[Redacted], Robin S., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Nov 17, 2022

Appeal No. 2021004068 (E.E.O.C. Nov. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Robin S.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021004068 Agency No. DLAR-20-0225 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 24, 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. 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 final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist, GS-1102-12, at the Agency’s DLA Aviation facility in Richmond, Virginia. On August 25, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on race (Black) and age (59) when, as defined by the Agency: 1. Her supervisor called and told her she was being reassigned from supervisory duties to a Contract Buyer; 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. 2021004068 2 2. Beginning when Complainant’s supervisor came on board, he subjected her to harassment (nonsexual), specifically: a. Polled Complainant’s employees for information to use to move her, which the supervisor had not done with a White supervisor; b. Made the statement, “I’ve fired supervisors, I’ve fired team leaders, if you don’t want to work for me you can leave”; and c. Responded that “It was a long time coming, I was just waiting on the right timing,” when asked in a meeting why Complainant’s supervisory duties had been removed. 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. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. In its final decision, the Agency found that the Agency articulated legitimate, nondiscriminatory reasons for its actions that Complainant failed to rebut. As to Complainant’s harassment claims, the Agency found that Complainant did not show that the Agency’s actions or her supervisor’s comments were because of her protected bases. Regarding claim 1, Complainant’s second-line supervisor (S2), Division Chief, stated that the reason for moving Complainant out of her supervisory role was mainly business-related and also due to concerns about her work as a supervisor. Prior to the move, S2 spoke to Complainant’s first-level supervisor (S1), Strategic Branch Chief about improving the division’s numbers, which had been reduced after two Corporate Contract Specialists were no longer working in the division-one was working in a special project role and another was to be deployed overseas. S1 and S2 both believed the numbers could be improved by moving Complainant to the special project role and returning the Corporate Contract Specialist to his original role. In addition, her supervisors observed that Complainant had struggled as a supervisor with regard to developing and training those buyers she supervised, as evidenced by two employees informing S1 that they were unsatisfied with Complainant as their supervisor. Despite his decision to remove her from her supervisory position, however, S2 learned shortly afterward that there had been a decrease in the workload of the special project to which Complainant was reassigned. Because there was no longer a business need for Complainant to be moved, S2 placed her back in a supervisory position. Regarding claim 2a, S2 averred that shortly after he became chief of the division in March 2020, he telephoned all of his division employees in order to introduce himself since he expected the Agency to be in telework status for the foreseeable future. During those phone calls, he spoke with 54 of the 76 division employees, and he asked all of them similar questions, including asking about their workload and inquiring if they wanted to discuss anything with him. He denies polling employees about Complainant or informing Complainant of any employees who had complained about her. 2021004068 3 Regarding claim 2b, the Agency found that S2 had made the reported comment during a meeting with supervisors and did not direct it specifically at Complainant. Regarding both claims 2b and 2c, the Agency in its decision did not deny that S2 made the alleged statements but found that Complainant “was unable to show how her protected class memberships were reasons for S2’s actions.” ANALYSIS AND FINDINGS 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 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”). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incident in claim 1, we find that Complainant failed to show that any of the actions were motivated by discrimination. Complainant was briefly moved to a nonsupervisory role in order to assist the division in increasing its metrics and because there had been several complaints about her performance as a manager. After the business reasons became moot, Complainant was restored to a supervisory position. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment must fail with regard to claim 1. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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 animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as she alleged. As to claim 2, the incidents as defined do not rise to the level of hostile work environment, even assuming they occurred as Complainant alleged. We also find that Complainant has failed to establish that these actions were motivated by her protected bases. Upon careful review of the evidence of record, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. 2021004068 4 CONCLUSION 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 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. 2021004068 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 November 17, 2022 Date