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

Equal Employment Opportunity Commission

Jun 27, 2022

Appeal No. 2021004431 (E.E.O.C. Jun. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Towanda B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004431 Hearing No. 430-2020-00524X Agency No. ARUSASOC19NOV04441 DECISION On July 28, 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 July 26, 2021, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Logistics Management Specialist at the Agency’s Special Operations Command in Fort Bragg, North Carolina. On December 30, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against her and subjected her to continuous harassment on the bases of disability (physical/mental- multiple) and reprisal (prior EEO activity in 2013, requesting a reasonable accommodation in April 2019, and reporting an anti-harassment claim in August 2019) under Title VII of the Civil Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973 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 2021004431 1. On November 12, 2019, Complainant received a one-day suspension for “Unbecoming Conduct of a Federal Employee” effective November 13, 2019; 2. a. On March 5, 2019, complainant’s supervisor, (Supervisor) charged complainant absent without leave (AWOL) for being 15 minutes late to work; b. On March 12, 2019, Supervisor charged complainant AWOL for being away from her desk without permission for 25 minutes; c. On August 20, 2019, during a meeting, Supervisor denied previously approving Complainant a temporary schedule change from 0800-1700 (with one hour lunch) to 0830-1700 (with a 30 minute lunch) as an interim accommodation, while working on a telework agreement as a permanent reasonable accommodation; d. On August 14, 2019, Supervisor called complainant into her office to discuss an email about Complainant’s worker’s compensation claim and while in Supervisor’s office, Supervisor screamed “get out, just get out” and while in the hallway outside of Supervisor’s office, Supervisor screamed “you are a liar;” e. On August 15, 2019, Supervisor wrote “false/derogatory” information when she completed the supervisor portion of Complainant’s worker’s compensation paperwork; f. On August 8, 2019, during a meeting in Supervisor’s office to sign Complainant’s Reasonable Accommodation Telework Agreement, Supervisor acted very “short/curt” with Complainant and talked to her in a “very angry tone;” g. On September 18, 2019, complainant received a notice of proposed five-day suspension for “Unbecoming Conduct of a Federal Employee;” and h. On November 7, 2019, complainant received a notice of a one-day suspension for “Unbecoming Conduct of a Federal Employee” effective November 13, 2019 and dated November 7, 2019. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On March 19, 2021, the Agency submitted a motion for decision without a hearing. Complainant submitted a response. Over Complainant’s objections, the AJ assigned to the case issued a decision without a hearing on May 28, 2021, in favor of the Agency. Regarding Complainant’s claims concerning reasonable accommodations, the AJ observed that Complainant submitted a request for an accommodation allowing her to telework three days per week. 3 2021004431 The AJ noted that though initially denied, the Agency did offer an alternative accommodation by agreeing and allowing Complainant to work from home on an "as needed" basis. After the alternative accommodation came into effect, the AJ observed, all requests to work from home were approved, and a permanent accommodation was put into place after Complainant transferred. See ROI at 208-11 and 196-97. Further, regarding all of Complainant’s other claims, the AJ found legitimate and nondiscriminatory the Agency’s stated reasons for its actions, which, the AJ noted, Complainant failed to rebut. Regarding claim 1, the Agency stated that Complainant received the suspension for unprofessional and disrespectful conduct toward her supervisor. See ROI at 134-36, 496, and 528. The Agency showed that Complainant’s allegations in claims 2a-2h were not harassment, but rather instances of proper oversight of Complainant’s misconduct, various personality conflicts, and general workplace disputes not related to or a result of reprisal and which did not rise to the level of severe or pervasive conduct. Regarding claims 2a and 2b, the Agency indicated that AWOL charges were its proper oversight and discipline of an employee that was repeatedly tardy and absent from duty without approval, namely at least 28 times between January 3, 2019, and March 5, 2019. ROI at 346-49 and 128. Regarding claims 2c-2f, the Agency asserted that all of the incidents that Complainant characterizes as evidence of harassment involve nothing more than work disagreements, personal friction, and admonishments. Regarding claims 2g and 2h, the Agency stated that Complainant received the proposed five-day suspension and notice of a one- day suspension for “Unbecoming Conduct of a Federal Employee” due to Complainant’s misconduct on August 14, 2019. According to the Agency, Complainant’s behavior was observed and properly documented by management personnel. See ROI at 134-36. The AJ determined that, even crediting Complainant’s position on the claims, the alleged incidents were not sufficiently severe or pervasive nor were they sufficient to establish a claim of harassment. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, among other things, Complainant contests the AJ’s decision. She alleges that the Agency fragmented her harassment claims, asserting that they are all clearly alleged as part of an overall pattern and should be treated as such. Complainant also asserts that Supervisor failed to timely process her reasonable accommodation request. She argues that she established a prima facie case of reprisal and harassment. Complainant requests that the Commission reverse the Agency’s final order. On appeal, the Agency asserts that the AJ’s decision was proper. The Agency reiterates its explanation for the alleged actions. The Agency states that Complainant failed to establish that she was subjected to reprisal or harassment on the bases of her protected activity. The Agency requests that the Commission affirm its final order. 4 2021004431 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 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 fact is “material” if it has the potential to affect the outcome of the 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. (Aug. 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). In order 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 has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 5 2021004431 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. 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. 6 2021004431 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 June 27, 2022 Date