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

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2022003037 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hiroko V.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022003037 Hearing No. 570-2020-0799x Agency No. 570-2020-0799x DECISION On May 11, 2022, 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 December 27, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civilian Pay Services Representative, GS-0501-09, at the Agency’s Sierra Army Depot in Herlong, California. 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 2022003037 Complainant was hired by the Agency on a non-permanent appointment with an expiration date of July 29, 2019. See Report of Investigation (ROI) at 127. Complainant is African American/Black and has various disabilities, including mobility, cognitive and autoimmune issues. ROI at 403-049. The Chief, Finance and Accounting, Sierra Army Depot, (Supervisor) became Complainant’s supervisor on September 30, 2018. Supervisor was not aware of Complainant’s medical conditions but was aware that Complainant was already on a “medical situational telework agreement” effective August 27-October 27, 2018. When Supervisor later reviewed the telework agreement, she learned that Complainant had “myalgia, with insomnia.” In April and May 2019, Supervisor also learned of Complainant’s other chronic conditions from documents that Complainant submitted. ROI at 420-22. After Complainant’s initial telework agreement, Supervisor approved additional telework agreements for October 31-November 30, 2018, and January 1-June 30, 2019 for Complainant. ROI at 423. According to Supervisor, on April 23 and 24, 2019, and again on May 9, 2019, she reassigned some of Complainant’s work to another employee. Supervisor asserted that she told Complainant that the reassignment was because Complainant had missed deadlines for the completion of the work. ROI at 409. Complainant acknowledged that she missed the stated deadlines but asserted that she was in an emergency room at the time. ROI at 409. The record reflects that Complainant was seen in an emergency room on April 4, 2019, and she was cleared to return to work on April 6, 2019. ROI at 281. Supervisor stated that in written instructions, she had previously told Complainant and other employees that Supervisor liked deadlines. Supervisor asserted that she informed the employees that if she gave them a deadline and they were unable to meet that deadline, employee were to be sure to discuss it with her. ROI at 367, 425. Supervisor stated that Complainant missed deadlines for work to be completed by April 18 and April 25, 2019, without having requested an extension. Therefore, Supervisor assigned the work to another employee. ROI at 82-6, 105-12, and 369-72. According to Supervisor, she made Complainant aware on April 9, 2019, that she thought that Complainant’s performance was steadily declining. ROI at 425. The record indicates that Supervisor also e-mailed Complainant on May 22 regarding insufficient documentation of work that Complainant had undertaken. See ROI at 121-23. Supervisor stated that all other employees were “meeting deadlines and keeping up with daily tasks.” ROI at 426. Supervisor asserted that on May 9, 2019, a named Human Resource Specialist informed her that Supervisor should proceed to place Complainant on a Performance Improvement Plan (PIP). Supervisor drafted the PIP. ROI at 113, 118-20. However, Complainant was not placed on the PIP after it was approved in early June 2019, as her term appointment was not being extended. ROI at 124, 126. 3 2022003037 On May 21, 2019, Complainant requested five hours of Leave Without Pay after she did not return to work on May 20 following being excused from jury duty. ROI at 313, 316. Complainant had not informed Supervisor that she would not be returning to work following jury duty, even though they had exchanged text messages earlier on May 20 before Complainant went for jury duty. ROI at 313, 315. Because Complainant had not contacted Supervisor, Supervisor notified Complainant that Supervisor was denying Complainant’s leave request. ROI at 317-18, 519. According to Supervisor, Complainant was required to notify Supervisor within two hours of her need for the leave in accordance with Agency time and attendance policies and the terms of the applicable collective bargaining agreement. ROI at 427, 429, 523-24 and 538-40. Complainant acknowledged that she was not aware of any employees who were treated more favorably than her in this regard. ROI at 412. Complainant asserted that on May 22, 2019, she gave Supervisor a note from her physician; and that afterward, Supervisor did not meet with Complainant to explain how Complainant could remedy her workplace deficiencies. ROI at 413. Record information indicates that Complainant did not identify the physician’s note in question but that the most nearly applicable such note appeared to be one dated April 17, 2019, which stated that Complainant had a “physical and memory impairing disability hindering mobility and mental acuity leading to memory challenges.” ROI at 25 and 325. On June 13, 2019, Supervisor notified Complainant in writing and in person that her appointment would not be extended. Complainant acknowledged the notice on that date. ROI at 127, 431. On October 17, 2019, 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) and disability when: 1. Supervisor pulled assignments from Complainant on April 23-24, 2019, and May 9, 2019, for missing deadlines on reports and “recon” with no explanation and no follow-up meeting. 2. Supervisor informed Complainant that Complainant needed to take 5 hours Absence Without Leave (AWOL) for not reporting to work after jury duty on May 20, 2019. 3. Supervisor did not have a follow-up meeting with Complainant to explain what was wrong so Complainant could correct the tasks taken from her and reassigned even after Complainant provided a doctor’s note on May 22, 2019. 4. Supervisor proposed to not extend Complainant’s non-permanent appointment as a Civilian Pay Service Representative, GS-0501-09 on June 13, 2019. 5. Supervisor terminated Complainant’s non-permanent appointment as a Civilian Pay Services Representative, GS-0501-09, on July 29, 2019. 4 2022003037 The Agency conducted an investigation into the complaint beginning on May 12, 2019.2 The investigation was completed on June 19, 2020. