[Redacted], Ashely H., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021005073 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ashely H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021005073 Hearing No. 430-2019-00431X Agency No. ARBRAGG18OCT04280 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 17, 2021, 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. For the reasons that follow, the Agency’s final order is AFFIRMED. BACKGROUND During the period at issue, Complainant served as a Victim Advocate, GS-0101-09, for the Agency’s 528th Sustainment Brigade, at Fort Bragg, North Carolina. Complainant’s first level supervisor was S1. S2, Commander, 528th Sustainment Brigade, was her second level supervisor. A1, the Deputy Commander, and a Lieutenant Colonel, became her first level supervisor on November 7, 2018. On November 26, 2018, she filed a complaint alleging discrimination and harassment based on sex (female) and in reprisal for engaging in prior EEO activity when: (1) on August 22, 2018, her computer was taken away, quarantined, and the hard drive was erased; (2) on September 20, 2018, she was directed to take a security related refresher training; (3) on October 1, 2018, she was placed on administrative leave; and (4) on November 7, 2018, she was informed that her rater was being changed. 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. 2021005073 2 After its investigation into the complaint, 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 (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. According to the record, in June 2018, Complainant attended the Court Martial of a solider accused of rape. According to Complainant, the trial caused her “grave concern,” and left her with a lot of questions. On August 10, 2018, she compiled her concerns into a letter and e-mailed it as an attachment to G1, Commanding General of the Special Operations Command (USASOC). Complainant also forwarded that e-mail and her attached letter to her personal e- mail account. Subsequently, it was determined that the attached letter contained information that was classified as secret. The record provides that “as soon as an Information Assurance incident is identified or suspected, the affected information system(s) must be isolated from the rest of the network and quarantined.” Both S2 and A1 stated that, in accordance with policy, on August 28, 2018, Complainant’s office computer was temporarily confiscated. Policy also provided that “users may be denied access to one or more network resources pending results of the investigation or until remedial training is completed,” and “it is imperative that the specific individuals involved undergo remedial training to prevent repeat occurrences.” D1, Special Access Program Coordinator, reviewed Complainant’s letter to G1 and determined that it was in fact classified secret. He recommended that Complainant receive remedial security classification training and that she be instructed to consult her unit security manager for classification guidance prior to disseminating information regarded as sensitive. On September 20, 2018, A1 directed Complainant to take Information Assurance refresher training. Afterward, Complainant’s access to her computer was restored. On September 28, 2018, the Complainant, using her personal account, e-mailed the same letter she previously sent to G1 to the EEO office. Before sending this e-mail, she attempted to redact portions using a black marker. The Agency noted, however, that she not only did not have the authority to declassify the document, but she also failed to redact all the classified information. On September 28, 2018, S2 was notified of this second event. Because of the second event, on October 1, 2018, Complainant was placed on administrative leave pending an investigation.2 Regarding claim 4, S1 stated that, in August 2018, during a monthly meeting of victim advocates from other sections and brigades there were concerns expressed about their being rated by a Sergeant First Class when they believed they should be rated by someone higher. S1 was told that he “should not be a GS-9’s supervisor or rater for evaluations.” 2 Complainant’s security clearance was subsequently suspended by the Department of Defense. 2021005073 3 On November 1, 2018, S1 relayed a recommendation to A1 that the 528th Sustainment Brigade change Complainant’s rating scheme to have someone senior to himself serve as her rater. A1 made the decision to become Complainant’s rater since he was already S1’s rater. According to A1, this change brought Complainant’s rating scheme in line with every other civilian employee that worked in the 528th Sustainment Brigade who were all rated by a Major or higher. On November 7, 2018, Complainant was notified that her performance rater was changed from S1 to A1. S2 remained her second level supervisor. 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). 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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 factfinder could not find in her favor. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 2021005073 4 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. In the absence of a legible postmark, a 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. 2021005073 5 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 February 16, 2022 Date