[Redacted], Violet F, 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2021003661 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Violet F,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021003661 Hearing No. 570-2021-00177X Agency No. 9N0D1900045H20 DECISION On June 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 11, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Family Support Specialist for the Exceptional Family Member Program (“EFMP)” at the Agency’s Airman and Family Readiness Center in Ramstein Air Base, German. The record reflects that Complainant was serving a one-year trial period and was employed from October 16, 2017 to October 12, 2018. Complainant identified the Chief of Airman and Family Readiness Center (“Chief”) as the responsible management official in this matter. On December 14, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to hostile workplace discrimination on the basis of color (light complexion) 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. 2021003661 2 1. On February 13, 2018, the Lead Consultant sent an e-mail out to all staff informing them their projected leave was approved; however, hers was not; 2. On April 9, 2018, she worked the information receptionist desk beyond her morning shift period; 3. On July 20, 2018, she received a letter of counseling; and 4. On October 12, 2018, she was issued a notice of separation. The Agency dismissed the following two claims under 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, asserting that being an Army spouse is not a protected class under any EEO statute. Complainant was subjected to a hostile work environment on the basis of her marital status (army spouse) by Chief when the following incidents allegedly occurred: 5. On or about April 25, 2018, Chief purportedly stated during a staff meeting, “I do not believe in spouse preference” or that he “didn’t believe that most employees were qualified to work here” when having a conversation about different degrees that are required to work back stateside to be eligible for these positions. 6. Chief purportedly claimed that Complainant was not performing her job due to the fact that she was referring customers to the EFMP offices. The Agency accepted the remaining claims and conducted an investigation which produced the following evidence. Claim 1: On February 13, 2018, the Lead Consultant sent an e-mail out to all staff informing them their projected leave was approved; however, Complainant’s was not. Chief denied that Complainant’s leave was never approved. He stated that the staff was asked to project leave for the year; Complainant projected Leave Without Pay (LWOP) on her request for 2018, when she had leave. However, LWOP is viewed as something that could not be projected and is used when one does not have leave. After this was explained to Complainant, she removed the LWOP from the projection and her other projected leave was approved. Claim 2: On April 9, 2018, Complainant worked the information receptionist desk beyond her morning shift period. Chief stated that he had no knowledge of this particular incident; however, he noted someone normally works the desk. Chief explained that Complainant and the co-worker would sometimes work the desk, and it was done as fairly as possible. He maintained that he was a stickler for the staff getting their lunch during the normal time period for lunch, which is between 11:00 a.m. and 1:00 p.m. 2021003661 3 Claim 3: On July 20, 2018, Complainant received a letter of counseling. Chief stated that he made the decision to issue a letter of counseling (LOC) to both Complainant and her co-worker. He decided on the LOC to outline expectations, and both received the same letter. Chief noted that the LOC was appropriate since they had discussed the program and performance issues and given them direction, and in spite of that, the program lagged and Complainant and her co-worker did not use the recommendations to try and get to common ground. Chief declared that the EFMP was lacking and the families were not getting the service/programs they deserved. He denied that Complainant’s color was a factor in his decision. Chief asserted that Complainant and her co-worker were treated equally throughout this time period. He further asserted that both were given LOCs, both administered a pop quiz on their program with the exact same questions, both talked to at length about their program and lack of performance, and both told they needed to find a way to work through their personal conflict in order to serve their customers. Chief contended the Agency was working on dismissals of both employees; however, the co-worker resigned before the paperwork could be completed. The record reflects that Complainant identified her immediate co-worker as having darker skin color than she. Complainant stated that she believed Chief “prefers darker skin people.” Claim 4: On October 12, 2018, she was issued a notice of separation. Chief stated that after giving Complainant a LOC and having extensive conversations and training with her, there was no improvement in Complainant’s performance, even after the co- worker resigned; therefore, he made the decision to dismiss Complainant during her probationary period. Chief maintained that Complainant’s continued referrals of families to the Army programs was only one of the reasons for her dismissal and it was not acceptable because they [Complainant and her co-worker] were paid to provide those same things to their customers. At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of her right to request either a final agency decision or a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing, but having determined that Complainant’s hearing request was untimely, the AJ remanded this matter to the Agency for disposition. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to demonstrate that the alleged examples of unwelcome conduct constituted unlawful harassment. Complainant specifically failed to produce preponderant evidence that the alleged incidents were motivated by her membership in a protected class. Complainant filed the instant appeal. 2021003661 4 ANALYSIS AND FINDINGS Standard of Review 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”). Procedural Dismissals The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission finds that claims 5 and 6 fail to state a claim under the EEOC regulations because marital status is not a protected basis which comes under the purview of the Commission’s enforcement. These two claims do not fall within the purview of the EEO complaint process. Therefore, we agree with the Agency that these claims fail to state a claim. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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; 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, 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). 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. 2021003661 5 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Chief noted that Complainant was shown how to correct her leave submissions, and the record reflects that she was provided a lunch break as soon as she alerted management. Chief explained that when Complainant’s performance and workplace behavior fell below standards, she was appropriately notified and counseled. When she did not improve, Chief stated that the Agency terminated her during the probationary period. Further, the record shows that another employee, Complainant’s immediate co-worker (darker complexion), was treated similarly, receiving the same counseling as Complainant for the same behavior, followed by the initiation of her termination of employment. Hostile Work Environment 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 color. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Furthermore, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) the employer can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating that it exercised reasonable care to prevent and correct promptly any harassing behavior; and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 2021003661 6 Here, Complainant failed to establish that she had been subjected to discriminatory harassment based on her protected basis. The record evidence shows that Complainant received a LOC for legitimate, performance concerns. Chief stated that after giving Complainant a LOC and having extensive conversations and training with her, there was no improvement in Complainant’s performance; therefore, he made the decision to dismiss Complainant during her probationary period. Beyond conjecture, Complainant has not shown that she was subjected to a hostile work environment based upon her claimed basis. In sum, the preponderance of the evidence does not establish that management was motivated by discriminatory animus. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style and possibly with Complainant’s co-worker that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that management was motivated by discriminatory animus. Complainant’s claim of harassment in violation of Title VII is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected basis. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we conclude that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 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. 2021003661 7 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. 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. 2021003661 8 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 March 20, 2023 Date