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

Equal Employment Opportunity Commission

Mar 29, 2023

Appeal No. 2022002650 (E.E.O.C. Mar. 29, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Linette F.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022002650 Hearing No. 520-2020-00088X Agency No. ARIMCOMHQ18OCT03868 DECISION On April 11, 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 April 4, 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, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an EEO Manager at the Agency’s Army Garrison in Picatinny Arsenal, New Jersey. Deputy Garrison Commander (Deputy) was her first-level supervisor. Report of Investigation (ROI) at 294. Garrison Commander (Commander) was her second-level supervisor. ROI at 294. Strategic Planner was her senior rating official from April 1, 2018, until June 14, 2018, when he left the command. ROI at 536. 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. 2022002650 2 On November 26, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: a. On June 11, 2018, Deputy counseled Complainant but Deputy did not state the period for which Complainant was being counseled and referred to incidents from previous quarters; and Deputy admonished Complainant for not notifying him first of an EEO complaint against himself and other Agency employees by another employee; and b. On September 27, 2018, Complainant became aware that she could not provide input or feedback on her April 1, 2018, to March 31, 2019, Performance Appraisal Plan because it was already submitted and approved by Deputy and Strategic Planner; and Deputy inappropriately reported that he had communicated Complainant’s new performance appraisal plan on June 3, 2018. 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. On February 11, 2022, the AJ sua sponte issued a Notice of Intent to Issue Summary Judgment (Notice). The Notice specified that each party was to respond to this notice by no later than February 25, 2022, to include notice of any information not already in the ROI. Complainant did not respond to the Notice until March 9, 2022. Complainant’s response was an email from her attorney (Attorney) asserting that he had not been added as a representative in this matter to the EEOC’s public portal and requesting a two-week extension to respond to the Notice. The AJ noted that even if the hearing request, filed on November 12, 2019, indicated that Complainant was represented by Attorney, Complainant was responsible to enter Attorney’s information into the public portal and/or for Attorney to file a Notice of Appearance in the matter at hand. The AJ also explained that Complainant received the Notice on February 11, 2022, but did not download this Notice until February 25, 2022, the date that the response was due. Attorney did not submit a request for an extension until 12 days after the date the Complainant downloaded the Notice. The AJ found that Complainant did not provide any explanation as to either why she did not keep abreast of her complaint or the 12-day delay between the date that Complainant downloaded the Notice, and the date that responses were due, and the request for an extension. As such, the AJ found that Complainant did not demonstrate good cause for the extension request. The AJ denied Complainant’s extension request, determined that the complaint did not warrant a hearing, and issued a decision without a hearing on March 9, 2022. In her decision, as to claim 1, the AJ noted that Complainant met with Deputy on June 11, 2018, to discuss new performance objectives and to provide counseling regarding performance and conduct issues. The discussion was observed by the Network Enterprise Center Director (NEC Director) as a neutral party who memorialized the meeting in a Memorandum of Record. 2022002650 3 Complainant alleged that Deputy “abused his authority as my supervisor and [took] the opportunity of the ‘Counseling and Elements Session’ to retaliate against me and referenced a recent formal complaint that was filed against him…[Deputy] admonished me for not contacting him personally prior to following the complainant’s explicit request that she be provided the [Headquarters Installation Management Command] EEO point of contact information.” The AJ noted that the NEC Director recalled the event differently. NEC Director stated that when Complainant requested specific examples of feedback that she considered negative, Deputy explained that there was an EEO complaint that was not properly filed due to lack of communication. Complainant responded to this feedback by providing additional details about the case and saying, “Why because you were named in the complaint’ [sic].” NEC Director opined that the meeting went well “even when [Complainant] continuously persisted with questions regarding what [Deputy] was going to write in his [Memorandum for Record] of the session.” As to claim 2, the AJ noted that, while Complainant claimed she was not able to provide input or feedback on the Performance Appraisal Plan, the evidence of record indicated to the contrary. The AJ found that Complainant did, in fact, provide feedback on her performance appraisal plan via email to Deputy. Deputy, in turn, instructed Complainant to upload the feedback directly to the system. Further, the AJ determined that Complainant did not provide sufficient evidence to prove that the Agency’s actions were motivated by reprisal. The AJ found that the personnel actions outlined in the claims, while potentially frustrating, were common workplace occurrences. As such, even if they occurred as alleged by Complainant, they were not sufficient to constitute actions that were “reasonably likely to have a chilling effect and deter employees from full exercise of their EEO rights.” 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. The instant appeal followed. CONTENTIONS ON APPEAL Complainant provides two arguments on appeal. Complainant initially argues that the AJ erred in finding Complainant did not have good cause for not responding to the Notice. Attorney asserts that, as they were not added to the EEOC’s public portal on November 12, 2019, Attorney was unaware of the status of Complainant’s case until receiving a courtesy copy of the Agency’s motion supporting summary judgment. Attorney concedes that Complainant received the Notice on February 11, 2022. Attorney explains that, because of health issues Complainant’s mother was experiencing, Complainant did not download the Notice until February 25, 2022, the date that responses to the Notice were due. This “eliminated the potential for counsel to be able to respond in a timely manner to the Notice, as they had not even received it until past the due date.” Attorney takes issue with the denial of their request for a two-week extension, which Attorney sent to the AJ, along with Attorney’s statement of representation of Complainant, on March 9, 2022. 2022002650 4 As to their second argument, Attorney claims that she has been subject to harassment “for years” by her supervisors, as she was an employee who engaged in protected activity. Attorney claims that this spanned “the course of years at the hands of multiple supervisors,” and it began in 2016, after she filed a claim of harassment against Deputy.2 The Agency, in reply, asserts that the AJ was correct in the decision and the Agency decision implementing the AJ’s decision should stand. ANALYSIS AND FINDINGS 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 fact finder could not find in Complainant’s favor. The Commission has considered Complainant’s argument that the AJ erred in finding that Complainant did not show good cause in failing to respond to the Notice in a timely fashion, and we are not persuaded. The Commission's regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant's hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or 2 In Complainant’s brief, Attorney outlines a series of events that are alleged to have occurred as retaliatory harassment that are not part of the claims before the Commission. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). None of the issues raised in the brief, not expressly outlined in the claims above, will be addressed herein. 2022002650 5 course of EEO administrative hearings. 29 C.F.R. § 1614.109(a), (e); Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). In this case, it is not disputed that Complainant received the Notice on February 11, 2022. It is also undisputed that, despite being aware of the receipt of communication from the AJ in connection to her case, she voluntarily failed to download the Notice for two weeks. Further, Attorney did not request an extension until 12 days after the date that Complainant admits to downloading the Notice. No explanation is provided for the almost two-week delay between Complainant’s acknowledged downloading of the Notice and Attorney’s request for an extension. We have also considered Attorney’s argument that he was not alerted to the Notice. While it is unfortunate that Attorney did not receive the Notice, our review of the record shows that even on appeal, Attorney has failed to show that the record was not adequately developed or to establish that there were issues of material fact in dispute that required a hearing to resolve. As such, the Commission is not persuaded by Attorney’s argument. 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 subjected to unlawful retaliation by the Agency as alleged. At all times, the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The record is devoid of such evidence. CONCLUSION Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 2022002650 6 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). 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. 2022002650 7 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 March 29, 2023 Date