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

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022001626 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tori H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001626 Hearing No. 540-2016-1626 Agency No. ARFTHUA15NOV04320 DECISION On February 1, 2022, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 4, 2022 final action concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On December 15, 2014, Complainant was hired by the Agency as a Clinical Social Worker, GS- 12, subject to a one-year probationary period, at the Raymond W. Bliss Army Health Center, Department of Behavioral Health, Fort Huachuca, Arizona. In this position, her duties included interviewing soldier patients and conducting psychological counseling and evaluations. 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. 2022001626 2 On February 25, 2016, Complainant filed a EEO complaint alleging that the Agency discriminated against her on based on sex (female), disability,2 and in reprisal for prior EEO activity3 when, on November 2, 2015, she was issued a memorandum of termination by Lieutenant Colonel (LTC) during her probationary period. After an investigation into the complaint, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency filed a Motion for a Decision without a hearing. Complainant filed a response opposing the motion. Thereafter, the AJ issued a decision by summary judgment in favor of the Agency. On February 4, 2022, the Agency issued its final order adopting the AJ’s decision. The instant appeal followed. 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 nonmoving 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. 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 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. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2 Complainant testified that she had been diagnosed with amblyopia on her left eye and gallbladder disease. Her eye impairment was diagnosed when she was eight years old and is permanent, and her gallbladder impairment was diagnosed in November 2014. Amblyopia causes limited vision and impacts her ability to drive during non-daylight hours. Her gallbladder impairment impacts her eating, bodily functions, and causes pain. She said her gallbladder impairment was being managed through routine medical appointments. 3 The record shows that on May 21, 2015, Complainant sought EEO counseling alleging she was being discriminatorily harassed by her supervisor. Complainant did not file a formal complaint following the counseling. 2022001626 3 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. McDonnell Douglas, 411 U.S. at 802; 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. Texas 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 the personnel action at issue, 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); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, our independent review of the evidence of record shows that responsible management officials clearly articulated legitimate, non-discriminatory reasons for the decision to terminate Complainant’s employment during her probationary period. The LTC, who was the Chief of the Department of Primary Care, stated that during Complainant’s short tenure, she displayed unprofessional behavior and deficient work performance resulting in multiple complaints from both other management officials and soldier patients. These complaints included: a. Complainant kept scheduled patients waiting for excessive amounts of time. Patients complained that she cancelled and rescheduled their appointments without notifying them or their platoon sergeant. b. On multiple occasions, Complainant interrupted patient counseling sessions by taking personal calls in the presence of the patients, some of which were lengthy. c. Patients have complained that when they arrived for their appointment with Complainant, they are informed that she was not able to see them. One patient reported that she overheard Complainant tell a staff member to tell her Complainant was not there. 2022001626 4 d. Patients have reported that Complainant repeatedly provided the same packet of information from an online course regardless of being informed by them that the materials were ineffective. e. Multiple patients have expressed that they have not been receiving the care they need and for some their mental health issues have worsened. f. Multiple deficiencies of Complainant’s care have been identified on the Patient Safety Report. Based on the ongoing series of concerns about Complainant’s work performance with patients, Complainant was counseled but, according to the LTC, her performance did not improve. Therefore, the decision was made to terminate her prior to the end of her probationary period. Both the Captain and First Sergeant confirmed the complaints about Complainant. They stated that, at times, the soldiers have not been able to receive treatment and counseling for over one month due to constant rescheduling and canceling of appointments by Complainant. Further, the Captain and First Sergeant stated that the soldiers had expressed they would rather stop seeking treatment and counseling if they had to continue being seen with Complainant. They said that platoon sergeants had expressed to them their concern for their soldiers and their mental health after these soldiers no longer wished to continue treatment and counseling. They noted an increase in soldiers being sent to inpatient behavioral health facilities after receiving care from Complainant. They stated that the care given to these soldiers by Complainant appears to have been unhelpful and, in some instances, seems to have make the issues worse. Moreover, the Captain and First Sergeant said they believed that the soldiers lost trust in the Behavioral Health System, and the type of care provided by Complainant set an extremely poor example of the Army Behavioral Health System. The record contains a copy of a soldier’s sworn statement. Therein, the soldier stated that between August and September 2015, she had two appointments with Complainant. She stated that each time she arrived to the MISC, she was informed that Complainant could not see her. Another time, the soldier had an appointment with Complainant, SPC4 informed her that Complainant was not able to see her. Thereafter, the SPC took the soldier back to one of the rooms and told her that he would attempt some assistance for her. The soldier stated that SPC went to another area, and while SPC spoke to Complainant, the soldier heard SPC inform Complainant that a soldier had a scheduled appointment with her. The soldier heard the reply “tell her I’m not here.” The soldier stated, “I personally have never even seen [Complainant] because she cancels all my appointments. I do not feel comfortable seeing her because I’m afraid she will cancel on me again.” 4 This term SPC is not further defined in the record. 2022001626 5 Another soldier stated that she met with Complainant for counseling from April 2015 until August 2015. She stated that whenever she had an appointment with Complainant, she would go off topic of what the soldier wanted to discuss, that Complainant’s cell phone would ring, and she would end up having a 10-to-20-minute call. In addition, the soldier stated that during their conservations about having difficulties sleeping, Complainant suggested that she try eating a turkey sandwich or a banana. The solider stated that she told Complainant multiple times that she has a phobia of bananas, but Complainant kept telling her to eat them. Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant, while offering a variety of justifications for the various incidents proffered by management to support the termination decision, did not really dispute that the incidents occurred. Nor did she produce evidence to establish that other similarly situated employees were treated more favorably or any other evidence beyond her bare assertions of discriminatory or retaliatory animus. In sum, Complainant did not prove, by a preponderance of the evidence, that the reasons proffered by management for her termination were a pretext designed to mask discrimination or unlawful retaliation. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation were established. 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). 2022001626 6 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. 2022001626 7 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 13, 2023 Date