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

Equal Employment Opportunity Commission

Dec 5, 2022

Appeal No. 2022000214 (E.E.O.C. Dec. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000214 Agency No. ARAPG20JUL02445 DECISION On October 18, 2021, 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 September 22, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Contract Specialist, 1102, GS-12 for Army Contracting Command (ACC) at the Agency’s U.S. Army Garrison facility in Aberdeen Proving Ground, Maryland. On September 10, 2020, Complainant filed an EEO complaint alleging the following: a. Complainant was subjected to harassment and hostile work environment on the bases of race (African-American), sex (female), color (black), disability 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. 2022000214 2 (osteoarthritis), and age (45), by her Supervisor, second-level supervisor (Supervisor-2), and coworker (Coworker-1) when: 1. On February 13, 2020, during a verbal interaction between Complainant and Coworker-1, in the presence of Branch members and interns, Coworker-1 interrupted a conversation between Complainant and Supervisor by yelling at Complainant. Complainant reported the incident to Supervisor-2, who did not take action; 2. On May 22, 2020, Complainant received an email from Supervisor stating “you want your branch chief to tell you what needs to change in your POM for YOUR requirement? This is Specialist work. Specialist work that should have already been identified and completed. The fact that we didn’t know the contract type of this effort is appalling to me. That was an embarrassing phone call with the vendor yesterday.” This affected Complainant’s work performance and created a lack of trust; 3. On June 15, 2020, Coworker-1 replied “all” to an accountability email intended only for Supervisor, but was instead sent to the entire branch of 14 people, where she stated “I am going to discuss with [Complainant] her actions, or lack thereof, on the systems engineering technical assistance (SETA) modification she has had on her plate for the past 4 weeks (or so it feels like).” Complainant was in shock, embarrassed and felt like Coworker-1 was lying about her in front of the entire branch, because of the false information; 4. On June 16, 2020, Complainant received an alleged threatening email from Supervisor stating, “I wanted to send an email to the branch about the modified hours. I know that some of you are dealing with young children at home and I am wanting to be flexible with that; however, if you are working a modified schedule, you need to let me know on a daily basis in advance of you working a modified schedule. Alternatively, you can change your schedule on a permanent basis. I also wanted you to know that the extension of telework until December 31, 2020, is at supervisor discretion and is not an employee right. If work is not getting done or an employee is not communicating with their customer, team, team lead, or supervisor, then telework privileges may be revoked.” The email was reported to the Union by Coworker-2, and Complainant reported the email to Human Resources, after which the email was rescinded by Supervisor. Complainant stated that the damage had already been done to her psyche; 5. On July 21, 2020, during a mediation between Complainant and Coworker-1, Coworker-1 stated her issues with Complainant were based upon a previous Contracting Officer, Coworker-3, which affected Complainant’s work performance and created a lack of trust; and b. On August 17, 2020, Supervisor subjected Complainant to retaliation based upon her EEO activity (instant Complaint and Notification of Harassment and Hostile Work Environment per AR690-12) by counseling her for her absence from two 2022000214 3 regularly scheduled meetings (on August 6 and 10, 2020) that are not mandatory; whereas other members of the organization have missed meetings and were not counseled. 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). 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. Regarding claim a1, on February 13, 2020, Supervisor stopped by Complainant’s desk, and they discussed an action on which Complainant was working. During the discussion, Complainant called Supervisor “chicken little” and asked him if the sky was falling. Supervisor reported that Complainant had become somewhat disrespectful. Coworker-1 overhead a portion of this conversation and yelled at Complainant, “you don’t talk to [him] like that!” Coworker-1 admitted to inserting herself into the conversation and to raising her voice. Supervisor-2 reported discussing the incident with Complainant. He indicated that he advised her that referring to Supervisor as “chicken little” was inappropriate. Supervisor-2 reported asking Complainant if she wanted him to talk to Coworker-1 and that Complainant declined. Regarding claim a2, on May 22, 2020, Supervisor sent Complainant an email that contained the language as indicated in the claim. The email further referenced deficits in Complainant’s work product and its supporting documentation while noting that communication