Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionJul 10, 20140120112089 (E.E.O.C. Jul. 10, 2014) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120112089 Hearing No. 570-2008-00824X Agency Nos. ARCEHECSA06DEC04759 & ARCEHECSA07NOV04644 DECISION Complainant filed an appeal with this Commission concerning her complaint of unlawful employment discrimination. For the reasons set forth, we AFFIRM the Agency’s decision, finding no discrimination. BACKGROUND The record reveals that, during the relevant time, Complainant was employed as a Program Manager, General Schedule (GS)-0343-14, Headquarter (HQ) Army COE, Directorate of Military Programs, Pacific Ocean Regional Integration Team (CEMP-POD), in Washington, D.C. Complainant sought EEO counseling and subsequently filed a formal complaint. Agency No. ARCEHECSA06DEC04759 (Complaint 1) a. Complainant alleges that she was subjected to a hostile work environment on the bases of sex (female), disability (morbid obesity), age (over 40), and in reprisal for prior protected EEO activity when: 1. During August 2005 to present, Complainant’s supervisor slandered and attempted to ruin Complainant’s reputation and career on an ongoing basis, not only within the workplace, but also within the Corps and Agency. 2. In September 2005, Complainant’s supervisors undercut Complainant’s authority by cancelling without Complainant’s knowledge or consent, her submission to the Labor Cost Management Panel for a temporary promotion. 0120112089 2 3. In September 2005, Complainant’s supervisors conspired to remove Complainant from her temporary promotion position by attempting to undercut the incumbent’s extended detail elsewhere, which would have required him to return to his position. 4. In September 2005, Complainant’s supervisor humiliated and harassed Complainant by totally eliminating the Special Act Award Complainant had put in for a Black female administrative assistant, dramatically marking down the award despite previously agreeing to the award. 5. In September 2005, Complainant’s supervisor ordered Complainant to fill vacant positions within Complainant’s area of supervisory responsibility in-house or from the field as temporary detail positions. Complainant’s supervisor prevented Complainant from advertising and directly filling the positions thereby leaving the workgroup Complainant supervised chronically understaffed. 6. From September 2005 through November 2006, Complainant’s supervisor repeatedly stared at Complainant’s chest. 7. In April 2006, Complainant’s supervisor falsely accused Complainant of time and attendance abuse for the time period March 27-31, 2006, and became hostile toward Complainant when Complainant refuted the allegations. 8. In April 2006, Complainant’s supervisor did not notify Complainant that Complainant could no longer work credit or compensatory hours unless Complainant first filled out a request that was preapproved. 9. In April 2006, Complainant’s supervisor harassed Complainant for requesting credit hours for time Complainant worked before Complainant’s supervisor sudden prohibition of credit hours. 10. In April 2006, Complainant’s supervisor harassed Complainant by publicly informing Complainant that he would be “getting rid of” Complainant, or words to that effect, prematurely on August 6, 2006, after only the first year of an open-ended competitive temporary promotion. 11. In May 2006, Complainant’s supervisor removed an employee from Complainant’s direct supervisory control and transferred such control although the position was not legally under the peer supervisor’s control. 12. In June 2006, Complainant’s supervisor intentionally excluded Complainant from the new District Commanders’ “meet and greet” function to meet the new District Engineers (Commanders). 13. In August 2006, Complainant’s request to attend a chain of command ceremony for the division for which Complainant had been Acting Deputy Chief for 14 months was denied even though Complainant was expressly invited in a hand-written invitation from the Major General. 14. In August 2006, Complainant’s supervisor denied Complainant’s repeated requests for a BlackBerry and/or cellular phone, even though others on the team received one. 15. In August 2006, Complainant’s supervisor continually passed by Complainant’s new workplace cubicle, making his presence known, and often staring and glaring at Complainant as he passed by, which Complainant took as being threatening and a “warning” that Complainant’s supervisor was watching Complainant. 0120112089 3 16. In August 2006, Complainant’s supervisors failed to share information with Complainant regarding any upcoming work detail or temporary reassignment opportunities for which Complainant might be eligible or in which Complainant might be interested; however, it was specifically stated and requested that they pass on the information to employees. 