Wen Y.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2020001985 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wen Y.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020001985 Hearing No. 410-2019-00418X Agency No. ARBENNING18SEP03446 DECISION The Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the September 25, 2019, decision of an Administrative Judge (AJ) concerning an equal employment opportunity (EEO) complaint claiming 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.2 BACKGROUND During the period at issue, Complainant worked as an Assistant Human Resources Officer, NF- 0201-04, at the Agency’s Non-Appropriated Fund Human Resources organization in Fort Benning, Georgia. 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. 2 The record does not indicate that the Agency issued a final order indicating that it would fully implement the AJ’s decision. Pursuant to EEOC Regulation 29 C.F.R. § 1614.109(i), the AJ’s decision is the final Agency action. 2020001985 2 On October 9, 2018, Complainant filed a formal EEO complaint which consisted of the following matters: Complainant claimed that the Agency discriminated against her based on race (Black) and age (YOB: 1961) when: 1. whether Complainant was discriminated against and subjected to harassment based on race (black) and age (YOB: 1961) by her supervisor (“S1”) when: a. on June 26, 2018, S1 initiated an Operations Assessment solely on Complainant’s program; b. on August 13, 2018, S1 informed Complainant she was being moved from her Human Resource Officer (HRO) position to be effective September 6 2018, in the presence of her subordinate, the Assistant HRO (AHRO1”), during a teleconference; c. on August 21, 2018, S1 put Complainant’s HRO’s position into AutoNOA for her subordinates to see when S1 knew Complainant’s team could not work this action due to a conflict of interest in an attempt to humiliate and demean her; d. on August 22, 2018, S1 informed Complainant’s staff during a teleconference that another individual would be the Acting HRO (“AHRO2”); and e. on September 6, 2018, S1 sent AHRO2 to serve as Acting HRO. Complainant then amended her formal complaint to include the following claim: 2. was Complainant discriminated against and subjected to harassment (non-sexual) based on race, age, and in reprisal for prior (filing the instant complaint) when on November 27, 2018, Complainant was not selected for the position of HR) (NAF), under vacancy announcement number (VAN) NCNAFBG18103389221. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission AJ. Complainant timely requested a hearing. The AJ ordered Complainant to show cause why the formal complaint should not be dismissed without a hearing.3 Complainant filed a response and on September 25, 2019, the AJ issued a decision by summary judgment in favor of the Agency. The instant appeal followed. 3 The record further indicates that the AJ ordered the AJ to conduct a supplemental investigation regarding claim 2, which the Agency completed before the AJ issued his decision. 2020001985 3 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. On appeal, Complainant argues, through counsel, that the AJ erred in issuing summary judgment, asserting that there are material facts at issue. However, 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Disparate Treatment - Claims 1a and 2 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, a 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. 2020001985 4 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The AJ correctly determined that the Agency provide legitimate, non-discriminatory actions for its actions. Claim 1a - Operations Assessment Complainant testified that she believed that the purpose of the assessment was to evaluate the functional areas of human resources as a whole. Complainant acknowledged that she understood that operational assessments were conducted if there are deficiencies in the operations, if there were complaints from managers, of if there were issues with production. However, Complainant clarified that she had never previously had an operational assessment, and she asserted that she was the only individual who was given an operational assessment. Complainant indicated that she believed that S1 initiated the assessment based on an email S1 sent indicating that S1 was directing the assessment. S1 clarified that the operations assessment evaluates how an office is being managed and every process that is performed. S1 further clarified that these assessments are conducted as needed, based on concerns generated by the customer, internal concerns, or Human Resources office complaints. However, S1 indicated that she was not the management official for determining when these assessments are initiated. Instead, S1’s supervisor (“S2”) initiated the assessment at issue. Specifically, S1 explained that S2 initiated the assessment because there were concerns from the customer and AHRO1 expressed concerns about a hostile work environment. S2 indicated that he initiated the assessment after S1 informed him of concerns which were raised by AHRO1. Specifically, S2 stated, that AHRO1 requested an investigation to be conducted due to the atmosphere in the office. S2 also acknowledged that there were also concerns with the low “fill rate” of vacant positions at the office. Claim 2 - Non-selection Complainant explained that she had applied for the position at issue twice, but she was not selected. 2020001985 5 S1 was the selecting official and S2 approved S1’s decision to hire the Selectee. S2 explained that for human resources positions, such as the one at issue, the recruitment office must consider whether an applicant had completed the Agency’s Career Path courses. S2 further explained that the Career Path Courses provide technical and leadership skills for all processes, and applicants who meet the Career Path requirements are referred as the best qualified candidates. For the position at issue, S1 indicated that candidates who completed the Career Path 1 course met the hiring preferred criteria. S1 and S2 acknowledged that Complainant was ranked as eligible. However, both S1 and S2 indicated that Complainant had not completed the Career Path 1 course, and her name was not included on the “highly referred” applicant list S1 received from human resources. Both S1 and S2 testified that the Selectee, in contrast, had completed the Career Path 1 course. The Human Resources Specialist (“HR Specialist”) confirmed that she only submitted to S1 the list of highly preferred applications. The HR Specialist indicated that Complainant was eligible for the position, but her name was not included on the highly preferred list because Complainant had not completed her Career Path courses. The HR Specialist further clarified that there was only one person included on the highly preferred list. A copy of the vacancy announcement indicates that “highly preferred” applicants are those who completed training in Basic Staffing, Customer service, Organizational structure, Basic Writing, Time Management, Personnel Management, Leadership, Critical Thinking, Labor Relations, Mediation, Accountability, and Effective Communication skills. A copy of the certificate of eligibles list includes one name, who is also the Selectee. Additionally, Selectee’s resume reflects that she had completed Career Path 1. A copy of December 18, 2018, notification of non-selection reflects that Complainant was determined eligible for the position but was not referred to the hiring manager. We note that Complainant testified that no management officials were aware that she had filed the instant complaint. Similarly, S1 indicated that she did not become aware of Complainant’s formal complaint until September 13, 2018, and S2 indicated that he did not have prior knowledge of Complainant’s filing of the instant complaint before receiving notification from the EEO office. We conclude that neither during the investigation nor on appeal has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, age, and reprisal for prior protected EEO activity. Consequently, Complainant’s claim of discriminatory harassment in claims 1a and 2 are precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her race, age, or reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 0119982923 (Sept. 21, 2000). 