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

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022004073 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Georgia Z.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022004073 Hearing No. 430-2021-00391X Agency No. ARBRAGG20SEP02895 DECISION On July 24, 2022, 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 24, 2022, 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant (Contractor) at the Agency’s Installation Management Command (IMCOM), Army Community Services (ACS), Soldier Support Center (SSC) in Fort Bragg, North Carolina. She joined the Agency in 2006 as a contract employee under a staffing firm known as Serco. In January 2020, Hyperion Biotechnology, Incorporated (Hyperion) became Complainant’s employer after the Agency award Hyperion with a contract to provide general administrative and clerical support for the Agency. During the course of her contract, Complainant was jointly supervised by supervisors from her staffing firm and the Agency. 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. 2022004073 2 On October 19, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her. The Agency ultimately framed the claims in the following manner: A. Was Complainant subjected to discriminatory harassment and a hostile work environment on the basis of reprisal (prior EEO activity) by the Contract Program Manager, the Contract Supervisor, and her employer, Hyperion, in the following action when: 1. On August 3, 2020, Complainant received notification of employment termination for unprofessional conduct without significant improvement noted. The termination notification states the following, “Numerous discussions have taken place between supervisor [Contract Program Manager] and Complainant without any notable improvement in behavior. Consistent tardiness in July along with pattern of unprofessional conduct makes the employees [sic] termination necessary.” B. Was Complainant subjected to discriminatory harassment and a hostile work environment on the basis of reprisal by Contract Program Manager, the Contract Supervisor, and her employer, Hyperion, when: 1. Approximately February to March 2020, after the new contract was awarded and some contract woes, a couple of interactions planted seeds of doubt regarding Contract Program Manager’s character and leadership. Although Complainant’s interactions remained positive, both personally and professionally, this doubt was confirmed after a meeting with the Assistant Contract Officer Representative on June 4, 2020. At that time, she chose to limit personal conversations with the Contract Program Manager, only interacting professionally to achieve goals; 2. On June 23, 2020, the Contract Program Manager initiated a personal vendetta towards Complainant with an email camouflaged as concern and offering assistance regarding tardiness; 3. On July 15, 2020, Complainant spoke with both the Assistant Contract Officer Representative and Contract Supervisor to request guidance with regard to the Contract Program Manager’s harassment and fostering a hostile environment. Complainant spoke with the government contractor (Witness-1 and Witness-2) regarding the Contract Program Manager’s behavior during a conference call on July 17, 2020, in which they assured her that retaliatory behavior was against company policy and would not be tolerated; and 4. On July 28, 2020, Complainant called Witness-2, leaving a message and absent a response, Complainant sent an email to both Witness-1 and Witness-2 on July 28, 2020, asking for guidance and pleading for assistance with regard to the Contract Program Manager’s harassment. Complainant spoke with Witness-1 and Witness-2 once again on July 29, 2020, asking for guidance and pleading for assistance with regard to the Contract Program Manager’s harassment. 2022004073 3 On October 28, 2020, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.103(c), for failure to state a claim. In its decision, the Agency found that Complainant was not entitled to file an EEO complaint because she was neither an employee nor applicant for employment. In reaching this conclusion, the Agency acknowledged that it had some control over Complainant’s duties; however, the Agency concluded that it was not Complainant’s joint employer because Complainant’s staffing firm had far more control over Complainant’s activities. Complainant ultimately appealed the Agency’s decision to the Commission. On February 23, 2021, we rejected the Agency’s conclusion that Complainant could not file an EEO complaint because she was not an Agency employee or applicant for applicant. See Georgia Z. v. Dep’t of the Army, EEOC Appeal No. 2021000668 (Feb. 23, 2021). Finding the record to insufficient, we ordered the Agency to conduct a supplemental investigation as to whether Complainant was an employee or contractor. We ordered the Agency to accept the complaint for investigation in the event that the supplemental investigation found that was indeed jointly employed with the Agency. Following the ordered supplemental investigation, 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 (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing; however, on February 14, 2022, the Agency filed a motion for a decision without a hearing, urging the assigned to rule in its favor, as the undisputed evidence showed that Complainant had not been subjected to discrimination with regard to the termination or the other claims. Complainant timely opposed the Agency’s motion. In opposing the Agency’s motion, Complainant vehemently maintained that management subjected her to a hostile work environment, and that she was terminated in reprisal for reporting harassment and asking for assistance in responding to the harassment. Complainant asserted that there was “[n]o basis for valid cause for termination” and that the Agency falsely accused her of unprofessional conduct and tardiness. Over Complainant’s objections, the AJ issued a succinct decision without a hearing on May 16, 2022, finding in favor of the Agency on the grounds set forth in the Agency’s motion. 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. On appeal, Complainant largely reiterates the same contentions that she previously raised. The Agency opposes the appeal. In its opposition, the Agency maintains that the appeal is untimely because Complainant received the Agency’s final order on May 24, 2022, and failed to file an appeal within 30 days of that day. 2022004073 4 The Agency provides the Commission with a copy of the email delivery confirmation for the Commission’s review, which notes that the email containing the final order was delivered to Complainant’s email address on May 24, 2022. Alternatively, the Agency requests that the Commission affirm the merits of the final order.2 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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. In reaching this conclusion, we considered Complainant’s contentions regarding the alleged harassment and the circumstances surrounding her termination from Hyperion. As our review of the record clearly shows that Complainant admitted to being tardy on numerous occasions, we are disinclined to find the discriminatory animus with regard to her termination. ROI at 133. As for Complainant’s claim of harassment, we agree with the AJ that the totality of the record fails to demonstrate that the alleged incidents of harassment were sufficiently severe or pervasive to constitute a hostile work environment. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision.3 2 Complainant subsequently filed a reply, emphasizing that she never received the Agency’s final order. 3 As we have affirmed the merits of the Agency’s final order, we need not address the Agency’s argument regarding the timeliness of the appeal. 2022004073 5 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. 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). 2022004073 6 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 September 27, 2022 Date