Shanta M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 11, 2018

0120172778 (E.E.O.C. Dec. 11, 2018)

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

Shanta M.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120172778

Hearing No. 560-2015-00178X

Agency Nos. ARTFLEAV14MAY01598 & ARFTEAV13SEP03434

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 7, 2017 final
order 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.

BACKGROUND

During the period at issue, Complainant worked as a Management and Program Analyst, 0343,
GS 11 at the Agency’s Resource Management Division (“RMD”) of Munson Army Health
Center in Fort Leavenworth, Kansas.

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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On November 5, 20132 and June 17, 2014,3 Complainant filed two formal EEO complaints,
which were consolidated and accepted for investigation by the Agency. The Agency defined the
claims as whether Complainant was discriminated against based on race (Black), sex (female),
and color (dark complexion) when:

1. on July 31, 2013, Complainant was issued a Letter of Reprimand (“LOR”) for
discourtesy and lack of candor with her supervisory chain;

2. on May 5, 2014, Complainant was issued a counseling memo by her temporary
supervisor for conduct and work performance; and

3. on or about May 2014, the temporary supervisor denied Complainant’s request for
three consecutive weeks of annual leave between the dates of May 9 – 26, 2014.

After an 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). Complainant timely requested a hearing.
The Agency moved for a decision without a hearing. On June 26, 2017, the AJ issued a decision
by summary judgment, over Complainant’s objections, in favor of the Agency.

On July 7, 2017, the Agency subsequently issued a final order adopting the AJ’s finding of no
discrimination.

The instant appeal followed. On appeal, Complainant argues that there are genuine material
issues of fact in dispute. Complainant further argues that the “findings and analysis contains
information that are not in agreement between the [Complainant] and the Agency.” Complainant
states that she provided her statements in opposition to the Agency’s Motion for Summary
Judgement, and Complainant contends that these statements were the “basis for the EEOC AJ’s
[initial, but later rescinded] denial for summary judgement.”

2 The November 5, 2013 formal complaint is identified as Agency No. ARFTEAV13SEP03434
and includes claim 1. We note that this formal complaint initially included two claims which the
Agency dismissed on procedural grounds. On appeal, the Commission affirmed the dismissal of
one claim but remanded the other claim (claim 1) to the Agency for further processing. See
EEOC Appeal No. 0120140932 (June 10, 2014)

3 The June 17, 2014 formal complaint is identified as Agency No. ARTFLEAV14MAY01598
and includes claims 2 and 3. We note that reprisal as a basis was also raised in connection with
claims 2 and 3 in Agency No. ARTFLEAV14MAY01598. However, the Agency dismissed
reprisal as a basis for this complaint, finding that Complainant alleged reprisal for non-EEO
activity (reporting fraud, abuse, and waste). Complainant has not established that the dismissal
was in error and we will not address the reprisal claim any further in this decision.
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ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact
is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp.,
846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider summary judgment only upon a determination that the record has been adequately
developed for summary disposition.

Upon review of the record, we find that the AJ properly found that the instant complaint was
suitable for summary judgement. Here, the AJ stated in the summary judgement decision that
she reviewed the record, including “the report of investigative report, the complaint processing
documents, the Agency’s Motion, and Complainant’s response thereto.”

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. While Complainant
has, in a very general sense, asserted that facts are in dispute, she has failed to point with any
specificity to particular evidence in the investigative file or other evidence of record that
indicates such a dispute.

For the reasons discussed below, we find that, even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor.
Therefore, we find that the AJ properly issued a decision here by summary judgment.

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 a complainant to prevail,
he or she must first establish a prima facie case 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).
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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).

The AJ’s analysis was confined exclusively to a determination that Complainant did not establish
a prima facie case of disparate treatment based on her raised bases. Our review of the record
indicates that the Agency also provided legitimate non-discriminatory reasons for its actions,
even though the AJ did not address this analysis.

Therefore, even if we assume that Complainant established a prima facie case of discrimination
based on her race (Black), sex (female), and color (dark complexion), her claim ultimately fails,
as we find that the Agency articulated, non-discriminatory reasons for its actions. Complainant’s
second-line supervisor (“S2”) (Caucasian, white, male) stated, regarding claim 1, that he
consulted with the Chief of RMD (“Chief”) (African-American, male) about Complainant’s
actions. S2 indicated that he instructed the Chief to consult with Employee Relations who
indicated that an LOR was appropriate based on Complainant’s actions. S2 further stated that he
had counseled Complainant previously in the spring of 2013 “about her aggressive and
threatening demeanor towards other staff.” S2 explained that Complainant received the LOR
because of her actions.

