EEOC Appeal 2020000032

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Irene F.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020000032
Hearing No. 420-2019-00082X
Agency No. 200I-0619-2017104989
DECISION
On September 18, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
August 19, 2019 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. Our review is de novo. For the following reasons,
the Commission AFFIRMS the Agency’s final order.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Associate Chief of
Staff, VM-15, at the Agency’s Central Alabama Veteran Health Care System in Montgomery,
Alabama. 	On December 20, 2017, Complainant filed an EEO complaint wherein she claimed that
the Agency subjected her to discrimination and a hostile work environment on the bases of her
race (African-American), sex (female) and in reprisal for her prior protected EEO activity when:
1. 	The 	Acting 	Chief 	of 	Staff 	refused 	to 	reassign 	an 	underperforming 	Nurse
Practitioner (NP) from her supervision and collaboration;
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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2. 	She was threatened with disciplinary action;
3. 	She was contacted while on leave;
4. 	She was the subject of an Inspector General’s investigation; and
5. 	She was removed from duties pending an Inspector General investigation.
Complainant claimed that she was discriminated against on the aforementioned bases when:
6. 	On July 28, 2017, she was detailed to the CAVHCS (Montgomery Campus);
7. 	Since around September 29, 2017, she was assigned to work in two different
physician roles without proper support; and
8. 	Since around September 29, 2017, her salary was not adjusted while working in
two different physician roles.
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 assigned to the case issued a summary
judgment decision on July 31, 2019.
In the decision, the AJ determined that Complainant complained that the NP was a poor performer
and she wanted her transferred from under her supervision and collaboration. The Acting Chief
of Staff agreed to the transfer, but requested Complainant allow time for a smooth transition.
Complainant ignored this request and unilaterally severed collaboration with the NP, thereby
collapsing the period the NP had to ensure compliance with the state licensing board. The Acting
Chief of Staff counseled Complainant on the proper procedures to transfer a NP to another service.
The Acting Chief of Staff also counseled Complainant for failing to drive her vehicle to a
leadership-assigned duty, thereby necessitating the Acting Chief of Staff drive her.
The AJ found that the Agency did not refuse to transfer the NP from Complainant’s supervision,
but rather that it did not happen as quickly as Complainant wished. The AJ stated that she found
no evidence that Complainant was threatened with disciplinary action for either of these incidents.
According to the AJ, Complainant presented no evidence that these events were based on her race,
sex, or reprisal.
As for Complainant being contacted while on leave, the AJ found that, as occurs with Senior
Managers and particularly Service Chiefs, Complainant was contacted about a work-related matter
deemed important by Agency officials. 	The AJ stated that Complainant presented no evidence
that the contact was based on her race, sex, or reprisal.

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With respect to the claims concerning an IG investigation, the AJ stated that the investigation was
based on complaints alleging mismanagement, a hostile work environment, and Complainant
moonlighting while on duty. 	The AJ found that on July 28, 2017, due to the investigation,
Complainant was detailed away from her normal duties and to the Montgomery Campus. The AJ
noted that Complainant was not demoted and lost no pay during her detail. Further, the AJ stated
that Complainant did not receive any disciplinary action in response to the investigation or detail.
The AJ concluded that Complainant returned to her full duties as the Associate Chief of Staff
without any changes to her duties or responsibilities following the completion of the investigation.
The AJ found no evidence that the detail was based on Complainant’s race, sex, or reprisal.
In terms of claims (7-8), the AJ noted that the Agency stated that Service Chiefs were required to
cover for vacant supervisory positions until someone was detailed to the position or until the
position was filled. The AJ found that the supervisory position was vacant, and Complainant was
assigned to temporarily fill the position with no increase in salary. The AJ found that Complainant
presented no evidence that this was based on Complainant’s race, sex, or reprisal.
The AJ concluded that the alleged incidents were not sufficiently severe or pervasive to establish
a hostile work environment. 	Further, the AJ found that there was no evidence that any of the
conduct at issue was based on discriminatory or retaliatory animus. As a result, the AJ found that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.
The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant
appeal followed.
ANALYSIS AND FINDINGS
The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In
rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and
the Agency’s final order adopting them, de novo. 	See 29 C.F.R. § 1614.405(a)(stating that a
“decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see
also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-
110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s
determination to issue a decision without a hearing, and the decision itself, will both be reviewed
de novo).
An AJ may issue a summary judgment decision only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed.

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To successfully oppose summary judgment, Complainant must identify material facts of record
that are in dispute or present further material evidence establishing facts in dispute. Here, however,
Complainant has failed to establish such a dispute. Even construing any inferences raised by the
undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s
favor.
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 Constr. Corp. 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. 	Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct.
2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
We shall assume arguendo that Complainant set forth a prima facie case of discrimination and
reprisal. The Agency has articulated legitimate, nondiscriminatory reasons for its actions. With
regard to claim (1), the Agency stated that the Acting Chief of Staff agreed to the transfer, but
requested Complainant allow time for a smooth transition. 	In terms of claim (2), the Agency
denied that it threatened Complainant with disciplinary action. 	Rather, the Agency stated that
Complainant ignored the request to allow time for a smooth transition and unilaterally severed
collaboration with the NP, thereby collapsing the period the NP had to ensure compliance with the
state licensing board. 	The Acting Chief of Staff subsequently counseled Complainant on the
proper procedures to transfer a NP to another service. The Acting Chief of Staff also counseled
Complainant for failing to drive her vehicle to a leadership-assigned duty, thereby necessitating
the Acting Chief of Staff to drive her.
As for claim (3), the Agency asserted that Complainant, as a Service Chief, was contacted about a
work-related matter deemed important by Agency officials. With regard to the issues pertaining
to the IG investigation and the detail to the Montgomery Campus, the record reveals that the
investigation 	was 	conducted 	due to 	complaints 	alleging mismanagement, 	a hostile work
environment and Complainant moonlighting while on duty. 	As a result of the investigation,
Complainant was detailed away from her normal duties and to the Montgomery Campus. In terms
of claims (7-8), the Agency stated that Service Chiefs are required to cover for vacant supervisory
positions until someone is detailed to the position or until the position is filled. 	The Agency
asserted that the supervisory position was vacant, and Complainant was assigned to temporarily
fill the position with no increase in salary.

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Upon review of the record, we find that Complainant has not presented sufficient argument or
evidence to establish that the Agency’s explanations for its actions were pretext intended to mask
discriminatory or retaliatory motivation. As a result, the Commission finds that Complainant was
not subjected to discrimination or reprisal as alleged.
Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems,
Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. 	See
Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8,
1994). 	A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. 	See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).
CONCLUSION
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 order.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the complainant or the
agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO)
within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration
elects to file a statement or brief in support of the request, that statement or brief must be filed
together with the request for reconsideration. A party shall have twenty (20) calendar days
from receipt of another party’s request for reconsideration within 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).
Complainant should submit his or her request for reconsideration, and any statement or brief in
support 	of 	his 	or 	her 	request, 	via 	the 	EEOC 	Public 	Portal, 	which 	can 	be 	found 	at
https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her
request and arguments to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013,
or by certified mail addressed to 131 M Street, NE, Washington, DC 20507.

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In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely
filed if OFO receives it by mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. § 1614.604.
An agency’s request for reconsideration must be submitted in digital format via the EEOC’s
Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or
statement or brief in opposition must also include proof of service on the other party, unless
complainant files his or her request via the EEOC Public Portal, in which case no proof of service
is required.
Failure to file within the 30-day time period will result in dismissal of the party’s request for
reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the
request. 	Any supporting documentation must be submitted together with the 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.

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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
November 19, 2020
Date