could have allowed the team to be ahead of the issues related to the contract. Supervisor stated that he discussed the email with Complainant and told her that she should be taking initiative, looking at examples and templates, and working with her contracting officer to complete assigned work. Regarding claim a3, Supervisor sent an email to the team on June 15, 2020, asking to be notified of everyone’s status as soon as they were able. Coworker-1 replied to the entire team on the same date and her message included, “I am going to discuss with Complainant her actions, or lack thereof, on the SETA mod she has had on her plate for the past 4 weeks (or so it feels like).” Complainant reported that she felt that the message contained a lie because she was putting forth a lot of effort. Supervisor-2 discussed the email with Supervisor who then discussed email etiquette and professionalism with Coworker-1. Coworker-1 apologized to Complainant and sent an apology email to the team. Regarding claim a4, Supervisor sent an email to the team regarding telework with language as indicated in this claim. Complainant felt that Supervisor directed the email to her due to its proximity to the June 15 email from Coworker-1. Supervisor reported that he sent the email to inform employees that communication is a requirement and that they could not change their schedules without coordination. Human Resources contacted Supervisor and told him that he should not try to restate the policy guidance, but to let the guidance speak for itself. Therefore, Supervisor rescinded the email. 2022000214 4 Regarding claim a5, Complainant and Coworker-1 participated in a mediation session on July 21, 2020. Complainant asserted in the claim that Coworker-1 identified Coworker-3 as the basis for her issues with Complainant. Coworker-1 denied that she brought up Coworker-3 during the mediation. Rather, Coworker-1 reported that her issues with Complainant are poor work product and missed deadlines. Supervisor reported that he did not have specific details regarding the mediation. He was aware that the mediation did not go well. In response to Complainant’s belief of being in a hostile work environment, Supervisor moved Complainant to a different team so that she would not have to work with Coworker-1. Regarding claim b, Complainant’s team has two regularly scheduled weekly meetings, one on Mondays at 8:15AM and one on Thursdays at 1:00PM. Complainant acknowledges that she missed meetings on August 6 and 10, 2020. She contends that the meetings are not mandatory. A Memorandum For Record (MFR) dated August 13, 2020, has the subject line of “Documentation of Absence from Required Work Meetings with Employee [Complainant]”. The MFR indicates that Supervisor counseled Complainant regarding the two missed meetings and that Complainant was not on approved leave, had not asked to be excused, did not communicate that she would be unable to attend, and had not received any direction that the meetings were cancelled. Multiple coworkers reported that they understood the meetings to be mandatory. Furthermore, multiple coworkers indicated that meetings may be missed as long as an employee coordinates with their supervisor first. 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”). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2022000214 5 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her or his statutorily protected class; (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; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged basis. We find that the Agency has articulated legitimate, nondiscriminatory reasons for claim b. Supervisor issued the MFR due to Complainant missing the two mandatory meetings without prior authorization. In contrast to Complainant’s contention, multiple employees reported that the meetings were mandatory. The evidence of record does not establish a basis to conclude that the meetings were not mandatory. 2022000214 6 Thus, we find that Complainant has not shown that the Agency’s reasons for its actions in claim b were pretext for discrimination. Regarding the alleged harassing incidents in claim a1 - a5, Coworker-1 detailed her raised voice on February 13 was in response to perceived rude behavior from Complainant. Coworker-1 also stated that her issues with Complainant were because of Complainant’s poor work product and missed deadlines. Supervisor sent the email on June 16 intending to inform employees that communication is a requirement and that they could not their schedules without coordination. There is no indication that any of the identified incidents, when considered together, were sufficiently severe so as to constitute a hostile work environment or were discriminatory in nature. Some of the incidents, such as claim a2 were simply supervisors pointing out perceived deficient performance. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2022000214 7 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. 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. 2022000214 8 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 December 5, 2022 Date