2020001985 6 Harassment - Claims 1b-1d To establish a claim of discriminatory environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 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). 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 race and age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. The AJ correctly determined that Complainant did not demonstrate that the Agency subjected her to discriminatory harassment as alleged in claims 1b through 1d. Claim 1b - Complainant’s Reassignment of HRO Position Complainant stated that S1 informed her that she was being reassigned, in the presence of AHRO1. Complainant acknowledged that during the meeting, S1 also informed AHRO1 that she would be reassigned. However, Complainant indicated that S1 should have informed her of her reassignment privately. S1 acknowledged that she informed Complainant and the AHR together of their reassignment because both individuals were identified by staff as engaging in harassing and threatening behavior. Consequently, S1 explained that the group discussion allowed her to direct both Complainant and AHRO1 to refrain from speaking to their staff in a threatening manner. S1 further explained that Complainant’s reassignment had an impact upon AHRO1’s reassignment and vice versa, and it made the most sense to discuss their reassignments together. S1 further acknowledged that Complainant’s reassignment resulted from the results of the operational assessment which revealed that Complainant had engaged in harassment with her staff by threating them, cursing at them, and threatening to have her daughter fight them. Both S1 and S2 noted that Complainant’s reassignment was not an adverse action given that she incurred no change in pay, category, or pay rate. 2020001985 7 Claim 1c - Complainant’s Position Placed into AutoNOA Complainant explained that staffing actions are housed in the AutoNOA which is a type of inbox which is viewable by all HROs. Complainant indicated that when S1 placed her position in the AutoNOA, her subordinates were able to she that was being moved out of her position before S1 had the opportunity to announce Complainant’s reassignment. Complainant stated that she felt humiliated and degraded by S1’s actions but she did not report this incident to a supervisory official as harassment. Rather, Complainant acknowledged that she discussed this issue with S1 who informed her that she would notify Complainant’s team the following day. S1 denied entering Complainant’s reassignment into AutoNOA inbox and explained that Complainant’s information was never entered into the AutoNOA. S1 clarified that the recruitment action to fill Complainant’s position was entered into the AutoNOA, but only two individuals, including the AHRO1, had access to this information. S1 indicated that as soon as the position was approved, she removed it from the AutoNOA inbox. S1 also confirmed that Complainant informed her that her reassignment action was in the AutoNOA box and that she informed Complainant that she would notify the staff the following day about Complainant’s reassignment. Claims 1d - Announcement of AHRO2 as Acting HRO Complainant stated that she felt as though S1 should have met with her and her staff first before announcing AHRO2 as the Acting HRO. However, Complainant acknowledged that S1’s announcement was consistent with S1’s statement the day before that she would inform Complainant’s team of her reassignment after Complainant informed S1 that her reassignment was already visible on the AutoNOA inbox. Complainant further acknowledged that she did not report this incident to management or any official as harassment. Claim 1e - AHRO2 Assigned as Acting HRO Complainant testified that S1’s decision to assign AHRO2 to the position of Acting HRO was discriminatory, because Complainant believed that she should have remained in her position. Specifically, Complainant indicated that she felt that the operational assessment was not a justifiable reason to appoint another person to an Acting HRO position. However, S1 testified that S2 was responsible for reassigning AHRO2 to the Acting HRO position. S1 explained that AHRO2 was part of a strategic response team assigned with filling in for HROs for planned and unexpected absences. Consequently, S1 stated AHRO2 had the ability to act as HRO. S1 also noted that the purpose of AHRO2’s assignment was to maintain control of the office, stop the hostile work environment, and ensure no further abuse toward the staff, all of which could not be accomplished if Complainant was not reassigned. Considering these claims, even if true, Complainant has not shown evidence that considerations of her race or age motivated management’s actions toward Complainant. 2020001985 8 The record indicates that Complainant generally disagreed with how management determined, and latter announced, her reassignment. The record reflects that S1 discussed Complainant’s reassignment with AHRO1 present because Complainant and AHRO1 were both being reassigned for their engagement in harassing and threatening behavior towards staff. Additionally, S1 testified that she did not place Complainant’s personal information into the AutoNOA system and she agreed, as requested by Complainant, to notify staff of Complainant’s reassignment the following day. The record also supports that AHRO2 was part of a specific response team designated to fill vacant HRO positions, and his appointment to the Acting HRO position was necessary given that Complainant’s HRO position had been reassigned. The incidents Complainant alleges are not sufficiently severe or pervasive as to constitute hostile work environment/harassment under Commission regulation. The incidents involved are of a type that typically arise out of workplace conflicts or communications. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. CONCLUSION After careful review of the record, including Complainant's contentions on appeal, we find that Complainant failed to demonstrate that the Agency discriminated against her as alleged. The AJ’s decision, which we construe as the Agency’s final action, is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 2020001985 9 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 September 29, 2020 Date