[Redacted], Michelle L., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022001753 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michelle L.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Finance and Accounting Service), Agency. Appeal No. 2022001753 Agency No. DFAS-00026-2021 DECISION On February 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 January 12, 2022, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 Lead Accounting Technician, GS-0525-06, at the Agency’s Defense Finance and Accounting Service facility in Indianapolis, Indiana. On May 26, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Asian), national origin (Thailand), and age (58) 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. 2022001753 2 1. On March 8, 2021, in a staff meeting, her supervisor spoke to her in an abusive tone; 2. On March 8, 2021, knowing that Complainant was on leave, her supervisor emailed Complainant, ordering her to reply by close of business (COB) that day; 3. On March 11, 2021, her supervisor falsely accused Complainant of using the “F” word and conducted an inquiry into the matter; 4. On April 12, 2021, Complainant received a five-day suspension for conduct unbecoming a federal employee; 5. On unspecified dates, Complainant’s supervisor threatened Complainant with termination and performance evaluations; and 6. On unspecified dates, Complainant’s supervisor used the “F” word. Complainant’s first-line supervisor was the Supervisory Accounting Technician (White Latina, Year of Birth 1977, Hispanic/Cuban-American) (S1). She was aware of Complainant’s race, national origin and age. Her second-line supervisor was the Branch Chief (Caucasian, 1983, USA) (S2), who was also aware of Complainant’s protected groups. Suspension and Harassment As part of her responsibilities, Complainant was tasked with training a new employee. Complainant averred that she tried to train the new employee, but she ran into difficulties. Specifically, Complainant claimed the new employee was never given any access to the systems or shared-drive they use on their team up to the date of his resignation. During a recurring telephone team meeting on March 8, 2021, S1 opened the call asking the Team Leads if they had information to share with the section. Complainant told S1 that “she was going to keep the daily reporting for herself” and that she “was not going to train [the named new employee] because he was a new employee.” S1 immediately told Complainant that the choice of training a new employee was not hers to make. Complainant continued to insist that she would not train the new employee on daily reporting. S1 asked Complainant to stop disparaging the new employee. Complainant reportedly began to speak over S1. S1 denied speaking to Complainant in an abusive tone, but S1 terminated the call. According to witnesses, Complainant continued her tirade, including making derogatory comments about other employees and her supervisor. Report of Investigation (ROI) at 130, 164, 168. S1 contacted Human Resources to initiate the disciplinary process against Complainant. S1 proposed to suspend Complainant for five calendar days for insolent and disrespectful behavior toward a supervisor and conduct unbecoming a Federal employee. ROI, at pp. 22-25, 122, 158, 163. The Human Resources (HR)/Labor Management Employment Specialist testified that, on March 8, 2021, S1 requested her assistance with a proposed disciplinary action against Complainant due to Complainant’s conduct at that morning’s team meeting. The Specialist recommended that S1 give Complainant an opportunity to offer her response and provided a draft email, which included the following language: “I would like your response to this matter by close of business today.” 2022001753 3 Meanwhile, Complainant requested to take the rest of the day off as sick leave. Her request was approved, but later, on March 8, 2021, S1 emailed Complainant regarding the incident and told Complainant to respond by the close of business. S1 averred she subsequently gave Complainant more time to respond.2 S1 stated that she did not require a response sooner than March 9, 2021. Complainant denied the claims against her. She noted that she had no prior disciplinary history. Complainant stated that, although S1 asked about the training she had been told to give the new employee, S1 did not permit her to respond. The record includes the testimony of the Lead Accounting Technician, who was at the meeting. The Lead Accounting Technician testified that she personally observed Complainant insult the new employee who was present at the meeting, and used the “F” word throughout her “bashing” of the new employee. S1 and other witnesses stated that Complainant interrupted S1, and Complainant spoke over S1, and made unprofessional comments about the coworker. The next day, the new employee coworker who had been berated at the meeting, resigned. In his resignation, he cited Complainant’s behavior and the statements that were made concerning him during the staff meeting. ROI at 160. On April 12, 2021, S2 issued Complainant a Notice of Decision on the Proposed Suspension, which suspended Complainant for five calendar days. ROI at 179. S2 stated that Complainant’s co-workers reported to him Complainant’s behavior on March 8, 2021. Complainant had been described as shouting, raising her voice, slamming things and cursing at a coworker. ROI at 29- 31. S2 stated that he decided to sustain S1’s proposal to suspend Complainant based on the written witness statements from S1 and the statements of the employees who observed Complainant’s behavior and use of foul