EEOC Appeal 2019005659

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Aliza C.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2019005659
Agency No. ARGORDON17APR01359
DECISION
On September 10, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s September 12, 2019 final decision 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 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 Guidance Counselor at the Agency’s
Education Services, U.S. Army Garrison in Fort Gordon, Georgia.
On May 30, 2017, Complainant filed the instant formal complaint. Complainant claimed that the
Agency discriminated against her based on race (Caucasian), sex (female), color (white), age (over
40), and in reprisal for protected EEO activity (current activity) when:
a. around October 2016, the supervisor yelled at her and stated she was dressed as if she
was going to a rodeo;
b. around January 2017, the supervisor asked a soldier in the lobby of the Army
Continuing Education System (ACES) to complain about seeing Complainant’s black
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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bra between the buttons of her shirt and she received a counseling statement from the
supervisor;
c. on March 30, 2017, the supervisor yelled at Complainant in front of peers and
customers because she was wearing open-toed shoes and because he did not approve
of her attire, yet another ACES employee was also wearing sandals but was not yelled
at by the supervisor;
d. on April 4, 2017, she was issued a Letter of Reprimand by the supervisor; and
e. on April 4, 2017, the supervisor placed her on Leave Restriction.
After the investigation of the formal complaint, on September 12, 2019, the Agency issued a final
decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal
followed.
ANALYSIS AND FINDINGS
To establish a claim of hostile environment harassment, Complainant must show that: (1) she
belongs to 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 her 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 Agency. See Henson v. City of Dundee, 682 F.2d 897
(11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement
Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
In other words, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove that
the conduct was taken because of a protected bases – in this case, her race, sex, color, age or prior
EEO activity. Only if Complainant establishes both of those elements – hostility and motive – will
the question of Agency liability present itself.
During the relevant period, Complainant worked as a Guidance Counselor at the Agency’s
Education Services, U.S. Army Garrison in Fort Gordon, Georgia. The Education Services
Specialist was Complainant’s first-level supervisor while the Supervisory Education Services
Specialist was Complainant’s second-level supervisor.
Regarding allegation a, Complainant asserted that around October 2016, the supervisor yelled at
her and stated she was dressed as if she was going to a rodeo.

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The Education Services Specialist (African-American male, over 40), also Complainant’s
supervisor, stated that on that particular day, Complainant was scheduled to brief senior leaders.
However, when Complainant came into the office, he noted that she “had on a pair of jeans with
holes cut in them, and I immediately asked her to come down to my office. And I asked her was
she aware of the commanding general’s policy about dress and attire.” He stated that he provided
Complainant a copy of the Commanding General’s Policy regarding proper attire and told her “she
could not go to give that briefing dressed in that particular attire.” However, the supervisor denied
yelling at Complainant and making a comment that she was dressed as if she was going to a rodeo.
With respect to Complainant’s allegation that she did not know there was an event on that day, the
supervisor stated “the week before I passed out responsibilities and briefings. She was actually
given that briefing at the hospital actually a week before.”
Regarding allegation b, Complainant alleged that around January 2017, the supervisor asked a
soldier in the lobby of the Army ACES to complain about seeing Complainant’s black bra between
the buttons of her shirt and she received a counseling statement from the supervisor.
The supervisor denied asking a soldier to complain about Complainant’s bra. Specifically, the
supervisor stated that the front desk administrative manager came into his office and stated that
Complainant had an undergarment that was seen through her shirt. He stated that he asked her to
have Complainant to come down to his office and “that was when I noticed the undergarment was
showing through her particular shirt, or I could see the undergarment through her shirt.” The
supervisor explained that he reminded her again of the Commanding General’s Policy and
“informed her that we’ve got to be careful about the picture or the projection that we project to the
public, stuff of that nature.”
Regarding allegation c, Complainant alleged that on March 30, 2017, the supervisor yelled at
Complainant in front of peers and customers because she was wearing open-toed shoes and
because he did not approve of her attire, yet another ACES employee was also wearing sandals
but was not yelled at by the supervisor.
The supervisor explained that on March 30, 2017, Complainant was wearing inappropriate attire
for the command briefing. Specifically, the supervisor stated that Complainant was wearing
spandex pants. He stated that he asked Complainant “to follow me down to my office. At that
particular point in time, I sat her down and I asked her was she aware she had a command briefing
that particular day. She stated she did. And I asked her was she aware that this was inappropriate
dress for a second command briefing. She stated she did not feel that anything was wrong with
the - - with her dress at that particular point in time.” Furthermore, the supervisor stated that he
did not discuss with Complainant about wearing open-toed shoes and did not yell at her.
The Supervisory Education Services Specialist (Supervisor 2) (Caucasian female, over 40) stated
that she recalled a phone conversation with Complainant and the supervisor concerning her attire
on the day of the command briefing.

