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

Equal Employment Opportunity Commission

Mar 6, 2023

Appeal No. 2022000804 (E.E.O.C. Mar. 6, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diedre A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000804 Agency No. ARWSMR19AUG03064 DECISION On November 29, 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 November 1, 2021, 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. 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 Supervisory Transportation Operations Specialist, GS-2150-11 at the Agency’s White Sands Missile Range in New Mexico. Report of Investigation (ROI) at 34. The Chief, Transportation Division was Complainant’s first level supervisor (Supervisor 1A). ROI at 203 and 492-96. The Director, Logistics Readiness Center (LRC) was Complainant’s second level supervisor (Supervisor 2). ROI at 433-34. When Supervisor 1A was detailed to another position pending results of an investigation, a program Analyst was later named the Acting Chief, Transportation Division (Supervisor 1B). ROI at 510-11. Complainant stated that she participated in prior EEO activity when, sometime in 2018, she served as witness in a complaint Supervisor 1A had filed. ROI at 418. 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 2022000804 Supervisor assumed Complainant’s involvement in Supervisor 1A’s EEO activity because “the two are very close.” ROI at 435. Supervisor 1B denied any knowledge of Complainant’s prior EEO activity. ROI at 512 and 522. On September 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On August 1, 2019, Complainant received a cautionary letter of counseling; 2. On August 19, 2019, Complainant was temporarily detailed to another duty location due to a harassment inquiry and has not received a response to her November 2019 request to move back, nor has she received the inquiry results; and 3. From April 2018 through November 2019, Complainant’s authority was usurped, she was passed over to act as Division Chief, she was accused of conspiracy, she was directed to complete several tasks, and she was ignored. The Agency conducted an investigation into the complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, on November 1, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. Complainant submitted an appeal brief in which, among other things, she contests the Agency’s decision and reiterates her allegations. The Agency submitted an appeal brief opposing Complainant’s appeal and alleging that she attempted to present new evidence. ANALYSIS AND FINDINGS Upon careful review of the Agency’s final decision and the evidence of record, we find that the Agency correctly determined that Complainant failed to establish that the Agency subjected her to discrimination, a hostile work environment or unlawful retaliation as alleged. In making this finding, we note that Complainant has not presented any arguments on appeal that would contradict the Agency’s conclusions in its final decision. 3 2022000804 Unlawful Retaliation A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For 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. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming arguendo that Complainant established her prima facie case, we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. Here, regarding claim 1, after receiving guidance from Human Resources (HR) and Supervisor 2, Supervisor 1B issued the informal Cautionary Letter to Complainant because Complainant engaged in unprofessional behavior and fostered a hostile work environment. ROI at 513-15. Complainant’s own identified witness who was in the room stated that there was no loud talking, and no verbal exchanges when Supervisor 1B asked Complainant to sign the Cautionary Letter. The witness also stated that Complainant agreed to sign the letter, and that she apologized. See Complainant’s Rebuttal in the After Acquired Evidence Memorandum at 12. See also ROI at 527 for HR Specialist statement that she had no reason to believe the letter was retaliatory. Regarding claim 2, after consulting with HR, Supervisor 2 moved Complainant to a different work location pending investigations into Supervisor 1A. Supervisor 2 took the action to prevent mission failure that could have resulted based on allegations that Complainant was creating a hostile work environment and retaliating against employees after Supervisor 1A was detailed to another position. ROI at 437. See also ROI at 494-96 for Detail Notice. The record contains results of an internal inquiry in which Complainant’s employees stated that she was condescending and made every task seem like a threat. See ROI at 301. The Logistics Management Specialist (LMS) asserted that Complainant belittled her employees and was unprofessional toward customers. He also stated that Complainant said disrespectful things about Supervisor 2 and Supervisor 1B in front of employees. ROI at 548-50. See also ROI at 527-28 for HR Specialist’s statement that there was no indication that the relocation was retaliatory. Supervisor 2 asserted that Complainant’s duties did not change and she was able to accomplish the mission from the new location. ROI at 438. Supervisor 2 denied that he has not responded to Complainant’s request to return since November 2019. According to Supervisor 2, he sent Complainant an email and went with Supervisor 1B to Complainant’s office to deliver the requested information in November or December 2019. 