actions on April 18, 2008, and the decision to issue the
May 16 Notice of Reprimand were not discriminatory or retaliatory.
Although Complainant alleges that the Agency ignored a more egregious
act by Comparator 1, the record establishes that the AJ correctly
determined that the meeting Comparator 1 left was not comparable to
the meeting Complainant left. Comparator 1 left a nine-person meeting,
which continued past the end of the work day, after some other attendees
had also left. Complainant left a mandatory meeting of DPM managers
after being ordered to stay.
Finally, Complainant has not shown that the Notice of Unacceptable
Performance and annual performance rating were motivated by discriminatory
or retaliatory animus. S2 directed S3 to issue the Notice of Unacceptable
Conduct because Complainant had not conducted follow up monitoring of
air quality after employees moved back into Building 2-2010. S3 gave
Complainant a low performance rating because of the Notice of Unacceptable
Performance, an untimely ergonomic report, and two negative customer
service reports. Complainant has not shown that the Agency’s reasons
for the Notice and rating were a pretext for discrimination.
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.
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
March 22, 2012
Date
1 Complainant withdrew disability as a basis prior to the hearing on
her complaint. AJ Decision at 2 n.1.
2 The time-off award for Comparator 1 was originally requested on
September7, 2007, and was effective on October 15, 2007. Hr’g Tr. at
147-48.
3 The AJ also concluded that, considering the allegations cumulatively,
Complainant failed to establish a prima facie case of hostile environment
because she had not provided sufficient evidence to show that the conduct
was based on her race, sex, or prior EEO activity.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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