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

Equal Employment Opportunity Commission

Feb 21, 2023

Appeal No. 2021003349 (E.E.O.C. Feb. 21, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Doria R.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003349 Agency No. ARCEHONO19DEC05000 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 April 22, 2021 final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a General Engineer, GS-13, at the Agency’s U.S. Army Corps of Engineers, Pacific Ocean Division (POD) in Fort Shafter, Hawaii. On March 18, 2020, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her and subjected her a hostile work environment based on sex (female) and age (YOB: 1963) when: 1. Since January 2019, the Chief of International Cooperation (IC Chief) had multiple outbursts whereby he disrespected, belittled, humiliated, and personally attacked her in front of staff members and the Military Integration Division Chief (MID Chief), Complainant’s supervisor. The IC Chief yelled, “who told her she 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. 2021003349 2 could use work time for training?” In February 2019, the MID Chief never addressed the IC Chief’s behavior toward her. 2. In February 2019, the IC Chief gave her false hope when he said other temporary jobs would come available. When, however, Complainant applied for those jobs, she was not referred, and was not selected for several positions she applied for. 3. February to March 2019, the IC Chief assigned her to work on a Program Management Plan for the IIS Program, and then told her to stop working on it, as it was no longer needed. She was then assigned to work on updating a briefing statement and could not find history on the assignment. When she provided what she could, she was yelled at by the Chief of Staff, and the IC Chief told the MID Chief that she should have not been working on the statement in the first place. 4. In April 2019, Complainant learned from Headquarters Training Coordinator that another candidate was registered for training instead of her, although she submitted her request through the chain of command. Complainant made several attempts to obtain a Program Management Level One Certification but was ultimately denied on November 23, 2019. 5. September to October 2019, the IC Chief failed to provide guidance on assignments. However, the IC Chief mentored, groomed, and guided another male employee. 6. On November 20, 2019, Complainant was informed by the MID Chief that her one-year Term Appointment was not extended. 7. On December 23, 2019, Complainant’s performance review was changed from “fully successful,” to not meeting criteria for Program Management experience, by the MID Chief. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final decision. On April 22, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established as alleged. The instant appeal followed. 2021003349 3 ANALYSIS AND FINDINGS Disparate Treatment - (Claims 2, 4, 6, and 7) 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The record reflects that the Agency articulated legitimate, non-discriminatory reasons for its actions. Not Referred for Open Positions (Claim 2) Complainant testified that she informed the ID Chief that she applied for a vacancy and the ID Chief responded by yelling at her and telling her that she was “incompetent” and not qualified for the position.2 Complainant further testified that the ID Chief indicated that he would contact human resources, and thereafter, Complainant was not referred for the position. Later in her testimony, Complainant clarified that she had private conversations with the MID Chief about applying to the vacant positions after she expressed her concerns that the ID Chief was bullying her. 2 Although the MID Chief was Complainant’s first level supervisor, Complainant explained that she was hired to assist the ID Chief. 2021003349 4 The MID Chief indicated that he was unaware of the IC Chief making comments about vacancy announcements to provide Complainant or other staff false hope of remaining on with the Agency. The MID Chief further denied being aware of Complainant’s allegation that the IC Chief called her “incompetent” for a permanent vacancy, or that the IC Chief worked with Human Resources to have the position require a Military Security Cooperation Assistance Background so that she would not be referred for selection. Despite Complainant’s assertions, the MID Chief indicated that Complainant was referred on the September 2019 Temporary Vacancy list, but she did not make the most qualified list, and therefore, was not interviewed. Nevertheless, the MID Chief explained that the recruitment action for this position was later cancelled, and no temporary appointment was made due to office need and workload. Regarding Complainant’s assertion that the MID Chief indicated, during her November 2019 performance review, that he was only going to fill one vacancy and would hire a veteran because he needed the “right people,” the MID Chief explained that Complainant’s allegation was taken out of context. Specifically, the MID Chief noted that candidates were selected for vacant positions based on a merits-based selection process to ensure that the best qualified candidates were chosen. The MID Chief acknowledged that veterans do receive a “degree of preference in the process.” In the case of the vacancy Complainant referenced, the individual was selected though the merit-based process and was determined highly qualified and was a veteran. The MID Chief further clarified that that “right people” comment referred to a quote, “right people in the right seat” from the book, “Good to Great.” The IC Chief also denied