[Redacted], Iris D. 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 31, 2020

Appeal No. 2020000407 (E.E.O.C. Dec. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iris D.1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020000407 Agency No. ARFTBUCH16OCT04993 Hearing No. 510-2017-00460X DECISION On October 20, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission). Following the appeal, the Agency issued its November 20, 2019 decision finding that the Agency did not subject Complainant to unlawful employment discrimination or retaliation 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. For the following reasons, the Commission AFFIRMS the Agency’s November 20, 2019 final order. ISSUE PRESENTED The issues presented are whether: Complainant’s appeal was timely filed; the Agency was entitled to summary judgment as a matter of law; and Complainant has shown by a preponderance of the evidence that the Agency subjected her to discrimination based on her race, national origin, and in reprisal for prior protected EEO activity. 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. 2020000407 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Technology Specialist at the Agency’s Fort Buchanan in Puerto Rico. On December 13, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment and discriminated against her on the bases of race (African- American), national origin (American), and reprisal for prior protected EEO activity when: 1. on July 14, 2016, the Chief (Hispanic, American/Puerto Rican) placed Complainant on a Performance Improvement Plan (PlP) and told Complainant that she would not receive her performance appraisal for rating cycle July 1, 2015 - June 30, 2016; 2. on August 24, 2016, the Chief denied Complainant's request to talk about a manager's priorities when the Chief said she “does not tell other people how to do their job;" and 3. on September 13, 2016, Complainant was denied a request for support to help set up her priorities according to the Chief 's expectations while following the guidelines of the PIP; and the Chief said in a threatening tone, "You will prioritize your own work." The Agency accepted Complainant’s complaint for investigation. The investigative record reflects the following pertinent matters relating to the subject claims. On February 5, 2015, Complainant was issued her Civilian Performance Plan. Complainant’s first performance rating, for cycle February 12, 2015 to June 30, 2015, was satisfactory. On February 11, 2016, the Chief informally counseled Complainant on her work performance. On May 2, 2016, the Agency initiated an internal investigation into allegations of misconduct by the Chief at the Fort Buchanan Directorate. The investigation resulted in a finding that the Chief violated Agency regulations by treating members of her staff with a lack of dignity and respect and that the Chief engaged in an intimidating behavior toward some employees. The investigation did not conclude that the Chief retaliated against employees for participating in the EEO process or otherwise opposing discrimination or for any discriminatory reason. Complainant cited to this investigation as evidence that the Chief also retaliated against her. On June 29, 2016, the Chief again informally counseled Complainant on her work performance. The Chief determined that it was best to issue Complainant a PIP. Prior to doing so, the Chief discussed the matter with the Civilian Personnel Officer (CPO) (White, Hispanic, prior EEO activity). The CPO stated that he reviewed a draft of the PIP and agreed with the PIP. The CPO further stated that the situation was not handled any differently from other employees. 2020000407 3 On July 13, 2016, the Chief advised Complainant that her job performance was “Fair” and that she was being placed on a PIP. On July 14, 2016, a meeting was held by the Chief to inform Complainant that the PIP’s goal was to fairly provide Complainant an opportunity to improve her job performance. Complainant was told her performance appraisal for the rating cycle July 1, 2015 - June 30, 2016, was going to be placed on hold until she completed the 90-day PIP period. On July 18, 2016, Complainant was informed of the specific areas in which she needed to improve on, it was noted that the Chief would monitor her progress and provide feedback. The Chief stated that she met with Complainant weekly to provide feedback to Complainant on her job performance. As part of her duties, Complainant is required to meet with eleven program managers. On August 24, 2016, Complainant asserted that the Child Development Center, School Age Center Facility Acting Director (Acting Director, Hispanic, American-Puerto Rican, unknown EEO activity) was not completing her job duties. Complainant asserted that the Acting Director’s failure to perform her duties was impeding Complainant’s work. Complainant had gone to the Chief to ask her for support and to intervene. Complainant asserted that the Chief then said she would “not tell people how to do their job.” The Chief denied making such a statement. Complainant asserted that this was related to her protected classes because she helps everyone else, but no one helps her. Complainant stated that she typically does not want the Chief to dictate her daily schedule. However, on September 13, 2016, Complainant requested the Chief’s input on the priority of three tasks. Complainant asserted that the Chief refused to tell her which tasks she wanted Complainant to prioritize. Complainant also asserted that the Chief said in a threatening tone, "You will prioritize your own work." The Chief denied making any threats. Rather, the Chief stated that Complainant was behind on several tasks, and she had informed Complainant that she needed to prioritize within the top three priorities. On January 23, 2017, Complainant received her mid-year review. The Chief indicated which areas Complainant improved and which still needed work. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s March 4, 2019, motion for a decision without a hearing and issued a decision without a hearing on July 26, 2019. The AJ determined that, even assuming that Complainant had established a prima facie case of discrimination, the Agency had provided legitimate, nondiscriminatory reasons for its actions. Moreover, the AJ determined that Complainant had failed to provide evidence that such reasons were pretext for discrimination. The AJ’s July 26, 2019 decision made it clear in its Notice that Complainant could not appeal the decision directly to the Commission, with the exception of the Agency failing to issue a final order within 40 calendar days of receipt of the decision. The Agency did not issue a final decision within 40 calendar days. 2020000407 4 On October 20, 2019, Complainant filed an appeal from the AJ’s July 26, 2019 decision. After Complainant submitted her appeal, the Agency subsequently issued a Final Agency Order (FAO) on November 20, 2019, which provided Complainant appeal rights to the Commission. The Agency adopted the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL Complainant did not provide an appellate brief. On appeal, the Agency notes that it did not provide a FAO within 40 days of the AJ’s decision. The Agency states that the AJ’s decision was issued on July 26, 2019. After 40 days without an Agency final action, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. 1614.110. The Agency asserts that 40 days later would have been September 4, 2019, giving Complainant another 30 days to file her appeal with the EEOC, which would have been October 4, 2019. Complainant did not submit her appeal until October 20, 2019. The Agency therein requests that the Commission dismiss Complainant’s appeal as untimely. ANALYSIS AND FINDINGS Timeliness of Appeal EEOC regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order within 40 days of receipt of the AJ’s decision in accordance with 29 C.F.R. § 1614.110, the decision of the AJ shall become the final action of the Agency. In the July 26, 2019 decision, the AJ provided notice that our regulations require the Agency to take final action on the complaint by issuing a final order within 40 calendar days of receipt of an AJ’s decision and order. The AJ’s decision also provided notice that Complainant may not directly appeal to the Commission from his decision unless the Agency failed to issue its final decision within 40 calendar days of its receipt of the AJ’s decision. The Certificate of Service in the Order notes that for timeliness purposes, receipt of the Order and Decision would be presumed as received on July 26, 2019, by electronic mail.2 The AJ’s Order and Decision is therefore presumed to have been received by both the Agency and Complainant on July 26, 2019. The 40-day countdown therefore started on July 26, 2019. The Agency then had 40 days to issue a decision in accordance with 29 C.F.R. § 1614.110, i.e., by September 4, 2019. Because the Agency did not issue a decision by September 4, 2019, the AJ’s decision became the decision of the Agency by operation of law, pursuant to 29 C.F.R. § 1614.109(i). 2 The AJ’s Order was emailed to Complainant and Agency counsel. 2020000407 5 Ela O. v Nat’l Sec. Agency, EEOC Appeal No. 0720130021 (Oct. 30, 2015) (AJ's finding of discrimination became agency’s final decision by operation of law where agency failed to take action during the 40-day period); Complainant v. Dep't of State, EEOC Appeal No. 0120141065 (May 15, 2014) (complainant’s appeal untimely where AJ’s decision became agency's decision by operation of law). At that point, Complainant, per the AJ’s July 26, 2019 Notice, had to file an appeal directly to the Commission within 30 days. The Agency argued that, pursuant to 29 C.F.R. § 1614.402(a), Complainant had to file her appeal by October 4, 2019. Complainant's appeal was not submitted until October 20, 2019. As such, the Agency requested that we dismiss the appeal as untimely. However, on November 20, 2019, the Agency decided to issue its FAO. When the Agency issued its November 20, 2019 FAO, it provided Complainant appeal rights to the Commission. Therefore, in this circumstance, this made Complainant’s October 20, 2019 appeal timely. Moreover, contrary to the Agency’s argument, the Commission has held there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances such as this wherein an AJ's decision becomes final by operation of 29 C.F.R. § 1614.109(i). Avery S. v. Dep't of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020). Rather, the time for Complainant to file an appeal in this instance is governed by the doctrine of laches -- “an equitable remedy under which an individual’s failure to diligently pursue their actions can bar their claims.” O’Dell v. Dep’t of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). Here, we conclude that laches does not apply to a 16-day delay. Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We find that summary judgment was appropriate, and the Agency was entitled to a grant of summary judgment as a matter of law. 2020000407 6 Having considered Complainant's arguments in her opposition to the motion for summary judgment and the record, we find that there exists no genuine issue of material fact; the record is adequately developed; and no findings of fact need be made by weighing conflicting evidence or assessing witness credibility. Disparate Treatment Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, she 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Texas Dep’t of Cmty. 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. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). To establish a prima facie case of discrimination, a complainant must show that: (1) she is a member of a protected group; (2) she is qualified for the position; (3) she suffered an adverse employment action; and, (4) the circumstances give rise to an inference of discrimination. We note that, although a complainant bears the burden of establishing a “prima facie” case, Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981), the requirements are “minimal,” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), and complainant’s burden is “not onerous.” Burdine, 450 U.S. at 253. For her claim of reprisal, Complainant must show that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Even if we assume, arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its action. Here, the Chief placed Complainant on the PlP based on Complainant’s job performance from July 1, 2015 through June 30, 2016. The Chief identified specific areas in which Complainant needed to improve her performance and worked with the CPO prior to issuing the PIP. Complainant asserted that she was never informed of work deficiencies prior to receiving the PIP. The Chief countered and stated that she held informal meetings with Complainant regarding her work and the PIP was issued to assist Complainant improve her performance. In this matter, we note that aside from her assertions that the PIP was discriminatorily issued, Complainant did not provide evidence to support her contentions. 2020000407 7 We note that as the employer, the Agency has broad discretion to determine how best to manage its operations and may make decisions, including personnel decisions, on any basis except a basis that is unlawful under the discrimination statutes. See Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). An employer is entitled to make its own business judgments. The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Therefore, our analysis focuses on the Agency's motivation, not its business judgment. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979). In other words, it is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding Complainant’s retaliation claim, Complainant argued that the Chief had issued the July 2016 PIP in reprisal for Complainant’s reports that an employee was being overcharged childcare fees. In her reprisal claim, Complainant did not allege that she engaged in EEO activity, merely, that the Chief retaliated against her for making a report of overages. Anti-retaliation provisions of Title VII protect those who oppose discriminatory employment practices and those who participate in the EEO process. EEOC Compliance Manual Section 8, "Retaliation," EEOC Notice 915.003 § 8-IILB. (May 20, 1998) (EEOC Compliance Manual on Retaliation). In the instant complaint, Complainant has not shown that she engaged in any EEO protected activity when she reported the overages. Furthermore, assuming Complainant had established a prima facie case of retaliation, the record demonstrated that her prior EEO complaint occurred after the Chief had informal performance discussions. Moreover, Complainant’s protected EEO activity was also after management had already taken steps to address Complainant’s job performance and the issuance of the PIP. Additionally, we note that in this matter, beyond the Reports of Investigation and Complainant’s arguments, Complainant did not present further evidence to support her claims. Complainant decided not to request a hearing before an EEOC AJ, and as a result we do not have the benefit of an AJ's credibility determinations of these conflicting statements between the Chief and Complainant. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet her burden of persuasion. Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). Here, as detailed by the record and in the AJ’s decision, the record supports the AJ’s determination that the Agency’s proffered reasons were legitimate and non-discriminatory. Complainant did not provide persuasive arguments, below or on appeal, that the Agency’s actions was pretext for discrimination. 2020000407 8 Hostile Work Environment In her harassment claim, in addition to the incidents discussed above, Complainant generally alleged that the Chief subjected her to a hostile work environment and that she was a disrespectful and hostile individual. Complainant also detailed her dissatisfaction with the Chief’s management style. For example, not intervening regarding another manager’s work, and not telling Complainant how to prioritize certain tasks. Complainant asserted that these claims demonstrated an overall level of hostility by the Chief. While the record clearly establishes that the Chief was found to be unprofessional, and at times disrespectful toward subordinate employees, the record is devoid of evidence tending to show that the Chief was motivated to act based on discriminatory or retaliatory animus. We find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of a hostile work environment must fail. To prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, national origin and EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). As already concluded above, there is no evidence to support a finding that Complainant’s protected classes or prior EEO activity played any role in the Agency’s actions. Moreover, the responsible management officials provided legitimate, non-discriminatory explanations for its actions. In sum, Complainant failed to prove that her protected classes or EEO activity played any role in the incidents she proffered as evidence of her harassment claim. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final order implementing the AJ’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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 2020000407 9 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, 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. 2020000407 10 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, Director Office of Federal Operations December 31, 2020 Date