Isabel F.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 29, 2020

0120182350 (E.E.O.C. Jan. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Isabel F.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 0120182350 Hearing No. 451-2014-00175X Agency No. ARFTSAM13SEP02986 DECISION On June 29, 2018, 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 25, 2018, 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. For the reasons that follow, we AFFIRM the Agency’s final ORDER. ISSUES PRESENTED Whether the EEOC Administrative Judge (AJ) correctly found that Complainant failed to establish that she was subjected to harassment (hostile work environment) based on retaliation for participation in protected EEO activity (witness in an EEO complaint) when: A. On October 1, 2013, the Agency did not provide an opportunity for promotion at the time of the abolishment of her position; B. From March 2013 to October 2013, Complainant was subjected to verbal threats that the Secretary, GS-10 position would be abolished, and the position was abolished; 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. 0120182350 2 C. Between October 2012 and October 18, 2013, the Agency failed to create a GS-0201-11 position with G1 which incorporated the duties Complainant had been performing and to issue a vacancy announcement. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-0318- 08 at the Agency’s South Group, Fort Sam Houston facility in San Antonio, Texas. On December 11, 2009, the Agency issued Theater Army Operational and Organizational Concept Plan 5.4 (Plan 5.4). Under the plan, the South Command Group was authorized one secretary. On July 11, 2011, all commands were instructed by the Agency Secretary to reduce civilian personnel by ten percent. Complainant worked as a full-time secretary for a Deputy Commander. Because of funding issues, the Deputy Commander’s position was reduced to part-time, and when he retired, his replacement was also part-time; eventually, the part-time Deputy Commander’s position and Complainant’s former secretary position, which could no longer be justified were both eliminated. On September 1, 2011, the Major General (MG) issued a memo to Complainant with the subject line: Job Enrichment/Skills Broadening Assignment. The assignment was supposed to enhance her abilities in various Human Resources (HR) functional areas. Complainant’s position was to be realigned with another department in HR (the G1), and she was to be detailed to an unclassified set of HR-related duties for a period not to exceed one year. The memo noted there was no intent to abolish the position Complainant encumbered upon completion of the assignment or in the future. The memo stated, “If, after this assignment, a promotion is feasible, it will be effected in accordance with applicable laws and regulations.” Effective October 9, 2011, Complainant was realigned from the Chief of Staff to the G1, HR Branch. Complainant’s salary, title and grade did not change. On February 17, 2012, a new deputy to the Director of HR was assigned. She became Complainant’s second-line supervisor (S2). A list dated April 11, 2012, of possible Agency Civilian employee reductions for Army South was created. The command group secretary position to which Complainant was formerly assigned was on the list. The record shows that there was a recommendation for the position to be deleted to pay for the Sexual Harassment/Assault Response Program (SHARP), another mandated program, was made in May 2012, and on October 26, 2012, the recommendation to delete the secretary position was forwarded to the Command Group for approval. Complainant testified that, on March 6, 2013, she was a witness in an EEO complaint filed by an HR Specialist. She also testified that she was unsure which management officials were aware of her prior EEO activity, but she believed that S2 and the Deputy Chief of Staff (DCS) were aware and may have conspired to discriminate against her, as issues related to the abolishment of her position were deferred to DCS. 0120182350 3 S2, who, like Complainant, was in an “over-hire” position in G1, testified that the whole command reorganized to go to the Service Component Command (ASCC) structure, which was when Complainant was moved to the G1; several positions were eliminated; when Complainant moved to G1, her position was still on the books, but they lost the deputy commanding general position and could no longer support the secretarial position. The career broadening position was created for Complainant and the secretarial position (Complainant’s former position) stayed on the books until they had to pay for a new SHARP position, at which time Complainant was already in the G1 working on the career broadening assignment. S2 also testified that, at the time of the abolishment of Complainant’s position, she was not aware of any promotion opportunities. DCS testified that Complainant’s position was abolished after she was reassigned to the G1 and the position abolishment action was related to the secretary position in the Command Section, which was not discussed with Complainant. No other positions were abolished around this time. He also testified that he approved the action to eliminate the position to meet an Agency directive. According to DCS, the abolishing of Complainant’s position in the command group did not directly affect her as by then, she was a permanent employee working in the G1 Staff Section. Complainant’s pay and benefits have not been impacted by the incidents at issue and she was not guaranteed she would receive a promotion when she moved to the G1. The MG testified that to his knowledge, prior to September 2012, Complainant was not promised at any point she would receive a GS-0201-11 position upon the conclusion of the Job Enrichment/Skills Broadening Assignment. According to the MG, he does not believe the Agency had a requirement or obligation to promote Complainant into a GS-0201-11 position. The MG could not speak to the allegations of hostile work environment as he was no longer at the command after September 14, 2012. Regarding Claim B, Complainant stated that she did not think her position would be abolished, she thought it was supposed to be realigned. Therefore, she found it threatening when told that it could be abolished. Complainant referred to one meeting in March 2013, when S2 informed her that the authorization for her position had been taken by the Commander. According to Complainant’s testimony, when telling her about it, S2 had a mocking tone when she stated, “Oh well, there’s nothing that can be done about it,” which Complainant felt was threatening. Complainant also stated that she took S2’s tone to be “flip.” S2 stated that she would not call it a threat, but Complainant was told what was happening. The position was already turned in to the Agency; all they did was to notify Complainant of the decision. S2 noted that it was not her decision to abolish the position. The decision was made by the Force Management Division, who looked at the position, not the person. The Agency decided to put SHARP positions in all the commands, but the commands had to fund them by giving up a different position. Complainant was not notified in writing of the abolishment but was told verbally. According to S2, in the Command, there are many “bill payer” positions, even her own position was paid by another unfilled position. 