ever giving Complainant false hope that she could apply for other temporary positions that would become available, and he denied calling Complainant “incompetent.” The IC Chief indicated that he was unaware that Complainant had applied to other temporary positions, and he clarified that he had no influence in who was referred or selected for those positions. The IC Chief noted that he was not in Complainant’s supervisory chain of command. Denied Training (Claim 4) The MID Chief explained that contrary to Complainant’s assertions, she was provided and attended many training opportunities throughout the year including online and site courses. The MID Chief noted that during the one-year period of her employment, he approved her training requests and did not recall denying her training requests. However, the MID Chief clarified that he did not have a role in the certification approval process regarding Complainant’s allegation that she was denied Program Management Level One Certification. Although Complainant asserted that the MID Chief could have assigned her work that would have ensured that she met the requirements of the PM Level One Certification, the MID Chief explained that he assigned work as need surfaced. Complainant’s training records reflect that Complainant completed over twenty relevant trainings in acquisition, international security cooperation, and facilities engineering fields. 2021003349 5 Moreover, the Program Director (Director) clarified that training was provided based on individual need and available funds. Consequently, the Director indicated that it was not uncommon for employees to wait for training due to funding constraints. No Extension of Temporary Appointment (Claim 6) Complainant indicated that the MID Chief failed to extend her temporary appointment even though her performance was fully satisfactory. The MID Chief explained that he provided a recommendation not to extend Complainant’s appointment, but the Director made the final decision. The MID Chief noted that Complainant was a temporary appointment employee and the only staff person on temporary appointment. During the period at issue, the MID Chief explained that he made the recommendation not to extend Complainant’s temporary appointment because one employee was returning to the office in late January 2020 following a permanent change of station, another individual was returning within the year, and the division’s workload was adequately covered. Consequently, the MID Chief denied that Complainant’s protected bases factored in his recommendation not to extend Complainant’s temporary appointment. The Director explained that he determined that Complainant’s temporary position was no longer needed, after evaluating the workload in the office and the current staff in the office. The Director noted that an increased number of permanent employees was returning to the office, and there was no need to extend Complainant’s term position. Finally, the IC Chief denied having any role in the decision not to extend Complainant’s temporary appointment. The IC Chief emphasized that he was not Complainant’s supervisor, he had no authority over her, and he was only asked to provide her assignments that would help lighten his workload. Performance Rating Change (Claim 7) Complainant acknowledged that she had received an interim rating of fully satisfactory that was not completed because the MID Chief was out of the office the majority of December 2019, and the performance evaluation system was down when he returned to the office on January 7, 2020, which coincidently, was Complainant’s last day at the office. However, Complainant asserted that various notes which the MID Chief and the Director attached to her Army Acquisition Corps Senior Rater Potential Evaluation (SRPE) for Civilians included negative remarks that contrasted with her fully successful review conducted earlier in November 2019. Specifically, Complainant noted that her SPRE included remarks that stated that she had “great potential to become an effective productive leader and program manager,” and that she “has potential to grow into position of greater responsibility.” Although Complainant addressed the discrepancy with the MID Chief, Complainant stated that the MID Chief informed her that it “doesn’t matter” because no one uses the SPRE evaluation. 2021003349 6 The MID Chief denied changing Complainant’s midpoint November 2019 assessment and only advised her that her work was satisfactory. The MID Chief also explained that he did not give Complainant an annual rating because she did not acknowledge her midpoint assessment or provide any input into her annual appraisal. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons resulted from disparate treatment based on her sex or age. Harassment - (Claims 1, 3, and 5) To prove her claim of hostile environment 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 a protected basis - in this case, her sex or age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As an initial matter, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 2, 4, 6, and 7 are precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by her sex or age. