U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danielle H.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Health Affairs) Agency. Appeal No. 0120152515 Agency No. DHANCR140009 DECISION On July 16, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's July 13, 2015 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Medical Records Technician, GS--06, at the Walter Reed National Military Medical Center in Bethesda, Maryland. On January 18, 2014 Complainant filed a formal EEO complaint claiming she was discriminated against based on race (African-American) when: 1. in 2012, Complainant did not receive her Quality Step Increase (QSI), that was approved by her prior manager; and 2. in December 2013, Complainant was denied a promotion to the GS-7 after the reclassification of her position. In addition, Complainant alleged that after she raised questions about the QSI she was repeatedly treated with disrespect by certain upper-level managers. The Agency accepted the complaint for investigation. The investigative record reflects the following salient evidence: Management Officials At the relevant times, Complainant's first-level supervisor was the Supervisory Medical Records Specialist (hereinafter referred to as "Supervisor") (African American). Her third-level supervisor, beginning in November 2012, was the Assistant Division Officer (African American) (hereinafter referred to as "ADO1"). Her other third-level supervisor, beginning in January 2013, was also the Assistant Division Officer (hereinafter referred to as "ADO2") (Caucasian); and, her fourth-level supervisor was the Division Officer and Commander (hereinafter referred to as "the Commander") (Caucasian). Claim 1 In 2012, Complainant was recommended for a Quality Step Increase (QSI) by her Supervisor and, according to him, it was approved by Complainant's second-level supervisor (hereinafter referred to as "S2"), who left the office in December 2012, and was not interviewed during the investigation. The record shows that the recommendation for the QSI was in Complainant's personnel folder, but no action on it was taken. Complainant's Supervisor confirmed that there was no official action taken on the QSI recommendation. Rather, he stated that ADO2 and the Commander failed to forward the QSI recommendation to the Colonel. However, said other QSIs were approved for a Human Resources Administrative Assistant (Caucasian) and a Medical Records Technician (Caucasian) during this time period. Complainant's Supervisor further stated that when he inquired about Complainant's QSI, ADO2 informed him that S2 had changed her mind about approving it before she left. The Commander also stated that she asked S2 if she had recommended any of her employees for a QSI, and that S2 stated she had not recommended anyone. However, the Supervisor questioned this assertion, and contacted S2. The investigative report contains the unsigned and unsworn statement he received in response from S2, praising Complainant and denying she ever rescinded her recommendation for the QSI. ADO1 also stated that she had previously heard that Complainant was recommended for the QSI, but did not hear of it until beginning of 2013. ADO1 stated that S2 left in December 2012, but somehow the QSI recommendation did not get to her until March 2013, and by then it was too late. ADO1 stated that the office was very disorganized back then. The Health Systems Administrator testified that a form was received that showed Complainant had been approved for the QSI, but that there was no approving signature on it. At that point, S2 had already left the organization. However, it could still be approved, so the form was sent to ADO2 and the Commander for a signature approval, but neither approved the form, nor provided a reason for the lack of approval. Complainant stated that when she started inquiring about the QSI starting around March 2012, she was met with a condescending, aggressive and intimidating attitude from ADO2. Complainant stated that ADO2 and the Commander would not speak to her when passing in the hallway, and on at least one occasion, ADO2 told Complainant to stop talking because she was getting a headache. Complainant states that ADO2 was openly hostile towards non-Caucasians. Complainant's Supervisor stated that he had not witnessed hostility, but that Complainant had complained at the time of "inappropriate conduct" being taken against her by these managers. Further, he noted that ADO2 and the Commander would call Complainant into either office without alerting him, even though he was Complainant's first-line supervisor. He stated that he "would not consider that to be harassment by [his] definition." He indicated "[t]hat was the Command climate towards certain personnel during that time", and that was "how they treated Black people assigned to the Patient Administration department." ADO2 and the Commander denied being hostile toward Complainant. Claim 2 As the result of a Base Realignment and Classification merger, all civilian positions at the Agency underwent a classification review to determine the appropriate grade, position title, and duties of the position. On November 1, 2013, ADO1 notified Complainant that her position was being reclassified and that she needed to submit a resume for consideration for a