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 8, 2020, Complainant filed a motion asking that the AJ impose sanctions on the Agency for untimely investigation of her complaint. However, after giving the parties notice and an opportunity to respond, on December 27, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The AJ found that the Agency had set forth non-discriminatory explanations for the matters underlying Complainant’s claims of discrimination; and that Complainant failed to identify any disputed material facts. According to the AJ, the basis for not extending Complainant’s appointment were concerns with Complainant’s performance as she acknowledged being told, and also her not following the specifics of her telework agreement. The AJ noted that no prima facie analysis appeared necessary in this case because there was substantial unrebutted evidence put forth by the Agency to explain its treatment of Complainant. Citing to Commission precedent, the AJ observed that an employer may act for a good reason, a bad reason, or no reason at all, provided the employer is not motivated by a discriminatory reason. The AJ asserted that although Complainant alleged that she was held accountable for missing various deadlines when out on leave under the Family and Medical Leave Act (FMLA) in April 2019, in point of fact, Complainant had been made aware before taking this FMLA that there were issues involving financial reports, time sheets, leave slips, and payroll reconciliations, leading her supervisor to advise her that she considered Complainant’s performance to have “declined steadily and has reached an unacceptable level.” The AJ also found that Complainant had failed to establish that she was subjected to a hostile work environment. Citing to Commission precedent, the AJ asserted that taken as a whole, Complainant’s allegations did not evince conditions that a reasonable person would deem an objectively severe hostile work environment. The AJ noted that in her response to the Notice of Intent, Complainant alleged that the Agency’s failure to investigate her complaint within 180 days warrants sanctions, seeking inter alia, a default judgment in her favor. The AJ determined that Complainant’s August 8, 2021 motion regarding this matter was unsupported by either affidavits and/or documents. Moreover, observed the AJ, there was nothing on the face of Complainant’s motion suggesting that she had been in any way prejudiced in the presentation of her case by the Agency’s completing her investigation two months beyond the 180-day deadline. According to the AJ, the existing ROI in this matter contained interviews of Complainant, responsible management officials and an alleged comparator. 2 The Agency had earlier procedurally dismissed the complaint and Complainant appealed to the Commission. Thereafter, the Agency rescinded its dismissal. 5 2022003037 Additionally, stated the AJ, Complainant was given and took the opportunity to make rebuttal statements to the testimony of the various interviewees. Under these circumstances, the AJ concluded that sanctions were not warranted for the untimely investigation and that the record was sufficiently complete for issuance of the AJ’s decision. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed, and Complainant submitted a brief in support of her appeal. 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. (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. Through her EEO representative, Complainant disagrees with 22 of the Agency’s proffered facts. For example, Complainant argues that it is reasonable to expect that an employee would be behind on deadlines after being out of the office for two weeks (with reference to her FMLA leave from April 1 to April 15, 2019). See Complainant’s Response to Hearing at 7. According to Complainant, the moment the agency approved the leave, they were aware the employee would be behind on any deadline due near that time. However, Complainant did not cite to any evidence to establish a genuine dispute. Mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No. 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (Jun. 26, 2001), req. for recon. den’d, EEOC Request No. 05A10914 (Oct. 1, 2001). 6 2022003037 Complainant took issue with the AJ’s decision not to grant her request to sanction the Agency for its untimely investigation. Specifically, Complainant claims that the Agency’s completion of the investigation into her complaint 251 days after it was received should be considered an untimely investigation. We note that under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dep’t of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016, n.3 (Jun. 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). Here, Complainant provided no arguments or evidence that the AJ abused their discretion in declining to sanction the Agency. Complainant also contests the Agency’s method of issuing the final order via e-mail and not via the Commission’s portal as ordered by the AJ. Pursuant to 29 C.F.R § 1614.110(a), the Agency is required to take final action by issuing a final order. When the Agency fails to issue a final order within 40 days of receipt of the AJ's decision, the AJ's decision becomes the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). Here, the Agency issued its final order on January 19, 2022, some 22 days after the AJ’s December 27, 2021 decision and in less time than the required 40 days. While issuing the final order via the Commission’s portal would be expeditious, Complainant presented no evidence to show that she was prejudiced by receiving the final order via email. Moreover, had the agency failed to issue a final order, Complainant would have had the right to file her own appeal any time after the conclusion of the agency’s (40) day period for issuing a final order. See EEO MD-110, 9-3. Complainant alleges that her local representative was prevented from using official time to assist her in her case due to a misinterpretation of Section 1614.605(b) and Management Directive Chapter 6, Part VII, Section (c), regarding Official Time. It is unclear from Complainant’s statements whether the misinterpretation was on the part of the local representative or on the part of the Agency. We do not find any evidence that Complainant was in any way prejudiced in this case by any such misinterpretation. 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 Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision concluding no discrimination was established. 7 2022003037 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). 8 2022003037 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 February 14, 2023 Date