[Redacted], Chanelle B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022000835 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chanelle B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2022000835 Hearing No. 570-2019-00655X Agency No. DHRA-05-2018 DECISION On November 29, 2021, 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 October 28, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Special Emphasis Program Manager, GS-0260-13, at the Agency’s Diversity Management and Equal Opportunity Office, Diversity and Inclusion Branch in Alexandria, Virginia. On June 29, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected her to harassment on the bases of race (African-American), sex (female), age (DOB: 1971), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 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. 2022000835 2 1. On March 9, 2018, management failed to respond promptly to Complainant’s workplace concerns; 2. On February 6, 2018, Complainant’s first-line supervisor (Supervisor) made unwelcome and unnecessary comments about Complainant’s weight; 3. In February 2018, Supervisor notified Complainant that her performance from February to April 2017 would not be included in her performance appraisal; 4. Supervisor failed to provide Complainant her performance plan until November 8, 2017; 5. On November 2, 2017, Supervisor changed Complainant’s regular day off for the month of November 2017; 6. On unspecified dates, Supervisor made unreasonable demands when Complainant requested leave, and on November 1, 2017, she refused to alter Complainant’s schedule; 7. On September 25 and October 18, 2017, Supervisor referred to Complainant as “girl”; 8. On September 19, 2017, Supervisor referred to Complainant as “Negro,” 9. On three different instances (April, September 11, and September 13, 2017), Supervisor made unwelcome and disparaging comments about Complainant’s hair; 10. On unspecified dates, Supervisor micromanaged Complainant when Supervisor required daily meetings with her, interrupted Complainant when she was speaking with anyone for more than 10 minutes, failed to assign Complainant work, came to the unscheduled meetings only when she was available, scheduled meetings late in the day which caused Complainant to stay later, and constantly inquired about Complainant’s meetings with other individuals; and 11. On an unspecified date, Supervisor referred to Complainant as “child.” 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 18, 2020, motion for a decision without a hearing and issued a decision without a hearing on October 13, 2021. 2022000835 3 The AJ adopted and incorporated by reference the Agency’s Statement of Undisputed Material Facts after finding that the Agency’s motion accurately recounted the relevant facts. The AJ then found that there were no genuine issues of material fact. Next, the AJ found that with respect to discrete claims, only claims 1 through 3 were timely raised. However, the remaining claims were considered as part of Complainant’s hostile work environment claim. Additionally, the AJ noted that there was no dispute that Complainant did not raise any specific, discrete claim of discrimination and/or retaliation. Rather, Complainant’s sole claim was that she was subjected to a hostile work environment by her supervisor and the Agency failed to take steps to address the supervisor’s alleged conduct. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. 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. (Aug. 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). In order 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 she 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. Complainant, through her attorney, asserts that the AJ erred in granting summary judgment in the Agency’s favor, but she did not identify any genuine disputes of material facts. Likewise, a review of the record does not reveal any genuine disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. On appeal, Complainant contends that the AJ’s decision failed to consider the totality of harassment because the Agency’s Statement of Undisputed Material Facts omitted Complainant’s allegations concerning Supervisor’s micromanagement of Complainant. Complainant adds that the AJ failed to consider statements from Complainant’s coworker’s that corroborated Complainant’s reports of harassment. 2022000835 4 Complainant's allegations can generally be described as relating to disagreements over how work should be done, trivial slights, personality conflicts, and/or petty annoyances between Complainant and Supervisor. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (the record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We find that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence that discriminatory or retaliatory animus played a role in any of the Agency's actions. Thus, Complainant has failed to meet her burden in establishing she was subjected to unlawful discriminatory harassment. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as Complainant’s arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that the Agency subjected Complainant to harassment or discrimination based on her race, sex, age, or in reprisal for prior protected activity. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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 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. 2022000835 5 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. 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. 2022000835 6 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 January 31, 2023 Date