Eve E.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Apr 20, 2017

0120151625 (E.E.O.C. Apr. 20, 2017)

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

Eve E.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense,
Agency.

Appeal No. 0120151625

Agency No. 2014-MDA-004

DECISION

Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March
16, 2015, 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. For the following reasons, the
Commission AFFIRMS the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst at the Agency’s Redstone Arsenal facility in Huntsville, Alabama. On May 12, 2014,
Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work
environment and discriminated against her on the bases of her sex (female) and in reprisal for
prior protected EEO activity when:

1. On March 16, 2014, the Director of Facilities Military Construction and
Environmental Management (D1), issued her a letter of reprimand for disrespectful
conduct toward a management official;
2. On February 3, 2014, D1 reassigned her to a position in Program Integration and
Business Operations, with a set of duties she was not qualified to perform with the
intent of setting her up for failure;

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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3. On unspecified dates, D1 excluded her from senior management team meetings and
discussions related to her area of responsibility;
4. On unspecified dates, D1 attempted to sabotage and undermine her reputation and
effectiveness as a manager;
5. On unspecified dates, D1 unfairly and improperly reprimanded her for matters
beyond her control and for the proper exercise of the duties of her office;
6. On unspecified dates, D1 constantly disparaged her job performance and character
not only to her, but also to others in the office;
7. On unspecified dates, D1 yelled at her during staff meeting and in other public
settings where government and contractor staff were present; and
8. On unspecified dates, D1 made unflattering and unprofessional personal remarks
and gestures toward her.

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 decision concluded that Complainant failed
to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant
reiterates her contention that the Agency subjected her to harassment and discrimination and
that the statements of management officials are not worthy of belief.

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 Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”).

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). 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 804 n. 14. The burden then shifts to the Agency to articulate a
legitimate, non-discriminatory reason for its actions. Texas Department of Community Affairs
v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
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preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of sex and
reprisal discrimination, the Agency nonetheless articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, Complainant states that on January 27, 2014, she walked
by D1’s office and that she heard him “shouting, and [her] name being said.” Complainant
further states that she later entered his office and told him that she was “aware he had been
slandering [her] name” and that if he was going to talk about her, she should be included in the
discussion. She further acknowledges that she said to D1 that he “treat[s] people trashy” and
that he would “talk about them…with [his] bullying comments and try to destroy them.”
Complainant acknowledges in her affidavit that she continued to accuse D1 of lying, discussed
his divorce, and told him that he should be investigated for his behavior. According to D1’s
contemporaneous notes on the incident, Complainant barged into his office and began yelling
that he “didn’t know [her] and…didn’t know what [she] could do” and that he should be
careful before he messed with her. Numerous coworkers provided contemporaneous witness
statements supporting D1’s account of the incident, including one coworker who states that
shortly after the incident in D1’s office, Complainant stated that D1 “doesn’t want to mess
with me because I will fuck him up.” The record shows that following this altercation, D1
contacted human resources and discussed possible discipline. D1 states that he followed the
recommendation from human resources of issuing Complainant a letter of reprimand for a first
offense.

With respect to claim (2), D1 states that he reassigned Complainant because he “lost
confidence and trust in [her] after she confronted [him] and made statements that were
unprofessional, insubordinate and threatening.” He also states that the duties of her new
position were appropriate to her experience and job title, which is supported by the statement
of her new supervisor. The record also shows that despite Complainant’s contention that she
was placed into a position she was not qualified for, her new supervisor stated that
Complainant has performed satisfactorily in the new position. Although Complainant contends
that other employees engaged in similar inappropriate conduct, this allegation is not supported
by any of the affidavits or other evidence of record. As such, we find that Complainant failed
to show that the Agency’s articulated reasons for issuing her the letter of reprimand or
reassigning her to another supervisor were pretextual or motivated by discriminatory or
retaliatory animus.

Next, with respect to claims (3) through (8), to establish a claim of hostile work environment
harassment, Complainant must show that: (1) she is a member of 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 the 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
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Here, we find that Complainant failed to establish that she was subjected to harassment. A
review of the record shows that Complainant did not provide any evidence to show that the
incidents either occurred as alleged or were sufficiently severe or pervasive to establish a
hostile work environment. Specifically, several coworkers stated in their affidavits that
Complainant created an atmosphere in the office where “people are on edge and tense because
of the way she acts” and that she made the workplace “hostile.” Additionally, contrary to
Complainant’s contentions that she was singled out by D1, the record shows that
Complainant’s coworkers found D1 to be “abrupt, abrasive and disrespectful” and that his
“communication style affects everyone in the Directorate.” As such, we find that to the extent
that the incidents cited by Complainant occurred as alleged, she failed to show that they were
related to her sex or prior EEO activity.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding no
discrimination.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests 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 request or opposition must also include proof of service on the other
party.
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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. 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 20, 2017
Date