[Redacted], Renee L., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (DOD Defense Education Agency), Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021000941 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Renee L.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (DOD Defense Education Agency), Agency. Appeal No. 2021000941 Hearing No. 410-2020-00128X Agency No. DD-FY19-056 DECISION On October 13, 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 October 6, 2020 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Kitchen Cook, NA- 7404-04, at the Agency’s Kessler Elementary School in Fort Stewart, Georgia. On March 14, 2019 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of sex (female), disability (Diabetes, Blood Pressure and Nerve Condition), and in reprisal for prior protected EEO activity 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. 2021000941 2 1. On December 18, 2018, Complainant’s second-level supervisor (S2) yelled at Complainant; 2. On January 7, 2019, Complainant’s manager (S1) issued Complainant a Notice of Proposed Suspension; and 3. On February 15, 2019, Complainant was issued a Decision on Proposed Suspension by her third-level supervisor (S3) for failure to follow instruction and unprofessional conduct resulting in a three-day suspension effective February 19, 2019 through February 21, 2019. Complainant’s first level supervisor during the relevant period was the Cook Supervisor (S1). Her second-level supervisor was the Supervisory Food Service Specialist (S2). The Supervisory Program Analyst, (S3), who was S2’s supervisor, issued Complainant the Three-Day Suspension, which Complainant served from February 19, 2019 through February 21, 2019. 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. The AJ assigned to the case sua sponte issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the alleged incidents were based on discriminatory or retaliatory animus. Regarding the suspension, S1 stated that she proposed it because Complainant was displeased with being assigned an area of work, would not follow instructions, would not follow required recipes, and was rude to other employees when she did not get her way. S3 affirmed that she determined that the suspension was appropriate and issued the Decision on Proposed Suspension because Complainant had a history of insubordination and failing to follow instructions from her supervisor for approximately a year. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. Complainant filed the instant appeal without submitting any arguments or contentions in support. 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. 2021000941 3 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. (as revised, August 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 must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, Complainant failed to establish such a dispute. We find that, construing the evidence in the light most favorable to Complainant, the alleged incidents in their totality are insufficiently severe or pervasive to establish a hostile work environment. Furthermore, the record showed that the Agency articulated legitimate, non-discriminatory reasons for its actions. S2 denied yelling at Complainant; rather, she attempted to address concerns Complainant raised with her and had to speak over loud machinery. Regarding the Notice of Proposed Suspension and Decision on Proposed Suspension, Complainant’s supervisors believed that Complainant was deliberately failing to follow supervisory instructions, was engaging in unsafe food handling practices, and had been rude to her coworkers. S1 specifically stated that Complainant began having issues when S1 assigned each person an area of responsibility to put food and supplies away when they came in. S1 asserted that Complainant began calling out from work, leaving work early, and attempted to bully the other workers when she did not get her way. S1 noted that she wrote Complainant up on several occasions for violating policies, including for putting food in the students’ bare hands instead of a paper tray; for eating and drinking in the kitchen; and for phone usage in the kitchen and serving area. Based on advice from human resources S1 issued the proposed suspension which was mitigated to three days but upheld by S3. Complainant disagreed with the supervisor’s perceptions, but she did not offer evidence that the stated reasons were untrue. Further, Complainant did not show sufficient evidence that the named management officials in this matter harbored discriminatory or retaliatory animus based on her protected groups. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021000941 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. 2021000941 5 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. 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 2, 2022 Date