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

Equal Employment Opportunity Commission

Sep 22, 2022

Appeal No. 2021004526 (E.E.O.C. Sep. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ingeborg B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004526 Hearing No. 541-2017-00126X Agency No. ARCARSON14JUL02655 DECISION On August 5, 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 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, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Technology Generalist at the Agency’s Department of Pathology at the Evans Army Community Hospital. On August 25, 2014, September 3, 2015, January 29, 2016, and October 26, 2016,2 Complainant filed EEO complaints alleging that the Agency discriminated against her on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2 The AJ joined Complainant’s complaints. 2021004526 2 1. On 24 June 2014, her supervisor (Supervisor) changed her duty shift from second shift (1600-Midnight) to first shift (0700-1500) beginning July 4, 2014, in order for her to complete competency assessments; 2. On June 26, 2014, the Supervisor told Complainant’s coworkers that he hoped the work environment would not become hostile when Complainant returned, and they should not get drawn into Complainant’s issues; 3. On July 10, 2014, the Supervisor denied Complainant the opportunity to work weekends because Complainant was overdue on several competency assessments; 4. On July 15, 2014, Complainant attempted to return to work on the second shift but was told by the Supervisor that she could not work that shift or be in the lab until all of the competency assessments were completed and the Supervisor told Complainant to leave the lab or he would call “Code Green” and have Complainant escorted out by security; 5. On August 8, 2014, Complainant was told by management that she would work the day shift from September 2 - 20, 2014, to finish being competency assessed when other employees were allowed to stagger their assessment schedule; 6. On August 19, 2014, Lieutenant Colonel (LTC) walked in while Complainant was having a conversation with two colleagues and singled her out by saying “Complainant needs to start working now”; 7. On November 9, 2014, a colleague (Coworker 1) allegedly said to another fellow colleague (Coworker 2) that “they were glad Complainant was being moved” and that “they wished she was dead,” Coworker 1 then continued the conversation saying, “he clearly understood why people have their car brakes tampered with” and that “anyone that caused trouble should be removed”; 8. On November 14, 2014, Complainant was notified by the Labor Officer (Officer) that laboratory management was changing her duty hours to third shift and directing that the reassignment be effective Sunday, November 23, 2014 at midnight; 9. On November 19, 2014, the Supervisor and the LTC issued Complainant her performance appraisal for the period ending October 31, 2014 that noted a level one rating. However, the senior rater block indicated “Met performance standards as required. Did not meet College of American Pathologists (CAP) accreditation standards nor work with management to be competency assessed in a timely manner; unable to work in areas of laboratory which hindered the mission"; 2021004526 3 10. On June 24, 2015, the Master Sergeant Department of Pathology Noncommissioned Officer in Charge (Sergeant) questioned Complainant about leaving work early; 11. On July 8 and 9, 2015, the Sergeant did not authorize overtime for Complainant when she worked through her lunch breaks; 12. On July 14, 2015, the Sergeant counseled Complainant for violating the alert roster privacy protection procedures; 13. In late July 2015, the Sergeant did not authorize compensation for Complainant to attend an After-Action Review meeting outside Complainant’s duty hours; 14. On or about October 20, 2015, she became aware she was not selected for the Supervisory Medical Technologist position, GS-0644-11 (Job Announcement Number: NCMD157674611463348EM) by the Captain Laboratory Officer (Captain); 15. In September 2015, the Colonel (COL) initiated an Army Regulation (AR) 15-6 investigation of Complainant based on an allegation of improper use of U.S. Government Medical Resources; 16. In November 2015, Complainant was referred for vacancy announcement NCMD157674611555939EM, GS-0644-11, Supervisory Medical Technology and was not interviewed; 17. On December 11, 2015, the Sergeant reassigned Complainant's Micro CAP survey to another employee even though the suspense date was originally set for December 14, 2015; 18. On January 9, 2016, the Sergeant denied Complainant's request to switch duty days with a coworker; 19. On January 19, 2016, a coworker told Complainant she was not selected for vacancy announcement NCMD157674611555939EM, GS-0644-11, Supervisory Medical Technology; and 20. On or about September 29, 2016, she became aware that her personal effects were disposed of by the Sergeant. 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). 2021004526 4 Complainant timely requested a hearing and the AJ held a hearing on December 3, 4, and 5, 2019, and issued a decision on March 20, 2020. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant proved that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). In their decision, the AJ determined that Complainant failed to show reprisal discrimination with respect to claim 1 and claims 3 through 20. Rather, she only proved that she was discriminated as alleged in claim 2. The AJ indicated that in claims 1 and claims 3 through 20, the evidence did not indicate that the Agency acted in retaliation toward Complainant for her EEO activities. The AJ went through each claim at length and determined that Complainant had not satisfied her burden. Regarding the impact of her claims, Complainant testified to the significant damages she suffered based on her perception that she was being retaliated against. However, the AJ determined that as Complainant did not prove retaliation with respect to claims 1 or 3-20, she was only able to recover damages caused by the allegation in claim 2. Ultimately, the AJ determined that Complainant was entitled to a non-pecuniary compensatory damages award in the amount of $5,000.00 based on the emotional stress caused by the Agency interference violation. For attorney's fees, in consideration of the fact that Complainant was only able to prove claim 2, and the fact that claim 2 was largely distinct and separate from Complainant's remaining allegations, the AJ found that a large reduction in the attorney's fees award was appropriate. The AJ found that reviewing the billing statement and parsing out work done on only claim 2 as opposed to the remaining allegations was difficult, and as such, an overall reduction in attorney's fees was appropriate. Overall, the AJ determined that a reduction of 80% for work performed was appropriate to reflect that Complainant prevailed on only a single claim and was largely unsuccessful otherwise. As to the hourly rate, the AJ found that it would be appropriate to award Complainant’s attorneys the rate for the 25% quartile due to their relatively junior levels of experience. Thus, the AJ found that the reasonable hourly rate in the relevant legal community, based on the table, to be $233.00, which the AJ then adjusted by 3% annually, as suggested by the Agency, for an hourly rate of $247.00. In conclusion, the AJ awarded Complainant $7,577.00, based on 153.4 hours of work at a rate of $247.00, reduced by 80%. CONTENTIONS ON APPEAL On appeal, Complainant requests the reversal of the AJ's decision with respect to claims 1 and 3 - 20. She argues that she presented ample evidence to establish a prima facie case for discrimination. In response, the Agency relies on resubmissions of their arguments throughout the hearing process regarding damages and the merits of Complainant’s claims. 