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

Equal Employment Opportunity Commission

Feb 6, 2023

Appeal No. 2022001991 (E.E.O.C. Feb. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cheryl R.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001991 Hearing No. 471-2020-00048X Agency No. ARDETROIT19MAY01598 DECISION 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 January 26, 2022 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Engineer, DB-0801-03 at the Agency’s Tank and Automotive Command in Warren, Michigan. On June 18, 2019 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (African-American), sex (female), religion (Christian), color (Black), disability (physical), and in reprisal for prior protected EEO activity 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. 2022001991 2 1. on March 25, 2019, the Lieutenant Colonel (LTC) verbally attacked her and attempted to defame her reputation, destroy her credibility, intimidate, and humiliate her during a meeting; 2. on March 25, 2019, during the same meeting, the Deputy Product Manager (DPM) attempted to sabotage Complainant’s work; 3. on April 2, 2019, DPM questioned Complainant’s professional integrity, became irate to include shouting and screaming and being physically aggressive during a meeting; 4. on April 2, 2019, the Major attempted to sabotage her work when the Major deliberately misled management; 5. on June 21, 2019, the DPM destroyed Complainant’s opportunity to compete for a promotion, orchestrated a constructive discharge, and eliminated Product Manager, Heavy Tactical Vehicles leadership responsibilities; 6. on June 25, 2019, DPM and Deputy Project Manager, Project Manager Transportation Systems (PMTS1) manipulated circumstances to create a chilling effect and dissuade Complainant from engaging in protected activities; 7. on June 27, 2019, DPM attempted to extort Complainant through recently unjustifiable cyber-security and apparent cyber-attacks by way of suspicious cyber events and the unauthorized access to Complainant’s files; 8. on July 1, 2019, one of the Associate Directors (AD) allegedly threatened Complainant with an ultimatum requesting that she choose between two undesirable workplace arrangements: sitting near her hostile harasser or giving up project management assignments; 9. on July 2, 10, 17, 2019, AD allegedly subjected Complainant to unwarranted administrative scrutiny including leave-schedule disclosures/justifications and other adverse treatment; 10. on July 2, 2019, AD held a meeting with the GVSC-G1 Assistant Chief of Staff (Human Capital) to allegedly intimidate Complainant into voluntarily withdrawing from supporting a Project Management position whereas the Complainant had provided 25 years of GVSC Direct Matrix Support, and to allegedly coerce her into relinquishing an accommodation for which she was entitled; and 11. on July 3, 2019, AD allegedly threated Complainant by assigning the DPM’s immediate family member as the (Acting) Associate Director within Complainant’s chain of command. Complainant testifies she experiences complications from bilateral tarsal tunnel syndrome, bilateral tinnitus, and extensor carpiulnaris tendinitis of the wrist. In Claim (1), Complainant acknowledges that the LTC was within his rights to ask Complainant questions about the Heavy Dump Truck program but takes issue with “how it was done.” In particular, Complainant takes issue with the scheduling of the meeting; on the previous Thursday, the LTC requested a meeting for Monday. However, Complainant was going to be out of the office on Friday and sought over 20 hours of overtime for the meeting. The DPM granted six hours of overtime. 2022001991 3 Complainant said the meeting did not go well and the LTC accused Complainant of not doing her job. Complainant accused the LTC of “being very sarcastic, laughing at times when he was sure [Complainant] didn’t have an answer, except [she] did have answers which then irritated him. He tried to be intimidating and snarky walking around the conference room with an air of arrogance.” Complainant believed the LTC was discriminating against her because he did not treat a white man or a man of Indian origin in the meeting in the same manner. Complainant asserted that she is “still baffled” as to her treatment. In his testimony, the LTC denied Complainant’s allegations and explained that the program had to change because of Congressional funding cuts, which required re-planning by the logistics team. The LTC noted the process was very complicated, which led to the instant meeting. The meeting revealed that the Agency was five months behind, with plenty of blame to go around. The LTC expressed that it was unfortunate if Complainant “felt she looked bad” based on his questions and statement that it was “unacceptable” to be where they were. The LTC noted that he asked Complainant more questions at this meeting than others because Complainant was the Test Team Lead, but that “multiple groups contributed to the problem.” The DPM corroborated the LTC’s testimony and explained that the intent of the meeting was to bring all team members together and define a path forward because the team had some communication issues in the past. Some frustration in the meeting arose because Complainant had no answers to some questions, and some critical events had not been scheduled. The DPM did not think anything was out of the ordinary. The record contains testimony from another employee who believed that the LTC aggressively questioned Complainant at the meeting but had no evidence that the LTC’s treatment was because of Complainant’s protected bases. Testimony from other employees present at the meeting generally disclaim any inappropriate conduct by the LTC. Claim (2) arose out of the same March 25, 2019, meeting. Complainant argued that the DPM gave the team the impression that Complainant’s actions were harming the team’s progress. Specifically, the DPM implied that Complainant was holding up the entire schedule based on the dates printed on the schedule. Complainant asserted that the dates had been changed without her involvement and, therefore, she was not at fault. As with Claim (1), Complainant asserted that the other team members - a white man and a man of Indian origin - had issues with the schedule but were not treated similarly. The DPM denied the allegation. The LTC also denied Complainant’s claim. The LTC acknowledged that there may have been a discrepancy in schedule dates but explained that the dates were shifting as a result of the funding cuts. Complainant raises additional allegations against the DPM in Claims (3) and (4), which stem from a meeting on April 2, 2019. Therein, DPM sought a status of a test. Complainant asserted that the Army Evaluation Center (AEC) managed the test and she was waiting to hear back from the AEC. 2022001991 4 However, the DPM asserted that AEC had not provided an update because Complainant had not provided a document. Complainant said that the DPM was irate, yelling, and screaming at Complainant. Complainant believed this was discriminatory harassment because she has never seen the DPM treat others the way she treated her. The DPM asserted that Complainant “has immensely exaggerated the events of this meeting.” Rather, the parties were frustrated with each other and struggling to discuss how to move forward with the program. In Claim (5), Complainant argued that the DPM should have provided her with a temporary promotion, which she could then fill after the vacancy was listed. Complainant acknowledged that a promotion cannot be guaranteed, and