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). Outbursts (Claim 1) Complainant explained that when the MID Chief first introduced her to the IC Chief, the IC Chief commented that Complainant was hired “off the street” even though she had worked for the US Army Corps of Engineers for six years. Complainant asserted that the ID Chief yelled at her, however, Complainant also acknowledged that he yelled at other employees, both male and female.3 Complainant stated that she reported the IC Chief’s harassing behavior to the MID Chief, however, the MID Chief did not act to stop the harassment and was “stringing her along” until he informed her that her position would not be extended. Although the MID Chief acknowledged that Complainant reported to him that the IC Chief had raised his voice to her during a meeting, the MID Chief did not recall when this incident occurred and the MID Chief explained that he had not witnessed any outburst from the IC Chief including allegedly calling Complainant incompetent or treating male employees more favorably 3 Testimony in the record from other employees supports that the IC Chief had disagreements with other male employees. One Program Manager indicated that he believed that the IC Chief’s dispute with one male employee was “stronger/louder” than the IC Chief’s disagreements with Complainant. 2021003349 7 than Complainant. The MID Chief further acknowledged that Complainant complained to him about being frustrated with getting information from and working with the IC Chief. However, the MID Chief indicated that the IC Chief’s availability was “very limited” due to his numerous required meetings and engagements. Nevertheless, the MID Chief clarified that he did speak to the IC Chief on several occasions and asked that he make more time for Complainant as she was there to help him. The MID Chief noted that in response, the IC Chief informed him that his discussions with Complainant resulted in “lengthy time-consuming discussions which his scheduled often times could not accommodate.” The IC Chief denied disrespecting, belittling, humiliating, or personally attacking Complainant. The IC Chief noted that he had difficulty engaging in conversations with Complainant because Complainant had difficulty listening to others. Specifically, the IC Chief explained that Complainant would become upset if he, and other staff, did not agree with her point of view and she would demand that things be done her way.4 For instance, the IC Chief explained that he had to instruct Complainant to stop speaking, during a group meeting discussing developing a strategic tracker, because Complainant continued to raise her voice while the MID Chief repeatedly tried to provide guidance at the meeting. The IC Chief acknowledged that he did raise his voice during communications with Complainant, however, he raised his voice in response to Complainant raising her voice first.5 The IC Chief denied ever questioning Complainant about using work time for training as he indicated that he had no authority to assign training to her. The IC Chief further denied having outburst with other employees, male or female, rather the IC Chief admitted that he had disagreements with some male employees. Regarding Complainant’s assertion that the IC Chief called her “Howlie” and made mention of her temporary employment status, the IC Chief explained that he mentioned her employment status because it was relevant in the context of conversations or introductions. The IC Chief further explained that “Haole” is a native Hawaiian term for someone not born in Hawaii, like himself. However, the IC Chief denied referring to Complainant by this name. 4 Testimony from a Program Manager (male), who was Complainant’s peer, also indicated that Complainant was very confrontational and was unwilling to adjust her position on issues despite receiving feedback. Additionally, the MID Chief testified that he had to advise Complainant to remain professional and maintain composure or ask for assistant if matters got out of hand after Complainant and an Army Corps of Engineers Information Technology (ACEIT) employee engaged in a “shouting match.” The MID Chief denied that he treated Complainant differently from male employees and he denied that he had previously commended a male employee for his “firm and commanding voice.” 5 The record includes testimony by a few staff employees who described Complainant and the IC Chief having disagreements, not outbursts, regarding their frustrations with working with each other. One employee described Complainant as exhibiting a “higher intensity” during her disagreements with the IC Chief. 2021003349 8 Program Management Plan Assignment - (Claim 3) From his understanding, the MID Chief explained that the Chief of Staff needed an updated briefing statement with a quick turn around and Complainant attempted to locate the necessary information to complete the task. However, the MID Chief indicated that IC Chief felt that Complainant should not update these statements because she did not have access to the necessary information, and the briefing statement Complainant attempted to update was critical information for the Commanding General to use to prepare for high level engagements which required that the statements be accurate and of good quality.6 Similarly, the IC Chief explained that Complainant did not have access to the necessary information to update the briefing paper at the time the Chief of Staff requested Complainant’s assistant with this task. Ultimately the IC Chief explained that he completed the updates as this task was part of his regular duties. Regarding the IC Chief’s decision to assign Complainant to the Program Management (PM) Plan Assignment and then later remove her from the project, the MID Chief explained that assignments can change depending on, among others, priority, need, and complexity. In this case, the IC Chief explained that after Complainant had completed the majority of the work, the next step was for the plan to be reviewed by another individual who had expertise in developing PM Plans. The IC Chief explained that the reassignment of Complainant’s work was part of the “normal process.” The MID Chief also acknowledged that