language after the meeting. ROI at 292-294. Harassment Threats and False Claims Meanwhile, Complainant averred that she believed that she has been a target of S1 for a long time, and that the animosity that S1 showed her animosity had carried over from the alleged animosity shown to Complainant by a previous supervisor. Complainant averred that S1 told Complainant she would not be able to get away this time. ROI at 383-384. Complainant stated that S1 mocked Complainant’s accent. Complainant stated that S1 had Complainant’s desk moved after S1 contracted COVID-19 and harassed Complainant about whether or not she got tested for COVID-19. ROI at 387. After Complainant reported her negative results, S1 moved her back to her old desk next to her, where Complainant stated the bullying occurred daily. The record does not reflect that there were any other Asian employees. ROI, Tab 2, at 80. 2 The HR specialist was not aware that Complainant was granted leave for the afternoon of March 8, 2021. 2022001753 4 Regarding her claim that S1 threatened Complainant with termination or negative performance evaluations, S1 denies threatening Complainant. The record shows that S1 rated Complainant as “Met or Fully Successful” for the 2020-2021 performance year. ROI at 270-271, 289. On June 11, 2021, several months later, the HR Specialist stated that an anti-harassment inquiry was initiated concerning the issues that first arose during the March 8, 2021 meeting, after the Union raised concerns. She was not aware of any results or actions taken by management. S1 acknowledged, and the statements of other witnesses confirmed, that S1 occasionally used the “F” word in her communications, but S1 denied that she ever used the word in conversations with Complainant. S2 denied ever hearing, or knowing of, S1 using the “F” word, in the presence of anyone on her team. ROI at 288-289. Both S1 and S2 deny that they subjected Complainant to discrimination based on her race, age, or national origin. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant restates her contention that her statements were misunderstood during the March 8, 2021 telephone call, due to her accent, and she denies engaging in the inappropriate behavior for which she was suspended. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment 2022001753 5 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, 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. For purposes of our analysis, we will assume that Complainant established a prima facie case of discrimination. We determine, however, that the Agency articulated legitimate non- discriminatory reasons for its actions. Management explained they suspended her after she engaged in a tirade against her supervisor and a coworker, and when she persisted after she was told to stop. The record does not show S1 threatened her for unlawful reasons. We find Complainant failed to prove, by a preponderance of the evidence, that management’s proffered reasons were pretext designed to mask unlawful discrimination. Hostile Work Environment To establish a claim of hostile environment harassment, a complainant must show that: (1) he or she belongs to a statutorily protected class: (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) that harassment complained of was based on his or her statutorily protected class; (4) the harassment affected a term or condition of employment and / or had the purpose or effect of unreasonably interfering with the work environment and / or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep’t of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016). Therefore, to prove her harassment claim, 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 her protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). We are mindful that the discrimination statutes do not create a right to work in a pleasant environment, merely one that is free from discrimination. As a result, employees may experience unprofessional, inappropriate, and disrespectful treatment. 2022001753 6 Complainant asserted that based on her protected classes, her supervisor subjected her to a hostile work environment. Complainant alleged several incidents of what she believed to be discriminatory harassment. The Commission finds that Complainant has not shown that she was subjected to conduct sufficiently severe or pervasive to create a hostile work environment. Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on discriminatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. We note that Complainant identified her supervisor as the person primarily responsible for the alleged harassment. She did not report the behavior of S1 to S2 or upper management. Her concerns were subsequently raised via the Union. S2 did not take action against S1 because he did not believe there was any evidence to indicate that Complainant had been subjected to unlawful harassment. We agree. While S1’s language in the workplace may have been unprofessional and Complainant perceived S1’s actions to be hostile, she provided insufficient evidence to show that the alleged incidents occurred as she stated or that the harassment occurred, or was directed to her, because of her protected classes. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION For the reasons stated herein and 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. 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). 2022001753 7 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. 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. 2022001753 8 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 January 26, 2023 Date