she would have had to compete for the vacancy, but Complainant blamed the DPM for not trying to fill it. Complainant offered no testimony relating to a constructive discharge, and the record indicates that Complainant remained employed with the Agency. The DPM explained that the department really only had room for half of a position, which did not allow the DPM to try to promote anyone into that position. The LTC added context and explained that there was a lack of billet availability, which Complainant would not have been aware of and thus, the position could not have been posted. Complainant’s testimony offers some clarity as to what she alleged in Claim (6). Complainant alleged that the DPM told her supervisory chain that Complainant was not staying within her lane. As a result, Complainant reported the DPM for harassment. The Agency conducted an investigation and found Complainant’s allegation to be unsubstantiated. Complainant argued that Agency management was trying to use the results of the harassment investigation as a means to head off her EEO complaint. The DPM did not recall making this statement but does recall having a discussion in her supervisory chain to try and establish clear expectations for Complainant. However, the DPM noted that she is not Complainant’s supervisor, and any expectations would need to be set by that supervisor. The DPM raised these issues to ensure that everyone had a common understanding. The PMTS1 added that he only met with Complainant to provide her with the formal results of the Agency’s investigation into her harassment allegations. The PMTS1 denied the remainder of Complainant’s allegation against him. The DPM’s twin sister works for the Agency’s information technology (IT) department. In Claim (7), Complainant alleged that the twin sister “directed an un-named individual/administrator to access [her] computer and obtain [her files], some containing [her] PII and PHI in order to use [her] information against [her].” The DPM flatly denied this allegation, and added that she would never jeopardize her sister’s career or ask anyone to access Complainant’s computer. 2022001991 5 The DPM’s sister provided testimony that explained the severe penalties associated with improperly accessing another employee’s computer as well as the elevated authorization that would be necessary to gain such access. However, the DPM’s sister investigated the matter and discovered that Complainant had returned her computer to IT in mid-November 2019 because she was leaving the department. The computer was then wiped/reimaged. Upon further inspection, the computer had not only been wiped, but had also been reloaded with Complainant’s profile, but not all the data. The DPM’s sister attested that she never saw the computer or touched it. Complainant alleged in Claim (8) that she refused either of the two options provided by the AD and believed it to be retaliation because the AD “was not interested in [her] seating arrangement until he was made aware of [her] EEO activity.” The DPM said that the Agency conducted an investigation into Complainant’s allegation that the DPM harassed her and found no harassment. As a result, Complainant was offered the same job in the same location she previously held, or to go back to her old position. Complainant did not accept either option and eventually transferred to a different office. The AD denied that he presented Complainant with an ultimatum. Rather, the AD was trying to ensure that Complainant reported to work. Complainant continued her allegations against the AD in Claim (9) and argued that the AD subjected her to administrative scrutiny over her leave balances and her whereabouts. Complainant asserted that no other employee was required to report their hour-by-hour whereabouts. The AD said he was aware that Complainant’s supervisors were trying to ascertain her whereabouts because they were her supervisors. In Claim (10), Complainant explained that she believes she was entitled to the accommodation of being able to work in a safe environment. Complainant argued that the AD worked with another employee to coerce Complainant into requesting a reassignment. The AD denied knowledge that Complainant felt she was being coerced. In Claim (11), Complainant again focuses on the DPM’s family and claimed that the AD was subjecting her to further harassment by assigning the DPM’s brother-in-law as the Acting Associate Director within Complainant’s chain of command. Complainant conceded that the assignment lasted one day but said that she “was alarmed that none of the Deputy Associate Directors (DADs) were assigned instead. The AD explained that his DADs were on leave on July 3, 2019. Thus, he had to go down one level to find a supervisor who could act in his position for that day. That person happened to be the person who was the DPM’s brother-in-law. The record contains some testimony from other employees indicating that they found it problematic that the DPM, her sister, and her brother-in-law all worked in close proximity to each other, raising issues of nepotism. 2022001991 6 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that she successfully established a hostile work environment because she is a member of EEO protected classes and because she was subjected to a p unwelcome environment. Complainant argues that the harassment was because of her EEO protected classes because others not within these classes were treated better. Complainant specifically points to a “family-based nepotism scheme.” Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS 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”). Disparate Treatment - Claims (5), (7), (9), (11) To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2022001991 7 In this case, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, we find that the Agency articulated, legitimate, non-discriminatory reasons for its actions as were set forth in detail above. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. In this case, Complainant provides no evidence, beyond her conclusory speculative statements, that she was subjected to discrimination or reprisal. The record is wholly devoid of any evidence linking the Agency’s actions to her protected bases. As a result, the Commission find that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment - All Claims To establish a claim of hostile work environment, 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; and (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 to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, 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 his protected class. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her protected classes, management officials subjected him to a hostile work environment. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency’s actions were based on discriminatory or retaliatory animus. The evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, personality conflicts, and general workplace disputes and tribulations. 2022001991 8 We note that although Complainant suggests that nepotism is at play, the Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. Anderson v. Dep't. of Air Force, EEOC Appeal No. 0120120121 (Apr. 18, 2013); see also Garrett W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (Oct. 30, 2018) (“Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination.”). As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 2022001991 9 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. 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 February 6, 2023 Date