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

Equal Employment Opportunity Commission

Aug 23, 2022

Appeal No. 2020004458 (E.E.O.C. Aug. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mana H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004458 Hearing No. 420-2020-00112X Agency No. ARIMCOMHQ19MAY01685 DECISION On August 5, 2020, 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 July 16, 2020, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Plans Specialist at the Agency’s Plans, Analysis, and Integration Office in Fort Rucker, Alabama. On July 1, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability, and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 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. 2020004458 2 1. From April 1, 2019 to June 27, 2019, the Director of Plans, Analysis, and Integration (Director) did not provide his rationale for the extension of Complainant's performance appraisal in writing, and did not acknowledge Complainant's noted discrepancies for the performance objectives; 2. Between May 3, 2019 and July 22, 2019, Complainant received a Letter of Reprimand, a Notice of Proposed Suspension, a Notice of Decision to Suspend, and a Notice of Proposed Removal; 3. On a continuing basis, the Director made comments regarding Complainant's medical conditions to the Management and Program Analysis (Analyst), and the Analyst asked Complainant about her conditions; 4. From June 10, 2019 through June 25, 2019, the Director denied Complainant's request to participate in the Army Aviation Center of Excellence and Fort Rucker Civilian Fitness Program, did not respond to her requests for clarification on time reporting instructions, changed her previously input time, and deleted 15 minutes of overtime; and 5. From June 19, 2019 and ongoing, the Director and the Analyst made negative comments about Complainant and the Director did not address Complainant's reports of harassment. 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 requested a hearing, but upon the following a motion from the Agency, the AJ denied the hearing request on the grounds that Complainant’s hearing request was not timely. The AJ remanded the complaint to the Agency, and the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that managements explanations for its actions were reasonable and nondiscriminatory. In addition, the Agency found that the environment created within Complainant's workplace was not sufficient to show a hostile work environment. The Agency explained that Complainant's arguments challenged the wisdom of management's business decisions, and her disagreement over such decisions did not constitute evidence of discriminatory animus. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. 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 Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 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, 2020004458 3 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 facts. The final decision also correctly identified the legal standard for Complainant to prove that he was subjected to race discrimination. Concerning his allegations of disparate treatment discrimination, he must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In order to establish a hostile work environment, Complainant must prove: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class status; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment. See Davis v. Dep't of the Army, EEOC Appeal Nos. 01A24469, 01A20558 (Nov. 14, 2003), see also 29 C.F.R. § 1604.11. Upon review of the appeal and the FAD, we find that the Agency considered all of the circumstances and found that there was no discriminatory intent regarding Complainants treatment. We acknowledge Complainant's arguments on appeal. However, Complainant has merely pointed to the timeline of events and provided statements which argue that such events are discriminatory. Unfortunately, bare assertions on their own are insufficient to prove her case. Complainant has not shown that the Agency’s engaged in discriminatory behavior, nor that the Agency’s characterization of events was false. The Commission reiterates that Complainant bears the burden, at all times, to prove the Agency's actions were due to discriminatory animus. Rather, the Commission is an impartial arbiter of the facts held within the file. Upon review of the file, we have found no reason to invalidate the findings in the FAD. Based on a thorough review of the record, 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. 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 2020004458 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. 2020004458 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 August 23, 2022 Date