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Supervisor 2 stated that during the phone conversation, she listened to the supervisor “trying to
explain to her what she was wearing that he felt was inappropriate since she was supposed to be
doing a briefing, she continued to interrupt him.” She stated that the supervisor informed her that
Complainant was wearing “open-toed shoes, black Spandex pants, a light-colored blouse, and her
bra was showing underneath it. And she was - - she was the one that kept going back to the open-
toed shoes, and [supervisor] kept saying this isn’t about your shoes. It’s about the picture that you
are presenting does not look professional.”
In addition, Supervisor 2 recalled Complainant claimed that she was dressed appropriately and felt
that the supervisor was targeting her, which the Supervisor stated was not the case.
Regarding allegation d, Complainant claimed that on April 4, 2017, she was issued a Letter of
Reprimand by the supervisor.
The supervisor acknowledged that on April 4, 2017, he issued Complainant a Letter of Reprimand
for Failure to Follow Written Policy. The supervisor noted that on February 28, 2017 and October
6, 2016, Complainant failed to follow the Commanding General’s Policy by reporting to work
dressed in clothing that was unprofessional and did not meet the standard for approximate attire in
the workplace. He noted that in July 2016, Complainant had been previously verbally counseled
concerning her inappropriate attire at work.
Further, the supervisor placed Complainant on notice that the Letter of Reprimand “is effective
upon receipt of this memorandum and will be made a matter of record and placed in your Official
Personnel Folder (OPF) for a period of one (1) year. It will be withdrawn at the end of that time,
however the reprimand may be withdrawn earlier if it is determined that you have made sufficient
progress, or upon your separation from the Department of the Army, whichever occurs first.”
Supervisor 2 stated that she felt that the supervisor made an appropriate decision to issue
Complainant the April 4, 2017 Letter of Reprimand “because of the multiple instances of her
failing to follow the guidance in terms of professional dress.”
The Human Resources (HR) Specialist explained that the supervisor and Supervisor 2 contacted
him for guidance concerning Complainant’s unprofessional attire. The HR Specialist noted that
Complainant “was given at least two counseling sessions along with the written guidance for dress,
and then the reprimand was issued after that, whereas… it doesn’t really need to be that much if
it’s a serious issue, this being dress code...and so that’s why… I encouraged that counseling to be
done and provide it in writing of what the issues are so that she could be - - that she would have
very specific guidelines to follow rather than just an oral, or verbal conversation.” Finally, the HR
Specialist noted that the subject Letter of Reprimand was in compliance with the table of penalties
and other federal regulations and guidance on disciplinary action.
Under the circumstances presented in this case, we find no evidence that the supervisor’s insistence
on a number of occasions that Complainant comply with the stated workplace dress code amounted
to discriminatory harassment. See, e.g., Majorie J. v. U.S. Postal Serv., EEOC Appeal No.

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0120171044, (Aug. 3, 2018) citing Schmitz v. ING Sec., Futures & Options, Inc., 10 F. Supp. 2d
982 (N.D. Ill. 1998), aff'd, 191 F.3d 456 (7th Cir. 1999) (a supervisor badgering an employee about
inappropriately suggestive clothing and provocative behavior did not constitute sexual harassment
in a manner prohibited by Title VII). We note that Complainant did not establish that there were
similarly situated comparators who were treated more favorably.
Regarding allegation e, Complainant asserted that on April 4, 2017, the supervisor placed her on
Leave Restriction.
The supervisor explained that he issued Complainant a Letter of Leave Restriction regarding her
leave usage. Specifically, the supervisor stated that Complainant was employed as a Guidance
Counselor since April 3, 2016, “however, a review of your leave usage record since coming on
board indicates what appears to be an excessive amount of unscheduled leave used by you. I am
particularly concerned about the number of times you have called in or simply requested
unscheduled sick leave because of illness or medical appointments. During your tenure with us to
date, you have taken approximately 57 hours of unscheduled leave which is difficult to refuse
because of it being due illness/appointments. Your records, as of the Pay Period ending 1 April
2017, indicate that you have a negative balance of -162 hours of sick leave and a negative balance
of -5 hours of annual leave.”
In addition, the supervisor stated that he had concerns with the timing of Complainant’s requests
and the pattern she had most of her unscheduled leave had been in conjunction with her regular
days off, weekends, scheduled annual leave, and/or holidays.
After careful review of the record, we conclude that the weight of the evidence does not establish
that Complainant’s race, sex, color, age and prior EEO activity played a role in any of the incidents
that form her discriminatory harassment claim. Her claim of harassment is precluded based on our
findings that Complainant failed to establish that any of the actions taken by the Agency were
motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923
(Sept. 21, 2000).
CONCLUSION
We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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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.
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.

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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 21, 2020
Date