Millicent H.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity CommissionJul 22, 2016
0120141115 (E.E.O.C. Jul. 22, 2016)

0120141115

07-22-2016

Millicent H.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Intelligence Agency), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Millicent H.,1

Complainant,

v.

Ashton B. Carter,

Secretary,

Department of Defense

(Defense Intelligence Agency),

Agency.

Appeal No. 0120141115

Agency No. DIA-2013-00006

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 23, 2013 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Technical Editor at the Agency's Afghanistan-Pakistan Task Force, Pentagon, Joint Staff in Washington, D.C.

On October 26, 2012, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.

On January 3, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that alleged that the Agency discriminated against her on the bases of race (African-American), sex (female), and age (over 40) when:

1. on May 2, 2012, her supervisor denied her request to work an Alternative Work Schedule (AWS);

2. on November 19, 2012, she received her performance appraisal which was rated "Excellent"; however, the performance appraisal contained false malicious and spiteful comments written by her reviewer, which defamed her professional character and hindered her career;

3. she was subjected to harassment and a hostile work environment on the bases of race and age when:

a. on May 2, 2012, her supervisor denied her request to work an AWS.

b. on October 22, 2012, the Chief of the Pakistan Division and her supervisor sent an email requiring support staff to speak directly to him when coming in late or calling in sick. Complainant felt that was directed toward her because she called in sick on October 19, 2012.

c. on November 7, 2012, the Chief "drilled" her for using sick leave, asked her if she had seen a doctor and asked why she had not checked the block on her leave form indicating she had a medical appointment.

4. she was subjected to harassment and a hostile work environment on the bases of race, sex and age when:

a. on October 15, 2012, ,the Chief and her supervisor brought the new technical editor to her desk, leaned in toward her and directed her to "teach him everything that you know" in an intimidating and demanding tone;

b. on October 18, 2012, the Chief told her that there was not enough work for two editors, reiterated that he wanted her to teach the new editor everything she knew and told her that he would be supportive of her to look for another job;

c. on October 22, 2012, the Chief's supervisor and in her chain of command did not respond to an email Complainant sent her regarding the Chief's remarks to her; and

d. on November 19, 2012, she received her performance appraisal which was rated "Excellent" contained false, malicious and spiteful comments written by her reviewer, which defamed her professional character and hindered her career.

On March 21, 2013, the Agency issued a partial dismissal. The Agency accepted solely claims 2 and 4 for investigation. However, the Agency dismissed claims 1 and 3.a. on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed claim 3 in its entirety for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).

On April 1, 2013, Complainant submitted a rebuttal to the Agency's March 21, 2013 partial dismissal, requesting that claims 1 and 3.a. be amended to include the June 19, 2012 incident when she received the response on her May 1, 2012 request, and explaining the relationship between claim 3 and the accepted claims.

On May 6, 2013, the Agency issued a revised partial dismissal in which it now accepted claim 3.a. as revised to include the June 19, 2012 incident, when she received a response to her May 1, 2012 request, and further accepted claim 3 in its entirety for investigation.

After the investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision on December 23, 2013, pursuant to 29 C.F.R. � 1614.110(b).

In its December 23, 2013 final decision, the Agency found no discrimination. The Agency Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, sex and age. The Agency further concluded that Complainant did not prove, by a preponderance of the evidence, that the Agency's proffered reasons for its actions were a pretext for discrimination.

Regarding Complainant's harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex and age. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.

The instant appeal followed. Complainant submitted no argument on appeal.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Complainant's supervisor stated that during the relevant period she was Complainant's rater "so I have a large part with what to do with what was written in her eval[uation]." The supervisor stated that she did not have a chance to have a sit down with Complainant to go over her evaluation because she went on maternity leave.

Further, the supervisor stated that the specific language in the evaluation that Complainant felt was discriminatory was regarding not being flexible. Specifically, the supervisor stated "whenever you're giving [Complainant] constructive criticism on how she could do her job better, it's never really met well. She takes it as hostile in nature towards her. Or, that you're saying that she cannot do her job better. [Complainant] and I had numerous conversations about how people can do their job better...but that not to say she's not good at her job, but there is always room for improvement."

The former Deputy Office Chief stated that he was Complainant's reviewer. The former Deputy Office Chief stated that the reviewer comments are meant to be constructive, in order to prepare the employee to areas that need to be improved "upon to further the employee's career goals in the agency. They are not meant as 'negative.' [Complainant] has had numerous conversations with me about aspiring to be a GG-14. The comments I provided were meant to steer her toward improving upon deficiencies that would otherwise thwart her advancement in the agency."

Further, the former Deputy Office Chief stated that Complainant's race, age and sex were not factors in her "Excellent" performance appraisal. The former Deputy Office Chief stated that Complainant "is fundamentally a good person with excellent technical skills. Sometimes you get through [to] her, sometimes you don't. Again, the narrative is meant to help her improve and advance. She is choosing to view it as yet another 'attack'...the reviewer's narrative is meant to speak to the future potential of employee and help guide that employee toward greater potential."