The Human Resources Specialist (“HR Specialist”) (Caucasian, white, female) stated that she
reviewed all written correspondence to Complainant’s acting first-line supervisor (“S1”)
(Caucasian, white, female), and the HR Specialist drafted the LOR. The HR Specialist explained
that Complainant received the LOR “for her behavior” and the LOR was issued within the
regulatory guidelines.

The record includes a copy of the LOR indicating that Complainant informed S2 that she
completed his request to restore all rights which Complainant removed from an employee’s
access to the Defense Medical Human Resources System-Internet (DMHRSI), but Complainant
only partially restored the employee’s DMHRSI access. The LOR further indicates that when S2
questioned Complainant about the restoration, Complainant told S2 “no” and “began to walk
way” from S2’s office.

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Regarding claim 2, S1 stated that she issued the Counseling memo after she consulted with the
HR Specialist. S1 explained that the HR Specialist reviewed the memo with supporting
documentation and “concurred” with S1’s determinations. S1 further explained that she relied
on her “personal observation” and co-worker written statements when she assessed
Complainant’s behavior. S1 stated that Complainant failed to take the following actions: provide
necessary information to other coworkers to complete assignments; complete mission
requirements by missing video teleconferences without planning in advance for her absences;
remain in her place of duty or contact designated managerial staff to inform them of her absence;
and interact with coworkers in a manner that they would not feel “uncomfortable.” S1 further
stated that the issuance of the counseling memorandum was based “only” on Complainant’s
behavior.

The HR specialist indicated that Complainant’s Counseling memorandum was handled within
the regulatory guidelines and she reviewed it before S1 issued it to Complainant. The HR
specialist explained that Complainant was issued the Counseling memo to address
“accountability issues and complaints from co-workers that [Complainant] was a bully.”

The record includes a copy of the counseling memorandum, dated May 5, 2014. The counseling
memorandum indicates that Complainant failed to provide coworkers with necessary
information, and Complainant failed to attend a required weekly scheduled meeting. The
memorandum further indicates that Complainant had been absent “numerous occasions” from
her duty location for long periods of time and S1 had received “numerous reports from co-
workers and internal customers” indicating difficult interactions with Complainant.

Regarding claim 3, S1 stated that she denied Complainant’s 3-week leave request because it
would have had a “negative impact on mission.” S1 explained that Complainant provided short
notice for the request, approximately 1.5 – 2 week’s notice. S1 further explained that she
suggested that Complainant submit her leave request in smaller increments and develop a plan
where Complainant’s assignments could be covered by other coworkers during her absence. S1
stated that Complainant choose not to follow up with either suggestion. S1 further explained that
she scheduled a meeting on May 8, 2014 at 9:00 am, with Complainant and her coworkers to
“divide up [Complainant’s] tasks to support [Complainant] so she could go on extended leave.”
However, S1 stated that Complainant requested on May 7, 2014 at 4:30 pm that the meeting be
rescheduled, and S1 was not able to reschedule the meeting, given the short notice and given that
Complainant’s leave request was to begin on May 9, 2014. S1 further stated that Complainant
informed her that no one could assist her in doing her job. S1 explained that she was “doubtful”
that Complainant would complete 3 weeks’ work in less than 2 weeks’ time, given
Complainant’s history of promising to finish work ahead of her absence from the office and
failing to follow through.

The record includes a leave request dated April 25, 2014. The leave request indicates that
Complainant request 72 hours leave and S1 denied the request on May 5, 2014 citing “mission
requirements.”

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The record also included a May 5, 2014 Memorandum from S1 to Complainant denying
Complainant’s 3 week leave request. The memorandum states that the denial was based on
“mission requirements.” The memorandum further states that S1 would consider leave requested
for a shortened duration upon confirmation that Complainant either submitted all reports prior to
the period of her absence or Complainant made arrangements with coworkers for completion of
her work during her absence. The memorandum also indicates that Complainant has “recently
missed required suspense dates for mandatory reporting.”

We conclude that neither during the investigation, nor on appeal, has Complainant proven, by a
preponderance of the evidence, that these proffered reasons for the disputed actions were a
pretext for unlawful discrimination based on her race (Black), sex (female), and color (dark
complexion).

The Administrative Judge's issuance of a decision without a hearing was appropriate and a
preponderance of the record evidence does not establish that discrimination occurred.
Accordingly, the Agency's final order implementing the AJ's finding of no discrimination is
AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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

December 11, 2018
Date