0120142056
05-24-2016
Roxane A.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roxane A.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120142056
Hearing No. 470-2013-00150X
Agency No. ARKNOX12JUN02678
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 15, 2014 final action concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Human Resources Assistant at the Agency's Command Surgeon's Office, U.S. Army Human Resources Command (HRC) in Fort Knox, Kentucky.
On August 7, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency discriminated against her on the bases of race (Caucasian), sex (female), and disability when:
1. on June 21, 2012, her supervisor placed her on administrative leave with in-pay status for engaging in misconduct;
2. on August 20, 2012, the Lieutenant Colonel issued her a 14 calendar day suspension from duty without pay for engaging in misconduct; and
3. on February 28, 2013, her supervisor and the Sergeant issued her a marginal Base System Civilian Evaluation Report.2
After the investigation, Complainant timely requested a hearing and the EEOC Administrative Judge (AJ). Following the March 10 and 11, 2014 hearing, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that she was discriminated against on the bases of race, sex, and disability.3
In reaching this conclusion, the AJ noted that Complainant, with shoulder injury and migraine, started working for the Agency in 1998. At the time she was hired, Complainant's work location was in Germany. In 1993, Complainant transferred to Fort Knox, Kentucky as a Laborer. As a Laborer, Complainant's work assignments required her to lift heavy equipment and materials. In 1998, while lifting a heavy object, Complainant injured her right shoulder. As a result, Complainant was restricted from lifting, twisting, overreaching repetitive motions or any type of things that she would have problems doing as a result of that injury. Thereafter, Complainant was transferred to a shop within the Fort Knox facility. Complainant was later transferred to the supply room. Due to a Reduction-In Force, Complainant was reassigned to the Command Surgeon's Office as a Human Resources (HR) Assistant in September 2011. Shortly after Complainant was reassigned, she left on a military duty as a reservist. Complainant returned to the Command Surgeon's Office in April 2002.
The AJ noted that in regard to claim 1, the record reflects that during a discussion between Complainant and her co-workers, Complainant brought up the issue of a named employee who killed several of his co-workers. Complainant stated that she was glad that she did not own a gun. In addition, Complainant inquired from her Team Lead what type of vehicle that her supervisor drives. The Deputy Command Surgeon reported the incident to a Colonel, who referred the matter to the Security Chief. The Security Chief perceived Complainant's comments as a threat in light of numerous workplace incidents and "as well as shooting incidents in schools, along with the 9/11 incident, that have created more or less zero tolerance in the workplace or at schools."
The Deputy Command Surgeon, also Complainant's second line supervisor, testified that she was the deciding official to place Complainant on administrative leave based on "a pattern of continuous misconduct and lack of professionalism." Specifically, the Deputy stated after an Agency employee notified her that she asked her what kind of car her supervisor drives, she became concerned "just in light of... the environment we live in nowadays. I mean with all these active shooter cases and workplace violence and school violence, I think there was a little bit of concern." The Deputy further stated "what had happened is based upon the comments [Complainant] had made in regard to the incident that occurred with shooting, [named Agency employee] I want to say his name is, shooting up the place, and then the other threat, or implied threat I could say, that was made against [Complainant's supervisor]," she submitted a Commander's critical incident report to the Security Chief. The Deputy stated "based upon that, and as a precautionary measure, [Security Chief] advised that we put [Complainant] on administrative leave with pay until the suspension paperwork went through."
Regarding claim 2, the AJ noted that during the Lieutenant Colonel's transition as Officer-in -Charge of the Human Resources Medical section, the prior Colonel brief the Lieutenant Colonel concerning the HR Department as well as the issues with two staff members which included Complainant. The concern that the prior Colonel shared with the Lieutenant Colonel centered on Complainant not wearing a bra, and that other employees complained about it.
The AJ noted that in issuing the notice of proposed suspension dated July 17, 2012, the Lieutenant Colonel placed Complainant on notice that the proposed suspension was based on inappropriate conduct. Specifically, the Lieutenant Colonel stated that on June 15, 2012, when asked by the supervisor if she was wearing a brassiere, Complainant responded "do you want to feel?" and on June 19, 2012, after being told by the supervisor that the shorts she was wearing were in violation of the HRC dress code, she stated that they were capris and "when told capris pants fall below the knee, you unfastened your pants and pulled them down so the bottom of the shorts reached your knees."
The Lieutenant Colonel testified that he and Complainant discussed "about the problems of the office, the brassiere. At the time she mentioned that she was not aware there was a problem with her not using a brassiere in the office, and she was told like a couple of weeks before. Now, the meeting was in August, and I was aware of the issue with brassiere since May, so it's not just a couple of weeks...at the time I asked her why if you have a problem with showing anatomy, why don't you cover it? And she can use a shirt, is what I said...then she talked about [supervisor] having, I guess, following her or having a vendetta or complaining excessively about her." The Lieutenant Colonel stated that at one point he and Complainant talked about the supervisor asking Complainant about wearing a bra "the impression is that she made the difference between saying do you want to feel me, do you want to frisk me. [Complainant] said I didn't say that I want him to feel me. I said - - her exact words, if I don't remember wrong, were, and I quote, 'I'm not going to answer yes or not to her question. Would you like to frisk?' And she said specifically frisk; that was the difference between what she said and what [supervisor] mentioned."
Further, the Lieutenant Colonel stated that he found Complainant's response to be "a rude remark. If she's wearing a brassiere, she can say 'yes, I'm using one.' And if she's not wearing a brassiere, she could have said 'no.'"