Complainant provided him a copy of her draft PM Plan and requested guidance, however, the MID Chief indicated that he was unable to provide feedback due to many completing priorities. Nevertheless, the MID Chief stated that he informed Complainant that she did not have to finalize the plan and he would review it when his schedule allowed. Additionally, IC Chief acknowledged that he did not provide Complainant feedback on the PM Plan because at the time, he was no longer responsible for this project. Nevertheless, the IC Chief indicated that Complainant had submitted the PM Plan to over fifteen people for review. The IC Chief denied that he treated male employees more favorably with issuing work assignments. The IC Chief indicated that assignments are issued to employees best suited to complete the task regardless of gender. Moreover, the IC Chief acknowledged that he awarded a male employee a blue-ribbon award for exceptional performance. The IC Chief noted that the award was non-promotional, non-monetary, and was simply a thank you for all the work the employee had performed over multiple areas. 6 We note that the IC Chief testified that he did not recall telling the MID Chief that Complainant should not have worked on the briefing statement, nor did he recall tasking Complainant to update the briefing statement. 2021003349 9 Guidance with Assignments - (Claim 5) The MID Chief indicated that during the period at issue, the IC Chief was onboarding a new hire (male) into the Interagency and International Services team.7 Consequently, the MID Chief indicated that during this time he, not the IC Chief, was primarily responsible for Complainant’s work assignments and providing her guidance. The MID Chief noted that Complainant never brought to his attention her concerns that the IC Chief was not providing her guidance during this period. However, the MID Chief acknowledged that the IC Chief had instructed Complainant to send the IC Chief an email if she had questions opposed to her asking him her questions verbally. The MID Chief explained that the IC Chief had made these communication arrangements because he had a busy schedule and was unable to spend a considerable amount of time with Complainant.8 Specifically, the MID Chief indicated that IC Chief informed him that often times his meetings with Complainant would extend beyond the scheduled time and impacted activities that he needed to get done, so email gave the IC Chief more flexibility in between meetings and pending engagements. Nevertheless, the MID Chief acknowledged that Complainant complained that the IC Chief’s responses to her emails were slow. Similarly, the IC Chief explained that Complainant was hired as a General Program Manager to fill a gap for a one-year temporary assignment. Specifically, the IC Chief was instructed to assign Complainant appropriate tasks which would help alleviate his workload. The IC Chief indicated that he provided Complainant guidance to successfully complete her tasks, including answering her questions, and allowing her shadow him at many meetings, conferences, and discussions. However, he clarified that he was never instructed to serve as Complainant’s “mentor, groom, or guide.” The IC Chief acknowledged that emails were his preferred form of communication, but he often failed to provide immediate responses due to his busy work schedule. After a few months, the IC Chief explained that he had no more assignments for Complainant and the MID Chief redirected Complainant to support other areas in the office. Thereafter, the IC Chief stated that a new employee was hired in April 2019 specifically to help support the IIS Program, and because the IC Chief was responsible for this program, he was also responsible for mentoring this new employee. Assuming these incidents occurred as alleged, Complainant has not presented sufficient credible evidence demonstrating that considerations of her sex or age motivated management’s actions towards Complainant. 7 The MID Chief explained that new hire was a permanent hire specializing in international capacity development, and as a result, had experience and expertise that would greatly assist the IC Chief who, at the time, was singularly heading the program. Consequently, the IC Chief spent more time with the new hire so that he could quickly assume some of the program duties and relieve the IC Chief of these responsibilities. 8 Testimony in the record from a Program Analyst (male) reflects that the IC Chief had a heavy workload, and the Program Analyst often did not receive timely emailed responses from the IC Chief. 2021003349 10 Here, Complainant disagreed with management decisions regarding work assignments as well as her limited ability to work closely with the IC Chief even though he was not her supervisor. The record further supports that the IC Chief and Complainant had workplace disagreements, where both Complainant and the IC Chief raised their voices, and testimony from other employees indicate that Complainant was difficult to work with. Additionally, the record supports that the IC Chief also had workplace disagreements with male employees. However, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale, 523 U.S. 75, 81 (1998). Aside from Complainant’s bare assertions there is simply no evidence that the disputed actions were motivated in any way by Complainant’s sex or age and, therefore, Complainant’s claim of discriminatory harassment is precluded. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2021003349 11 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. 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. 2021003349 12 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 21, 2023 Date