17. On August 2006, Complainant’s supervisor insisted that Complainant fill out and have approved a written Request for Leave of Absence, Office of Personnel (OPM) Form 71, for all leave, regardless of the length of time in hours used and that the leave was properly recorded on Complainant’s time sheets even thought such a requirement was not previously the custom. 18. In September 2006, Complainant’s supervisor angrily yelled at Complainant in an extremely hostile manner, demanding the immediate return of Complainant’s BlackBerry, despite the fact that his workgroup had a surplus of them and Complainant had previously asked to keep Complainant’s Blackberry until one was ordered for Complainant in the next fiscal year (FY) (October 2006). 19. In September 2006, Complainant was not invited to go on a trip to the field with Complainant’s supervisor even though a male peer went on the trip. 20. In September 2006, Complainant’s supervisor harassed Complainant regarding Complainant’s timesheet. 21. On October 24, 2006, Complainant’s supervisor demanded that Complainant fill out a leave slip for one hour of leave that Complainant took two days earlier and that Complainant had accurately recorded on Complainant’s timesheet. 22. On October 26, 2006, Complainant’s supervisor demanded that Complainant change her timesheet and fill out a leave slip and accused Complainant of not having worked that day, in effect accusing Complainant of time and attendance abuse. 23. On October 27, 2006, Complainant’s supervisor marked down Complainant’s “special” performance appraisal, citing only pretextual reasons as his justification. 24. On October 24, 2006, Complainant’s supervisor did not take Complainant to a meeting with Capitol Hill staffers, and instead took a male peer, even though the scope and nature of the meetings were more in line with Complainant’s duties and responsibilities. 25. In October 2006, Complainant was suddenly removed from a Summit Conference Meeting which a male peer attended. 26. On December 21, 2006, Complainant’s supervisor improperly converted Complainant’s contested and grieved special performance appraisal into Complainant’s FY 2006 “annual” performance appraisal. 27. In January 2007, Complainant’s supervisor insisted that Complainant’s earned compensatory time would first need to be approved by Complainant’s supervisor, which was not formally the previous custom. b. Complainant alleges that she was subjected to discrimination on the bases of sex, disability, age, and in reprisal for prior protected EEO activity when on December 12, 2006, Complainant was not selected for a position for which Complainant applied and was found eligible. 0120112089 4 c. Complainant alleges that she was subjected to reprisal when on November 17, 2006, without Complainant’s permission, Complainant’s supervisor forwarded to selection panel members, including Complainant’s rater, Complainant’s November 16, 2006 email stating that Complainant intended to contest Complainant’s “special” performance appraisal. d. Complainant alleges that she was subjected to discrimination on the bases of sex, disability, age, and in reprisal for prior protected EEO activity when on several occasions the Deputy Chief failed to return Complainant’s requests for medical leave in a timely fashion.1 Agency No. ARCEHECSA07NOV04644 (Complaint 2) Complainant alleges that she was subjected to discrimination and/or a hostile work environment on the bases of sex, disability, age, and in reprisal for prior protected EEO activity when: 1. On November 1, 2007, Complainant received her annual performance rating. 2. On November 13, 2007, January 13, 2008, February 15, 2008, and March 9, 2008, the Deputy Chief: routinely trivialized, and/or completely left off activities and actions Complainant submitted; routinely embellished and exaggerated the Civil Works Planning Manager’s activities and actions; and took full credit for Complainant’s activities and actions in the POD RIT Civil Works weekly staff notes and the bi- weekly “Command Critical Information Review” (CCIR). 3. On March 21, 2008, the Civil Works Planning Manager, acting in a supervisory capacity, trivialized and/or completely left off activities and actions Complainant submitted to the Civil Works Planning Manager from March 17, 2008 to March 21, 2008. 4. On an unspecified date, Complainant was denied Leadership Training at the Eastern Management Development Center, Shepherdstown, West Virginia, which was part of Complainant’s five-year Individual Development Plan (IDP). 5. On March 27, 2008, Complainant’s request to telework was denied. At the conclusion of the investigation, Complainant received a copy of the investigative report. The Agency informed Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ), or alternatively, to receive a final decision from the Agency. Complainant requested a hearing before an AJ. However, on October 15, 2010, the AJ dismissed the hearing request for failure to cooperate in the discovery process and remanded the complaint to the Agency for the issuance of a final decision. 