[Redacted], Rosena J., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2022001875 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosena J.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022001875 Agency No. P7-20-0042 DECISION On February 23, 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 February 5, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronics Engineer, GS-0855-12, at the Agency’s DCMA Lockheed Martin Dallas facility in Grand Prairie, Texas. On September 21, 2020, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment on the bases2 of race (Asian), national origin (India), and color (White) 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 Complainant initially alleged sex, age, and religious affiliation as additional bases, but she later clarified in her testimony that race, color, and national origin were the only bases of the alleged discrimination. (ROI, p. 368-370, 408). 2022001875 2 1. From April 17, 2020 through April 27, 2020, Complainant’s first level supervisor (“Supervisor”) harassed and treated Complainant differently than her coworkers. Complainant provided the following incidents to support her claim: a. On April 17, 2020, April 19, 2020, and April 21, 2020, Supervisor sent Complainant’s Event Based Surveillance Table (EBST) and Engineering Surveillance Plan (ESP) to a coworker instead of a manager to be reviewed, questioned the work product, and told Complainant to address coworker’s comments; and b. On April 27, 2020, Supervisor sent Complainant a disrespectful email and included two coworkers, but later recalled it. 2. On May 14, 2020, Supervisor assigned Complainant a task with a due date of May 18, 2020, then changed the due date to May 15, 2020, removed Complainant from the task and reassigned it to two other coworkers. The Agency accepted complaint and conducted an investigation into the matter. Complainant testified she has worked with Supervisor since July 2019, and Supervisor has been aware of her race, color, and/or national origin since she became Complainant’s supervisor. Complainant testified her coworkers recognize her as Indian because of her look and dress. Supervisor stated she was not aware of Complainant’s race or national origin, but she identified Complainant’s color as brown. Claim 1 According to Complainant, the hostile work environment began around April 15, 2020 when Supervisor (Caucasian, white, European American) started routing her work to a coworker (“Coworker SME”). Additionally, she was instructed to keep Coworker SME in the loop and ask him for policy guidance. Complainant testified Coworker SME is a systems engineer and she does not have to interact with him on her assigned work unless directed to do so. Complainant explained that for one assignment, she utilized the correct templates for EBST and ESP and spent hours completing the information, but her work was routed to Coworker SME “for harassment and humiliation.” According to Complainant, Coworker SMI copied the information into new templates that he had not provided to her and were not materially different from what she had used. Consequently, argued Complainant she had to reenter many details in a short time to meet the deadline. While there were minor formatting differences in the templates, stated Complainant, the changes were not needed for 2020, so either format could be used. Further, Complainant noted that the new format release was pending when she worked EBST during the January 2020 to April 2020 time period. 2022001875 3 Following the incident, Complainant stated she emailed Supervisor with her concerns and questioned why she had not been provided with the latest template. Supervisor responded, in Complainant’s view, with a “very nasty” email emphasizing that all Complainant’s work would go to Coworker SME. The email purportedly also copied Coworker SME and another coworker, a systems engineer who came on board in January 2020 and for whom Complainant served as a mentor (“Coworker Mentee”). Complainant, however, could not produce the email and stated that it was later retracted by Supervisor. She theorized that Supervisor recalled the email after Complainant filed her EEO complaint. Supervisor attested that the DMCA Surveillance policy and manual changed in 2019. At that time, Coworker SME volunteered to review the new policy and manual and create new EBST and ESP templates. Engineers needed to use the new template or change their prior EBSTs and ESPs to conform to the new template in order to remain in compliance with new DCMA policy. According to Supervisor, on April 14, 2020, she sent an email to all systems engineers3 with the new template and instructions to include Coworker SME on reviews. Supervisor asked Coworker SME to provide a peer review all the plans, in addition to Supervisor’s review, because he had become a subject matter expert on the new policy changes by creating the new templates. Supervisor explained that peer reviews are a best practice, particularly in this instance where it would ensure the annual EBSTs and ESTs were in consistent with the new policy. Further, Supervisor noted that since she is not a subject matter expert in all areas, she relies on her teams and subject matter experts to fill in the gaps to produce the best work possible. Supervisor stated that she supervises 14 engineers and they are all required to have peer review of their work product. Additionally, Supervisor asserted that “Complainant did not seem to understand the DMCA policy had already changed. The Complainant did a great job updating the prior EBST and ESP for the annual update but it was not fully compliant under the new policy. I tried to explain that to her, but the