Natalie S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 22, 2020

0120180466 (E.E.O.C. Jan. 22, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Natalie S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 0120180466 Hearing No. 430-2015-00078X Agency No. ARBRAGG13OCT03543 DECISION On November 10, 2017, 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 October 13, 2017 decision 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 which follow, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Non-Appropriated Fund 034304 Management Analyst, at the Agency’s Directorate of Family, Morale, Welfare and Recreation (DFMWR), U.S. Army Garrison, Fort Bragg, North Carolina. Complainant’s first level supervisor was the Financial Manager (S1). Her second level supervisor was the DFMWR Director (Director). The Deputy Garrison Commander was Complainant’s third level supervisor. The Director reported to him. The Garrison Commander was fourth in Complainant’s supervisory chain. 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. 0120180466 2 On November 7, 2013, Complainant filed a complaint, subsequently amended, alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for protected EEO activity when: 1. On April 8, 2013, the Director refused to direct a co-worker to provide the documents necessary to perform a task Complainant was required to complete; 2. In mid-August 2013, Complainant was directed to perform a task that was not in her job description and which was the responsibility of a male co-worker; 3. On September 20, 2013, Complainant met with the Director during his open door policy and while in the meeting, he began banging on his desk, yelling and shouting at Complainant, and blocked her from exiting his office until he finished talking; 4. On October 2, 2013, the Director referred to Complainant as a “disgruntled employee” to Garrison management; 5. On October 4, 2013, the Director issued Complainant a memorandum directing her not to send electronic mail referencing DFMWR directly to the Garrison Commander or Deputy Garrison Commander; 6. On October 4, 2013, the Director issued Complainant a referral to the Employee Assistance Program (EAP) office stating that Complainant gets angry and it manifests itself during emails; 7. On October 9, 2013, the Deputy Garrison Commander issued Complainant a memorandum with the subject line of Detail to Duties, which detailed Complainant to the Plans, Analysis, and Integration Office (PAIO) on October 10, 2013; 8. On October 9, 2013, Complainant found out that her Veteran’s Preference was removed from her personnel file; 9. On January 24, 2014, the Director briefed the DFMWR Division Chiefs that Complainant was fired; 10. On January l7, 2014, Complainant became aware that on October 7, 2013, the Director falsely accused one of her family members of communicating a threat by summons issued by the Harnett County Magistrate in response to a Military Police Investigation report made against the Director; 11. On January 17, 2014, the Garrison Commander issued a memorandum dated January 17, 2014 with the subject line of “Notice of Proposed Separation for Cause” and which proposed to separate Complainant for cause on grounds of alleged false statement in the Military Police Investigation report; 12. Continuing from October 9, 2013, the Deputy Garrison Commander discriminated against Complainant when he issued directives requiring her to remain at the PAIO headquarters office building unless she informed her supervisor of: (l) the reason for leaving the PAIO office, (2) her expected departure and return times, and (3) her destination; 13. On January 17, 2014, Complainant became aware that on November 13, 2013, the Investigating Officer, denied her a copy of the 15-6 Investigation Order but provided one to the Director; 14. On January 17, 2014, Complainant became aware on December 9, 2013, that the Lieutenant General (LTG), XVIII Airborne Corps and Fort Bragg Commander, signed the “Findings 0120180466 3 and Recommendations” of the 15-6 investigation which included all of the Command and the Director’s evidence but excluded Complainant’s evidence; 15. On January 17, 2014, Complainant became aware that the Investigating Officer admitted that he did not have the authority to investigate her which he confirmed in a string of emails; 16. On January 7, 2014, Complainant became aware that from November 16, 2013 to January 4, 2014, the Command and other members of the Civilian Personnel Office denied her, and otherwise obstructed access to her personnel file. When she was granted access, she found that in addition to her Veteran’s Preference being removed, other awards and performance appraisals were missing, similar deletions were reflected, and her file listed the Director as her supervisor; 17. On January 17, 2014, Complainant became aware that on November 6, 2013, the Deputy Garrison Commander ordered her to report to his office with less than 30 minutes notice and denied her the right to representation; although he knew she had representation; 18. On March 10, 2014, the Chief of Staff issued a memorandum dated March 10, 2014, with the subject line of Notice of Decision, which effected Complainant’s separation from employment effective March 12, 2014; 19. On March 12, 2014, the Garrison Commander issued a memorandum dated March 12, 2014, directing Complainant to not re-enter or be found within the limits of the U.S. Military Reservation at Fort Bragg and Camp Mackall; and 20. On November 12, 2013, the Deputy Garrison Commander arrived at Complainant’s office unannounced and delivered memorandum dated November 6, 2013, with the subject line of Notice of Proposed Suspension, which proposed to suspend her for three days on the grounds of alleged false statements against the Director. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. AJ-1 was assigned to the matter. AJ-1 issued orders, including sanctioning the Agency. While the matter remained pending and prior to the hearing, this matter was re-assigned to AJ-2. AJ-2 also issued various orders, including responses to the motions of the parties while this matter was pending before AJ-2 and before the hearing went forward. A hearing was held on June 27, 2017, before AJ-2. Only Complainant testified during the presentation of her case. Two rebuttal witnesses were called by the Agency. Written closing arguments were submitted on July 17, 2017. AJ-2 issued a decision on September 29, 2017 in which AJ-2 concluded that there was no discrimination, as alleged. AJ-2 found that Complainant had shown that she was a member of a protected group, based on her sex and that she had engaged in prior protected activity, including opposing alleged sex discrimination to the Director in September 2013. AJ-2 concluded that the Agency had provided legitimate, nondiscriminatory reasons for its actions and, also, that Complainant was not subjected to an unlawfully hostile work environment, noting that the actions of which Complainant complained did not unreasonably interfere with her work performance so as to have created a hostile work environment. 0120180466 4 AJ-2 observed that although Complainant stated that she believed the Agency was treating her differently than it treated men or those who participated in protected activity, AJ-2 found no evidence that the Agency’s articulated reasons were not the real reasons for its actions. AJ-2 found that the generalized testimony of Complainant regarding her subjective belief that the Agency’s actions were the result of discriminatory animus was, without more, insufficient to prove pretext. On October 13, 2017, the Agency issued its final order which adopted AJ-2’s decision. CONTENTIONS ON APPEAL Complainant argues that the Agency committed errors regarding the investigation and provided inadequate discovery responses, that the Agency engaged in a pattern of delay during the discovery process that harmed her in presenting her case, that the two AJs failed to enter a default judgment as a sanction against the Agency, and that the AJs failed to uphold their own sanction orders against the Agency, including allowing the Agency to produce witnesses and to use exhibits at the hearing. Complainant also asserts that the finding of no discrimination by AJ-2 was error. The Agency opposes the appeal, asserting that Complainant failed to establish that AJ-2’s conclusion of no discrimination was not supported by substantial evidence and that AJ-2 committed legal errors. The Agency also asserts that Complainant failed to argue at the hearing that the investigation was improperly conducted and, also, that Complainant now wants the Commission to second-guess the decisions of the AJs merely because she disagreed with their rulings. The Agency denies that Agency exhibits were admitted at the hearing and asserts that the Agency did not present witnesses and it called two witnesses only as rebuttal witnesses. ANALYSIS AND FINDINGS Standard of Review All post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. 29 C.F.R. § 1614.405(a). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. Franklin v. U.S. Postal Serv., EEOC Appeal No. 07A00025 (Jan. 10, 2001). An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § VI.B. (Aug. 5, 2015). 0120180466 5 Abuse of Discretion and Sanctions AJs have 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) and (e). This responsibility gives the AJ wide latitude in directing the terms, conduct, or course of EEOC administrative hearings including discovery, and the determination of whether to admit evidence, or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109; EEO MD-110, Chap. 7, § III.D; Douglas F. v. Equal Employment Opportunity Commission, EEOC Appeal No. 0120122183 (Dec. 4, 2015); Andy B. v. Dep't of Veterans Aff., EEOC Appeal No. 0120131912 (Oct. 28, 2015); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122616 (Jun. 23, 2015). We find that the AJs did not abuse their discretion during the hearing process. We note that the Agency has not challenged the sanctions issued against it, so we do not address if those sanctions were appropriate. We only consider whether additional sanctions were warranted. Many of the arguments raised on appeal were raised by Complainant during the pendency of the hearing request and were addressed in the AJs’ orders, including denials of Complainant’s motions for entry of a default judgment and imposing sanctions against the Agency. Although Complainant may disagree with the rulings, the record does not lead us to conclude that the AJs abused their discretion or committed legal error in the issuance of