1 On May 17, 2007, the Agency dismissed Complainant’s complaint consisting of 86 claims in its entirety. Complainant appealed, and on October 29, 2007, the EEOC reversed the dismissal in part and directed the Agency to consolidate as many of the remaining claims as possible. On January 18, 2007, the Agency issued a revised acceptance letter. 0120112089 5 On January 6, 2011, the Agency issued a decision finding no discrimination. Complainant now appeals from that decision. On appeal, Complainant argues that the AJ erred when he canceled the hearing and returned the case to the Agency for a final decision. Complainant argues that the Agency’s representative misrepresented facts, failed to comply with existing EEO-related laws, rules, and regulations, and displayed unethical behavior. In response to Complainant’s appeal, the Agency stated neither Complainant nor her representative responded to the Agency’s discovery requests and have failed to cooperate pursuant to EEOC Regulations. The Agency argued that the Agency’s final decision is supported by the evidence. ANALYSIS AND FINDINGS The Commission finds that the Agency’s investigation was adequate. Additionally, Complainant challenges the AJ's dismissal of her hearing request. The Commission notes that EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; EEO MD-110, at 9-10. Further, an AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999). The Commission has reviewed the documentary evidence in the record and finds that the AJ acted within his discretion to dismiss Complainant's hearing request when Complainant failed to comply with the AJ's orders. The record reflects that both parties were notified that failure to follow the orders of the AJ or comply with the Commission regulations may result in sanctions, pursuant to 29 C.F.R. § 1614.109(f)(3). The AJ found, and the Commission agrees, that Complainant did not follow the orders of the AJ by failing to respond substantively to the Agency's discovery requests. Complainant was given the opportunity to show good cause why sanctions should not be issued against her. However, Complainant failed to demonstrate good cause why sanctions should not be imposed upon her for failure to cooperate in the processing of her complaint. Accordingly, the AJ properly dismissed Complainant's hearing request. See 29 C.F.R. § 1614.109(f)(3). We note that the Agency also, prior to the issuance of the final decision, dismissed numerous claims. Complainant has not challenged the dismissal of those claims on appeal. The Commission has the discretion to review only those issues specifically raised in an appeal. Abeijon v. Department of Homeland Security , EEOC Appeal No. 0120080156 (August 8, 2012). Accordingly, we will not address those dismissed claims in this decision. 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 0120112089 6 C.F.R. § 1614.405(a). See EEOC Management Directive 110, Chapter 9, § VI.A. November 9, 1999) (explaining that 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”). Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding Complaint 1, claim a6, Complainant stated that from September 2005 through November 2006, the Complainant’s first-level Supervisor (Supervisor) repeatedly stared at Complainant’s chest area. Complainant cited about a dozen specific incidents in which this allegedly occurred. The Supervisor denied that he stared at Complainant’s chest area. Other employees stated that the Supervisor looked at female employees, including Complainant, in sexually suggestive ways. These statements support Complainant’s assertions that the alleged staring occurred at most more than once. In contrast, the Supervisor denied staring at Complainant. Complainant has not cited any other evidence to suggest that the Supervisor acted in a sexually harassing manner toward Complainant. Consequently, Complainant has failed to demonstrate that the Supervisor’s conduct was sufficiently severe and pervasive to establish she was subjected to sexual harassment which would constitute a hostile work environment. With respect to Complaint 1, claims a2 and a5, the Deputy said that he had never seen a temporary promotion request that Complainant had submitted through proper channels. The Supervisor said Complainant had been instrumental in attempting to bring people in from the division and that he did not recall rejecting any requests Complainant made to fill positions. As to Complaint 1, claim a4, the Supervisor stated that he did not support Complainant’s recommendation that a Black, female administrative assistant receive a Special Act award because although this individual’s performance was good, it was not exceptional to warrant further recognition. Concerning Complaint 1, claims a1, a3, a10, and a15, the Supervisor denied these assertions. Corresponding to Complaint 1, claim a11, the Supervisor explained that he reassigned employee A to the Deputy’s supervision because Complainant’s temporary promotion was ending. Regarding Complaint 1, claims a7, a8, a9, a17, a20, a21, a22, a27, and d, the Supervisor stated that he asked Complainant to explain Complainant’s time and attendance discrepancy. The Supervisor claimed that Complainant failed to provide him with clarifying information regarding Complainant’s time and attendance issues. As to preapproval for overtime and compensatory time, the Supervisor stated that Complainant had been putting herself in for overtime and compensatory time, and that he told Complainant that she was required to receive prior approval to work such time. The Supervisor added that he never said that Complainant 0120112089 7 could not work overtime or compensatory time, but did tell Complainant that he would not accept Complainant’s time sheet unless he approved it. The Supervisor also explained that he enforced the credit hour policy for all of his employees. The Deputy explained that there is a policy, which was first addressed in May 2005, which required advance approval of compensatory time, credit hours, and overtime. The Deputy said that the requirement has also been addressed in numerous emails and in general staff meetings. The Deputy Chief explained that, in September 2006, he talked with Complainant about his expectation that Complainant, like others, would submit Standard Form (SF) 71 for each leave request as required by the OPM. The Deputy Chief also said that because he did not see Complainant on October 23, 2006, he asked Complainant if Complainant had taken leave. The Deputy Chief said that because Complainant said that Complainant was at work, Complainant was not charged leave. The Deputy Chief said that, thereafter, on October 24, 2006, Complainant took an hour of leave without providing a leave slip, and he reminded Complainant to submit the information and a leave slip to the timekeeper. The Deputy Chief explained that he always attempted to provide timely approval for Complainant’s sick leave. The Deputy Chief also said that he was not aware of an instance in which Complainant was denied sick leave. With respect to Complaint 1, claims a14 and a18, the Supervisor said that Complainant kept her BlackBerry for two months after Complainant’s temporary promotion ended. The Supervisor said that Complainant had asked to keep the BlackBerry and that he allowed Complainant to do so for a month. Thereafter, the Supervisor asked Complainant to return it because it belonged to the office and was needed by another employee who had been promoted to the position of NAD RIT Acting Deputy at the conclusion of Complainant’s temporary promotion. The Supervisor said that although Complainant was authorized to have a BlackBerry while she served as NAD RIT Deputy, pursuant to the Deputy Chief’s program policy, Complainant was not authorized to have one in her permanent position. As to Complaint 1, claims a19, a24, and a25, the Deputy Chief said that Complainant was not approved to go to the Hawaii Summit, and that he did not know that Complainant had made and later cancelled reservations for the trip. The Deputy Chief explained that he meets with committee staffers on Capitol Hill all the time and that Complainant has accompanied him to such meetings. However, the Deputy Chief explained that this particular meeting was a planning meeting, which is why the Civil Works Planning Manager was chosen to attend. Corresponding to Complaint 1, claim a13, the Deputy Chief Counsel and the Deputy Chief explained that employees frequently receive invitations to attend Change of Command Ceremonies. The Deputy Chief said that he spoke with the Deputy Chief Counsel, who denied the request because the ceremony had nothing to do with Complainant’s responsibilities. The Deputy Chief Counsel added that although he was willing to let Complainant attend the ceremony, there was no circumstance under which he would approve per diem to permit an employee to such a ceremony. However, the Deputy Chief Counsel told the Deputy Chief that Complainant could take leave to attend the ceremony. 0120112089 8 Concerning Complaint 1, claim a12, the Supervisor explained that there was no formal "meet and greet" meeting in June 2006. Instead, the Supervisor explained that the commanders came for training and he and the Deputy offered to take the new commanders to lunch to get to know them better. The Supervisor said that invitation was an informal one. Corresponding to Complaint 1, claim a16, the Deputy Chief Counsel and the Deputy Chief denied this assertion. Regarding Complaint 1, claims a23, a26, and Complaint 2, claim 1, the Supervisor, who was Complainant’s rater on her October 1, 2005 through August 6, 2006 performance appraisal, said he mistakenly marked Complainant’s appraisal as "special" when it was an "annual" appraisal. The Supervisor said that on December 18, 2006, the Management Analyst directed the Supervisor to change the appraisal to designate it as an annual evaluation. The Supervisor added that the change made Complainant eligible for a performance award. The Supervisor also explained that he did not make any other changes in the appraisal. The Supervisor denied that Complainant’s rating received was based on her protected EEO classifications. The Deputy Chief denied that he had considered Complainant’s protected EEO classifications in deciding on Complainant’s rating for the performance period ending September 30, 2007. With respect to Complaint 1, claims b and c, the documentary evidence revealed that Complainant was the sixth rated candidate. The panel members determined that Complainant was not as highly qualified as the selectees. Panel members testified that Complainant’s performance appraisal was not mentioned during panel discussions. The Deputy Chief explained that he had asked Complainant to forward her appraisal so that he could review and discuss possible bonuses with the Deputy Chief Counsel. The Deputy Chief said that Complainant did not return her signed appraisal, but instead sent the electronic mail message stating that the Director of Civil Works had advised Complainant not to file a complaint regarding Complainant’s appraisal. The Deputy Chief said that he forwarded the electronic mail message to the Deputy Chief Counsel, who directed the Deputy to discuss the matter with the Director of Civil Works. As to Complaint 2, claims 2 and 3, the Deputy Chief said that he did not recall the specific input Complainant provided on the dates in question. The Deputy Chief, however, explained that he received input from everyone on his team, including Complainant regarding weekly staff meeting notes. The Deputy Chief said that he compiled the data and presented it to senior leadership. The Deputy Chief denied taking credit for Complainant’s work or trivializing Complainant’s input. The Civil Works Planning Manager explained that the notes were considered informal and were prepared for situational purposes for senior leaders. The Civil Works Planning Manager did not recall the specific notes at issue, but recalled that Complainant had expressed dissatisfaction that the Civil Works Planning Manager had not included some of Complainant’s input in meeting notes he prepared. The Civil Works Planning Manager, however, explained that notes were a compilation of input from various staff members and depending on the type and relevance of the information, the person compiling the 0120112089 9 information makes appropriate edits. The Civil Works Planning Manager added that there were a range of considerations that affected the edition and that what might be considered important to one person might not be considered important by another. The Civil Works Planning Manager also noted that the fact that some information was reported in other formats was a factor in determining what information was included. According to the Civil Works Planning Manager, both Complainant and the Deputy Chief had, at times, excluded the Civil Works Planning Manager input in preparing such meeting notes. Concerning Complaint 2 claim 4, the Deputy Chief explained that when Complainant verbally asked to attend the Leadership Training, he told Complainant that he could not approve the training because of lack of funds, and asked Complainant to request training the next year. The Deputy Chief said that Complainant agreed to the request. Corresponding to Complaint 2, claim 5, the Deputy Chief said that he denied Complainant’s request based on Complainant’s position because it was necessary for Complainant to have daily face-to-face interaction with customers and managers. The Deputy Chief added that none of his other subordinates telecommute. In the present case we find that if the incidents were found to have occurred, even if presumed to have occurred exactly as claimed by Complainant, they do not rise to the level of a hostile work environment. Furthermore, none of these actions were shown to have been motivated by any discriminatory animus based on Complainant’s sex, disability, age, or in retaliation for protected activity. After a careful review of the record and the contentions on appeal, the Commission finds that Complainant failed to rebut the Agency's articulated legitimate, nondiscriminatory reasons for its actions. Complainant has not shown that any similarly situated individuals were treated differently. Additionally, the Commission finds that Complainant failed to show that her qualifications for the positions were plainly superior to the selectees’ qualifications or that the Agency’s actions were motivated by discrimination. Moreover, the Commission finds that Complainant failed to show, by a preponderance of the evidence, that she was discriminated on the bases sex, disability, age, or reprisal.2 Finally, Complainant failed to show that she was subjected to a hostile work environment. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 2 We do not address in this decision whether Complainant is a qualified individual with a disability. 0120112089 10 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you 0120112089 11 and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above (“Right to File a Civil Action”). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations Date July 10, 2014 Copy with citationCopy as parenthetical citation