position at a higher grade. On November 14, 2013, Complainant was informed that her new position description was being implemented at her same grade - GS-6. Complainant's old Position Description, JT-C557A, changed to JT-JTF0776. Complainant's grade did not change, only the position description. ADO1 stated that she and the ADO2 were not aware of Complainant's role in the department, and the Supervisor would daily task her with different assignments. ADO1 stated that she was in a meeting around August or September 2013, with the Commander, when they realized that Complainant was performing duties listed under the GS-07 position description - specifically, duties pertaining to coding. However, reasoning Complainant was not a certified coder, they took those responsibilities away. Complainant argued that these duties were taken from her to justify keeping her at the GS-6 level. She asserted that the coding duties she performed did not require one to be certified. In response, ADO1 stated that "[w]e felt it did", and that "[a]ccording to the guidelines you had to be a certified coder to audit coding." Regarding Complainant's promotion claim, ADO1 asserts that after competing with two other staff members, notification was received from Human Resources (HR) office that Complainant was going to receive the promotion. At that point, however, she stated that ADO2 and the Commander decided not to give Complainant the promotion because they did not believe she was qualified. The Supervisor stated that everyone on his staff was promoted except Complainant. He stated that he was asked to provide documentation supporting Complainant's promotion, but prior to submission, he said the Commander informed the HR office that she would not approve Complainant's promotion. Regarding duties taken away from Complainant, he noted that coding certification had never been an issue before this. He stated that that ADO2 and the Commander "had a personal vendetta against [Complainant]." The Commander stated that she was not aware of Complainant ever being denied a promotion after the reclassification of her position. The Commander stated she was also unaware of the Supervisor's recommendation of Complainant's promotion. Finally, the Commander said that she was not aware of any duties being taken from Complainant as a result of the reclassification. Complainant rebutted that statement, noting that there were emails from the Commander with comments regarding her promotion. The Health Systems Administrator stated that after the organization restructured, three employees, including Complainant, were identified as being eligible for promotion. Complainant was selected for the promotion. The Health Systems Administrator said that ADO2 "simply sent the paperwork back stating she did not want to offer the promotion to [Complainant] and did not offer any details as to why." The Health Systems Administrator stated that she "tried to encourage [ADO2] to give the promotion to [Complainant] because these types of restricting promotions are rare", but ADO2 never responded. She noted that ADO2 had a habit of not responding, and that the institutional culture of the Agency was that one did not challenge a military person. After 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant reiterates her assertions that she was a top performer, that she was subjected to a hostile work environment, and that her application for a GS-07 position was pulled out of the running by the Commander, with no reasonable explanation for doing so. 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 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). 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). Here, Complainant has established a prima facie case of race discrimination by establishing: (1) that despite the fact that she was approved for a QSI, upper level management effectively denied it to her while granting QSIs to other Caucasian employees; and (2) that although she was selected over two other employees for a promotion to GS-7, upper level management refused to place her in the position. The burden of production now shifts to the Agency to rebut this presumption of discrimination by articulating a legitimate, non-discriminatory reason for the failure to award Complainant the QSI or promote her to the GS-7 position for which she was selected. While the Agency's burden is not onerous, it must nevertheless provide a specific, clear, and individualized explanation for the treatment accorded Complainant. Wilson v. Department of Veterans Affairs, EEOC Appeal No. 01995055 (December 21, 2001). Complainant is entitled to some rationale for management's actions that provides her with an opportunity to attempt to satisfy her ultimate burden of proving that the Agency's explanations were pretext for discriminatory animus. Id. Here, after careful review of the evidence of record, we conclude that the Agency failed to meet its burden. The record indicates that S2 had approved Complainant for a QSI by at least March 2012. However, while the recommendation was in Complainant's personnel folder, it was never approved. The Health Systems Administrator stated that the form was sent to ADO2 and the Commander for a signature approval, but neither approved the form and provided no reason for not approving it. ADO2 