Complainant seemed resistant to making any changes as she felt she worked hard on it already. [Coworker SME] tried to help her by updating her updated EBST and ESP work products to the new templates so they would be in compliance and she would not be inconvenienced by the policy change and then next year she would be starting with a compliant version.” (ROI, p. 378). As for the allegedly disrespectful email, Supervisor testified it is not possible to recall an email once it has been read by the recipient and that no disrespectful or nasty email was sent to Complainant. She included an email from IT explaining this. (ROI, p. 354). The record contains a number of emails provided by both Complainant and the Agency. These emails show Complainant sent her EBST to Supervisor for review on April 19, 2020. Supervisor responded to Complainant on April 20, 2020, and added Coworker Mentee and Coworker SME on the email. 3 With the exception of one new employee who was not responsible for an EBST/ESP at that time. 2022001875 4 Therein, Supervisor thanked Complainant and Coworker Mentee for their “very good work product” and provided feedback, including questions and suggestions, regarding the EBST. The next day, Coworker SME provided his feedback and indicated he had updated the EBST to the new format. Supervisor then thanked Complainant and Coworker Mentee for their work in updating the EBST, and she thanked Coworker SME for providing a new template and updating Complainant and Coworker Mentee’s updated EBST to the new format. Supervisor also requested that moving forward, Complainant and Coworker Mentee work from the EBST update provided by Coworker SME and incorporate the suggestions he had provided in his email. The record also contains an email sent by Supervisor on April 14, 2020 to eight individuals, including Complainant, Coworker SME, and Coworker Mentee, in which she asks all of them to copy Coworker SME when sending Supervisor their ESPs so that he can also review them. The record includes three emails sent by Supervisor on April 27, 2020, but none of them could be characterized as “nasty” or “disrespectful”. Claim 2 Complainant alleged that Supervisor asked her to gather data to draft a delegation by May 18, 2020. However, the morning of May 14, 200, Supervisor moved the due date to May 15, 2020. Complainant said she agreed, however, Etools was not working properly. The afternoon of May 14, 2020, Supervisor sent an email adding other engineers (Coworker SME and Coworker Mentee). In response, Complainant sent Supervisor the draft copy of the delegation. She argues, however, that since the due date was May 15, 2020, Supervisor could have waited. Complainant testified that, in a May 12, 2020 email, Supervisor instructed her to write the delegation; but later that same day, Coworker SME sent his draft copy of the delegation full of comments from the Program Integrator. Complaint believed this revealed Coworker SME had already been asked to write a draft delegation., when Complainant wrote her draft on May 13, 2020, she had consolidated Program Integrator’s comments which made the task much more difficult and longer to complete. According to Supervisor, during a meeting earlier in the week that included Complainant and Program Integrator, Complainant stated she could not complete the delegation by the end of the week. While Supervisor initially believed a longer timeline would work, the due date was moved up as she became more aware of the severity of the situation. In response, explained Supervisor, she added Coworker SME and Coworker Mentee to the program to achieve the shortened timeline and mitigate production impact. Supervisor noted that Complainant was not removed from the project. Rather, Complainant’s draft delegation was incomplete and the two coworkers assisted in finalizing the delegation. Supervisor stated she would take the same action for anyone on her team and denied that Complainant’s protected bases were motivating factors. 2022001875 5 Supervisor’s proffered reasons are supported by emails. For example, the record contains a May 12, 2020 email from Complainant to Coworker SME and Coworker Mentee, copying Supervisor, requesting the sort out information to be included in the delegation. Coworker SME responded that day with a draft delegation and other files. Two days later, Supervisor informed Complainant, Coworker SME, and Coworker Mentee that the issues had gained visibility and required quick response. Therefore, effective immediately, Coworker SME and Coworker Mentee were added to the program. Another email chain reflects that Coworker Mentee emailed Program Integrator, Supervisor, and Coworker SME on May 14, 2014 to forward the draft delegation for Program Integrator’s review. In the same email chain, Supervisor clarifies that the addition of Coworker SME and Coworker Mentee “is to help support a quick response from Engineering on the current GMLRS issues. For clarification, please keep [Complainant] on all your usual distro lists”. (ROI, p. 535). 