their orders. We note that during the hearing, Complainant only objected to the allowance of the testimony of two rebuttal witnesses called by the Agency and its use of exhibits during the hearing that had not been previously introduced. Complainant also addressed the objection in her written closing statement and in her appeal brief.2 The basis for Complainant’s objection was the sanctions order issued by AJ-1. In the order, AJ-1 sanctioned the Agency as follows: As appropriate sanction for the Agency issuing a corrected [report of investigation] while the case was outside its jurisdiction, failure to participate in the discovery process (by abiding its own agreement to make certain individuals available for depositions), the Agency will be limited to the content of the ROIF. The Agency will not be permitted to call witnesses or submit additional exhibits. We find that by allowing the testimony of two witnesses, AJ-2 acted within her discretion. Consistent with AJ-1’s sanctions, the Agency was not allowed to present its case in chief. The two witnesses called were called by the Agency as rebuttal witnesses. Further, AJ-2 could modify a prior order based on the development of the record before her. Her modification is not a violation of the sanctions order, as Complainant argues. 2 The Commission notes that in her closing statement submitted to AJ-2, Complainant addressed the allegations in her complaint and challenged the allowance of witnesses but does not raise the other objections to the AJs’ actions until she filed her appeal brief. 0120180466 6 We note in this regard that AJ-2 stated during the hearing that in her pre-hearing memorandum, she advised the parties that if rebuttal testimony were necessary, she would provide the Agency an opportunity to specifically identify the necessity for rebuttal testimony. Hearing Transcript (Hearing Tr.). at 155. AJ-2 also stated that Complainant would be given the opportunity to object. The AJ did both at the hearing. We note also that Rebuttal Witness-1 was mentioned throughout the investigative report and her rebuttal was limited by AJ-2 to a January 24, 2017 meeting. Hearing Tr. at 160. She was asked only two questions each by Agency counsel and Complainant’s counsel. Even if the testimony were not allowed, the substantial evidence of the record supports the ultimate conclusion that the Agency did not discriminate against Complainant. Regarding Rebuttal Witness-2, who was allowed to testify, she was deposed by Complainant. The use of the veteran’s preference (claim 6) was not clear to AJ-2 and, thus, AJ-2 determined that Rebuttal Witness-2 would provide that clarification to her. The Commission also notes that AJ-2 did not allow the Agency to submit additional exhibits, which was consistent with AJ-1’s sanctions’ order, and Complainant has acknowledged that no exhibits were admitted. We next address the unavailability of two witnesses who had retired in 2014 and 2015. We note that Complainant did not renew this issue at the hearing or in her closing statement. She raises it on appeal. In a November 18, 2016 Order denying Complainant’s renewed motion for a default judgment, AJ-2 ordered the Agency to contact the two retired employees to see if they would testify at the hearing in person or by telephone conference. In a February 8, 2017 Order denying sanctions, AJ-2 determined that the Agency had contacted the retired witnesses and decided that sanctions were not appropriate. In claim 13, Complainant alleges that the one retired witness, who was the Investigating Officer, failed to provide her with a copy of the AR 15-6 Investigating Order. The record contains email communication between the retired Investigating Officer and Complainant concerning his report and her objections to it. The Commission also notes that in a January 17, 2014 email, Complainant wrote that she was provided an “incomplete copy.” She also identifies the retired Investigating Officer in claim 15 but acknowledges in that claim that there was a string of emails between her and him. In addition to the email, there is other documentation in the record addressing these claims 13 and 15, including affidavits of other witnesses. The second retired witness was the Garrison Commander. However, there is documentary evidence and affidavits (including that of the Garrison Commander) contained in the record which address the claims that Complainant raised against him. To the extent that Complainant asserted that AJ-2 did not review the entire record, we note here that during the hearing, AJ-2 herself stated that “I literally touch every page. So if it’s - if there’s something in here that you have addressed, then it will be addressed with me as well.” Hearing Tr. at 179. Having decided that the AJs did not abuse their discretion and having reviewed the record and arguments of the parties, we are not persuaded that increased sanctions are appropriate. 