provided no affidavit during the investigation. ADO1 claims it may have occurred because the office was very disorganized. The Commander stated that she simply could not recall much about the matter. However, she did specifically recall questioning S2 about QSIs, and being told no one was recommended.2 However, neither the testimony of ADO1 nor the Commander sufficiently explains why they did not approve the QSI recommendation when it was presented to them by the Health Systems Administrator. Regarding the denial of a promotion to Complainant, her Supervisor stated that all staff was promoted except Complainant, and he believed that ADO2 and the Commander "had a personal vendetta against [Complainant]." It is undisputed that the Supervisor recommended Complainant for a promotion and, after competing with two other staff members, the Human Resource office notified management that Complainant should be promoted to a GS-7 position. The Health Systems Administrator said she gave guidance to ADO2 on how to effectuate the promotion, but indicated that ADO2, "simply sent the paperwork back stating she did not want to offer the promotion to [Complainant] and did not offer any details as to why." The Health Systems Administrator testified that she "tried to encourage [ADO2] to give the promotion" to Complainant, but ADO2 never responded. As already noted, ADO2 did not provide an affidavit during the investigation into the complaint. However, ADO1 averred that she was in a meeting with the Commander and ADO2 around August or September 2013, and they both indicated their belief that Complainant was not "qualified" to perform the duties of the GS-7 position. No further explanation was provided. During the investigation, the Commander testified that she was not aware of Complainant ever being denied a promotion or that her Supervisor had recommended her for one. In sum, we find that the Agency has simply failed to meet its burden, through the testimony of its witnesses, to articulate legitimate, non-discriminatory reasons for the denial of the QSI and promotion to GS-7, and thus has not adequately rebutted Complainant's prima facie case of race discrimination. We therefore conclude that Complainant has prevailed in establishing that she was discriminated against on the basis of her race when she was denied the QSI and the promotion to GS-7. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's finding of no discrimination in this complaint and REMAND the matter for further processing in accordance with the ORDER below. ORDER The Agency is ORDERED to take the following remedial action within 120 days of the date this decision is issued (unless otherwise indicated): 1. The Agency shall retroactively provide Complainant the Quality Step Increase (QSI) that was denied to Complainant in March 2012, along with an award of all resulting back pay, with interest. 2. The Agency shall retroactively provide Complainant the GS-7 promotion, along with along with an award of all resulting back pay, with interest. The promotion shall be retroactive to the date the Health Systems Administrator provided ADO2 with the paperwork to effectuate the promotion. 3. The Agency shall consider Complainant's claim for compensatory damages, incurred as a result of the Agency's discriminatory actions. Within 15 days of the date this decision becomes final, the Agency shall notify Complainant of her right to present evidence to the Agency regarding her claim for compensatory damages. Complainant shall provide objective evidence that the damages in question were a result of the Agency's discrimination and of the amount of the claimed damages. Within 30 days of the submission of such evidence, the Agency shall issue a final agency decision on this issue, with appropriate appeal rights to the Commission. 4. The Agency shall provide training to the relevant management officials (ADO2 and the Commander) regarding their responsibilities with respect to eliminating discrimination in the federal workplace. The training must emphasize the Agency's obligations under Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 5. The Agency shall consider taking appropriate disciplinary action against the relevant management officials (ADO2 and the Commander). The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the Assistant Director has left the Agency's employ, the Agency shall furnish documentation of their departure date(s). The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation of the Agency's calculation of benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at the Walter Reed National Military Medical Center copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). ATTORNEY'S FEES (H1016) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of the date this decision was issued. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. Carlton M. Hadden, Director Office of Federal Operations October 19, 2017 __________________ 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 We also not that this statement directly contradicts S2's written statement, made part of the investigative record, that she had enthusiastically recommended Complainant, and never communicated otherwise to the Commander or other managers. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152515 2 0120152515