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

Equal Employment Opportunity Commission

Feb 27, 2023

Appeal No. 2022003004 (E.E.O.C. Feb. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tara P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022003004 Hearing No. 420-2019-00212X Agency No. ARREDSTONE17AUG03316 DECISION On May 9, 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 14, 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. 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 order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Government Information Specialist, GS-0305-13, at the Agency’s U.S. Security Assistance Command facility in Redstone Arsenal, Alabama. On October 6, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age (49), and in 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. 2022003004 2 1. On July 9, 2017, Complainant’s first-line supervisor (Supervisor - 1) made sexual advances towards Complainant by calling her after hours while she was on leave; and 2. On July 9, 2017, Supervisor - 1 was on the installation when an order was in place to restrict him from engaging with Complainant. 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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s October 1, 2019, motion for a decision without a hearing and issued a decision without a hearing on March 9, 2022. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The record establishes that Complainant and Supervisor-1 communicated with each other over their personal cell phones over several months in 2017. The first text messages included in the record are dated January 30, 2017. While the texts included work related information such as Complainant reporting late arrivals or illnesses that may affect her ability to work, the communications also included topics unrelated to work. On Saturday July 8 and Sunday July 9, 2017, Supervisor-1 sent Complainant early birthday texts. The first included words, illegible in the record, surrounded by red lips. The second was a YouTube link to a video titled “Happy Birthday, My Love.” Complainant reported that she was helping a coworker move on July 9 when Supervisor-1 called her approximately four times. Complainant stated that she did not answer the calls. Complainant contacted Supervisor-2 on July 9, 2017, and reported that she had received inappropriate text communications on her personal cell phone from Supervisor-1. The record indicates that July 9 was a nonduty day. Complainant admitted that she has no idea if Supervisor-1 was on the installation on July 9. Complainant contended that claim 2 should read that Supervisor-1 attempted to engage with Complainant from mid-August to Supervisor-1’s retirement in October 2017, and that Supervisor-1 was on the installation when an order was in place to restrict him from engaging with Complainant. Complainant, however, did not challenge the framing of the complaint with the Agency or with the AJ. Therefore, we find that the complaint was properly defined by the Agency and AJ. On July 10, 2017, Supervisor-2 emailed Complainant, “effective today, I am now your first line supervisor. There is no reason for [Supervisor-1] to be trying to and/or contacting you. You are now reporting directly to the Director.” On July 10, Supervisor-2 sent Supervisor-1 a memorandum stating, “[a]fter careful consideration of information collected concerning the 10 [sic] JUL 2017 notification of inappropriate communications from [Supervisor-1 to Complainant], the following instructions are provided.” In addition to other measures, Supervisor-2 removed Supervisor-1 from Complainant’s supervisory chain and directed Supervisor-1 to have no verbal, eye contact, and/or written communication with Complainant during work hours. Supervisor-2 emailed Complainant a summary of the corrective actions on 2022003004 3 July 10, 2017, and approved a move to a different office space in the directorate and telework for the remainder of the workweek. Complainant admitted that Supervisor-1 stopped texting her following July 10, 2017. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a 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. (as revised, August 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). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or he 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 or his 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). 2022003004 4 In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. After a review of the record, we find that the Complainant failed to show that the conduct was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment when evaluated from an objective viewpoint. Complainant did not allege that the back and forth messages from Supervisor-1 prior to July were unwelcome. Furthermore, Complainant also willingly engaged in some of these conversations. Regarding the specific allegations in the claim 1, however, two birthday messages that include a message of love is insufficient to meet Complainant’s burden. Regarding claim 2, Complainant admitted that she does not know whether Supervisor-1 was on the installation on July 9. Furthermore, we find that the Agency took prompt and effective action in removing Supervisor-1 as Complainant’s supervisor and limiting their contact. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2022003004 5 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. 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 February 27, 2023 Date