The former Deputy Director of the Afghanistan Pakistan Task Force stated that in regard to the denial of Complainant's AWS request, she stated when Complainant's supervisor raised the issue of Complainant's AWS request, "my comments on those, as a task force supporting combat operation, we don't allow alternative work scheduling. So, I denied that request, unbeknownst to me that her request was for a medical reason so she could pursue physical therapy. Had I known that was the reason for her request, I would [have] approved it. But, I had incomplete information when I made the decision."

Further, the former Deputy Director stated that following a conversation she had with Complainant concerning her performance appraisal, "she asked to have a line in her appraisal removed that she was concerned with. One particular line for her review in the comments." Specifically, the former Deputy Director stated that the particular line "was something to the effect of employee needs to be more flexible in receiving direction from supervisors, something to that effect." The former Deputy Director stated that she talked to the former Deputy Office Chief "about having that removed. And he was adamant that it was a fair appraisal and would not remove it."

The former Deputy Director stated that on one occasion, she received an email from Complainant stating that she had a conversation with the Chief in which she said she was going to be replaced by a contractor. The former Deputy Director stated while she did not respond to Complainant's email, she talked to the Chief's supervisor "who is my deputy, and asked to look into the situation as he was his rater. He talked to [Chief], who then sent me two e-mails clarifying that he talked to [Complainant]. And had corrected the record, and explain to her he was not going to replace her. But that it was just we were bringing on a second editor because we had increased work loads, which we did."

Regarding Complainant's allegation that the former Deputy Director did not respond to her email concerning the Chief's remarks to her, the former Deputy Director stated "I maintain an open-door policy. [Complainant] could have come to talk to me. I did engage in action with her with [Chief's] supervisor, and asked her to respond to the situation. I don't normally respond to e-mails like that...I later learn a couple days later that was not happy that I had not responded. We set up a meeting. I talked to [Complainant] face to face. That's how I prefer to deal with these things as opposed to e-mail." Moreover, the former Deputy Director stated that she apologized to Complainant "for not responding to her e-mail. I just explained to her this is how I prefer to handle things in a face-to-face manner."

The Chief denied subjecting Complainant to harassment. The Chief stated that during the relevant period, the Agency was in the process of reorganization in the task force, and was considering the possibility of splitting up to two basic portions of the task force: one to go back to the Asia Pacific office, and have a much smaller portion to remain in the Pentagon. The Chief stated "as part of that discussion, one of the courses of action we came up with was, basically we would lose one editor going one way or the other, whether the person would go downstairs with the NMMC or go back where is the APA, the larger portion. The Chief stated that after discussions with his supervisor, she concurred with their recommendations to hire a new editor.

Further, the Chief stated that when the newly hired editor started working for the Agency, he took the editor "to meet with the complainant and explained to her - - introduced her to [editor] and told her that he's going to be the new editor working with us because a course of action had not been decided yet on the split, whether or not we we're going to stay together or grow apart...I introduced her in a very friendly manner to [editor] and said - - and I was kind of a little bit surprised [editor] came in so quickly...but I took him over there to introduced the two...and I said to her, 'yeah, teach him everything he needs to know about DIA's ways of editing.' By no stretch of my imagination in my mind was it in any kind of demanding or forward learning or forceful or any kind of intimidating tone to her whatsoever."

With respect to Complainant's allegation that the Chief told her there was not enough work for two editors and that he would be supportive of her to look for another job, the Chief denied such an assertion. The Chief stated "on the contrary, because of the possible split of the organization, we would certainly need two editors."

Regarding Complainant's assertion that the Chief's email to the support staff to speak directly to him when coming in late or calling in sick was directed to her, the Chief denied it. The Chief stated that on October 22, 2012, he sent an email to Complainant "asking what was your status on Friday. Do I need to sign your leave request? If so, please bring it by soon. On the previous Friday, she didn't show up to work. And she called in, apparently, to another co-worker. At first it was [a named co-worker]. And then when she couldn't get a hold of her, she attempted to contact [another named co-worker]. Then, she deferred the call again to [a named contractor], who is a contractor, stating she was calling in sick that date. At no time did she ever call me or any other supervisor in the organization to let that supervisor know that she was calling in sick for the day on Friday."

Further, the Chief further stated that on the same day, October 22, 2012, Complainant submitted her leave request and a response to his e-mail request and "I briefly explained to her the sick-call procedures, and her responsibility to make positive conduct with a supervisor...and it is the employee's responsibility to make that positive contact with somebody in the supervisory chain in the organization."

The Chief stated that on November 7, 2012, he noted in Complainant's OPM 71 form, the block was not checked for the reason why she was off Friday and "I just simply asked her, I said - you know, what was the reason why you were sick that day because you had not checked the block. And she appeared to be nervous and hesitated in her answer. And she stated that she was sick...she said, are going to sign this form or not. I went ahead - - I didn't say anything to her, but I went ahead and signed it." The Chief stated that he rechecked Complainant's form and noted that she still had not checked the block whether she was sick or had a doctor's appointment on the day in question "but I did not recontact her on that matter."

In sum, neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that the proffered reasons for the actions taken, as detailed above, were a pretext for unlawful discrimination.

Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision concerning the formal complaint because the preponderance of the evidence of record does not establish that discrimination occurred.

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.

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

July 22, 2016

__________________

Date

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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