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant maintains that she was harassed, discriminated against, humiliated and stressed out by her Supervisor. She defends her work product and argues Supervisor’s guidance was lacking and Coworker SME failed to share information. Additionally, she challenges Supervisor’s decision to use peer review, arguing that it is not commonly used in systems engineering. She reiterates her belief that by giving her work to other engineers, and immediately assigning Coworker SME and Coworker Mentee to work on the delegation, was openly harassing, humiliating, and discriminating because she was meeting all the deadlines. She again contends Supervisor did this out of favoritism to Program Integrator. In response, the Agency maintains that its decision finding no discrimination should be affirmed, as there is no evidence that management’s actions were connected to Complainant’s race, color or national origin. The Agency argues Complainant’s claims relate to the sufficient of work product rather than present substantive claims of harassment. Complainant’s subjective belief that her work did not require review, asserts the Agency, is insufficient to establish discrimination. The Agency acknowledges Complainant is a member of several protected groups, but contends Complainant failed to prove she was subjected to severe or pervasive harassing conduct or that the conduct was based on her race, color, or national origin. ANALYSIS AND FINDINGS Standard of Review 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 2022001875 6 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, 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. St. Mary's Honor Ctr. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Here, the Agency articulated legitimate, nondiscriminatory reasons for its actions. As to Claim 1(a), Supervisor stated Coworker SME had become a subject matter expert in the new DCMA policy and manuals. Due to his additional knowledge and the overall benefits of the peer review process, Supervisor asked for Coworker SME to also review all the plans. The record reflects that on April 14, 2020, Supervisor sent an email with the subject “Engineer Surveillance Plan/EBST” to Complainant and seven others stating: “please copy [Coworker SME] as well so he can also review them.” As to Claim 1(b), Complainant did not provide a copy of the allegedly disrespectful email that was sent and then recalled by Supervisor. Supervisor denied sending or recalling any such email. Additionally, the record contains an email from IT stating that “if the destination email is read it will fail to recall and the email will stay in the destination inbox.” Regarding Claim 2, Supervisor testified the deadline changed due to the urgency of the project and she assigned Complainant’s coworkers to assist with meeting the shortened timeline. She denied removing Complainant from the project. 2022001875 7 Complainant has not shown that these articulated reasons were in fact pretext to mask discrimination based on her race, color, or national origin. Although she contends Supervisor’s statements are untrue and the emails show differently, after review of the emails, we disagree. Complainant made a number of arguments questioning the Agency’s decisions and whether they were in fact appropriate. However, the question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See, e.g., Chavez v. U.S. Postal Serv., EEOC Appeal No. 0120055246 (Jan. 5, 2007); see also Carson v. Bethlehem Steel Corporation, 82 F.3d 157, 159 (7th Cir. 1982). Without proof of a demonstrably discriminatory motive, the wisdom of the Agency's business decisions may not be second- guessed. Mendez v. U.S. Postal Serv., EEOC Appeal No. 0120090593 (May 20, 2010). Additionally, Complainant’s assertions regarding Program Integrator could indicate favoritism, but she has not established a nexus to her protected bases. The Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. Anderson v. Dep’t. of Air Force, EEOC Appeal No. 0120120121 (April 18, 2013); see also Garrett W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (October 30, 2018) (“Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination.”); Sierra-Barber v. Dep't of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) (allegations of nepotism and favoritism do not violate EEO statutes). Complainant has not met her burden to prove that the Agency’s proffered explanations are unworthy of credence or that the actions in question were more likely motivated by discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant has not shown that the Agency was motivated by discriminatory animus. Discriminatory Harassment/Hostile Work Environment Complainant has alleged the Agency subjected her to harassment, noting several alleged instances. To establish a claim of a hostile work environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on 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). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 2022001875 8 In other words, 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 a protected basis-in this case her race, color, or national origin. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The emails provided by Complainant and the Agency do not reflect conduct or language that a reasonable person would find hostile or abusive. Complainant's allegations can generally be described as relating to disagreements over how work should be done, trivial slights, personality conflicts, and/or petty annoyances between Complainant and her supervisors and/or co-workers. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (the record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). 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 v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). We do not find that is the case here. Here, although Complainant has alleged the Agency acted discriminately, the record does not establish that the Agency’s actions were related to her race, color, or national origin. Complainant has not met her burden in proving that she was subjected to unlawful harassment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final decision of the Agency. 2022001875 9 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). 2022001875 10 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 October 11, 2022 Date