4 2022000804 Supervisor 2 asserted that he informed Complainant that she would remain at the different work location until the formal investigations into Supervisor 1A’s complaint was completed. ROI at 438 and 447-48. Regarding claim 3, Supervisor 2 asserted that he considered Complainant, a GS-11 employee, for the temporary position but did not choose her to be the Acting Division Chief in order to prevent a hostile work environment. ROI at 440 and 445. Supervisor 2 chose Supervisor 1B, a GS-13 employee, because she was more qualified, held a higher grade, and had more leadership experience. ROI at 440. When Supervisor1B was unavailable, Supervisor 2 asked the Chief of Plans and Operations, also a GS-13, to act in her place. ROI at 445. Supervisor 2 stated that he overturned the Letter of Notification Complainant had issued because it appeared to have been issued in retaliation, had no legal basis, and HR advised that Supervisor 2 could take the action. ROI at 438-39. See ROI at 505-09 for related documents and ROI at 536 for HR Specialist’s statement confirming that Supervisor 2 had sought guidance regarding the action. According to the LMS, he helped request a vehicle. LMS stated that Complainant later called him and yelled that it was against rules to have a vehicle out so long. ROI at 550-51. See ROI at 555- 63 for related emails. There is no evidence that Supervisor 2 disagreed with Complainant’s decision. Supervisor 2 directed the General Services Administration (GSA) Regional Fleet Manager not to communicate with Complainant regarding the fuel tankers because Complainant refused to sign a new lease to replace old vehicles. ROI at 441-42. The manager stated that the direction that he does not contact Complainant was not unusual and happens “all the time” when agencies undergo changes. ROI at 566. See ROI at 567-69 for related emails. Supervisor 2 denied telling the Chief of Supply Division that he and Complainant were conspiring. According to Supervisor 2, he approached the Chief to discuss a rumor he heard that they were conspiring. ROI at 442-43. See ROI at 542 for the Chief’s statement confirming Supervisor 2’s assertion. Supervisor 2 also stated that he addresses rumors with employees “immediately” and “all the time.” ROI at 443. Supervisor 2 directed Complainant to correct appraisals based on an instruction from headquarters. According to Supervisor 2, he directed that Complainant close all open appraisals because hers was delinquent and a new performance rating cycle was beginning. ROI at 443-44. See ROI at 452-91 for Directives and Policy. The Chief of Plans and Operations had also been directed to close out employee appraisals. ROI at 574. See also ROI at 528 for HR Specialist’s statement that the wording Complainant had in employee performance plans was inappropriate. Supervisor 1B stated that position descriptions (PD) updates usually came from other offices. ROI at 520. Supervisor 2 confirmed that a directive from higher headquarters mandated PDs be updated. ROI at 445 and 447. 5 2022000804 Both Supervisor 1B and Supervisor 2 also stated that all divisions had to update PDs. ROI at 446 and 520. See also ROI at 529 for HR Specialist’s statement that Complainant’s duties include updating PDs. The Chief of Supplies Division had also been directed to update PDs. ROI at 542. Supervisor 2 denied failing to ask Complainant for her input or questions (at a meeting to discuss promotion of one of Complainant’s employees). According to Supervisor 2, Supervisor 1A did not want Complainant’s employee to be promoted to a vacant position. ROI at 446. Supervisor 1B asserted that she had never seen Supervisor 2 skip any person; and that Complainant did not want her employee to be promoted but gave him additional duties outside his PD. According to Supervisor 1B, it was Complainant’s responsibility to perform the duties of vacant positions. ROI at 520-21. The Chief of Supplies Division could not recall Supervisor 2 ever skipping any participant. ROI at 542-43. Management has provided legitimate non-discriminatory reasons for the challenged actions. We now turn to Complainant to establish that the Agency’s reasons were pretexts for discrimination. Complainant argues that her involvement in Supervisor 1A’s complaint (which Complainant asserts was her prior EEO activity), was the reason for the challenged management actions. Yet, Complainant presents no evidence to corroborate this argument. Nor did Complainant refute record evidence showing that, regarding claim 1, other employees who had engaged in conduct similar to Complainant’s had received verbal counseling. ROI at 436-37. See also ROI at 497- 502 for Letters of Instruction issued to other employees. As to claim 3, Complainant alleged that Supervisor 2 should have named her (Complainant) as the Acting Division Chief due to her qualifications and the 2017 delegation letter. ROI at 421 and 426. See ROI at 51 for Delegation Letter. However, the HR Specialist’s stated that Delegation letters for civilian employees did not have the same effect as in the military and do not require a certain person be named as “acting” in a supervisor’s absence. ROI at 528. Supervisor 2 has also appointed others to act in place of an absent division chief. ROI at 440. Complainant did not show that any of the remaining challenged management actions were based on her prior EEO activity. Having carefully reviewed the record, we find that the management actions were taken entirely for reasons other than Complainant’s EEO activity, notwithstanding statements made about her association with Supervisor 1A. As such, Complainant’s claims fail because she did not establish that she was subjected to unlawful retaliation. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (Jun. 16, 2017). We find that many of the allegations stated in Complainant’s complaint fall within these types of management prerogatives, and Complainant has not shown how she was treated differently than others who were similarly situated and outside of any protected group to which Complainant belongs. 6 2022000804 Regarding Complainant’s hostile work environment claim, we find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Complainant also alleged that the challenged management actions were based on her association with Supervisor 1A in whose EEO complaint she was a supporting witness. See Complainant’s Appeal Brief at 1. To ultimately prevail in her claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find no bases for Complainant's retaliatory harassment claim as she has not established that the challenged management actions occurred because of any protected EEO activity. Rather, the record shows that the actions taken by management were due to Complainant’s own retaliatory animus towards employees and the hostile work environment she was creating with them and not her participation activity on behalf of Supervisor 1. See, for example, ROI at 516 showing that Complainant made statements to employees indicating that Supervisor 1A would deal with them when he came back and “he's coming back soon." Therefore, Complainant does not prevail. 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. 7 2022000804 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. 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. 8 2022000804 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 March 6, 2023 Date