The Lieutenant Colonel stated Complainant reported to work one day wearing capri pants. The Lieutenant Colonel stated the capri pants "look a little bit short, and then she showed me what she wanted to do; she wanted to stand up and what she said, she lowered the pants so it would go low. Now, in [Complainant's] deposition of last year, on one of the pages she says that the capris were short." The Lieutenant Colonel stated that it took him approximately one month to make a decision concerning Complainant's actions. Specifically, the Lieutenant Colonel stated "...I think everything could have been avoided easily...it's my conclusion, everything - - all this could have been avoided very easily if somebody just say yes or no, rather than fighting and complaining.
The Deputy stated that on one occasion, Agency management "had a problem because [Complainant] was not wearing a brassiere and there had been numerous complaints from other staff members, to include some of the female staff, that it was making them uncomfortable. She had been spoken to about it by several folks, to include myself. And I actually brought it up when her union rep was there, when she was getting her - - I think it was her initial counseling or mid-point counseling from [supervisor]. And I asked her union rep if she could please ensure that [Complainant] did something to cover up, whether it be, I don't know layering clothing or something to that effect."
Further, the Deputy stated that there was another issue when Complainant came in to work wearing shorts. The Deputy stated that the supervisor "brought it to my attention because he had asked [Complainant] to leave and go home to change, and she didn't want to do that. So I believe she called the - - I want to say the [EO Sergeant Major] or somebody, and so they all came into my office, and we were discussing it, and I actually Googled 'capri pants' because she claimed they were capri pants. And I said capri pants are normally, they come mid-calf, you know, ankle to mid calf. Shorts are above your knee. And unfortunately shorts are not part of the HRC dress code." The Deputy stated that Complainant was "was defensive. She was rude. Sometimes hostile. Unprofessional. She yelled at me a couple of times. She yelled at [supervisor] and [Sergeant], who is another NCO we had within our office. She just didn't take it very well. She stated that wearing a brassiere was not part of the HRC dress code, but I would - - I don't know, I would think anybody would assume they should wear undergarments to work. In just my opinion."
Furthermore, the Deputy stated that on May 16, 2012, Complainant came in her office with counseling statements she had received from the supervisor. The Deputy stated that Complainant wanted to file a complaint against the supervisor "because he was conniving and unprofessional and he was disrupting the staff." The Deputy stated that she explained to Complainant that she had "input from at least five of the staff members saying that she had been disruptive and that she was disrupting the morale within the office; that they felt like they had to walk on eggshells around her; that anybody from say the PAs, a couple of my physician assistants, to some of the other GS workers felt uncomfortable. I talked to her about the brassiere. I said I understand you have a shoulder injury. I myself had a shoulder injury. If wearing a bra was too difficult or painful, that there were many other things you could do to cover your nipples, I hope I'm not offending anybody, but to cover your nipples."
Regarding claim 3, the AJ noted regarding the lowering of Complainant's performance by the Sergeant, supervisor and the HR Specialist in the Civilian Personnel Advisory (CPAC), they all testified that originally Complainant was rated 4 which was fair based on her performance during the rating period.
The AJ noted during her testimony, the Sergeant stated that Complainant "had a lot of clerical errors, a lot of numerical errors, a lot of cases that weren't being followed up on in a timely manner. And it was gotten to a point where it was on a daily basis, multiple times during the day sometimes, especially with [Colonel]." The Sergeant stated she met with Complainant often to discuss her performance. The Sergeant stated in the initial evaluation, she gave Complainant a score of 4 "which is a fair rating."
Further, the Sergeant stated "initially, after I wrote the evaluation, in all the evaluations, I used the feedbacks mainly form the clinicians as a baseline. And I was notified, myself and [supervisor] by CPAC, that based on regulation, we're not allowed to do that because neither [Colonel] nor the physician assistants are not in their rating chain. So once I knew that I had to not be able to incorporate that feedback, so I took it out and redid her evaluation. The Sergeant stated that in the revised evaluation, she gave Complainant a score of 3 "which is successful."
The AJ found that Complainant provided no credible evidence showing any adverse employment action hat was taken against her as a result if her receiving a rating of 3. The AJ found that Complainant did not provide any credible evidence showing that the Sergeant's testimony concerning her repeated errors or mistakes was not true.
Moreover, the AJ determined that Complainant appeared to believe that Agency management discriminated her when they refused to accommodate her disability. The AJ noted that an Agency official did not consider Complainant's request for a reasonable accommodation because she viewed her shoulder condition as a temporary impairment. The AJ noted, however, in disagreeing with the Complainant's claim of limitation, the Agency noted that Complainant played basketball with both hands which she did not dispute. In addition, the AJ noted that the record reflects that Complainant dressed herself, cooked food, and washed dishes, among other things.
The AJ stated that during the hearing, he suggested other means in which Complainant could have adjusted to the situation. Complainant found the AJ's suggestion somehow objectionable. The AJ noted although the Agency's dress code did not explicitly address wearing a bra, it was implicit in the code. Specifically, the AJ stated "in other words, the dress code advised the employees of the acceptable office attire for civilian employees." The AJ determined that a careful review of the record reflect that there was no denial of an accommodation.
The Agency, in its final action, adopted the AJ's finding of no discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
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.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond her bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation.
Therefore, 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 action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
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
May 24, 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.
2 The record reflects that claims 2 and 3 were later amended to the instant formal complaint.
3 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability.
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