0120182350 4 Regarding Claim C, Complainant stated that she was led to believe that her position would be taken from the Command group and moved to the G1; and that had her position not been eliminated, the intent was to realign it to another position but since it was eliminated and not realigned, there was no opportunity to compete. According to Complainant, a promotion was feasible because there was no need to create another position as her position was to be taken from the Command Group and moved to the G1. On October 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Puerto Rican), sex (female), and reprisal for prior protected EEO activity, as set forth above. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s April 17, 2015, motion for a decision without a hearing and issued a decision without a hearing on April 20, 2018. In her opposition to the Agency’s responsive pleadings, Complainant withdrew all protected bases except reprisal. The AJ found that further development of the record was unlikely to lead to a finding of discrimination; and that preponderant evidence failed to show that Complainant was subjected to discrimination. 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. CONTENTIONS ON APPEAL On appeal, among other things, Complainant seeks reconsideration of the AJ’s decision denying her request to revise or amend her complaint, and the AJ’s finding that the Agency was entitled to judgment as a matter of law. She asserts that the AJ relied exclusively on the ROI, ignored available evidence developed through discovery, and improperly ruled on her request to correct the accepted claims. She contends that the AJ misunderstood the abolishment allegations and supported the Agency’s motion for summary judgment without understanding her true allegation.2 2 Complainant’s attorney proposed that the following claims be added to her complaint: 1. From the point at which a decision was made to abolish Complainant’s GS- 0318 position and continuing through the abolishment of her position, the Agency failed to take steps to ensure that she had a permanent position as a GS-0201 in the G-1. 2. From the point at which Complainant completed her training, and continuing to the present, the Agency failed to create a promotional opportunity for her to a GS 11/12 position, and to issue a vacancy announcement if necessary. 3. By maintaining Complainant as a GS-10 once she had completed her training, she was performing and continues to perform duties at the GS-11 level without adequate compensation. 4. In the failure to realign Complainant’s position to the G-1 as a GS-201, the Agency failed to meet the intent expressed in the MG’s Memorandum. 0120182350 5 In response, among other things, the Agency asserts that Complainant’s motion to amend was untimely and was properly denied by the AJ, explaining that Complainant waited until June 16, 2014 to seek leave to amend, even though the conduct at issue began prior to her October 18, 2013, formal complaint filing when she knew or should have known of these claims on that date. The Agency noted that Complainant did not reply to its December 13, 2013 memo identifying the claims at issue in her complaint, when at that time, she was afforded five calendar days to specify why the claims had not been correctly identified; and that she failed to amend her complaint prior to the conclusion of the investigation on April 25, 2014, even though she was represented by counsel. The Agency asks that the Commission deny Complainant’s appeal and affirm its final order. STANDARD OF REVIEW 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). ANALYSIS AND FINDINGS At the outset, we note that, regarding Complainant’s contentions on appeal, an Administrative Judge has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). We find no persuasive evidence that the AJ in this case abused that discretion by not allowing Complainant to amend or revise her claims. 5. On October 1, 2012, the Agency abolished the GS-0318-10 position which was encumbered by Complainant. 6. Complainant was subjected to a hostile work environment by S2 beginning in March 2013 through bullying, extraordinary monitoring, being held to unusual standards of work, receiving insufficient guidance, being left out of the communication loop, and having errors exaggerated, among other things. 0120182350 6 AJ’s Issuance of a Decision Without a Hearing We must first determine whether the AJ appropriately issued the decision without a hearing. 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. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Ultimately, the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. 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 prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 0120182350 7 To meet her ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sep. 14, 2017). Assuming, arguendo, that Complainant established a prima facie case of retaliation, we find that the Agency articulated, legitimate, non-discriminatory reasons for its actions in claims A and C as set forth above. We further find no evidence of pretext or discriminatory animus here. There is no evidence that the Agency, which was undergoing an extensive reorganization, guaranteed Complainant a promotion. Even if such a guarantee was made, however, we find no evidence that management did not comply because of a desire to retaliate against Complainant.3 Moreover, with regard to Complainant’s contention that the Agency failed to create a GS-0201-11 position within G1, which incorporated the duties she had been performing, and to issue a vacancy announcement. There is no evidence that any promotion opportunities were available within the G1 at the time; and the Agency was under no obligation to create a new position. Even if it was under any such obligation, there is no guarantee that Complainant would have been hired to fill the new position following a competition. Regarding Complainant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail with regard to claims A and C. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). Finally, with respect to Claim B, Complainant’s claim that she was subjected to verbal threats when S2 informed her that her position would be abolished. According to Complainant, she felt threatened when S2 stated in an allegedly “flip” tone that nothing could be done. The record, however, does not indicate that S2’s statement was related to Complainant’s EEO activity even if it was made in a “flip” tone. Moreover, we find that this incident lacks the requisite severity or pervasiveness to establish a claim of harassment. Complainant did not describe any other persistent unwelcome verbal or physical conduct to substantiate her allegation that she was subjected to harassment because of her prior EEO activity. 3 We note that, in addressing an Administrative Judge’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. 0120182350 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final Order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 0120182350 9 “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 January 29, 2020 Date