Nicole T.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 17, 2020

2020004070 (E.E.O.C. Nov. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nicole T.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004070 Hearing No. 570-2012-00094X Agency No. ARCEME11MAR00889 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 20, 2020 final order 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. BACKGROUND During the period at issue, Complainant worked as a Logistics Management Specialist at the Agency’s United States Army Corp of Engineers (USACE) Gulf Region District (GRD) in Baghdad, Iraq. In March 2011, Complainant filed a formal EEO complaint. Complainant alleging that the Agency discriminated against and subjected her to a hostile work environment on the bases of race (Black- Jamaican), color (black), and in reprisal for the instant protected EEO activity. 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. 2020004070 2 After an 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). Complainant timely requested a hearing. The AJ identified the subject claims as follows: 1. Was Complainant discriminated against based on her race (Black-Jamaican), color (black), reprisal (instant Equal Employment Opportunity [EEO] complaint], and subjected to a hostile work environment from December 2010 to January 2011? Specific examples include: a. Curtailment of her tour of duty with the U.S. Army Corps of Engineers (USACE), Gulf Region District (GRD), Iraq; and b. False accusations regarding the shipment of items in a 20-foot CONNEX container, confinement to the base and subjected to hostile behavior from management. 2. Was Complainant discriminated against based on her race (Black-Jamaican), color (black) and reprisal when, on April 26, 2011, her offer of a position to a Logistics Management Specialist, GS-0346-12, at the USACE, Afghanistan Engineer District-North (AED-N) Kabul, Afghanistan was withdrawn and cancelled? When the Complainant did not object, the AJ assigned to the case granted the Agency’s March 22, 2013, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on April 8, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. 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. 2020004070 3 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). While Complainant has alleged that the AJ mixed up some names in her summary judgment decision, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. 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. 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, 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). The evidence shows that at the time of the events at issue, Complainant was on an 11-month term assignment as a Logistics Management Specialist in Iraq. Her term was scheduled to end in May 2011. However, the record shows her tour in Iraq was curtailed by management in February 2011. In December 2010, the Deputy Officer in Charge (Caucasian, white) learned that Complainant had shipped some personal items from one camp to another in a Connex container through a Transportation Movement Request (TMR). TMR Connex transportation is for the transportation of government property for official use and not for personal property. Transportation by TMR requires specific approval. While Complainant stated she had approval to ship her personal belongings by this method, she indicated there was nothing in writing showing such approval and she could not state who provided her with the alleged approval. In addition, while she stated that other employees had done the same in the past, she could not name a specific instance where it had happened.2 2 One coworker witness (African American, black) stated that he had tried to place personal belongings in a government container in the past, but then cancelled the shipping because he did not end up moving. 2020004070 4 Complainant’s third level supervisor (S3) (Black Jamaican, black) confirmed that employees could not send personal items through military transport without specific permission. He stated that after the incident involving Complainant came to light, upper level management asked him to investigate the matter. When the Connex arrived at its destination with Complainant’s belongings, the contents were documented and photographed. The documentation/photos indicated the Connex contained the following property belonging to Complainant: two mattresses, a bed frame, a mirror, a rug, an ironing board, shelving and an office chair. These items were not listed on the official TMR shipping documents. S3 reported his findings to management. A decision was made to curtail Complainant’s assignment early due to her “failure to follow procedures and demonstrated poor judgment in the use of US Government property for personal gain.” After Complainant protested the action, the curtailment papers were amended to indicate that she was being curtailed “[a]s a result of the US CORPS of Engineers drawdown in Iraq, [Complainant’s] services are no longer required.” The record further indicates that between January 22-24, 2011, after Complainant was told about the curtailment decision, she left her duty station without management knowledge or approval. Upon locating Complainant, management issued directions confining her to the base and requiring her to be escorted until a flight could be arranged to take her back to the United States. Complainant remained under restriction for several days until she got on her flight. Management witnesses stated this procedure had be used in the past when an employee’s tour was involuntarily curtailed and there was a concern that they might not get on their flight home. Regarding her retaliation claim, the record shows her initial EEO counselor contact was on March 7, 2011, after she had left Iraq. Complainant stated that she had no other protected activity prior to the March 2011 contact. On March 9, 2011, Complainant was given a tentative offer of a six-month deployment to Afghanistan as a Logistics Management Specialist. The written offer indicated it was dependent on successful completion of deployment requirements, including the checking of references. The offer went on to state that if derogatory information was uncovered during the reference check, the offer could be rescinded. The record shows that S3 was contacted during the reference check and he revealed Complainant’s curtailment from Iraq and the reasons for it. As a result of this information, the offer to Complainant was rescinded. The Agency officials who made the decision to rescind the offer did not know Complainant’s race, color or EEO activity at the time the offer was rescinded. S3 stated that he was not aware of Complainant’s EEO counseling contact at the time he responded to the reference check. After careful review of the record, we find ample support in the record, as detailed above, for the AJ’s determination that responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. We further conclude that the AJ correctly found that Complainant failed to prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination or unlawful retaliation. 2020004070 5 Finally, to the extent that Complainant alleged that all the matters raised in the formal complaint constituted discriminatory harassment, 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 her protected basis - in this case, her race, color or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as we have already concluded, Complainant simply has provided inadequate evidence to support her claim that his treatment was the result of her race, color or retaliatory animus. Her claim of harassment 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 bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION The Agency’s final order adopting the AJ’s decision by summary judgment finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020004070 6 In the absence of a legible postmark, 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. 2020004070 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations November 17, 2020 Date