0120162631
02-22-2018
Maren K.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Maren K.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120162631
Hearing No. 531-2014-00050X
Agency No. ARDETRICK11DEC05459
DECISION
On August 12, 2016, 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 7, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Administrative Assistant, DC-0303-02, at the GS-8 level at the Agency's Walter Reed Army Institute of Research facility in Fort Detrick, Maryland.
On April 18, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the basis of sex (female) when:
1. Complainant's promotion was delayed until December 2011;
2. She received a written reprimand on January 18, 2012;
3. Complainant's medical information was placed on the activity's Public Division Network Drive around March 2012.
4. Complainant learned that the Logistics Director had commented that she wanted her employment terminated.
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 timely requested a hearing. Over Complainant's objection dated March 5, 2015, the AJ assigned to the case granted the Agency's February 20, 2015, motion for a decision without a hearing and issued a decision without a hearing on June 14, 2016.
In his decision, the AJ concluded that there were no material facts in dispute. The evidence of record showed that in early 2011, Complainant worked as an Administrative Assistant, GS-8. Complainant's first line supervisor was the Chief (male). Complainant's second line supervisor at the relevant time was the Director (female).
Regarding claim (1), the record established that in early June 2011, Complainant had a desk audit and the Chief submitted a request that she receive a non-competitive promotion on June 8, 2011. The Director signed memoranda recommending the promotion on July 27, 2011 and August 30, 2011. The promotion paperwork was submitted to Human Resources for approval.
On November 1, 2011, the Human Resources Specialist (female) informed the Chief on November 9, 2011, that Complainant's promotion would take her from a one-grade interval position to a two-grade interval position. Human Resources requested additional justification for Complainant's promotion. The Chief submitted the justification on November 15, 2011. Complainant's promotion became effective December 4, 2011.
Regarding claim (2), the AJ indicated that in 2011 Complainant was counseled on several occasions for having difficulties with workplace relationships, including communicating in "unacceptably loud and angry" tone and demeanor. In early December 2011, Complainant made a complaint to the Chief that other coworkers had yelled words like "shit" and "fuck" in the workplace. She made general complaints without directing the issue to specific coworkers. On December 9, 2011, Complainant had completed a task given to her by the Chief providing seating arrangements for three contract employees. The employees were upset and one particular individual expressed his dissatisfaction. Complainant responded, "I'm tired of this shit, you all act like fucking kids." The Chief heard Complainant yelling and she continued to yell as she walked into the hallway. The Chief tried to calm her down but she did not. Complainant went home and did not return to the office for a week. The same day, another contract employee filed a complaint about Complainant's outburst. The Chief met with Complainant about the complaint and noted that she would be issued a reprimand about her behavior. On December 2, 2011, Complainant apologized to the contract employee about her behavior.
On December 19, 2011, Complainant met with the Chief and the Director, where the Director explained that her behavior was unacceptable. The meeting became confrontational and ended disagreeably. The Director contacted the Director of Human Resources, who directed the Director to submit a Letter of Warning along with a statement of justification. On January 18, 2012, the Chief gave Complainant an official written reprimand.
Regarding allegations (3) and (4), the AJ found that the facility personnel underwent "sensing" sessions, where staff was encouraged to express any grievances within the division in a safe environment. Employees were separated from supervisors during these sessions. The sessions were held by Agency EEO staff.
At the supervisory session, the Chief said that the Director told him that Complainant was "bipolar" and she wanted Complainant "out of here." However, it appears that the Director was unaware that Complainant had an actual diagnosis of bipolar disorder. The EEO Specialist hold the session created a report of the sensing session that included the Director's reference to Complainant as bipolar.
In February 2012, the EEO Specialist met with the Director with feedback from the sensing session, who asked if she could share the report of the sessions with staff. Following clearance from the EEO Specialist and the Director's supervisor (Colonel), the Director posted the report on the office shared drive, which over 50 people could access. At the time of the posting, the Director was apparently unaware that the report contained the remark about Complainant being bipolar. The Director removed the file upon learning of the information included in the report.
Based on these findings of undisputed facts, the AJ then turned to the analysis of Complainant's claims of discrimination. Assuming arguendo that Complainant established a prima facie case of sex-based discrimination, the AJ noted that the Agency provided legitimate, nondiscriminatory reasons for claims (1) and (2). The AJ held that the evidence showed that Complainant's request for the promotion had to be analyzed by several people in several departments. Further, the AJ found that Complainant failed to offer evidence beyond her subjective belief that the promotion process took too long. As to claim (2), the AJ noted that Complainant's outburst on December 9, 2011, was directed towards specific individuals and as a result of complaints lodged with management, Complainant was given the written reprimand.
The AJ then turned to claim (3). The AJ noted that Complainant failed to provide any evidence to show that the alleged incident occurred because of her sex. The AJ held that the Director was not aware of the statement on page 16 of a lengthy report. In addition, the AJ indicated that Complainant admitted that she does not believe the information was shared to discriminate against her because of her sex. Finally, as to claim (4), the AJ noted that Complainant failed to show how she was harmed by the alleged comment by the Director. Therefore, the AJ dismissed this claim for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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.
This appeal followed. Complainant failed to address the AJ's decision or her complaint specifically. She only provided documentation indicating that she has subsequently retired from the Agency.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Therefore, we find that the AJ properly issued a decision here by summary judgment.
Disparate Treatment
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). 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).
Upon review of the record, we find that the AJ properly held that the Agency provided legitimate, nondiscriminatory reasons for its actions. With regard to her promotion, the record fully supports the finding that Complainant's management worked diligently on recommending and providing justification for her promotion. Any delay appears to have been caused by personnel rules which required additional justifications, which management provided. In the end, Complainant's promotion, fully supported by her management, was approved. Similarly, adequate justification was provided by management for issuing Complainant the written reprimand in January 2012. It is undisputed that a complaint was received by management concerning an incident where Complainant reacted angrily and used inappropriate language directed at several contract employees. The contracting company contacted Complainant's management about the incident, resulting in the written reprimand. Finally, legitimate, non-discriminatory reasons for the "bipolar" information being released was proffered by the Agency. The sensing sessions were designed to assist the division in identifying problem areas. The Director, apparently without reading the report of the sessions, shared the report with staff to demonstrate transparency after seeking permission to do so from her superior officer and the EEO Specialist. It is undisputed that the Director had no way of knowing that her inappropriate "bipolar" remark was factual. Once she became aware that there was sensitive medical information in the report, the report was promptly removed from the shared drive.
The record supports the AJ's determination that Complainant failed to provide any evidence, beyond her bald assertions, that any of these events occurred because of her sex. Therefore, we find that the AJ correctly concluded that Complainant failed to prove, by a preponderance of the evidence, that she was subjected to disparate treatment based on her sex.
Harassment
In additional to her disparate treatment claims, Complainant also alleged she was harassed by her management because of her sex, offering the three incidents discussed above, as well as allegation (4) of her complaint.
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 a protected basis - in this case, her sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself.
Here, as already concluded above, there is no evidence to support a finding that Complainant's sex played any role whatsoever in the delayed promotion, written reprimand, or medical disclosure. The record does support the allegation that the Director made a comment during the sensing sessions that she wanted Complainant gone. However, again, there is absolutely no evidence to connect this statement with Complainant's sex.
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 action implementing the AJ's decision finding no discrimination.
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. "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 22, 2018
__________________
Date
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.
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