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

Equal Employment Opportunity Commission

Jul 11, 2022

Appeal No. 2021002866 (E.E.O.C. Jul. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fae P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002866 Hearing No. 531-2019-00705X Agency No. ARAPG18SEP03580 DECISION On April 16, 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 March 17, 2021, final decision 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 following reasons, the Commission AFFIRMS the Agency’s final decision. At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist for the Agency’s Research, Development, and Engineering Command (RDECOM) in Aberdeen Proving Ground, Maryland. On November 2, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when the Agency engaged in a series of events including, but not limited to: issuance of counseling letters concerning Complainant’s use and protection of confidential information and conduct while at work; change of Complainant’s work-related duties, which resulted in Complainant feeling as though there was a concerted 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. 2021002866 2 effort made by Deputy Chief of Staff of Information Management (Deputy Chief) to discredit Complainant’s competency, candor, and employment fitness; and an attempt to constructively discharge her or cause a negative impact on her career. 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 but subsequently withdrew her request. The Agency rendered a final decision pursuant to 29 C.F.R. § 1614.110(b), finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Emp’t Opportunity Mgmt. Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment based on race, as set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s legitimate, nondiscriminatory explanation for his nonselection is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 256 (1981). To the extent that Complainant’s attorney attempts to provide argument of pretext by asserting that the Agency’s security concerns surrounding Complainant were unsubstantiated, the Commission finds that there is insufficient evidence to concur with such a conclusion. Complainant Appeal Brief at 12. Complainant does not argue that she utilized her personal cellular phone to record an Agency meeting; she does not dispute that she left a room unsecured because she “thought it would be okay;” nor does she contest that she had an incident, while on detail, where she failed to properly secure briefing documents. Record of Investigation (ROI) at 588, 604, 608. As to the secure information stored in unmoved boxes, Supervisory IT Specialist stated that it was a long story and asserted that, at one time, Complainant wanted the boxes back. He went on to say he told Complainant to make a plan to get rid of the boxes, but, “[He did] not know what ultimately happened with the boxes.” ROI at 663. Director for Intelligence and Security noted that Complainant was listed as the point of contact for the boxes in question, and that they contained secret information. 2021002866 3 ROI at 669. The Commission finds that, in this case, the evidence does not demonstrate that any error made on the part of the Agency was discriminatory, as opposed miscommunication or confusion, which are not evidence of pretext. See Calvin D. v. Dep’t of the Army, EEOC Appeal No. 0120171662 (Sept. 25, 2018), Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (July 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). The Commission has considered that both Supervisory IT Specialist’s comments that “[a] couple of people of color in my staff[,] to include Complainant…were singled out to be scrutinized” and “[Deputy Chief] has her favorite people and none of them are people of color.” ROI at 657-58. The Commission has also noted Supervisory Computer Scientists statement that she believes that Deputy Chief contributed to a culture of systemic racism and discrimination and she believes that Complainant was denied overtime based upon race, color, and sex. ROI at 649-50. While the Commission is concerned that the work environment would inspire such personal impressions, these statements are, ultimately, suppositions and opinions without supporting evidence. Beliefs, no matter how sincere, are not evidence of discrimination. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). Supervisory IT Specialist, himself, conceded, “There is nothing specific[,] but you can sense it.” ROI at 664. Moreover, Supervisory Computer Scientist conflicted her own conclusion, by stating, “I think that [Deputy Chief] has been influenced by historical knowledge of [Complainant].” ROI at 645. Knowledge of prior behavior is not a protected class under any of the EEOC statutes. To the extent that Complainant’s attorney raises the issue of the Agency’s credibility, the Commission notes that Complainant had the opportunity to question witnesses and have a credibility determination made by an AJ at a hearing, and she chose to withdraw that request. Complainant’s Appeal Brief at 13. As such, the Commission must make a decision based upon the evidence presented and, in this case, we find that Complainant has failed to provide evidence sufficient to persuade the fact finder that the actions of the Agency were due to discriminatory animus. As such, we cannot find that complainant was discriminated against, nor that she was subjected to harassment. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000) (affirming that where a complainant’s harassment claim is precluded when a complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2021002866 4 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. 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). 2021002866 5 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. 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 July 11, 2022 Date