2021004526 5 ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD- 110), at Chap. 9, § VI.B. (Aug. 5, 2015). The Commission notes that the AJ has broad discretion throughout the discovery and hearing processes. Here, it appears that the AJ afforded Complainant opportunities to testify, submit arguments, and ample time to provide evidence in support of her claims. However, despite the hearing wherein Complainant testified, the AJ found that Complainant failed to show that she was discriminated against as alleged with regard to all but claim 2. While we acknowledge Complainant's extensive arguments on appeal, we do not find that she has convincingly shown that the AJ improperly adjudicated her case. While Complainant argues extensively that she was qualified for the positions at issue, and suffered through a hostile work environment, we do not find that she has provided any additional evidence and has rather relied on conclusory statements. In contrast, for example, as to claims 1,3, and 5, the AJ determined that the overwhelming weight of the evidence indicated that the various scheduling issues Complainant alleged were retaliation were not directed at, or specifically related to her, but instead were instigated and required by the office’s accreditation requirements and competency plans. As to claim 4, the evidence indicates that Complainant arrived for work on July 15 without notifying management of her intent to work that day, or being scheduled to work that day, her managers not expecting her that day, and she was not competency assessed to work her shift; the CPT was justified in instructing her to leave the lab, even if calling a code green may have been ill-advised. Further, regarding claims 6, 10, 17, and 18, it is apparent that each issue was credibly explained by the Agency. The Agency explained that claim 6 was a minor isolated incident which was directed at Complainant, and Complainant was asked to begin working based on the belief that the person speaking with Complainant should have known that. claim 10 was an ordinary supervisor action and resulted in no action against Complainant. 2021004526 6 The Agency explained that as to claim 17, Complainant’s work was reassigned because of a concern that Complainant would not be able to complete it on time. As to claim 18, while staff had previously been allowed to switch schedules, the policy was changed, and the policy change was applicable to everyone. It is apparent from the AJ decision that each claim from Complainant was considered extensively, and the determinations from the AJ were made in light of the entirety of the record as well as credibility determinations at the hearing. Complainant has not successfully challenged these findings on appeal, and instead insinuates arguments and statements already considered by the AJ. Upon review of the hearing transcript, the AJ decision, the numerous motions throughout the record, and the record as a whole, we find that the substantial evidence support the AJ’s decision with regard to claim 1 and claims 3 through 20. We note that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for their decision. The AJ held a hearing, examined and considered witnesses, as well as Complainant’s arguments and evidence. We note that as there has been no adjustment to the findings of discrimination, and Complainant has not submitted specific arguments regarding relief on appeal; we do not find that the AJ’s findings with respect to compensatory damages or attorney’s fees should be unsettled. We do not make any adjustments or findings with regard to the damages portion of the AJ’s decision. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision, including the award of $5,000.00 in non-pecuniary compensatory damages and $7,577.00 in attorney’s fees. Furthermore, to ensure compliance with the AJ’s orders, they are restated below. ORDER The Agency is ORDERED, to the extent it has not already done so, to take the following action: 1. Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay Complainant $5,000.00 in nonpecuniary damages. 2. Within sixty (60) calendar days of the date this decision is issued, the Agency shall pay Complainant $7,577.00 in attorney’s fees. 3. Post the Notice as referenced below, in prominent places at the Evans Army Community Hospital Headquarters Building at Fort Carson. The Notice shall be posted within 30 days from this Decision being final and shall remain posted for 90 days. The Notice shall be posted in a size at least as large as that attached. The Notice shall be signed by the current head or director of the Evans Army Community Hospital Headquarters Building, or his or her equivalent. The Agency shall take reasonable steps to ensure that the posted Notices are not altered, defaced, or covered by any other material. The original, signed Notice shall be retained by the Agency for one year from the date this decision is final. 2021004526 7 The Agency shall also prepare, and retain, for the same time period, a declaration that the Notice has been posted at all locations, and a second declaration that the Notice remained posted at all locations for the required 90 days 4. Within ninety (90) calendar days of the date that this decision is issued, the Agency shall require Supervisor, identified in the AJ’s decision, to training, regarding Title VII’s prohibition on retaliation and interference, employees’ rights to engage in protected activity, and the Agency’s obligations with respect to this right. The training shall be live and shall be a minimum of one hour. The Agency shall retain documents regarding the following: name and resume of the trainer, copy of written training materials, and signed verification of attendance. 5. Within one-hundred and twenty (120) days of the date that this decision is issued, the Agency shall consider disciplining the Supervisor identified in the AJ’s decision. At the time that the determination is made, the Agency shall report to the Commission whether it proposed discipline and the reason for discipline, or declining to discipline, each relevant management official. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). POSTING ORDER (G0617) The Agency is ordered to post at the Evans Army Community Hospital Headquarters Building at Fort Carson copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). 2021004526 8 The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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 2021004526 9 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2021004526 10 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 22, 2022 Date