0120180466 7 Merits of the Complaint We find that AJ-2’s decision is supported by substantial evidence of record and, also, that AJ-2 properly applied the law. Complainant failed to establish that she was subjected to disparate treatment or to a hostile work environment. She also did not prove that it was discriminatory animus that motivated the Agency. In so concluding, AJ-2 recounted at length the factual background, including Complainant’s accounting of what occurred and the Agency’s version of what occurred and its explanations why it had taken, or had not taken, certain actions which Complainant alleged were discriminatory. Complainant alleges that she was subjected to a hostile work environment on two bases and cites various incidents in support of her claim. To establish a claim of a discriminatorily hostile environment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 statutorily protected class; and (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 to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In order for harassment to constitute conduct that violates the regulations enforced by the Commission, it must be sufficiently pervasive or severe to alter the conditions of the employment and create an abusive working environment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993). The conduct in question is evaluated from the standpoint of a reasonable person, taking into account the particular context in which it occurred. An alteration to an employee's working conditions exists if a tangible, discrete employment action is taken, e.g., hiring, firing, transfer, promotion, non-selection occurred, or the Agency’s actions were sufficiently severe and/or pervasive to create a hostile work environment. In addition, harassment must be examined from the point of view of an objective person. Complainant also alleged that she was treated differently based on her sex and reprisal. Adjudication of a complaint of discrimination alleging disparate treatment follows a three-step evidentiary analysis enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, the burden is on the complainant to establish a prima facie case. Second, the agency has the burden of production to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, in order to prevail once the agency has articulated a legitimate, nondiscriminatory reason for its actions, the complainant must establish by a preponderance of the evidence that the agency's stated reason is pretext for discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147. Complainant identifies 20 incidents of alleged harassment. However, the Commission notes that many of these incidents can be combined because they are all connected to one core event. For example, claims 7 and 12 involve her detail to the PAIO. 0120180466 8 Other claims, 13-15, concern the Agency’s investigation which was initiated regarding accusations Complainant made about the Director. Claims 2, 5, and 17 concern her being given directions in the workplace. Other claims pertain to her being disciplined. Regarding tangible employment actions, the AJ found, for example, that the detail occurred as a result of an investigation that the Agency was conducting into Complainant’s allegations of being assaulted. Complainant’s proposed suspension and termination were based on false statements she made and her insubordination. The Commission notes here that because an employee has engaged in protected activity of which managers and supervisors are aware, the protected activity does not immunize the employee from discipline, in the absence of discriminatory animus, and none was found here. Edmond C. v. Dep’t of Housing and Urban Dev., EEOC Appeal No. 0120140517 (Oct. 21, 2016). We have stated that participation in the EEO process does not shield employees from uniformly applied standards of conduct and performance; nor are the statutory anti-retaliatory provisions a license for employees to engage in misconduct. Berkner v. Dep’t of Commerce, EEOC Petition No. 0320110022 (June 23, 2011). In addition, we have held that we will not second-guess an agency’s personnel decisions or substitute our judgment for that of an agency, absent discriminatory animus. Outside of the tangible employment actions, Complainant has identified other incidents of alleged discrimination which do not qualify as ultimate employment actions. In this regard, the Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter...complainant or others from engaging in protected activity.” Maclin v. U.S. Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). In addition, Complainant’s underlying claim is one of harassment. A hostile work environment under Title VII is a cumulative phenomenon, and a series of individual episodes of inappropriate actions can eventually amount to a hostile environment. Nonetheless, Complainant’s complaint still fails. The discrimination statutes do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S. Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005). Not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19. 2009)). The Commission also recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Further, Complainant has failed to show that the alleged actions were so severe or pervasive that they created a hostile work environment. In the absence of discriminatory animus, a hostile work environment claim does not survive. 0120180466 9 A finding of a hostile work environment is precluded based on the lack of animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). In sum, AJ-2’s finding that there was no discrimination on any basis is based on substantial evidence and is consistent with applicable law. Beyond bare assertions and beliefs, