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

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2021003861 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alma F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003861 Hearing No. 420-2021-00007X Agency No. ARREDSTON20JAN00517 DECISION On June 23, 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 May 25, 2021, final order 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Operations Specialist, GS-0301-07, at the Agency’s Combat Capabilities Developmental Command (CCDC) in Redstone Arsenal, Alabama. Report of Investigation (ROI) at 94-6 and 178. She began in that position on September 17, 2018, and was in a two-year probationary period during the time period at issue. ROI at 94-5, 137-38, and 141. Beginning in February 2019, Complainant’s first line supervisor was a Supervisory General Engineer (Supervisor 1); and her second line supervisor was the Acting Business Chief (Supervisor 2). ROI at 179. Complainant’s third line supervisor was the Principal Deputy Director (Supervisor 3). ROI at 117. 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 2021003861 Complainant asserted that she had a medical condition associated with post-traumatic stress disorder (PTSD), anxiety, lumbar degenerative disk disease, and menstrual issues. ROI at 182-83. Complainant also asserted that she told management that she was “uncomfortable sitting with her back to traffic.” ROI at 181. According to Complainant, she provided medical information as part of the reasonable accommodation process but did not produce any documentation during the investigation. ROI at 181-82. Nor did she describe what documentation she provided. Management was aware of Complainant’s race and sex through observation but were not aware of a medical condition. ROI at 182, 227-28, and 268-70. In or around July 2019, Complainant requested a sit to stand desk, ergonomic keyboard, vertical mouse, new chair, and alternate work schedule. ROI at 228. All of these requests were approved and provided. Id. When he started as her supervisor, Supervisor 1 worked with Complainant to establish performance standards which were finalized in May 2019. ROI at 98-107 and 231. Between March 2019 and August 2019, Supervisor 1 had multiple discussions with Complainant regarding performance concerns and provided her with opportunities for training and guidance. ROI at 232, 243-51, and 252-67. Complainant failed to perform her assigned duties in accordance with expected instructional standards and her knowledge, skills, and abilities had not progressed to the required expectations. ROI at 230. Complainant had problems with time and attendance, and did not exhibit sufficient basic knowledge of her position. Id. Supervisor 1 discussed these issues along with avenues of training and guidance with Complainant on March 29, 2019, May 8, 2019, May 15, 2019, May 23, 2019, June 19, 2019, June 20, 2019, July 1, 2019 and August 27, 2019. ROI at 232, 250-51, and 256-57. On August 28, 2019, the Chief of Facilities and Logistics Division (Chief of Facilities) told Supervisor 1 that, during Complainant’s rotation with her group, Complainant did not seem to understand the basic principles of logistics, was not motivated, and had repeated issues with being late and not calling to report that she would be late. ROI at 248. The Chief of Facilities sent Complainant back from that rotation early. ROI at 271. Other mentors in that group also observed that Complainant did not seem to be grasping the material, that she took longer than necessary to complete assignments, and did not complete at least one assignment that was given to her. ROI at 248. On September 16, 2019, Complainant criticized a Gleason Research Associates (GRA) logistics support team to the GRA employees. ROI at 259-61. Complainant attended an Intern Orientation Course in June of 2019, shadowed and rotated through multiple groups including Center for Staff Facilities/Logistics, Logistics contractor staff, and other groups. ROI at 232-33. Supervisor 1 met with Human Resources and Management Employment Resources for guidance, and issued to Complainant a notice of proposed removal during the probationary period. ROI at 232. Based on Complainant’s continued performance issues during the probationary period, on October 24, 2019, Supervisor 1 issued a notice of proposed termination, and on January 11, 2019, Supervisor 3 issued a termination decision. ROI at 114-15 and 184. Supervisor 3 stated that he was not aware of Complainant’s race or medical condition; he was only aware of her sex due to the observation of her first name. ROI at 277. 3 2021003861 According to Complainant, Supervisor 1 insulted her intelligence, frowned and huffed and puffed around her, and verbally attacked her in meetings. ROI at 192. She alleged that Supervisor 1 pretended to smell her hair. Id. Supervisor 1 asserted that he was not aware of any alleged harassment until Complainant filed the instant complaint. ROI at 230. Complainant believed that she was discriminated against because she was the only African-American employee in her section; and because Supervisor 1 was uncomfortable around her. ROI at 185 and 190. Complainant alleged that she was treated less favorably than six named coworkers, none of whom were probationary employees. ROI at 191. Of the named coworkers, only two were supervised by Supervisor 1. ROI at 228. One coworker was a contractor and not a government employee. ROI at 234. On May 15, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and disability (physical/mental- multiple) when, around January 11, 2020, the Chief of Facilities issued Complainant a notice of termination of employment during a probationary period effective January 18, 2020. The Agency accepted the complaint for investigation. 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). Complainant timely requested a hearing. On March 19, 2021, the Agency filed a motion for summary judgment. On April 5, 2021, Complainant filed a response. On April 12, 2021, the Agency filed a reply. Having considered the Agency’s motion, Complainant’s response, the Agency’s reply, as well as the entire investigative file and record, the AJ assigned to the case concluded that there was sufficient information upon which to base a decision without a hearing and granted the Agency’s motion. In its motion, the Agency stated legitimate non-discriminatory reasons for the challenged action. The Agency asserted that it had more than sufficient evidence to make a reasonable decision that complainant’s conduct did not demonstrate fitness for continued federal employment, and exercised its broad discretion to separate Complainant during the probationary period. Complainant did not provide any evidence in her response to refute the Agency’s statements. She provided no evidence that the reasons proffered by the agency for its decisions were pretext for discrimination on the basis of sex, race, or disability. Nor was there evidence that any agency representative made any discriminatory statement or comment related to any of complainant’s protected bases. The AJ issued a decision without a hearing on April 14, 2021. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. 4 2021003861 CONTENTIONS ON APPEAL On appeal, Complainant reiterates her allegations, contesting the AJ’s decision and the Agency’s final action. She asserts that a hearing should have been conducted and the Commission should have ruled in her favor. According to Complainant, she was not given due process in that the EEO Investigator did not contact Complainant’s out-of-state internship mentor; and that the Investigator did not take or include all of Complainant’s other documents during the investigation. In response, among other things, the Agency opposes Complainant’s appeal, stating that Complainant failed to submit any new and material evidence in connection with her appeal which was not readily available when the previous decision was issued and which present a basis in law or fact to reverse the final agency action. According to the Agency, Complainant also attempts to raise an issue with the evidence collected during the Investigation. The Agency notes that Complainant did not raise this issue at the hearing stage, and it is not appropriate to do so on appeal. The Agency observes that Complainant did not file a Preliminary Case Information form stating that additional evidence should be added to the investigative file, and did not conduct any discovery during the hearing stage. The Agency asserts that there is no potential miscarriage of justice and the record should not be supplanted, nor the final agency action set aside. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 5 2021003861 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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. 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. 6 2021003861 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. 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, Director Office of Federal Operations September 20, 2022 Date