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

Equal Employment Opportunity Commission

Oct 19, 2022

Appeal No. 2021003876 (E.E.O.C. Oct. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stephanie M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003876 Agency No. ARWSMR18NOV043892 DECISION On June 24, 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 May 24, 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. 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 an Electronics Engineer, GS-0855-12, at the Agency’s U.S. Army Material Acquisition Activities, Center for Countermeasures, at White Sands Missile Range in New Mexico. On December 6, 2018 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the basis of sex (female) 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 complaint number identified in the Agency’s final decision appears to be a typo as Agency No. ARWSMR18NOV04389 has been the complaint number throughout the history of this case. 2021003876 2 1. On October 9, 2018, Complainant was given a letter of reprimand for failure to meet a prescribed timeline; and 2. On October 30, 2018, Complainant was constructively discharged due to a hostile work environment. Complainant’s first-level supervisor was the Project Test Group 2 Supervisor (male) (S1). Her second-level supervisor was the Director (male) (S2). In August 2017, Complainant was tasked with serving as the Team Lead. Report of Investigation (ROI) at 562. She acknowledged that S1 and S2 delegated to her an initial due date of March 31, 2018 for completion of the project. ROI at 637. S1 said the deadline was extended to August 31, 2018. S1 stated that the report was turned in on August 31, 2018, was unreadable and required reworking and extensive edits. On October 9, 2018, S1 issued Complainant a Letter of Reprimand for misconduct, specifically the failure to complete a task within the time prescribed. Because the project had not been completed to his satisfaction, S1 made the decision to issue Complainant the reprimand. S2 stated that he was not a part of the reprimand, but S2 stated that it was his understanding that Complainant was issued the reprimand for missing deadlines on an important project. ROI at 690-691. Complainant objected, arguing that the reprimand was unjustified. She said that the content of the report was accurate and complete. She argued that “reformatting is not a rewrite as stated in the letter of reprimand.” ROI at 562. She denied asking for a third extension. Instead, she claimed that the deadlines were unrealistic and kept changing. ROI at 637. S1 acknowledged that he made adjustments to the deadlines to account for certain system degradations, but S1 stated that the project requirements remained the same. Complainant believed that she was being made the scapegoat for the project. She contended that another male GS-12 had more experience, but he was not made the lead on the project and was not given a reprimand. Complainant named others, including another woman, who missed deadlines, but were not issued a reprimand. ROI at 639. She averred she should not be held accountable for the team’s performance. On October 23, 2018, Complainant averred that S1 was “aggressively micromanaging” her, by standing near her and looking over her shoulder. She brought the matter to S2’s attention but resigned before S2 could intervene. She testified that she believed that “working there was intolerable.” ROI at 647. The record shows that, on October 30, 2020, Complainant submitted a letter of resignation. She did not indicate a reason for the resignation. ROI at 772. 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 the Agency subjected her to discrimination as alleged. This appeal followed. 2021003876 3 CONTENTIONS ON APPEAL On appeal, Complainant asserts she was never provided a proper background or guidance on what the entire process entailed. In addition, she states that she was unfairly expected to complete the same level of work that was previously assigned to a GS-14 principal analyst and with fewer resources in a shorter amount of time. She blamed the situation on her new first-level supervisor whom she claimed was trying to make a name for himself at her expense. 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 A claim of disparate treatment is usually examined under the three-part analysis first enunciated in McDonnell Douglas Corp. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. We will assume arguendo that Complainant established a prima facie case of discrimination. In this case, however, the Agency articulated legitimate, nondiscriminatory reasons for its actions. S1 believed that Complainant had missed multiple deadlines throughout the project and was responsible for the missed deadlines as she was the team lead on the project at issue. S1 noted that Complainant had no other projects assigned to her at the time and was considered primarily responsible for this project. Further, S1 stated that that he discussed the disciplinary approach with Human Resources, and that they recommended a Letter of Reprimand. S1 added that another team member was assigned to help Complainant with the project, and that he was issued a Memorandum for Record for his secondary role in the project by his supervisor. 2021003876 4 Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). We recognize that Complainant disputes that she should be held responsible for any missed deadlines, and she questions why she was not given any advance warning by S1 or S2 before being issued a reprimand, but she does not dispute that S1 believed the project was not completed within the deadlines set. In this case, there is insufficient evidence to establish that the stated reasons were untrue or due to Complainant’s sex. Further, in the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's managerial decisions. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S. at 259. It is not the function of this Commission to substitute its judgment for that of management officials who are familiar with the needs of their facility, and who are in a better position to make decisions, unless other facts suggest that proscribed considerations of bias entered the decision-making process. See Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996), citing Bauer, 647 F.2d at 1048; see also Allen v. Dep't of the Navy, EEOC Appeal No. 01A52639 (Aug. 10, 2005) (personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation). As Complainant did not request a hearing, the Commission does not have the benefit of an Administrative Judge's final credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed to carry this burden. The Commission finds no persuasive evidence that Complainant's protected class was a factor in any of the Agency's actions. As a result, the Commission finds that Complainant has not established that she was subjected to discrimination as alleged. Hostile Work Environment To establish a claim of 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 classes; (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 to the employer. 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). 2021003876 5 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 Servs., Inc., 523 U.S. 75, 81 (1998). 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 class. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, Complainant asserted that based on her sex, management officials subjected her to a hostile work environment. For example, Complainant claimed that management planned to discharge her by putting her under undue pressure and micromanaging her. Complainant claimed that she was instructed to attend weekly meetings to discuss timeframes; S1 would “troll” through her work area to see if she was working; she was blamed when deadlines were not met; officials would hover over her watching her work; and she overheard a discussion about placing her on a Performance Improvement Plan. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory animus. The record evidence reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. In sum, Complainant has not established that she was subjected to a discriminatory hostile work environment. Constructive Discharge The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Complainant v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Complainant v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). For the reasons set forth above, the Commission finds that Complainant has not demonstrated that her working conditions were intolerable or that the Agency's actions were motivated by discriminatory animus. Accordingly, the Commission finds that Complainant cannot establish the necessary elements to prove constructive discharge. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 2021003876 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. 2021003876 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 October 19, 2022 Date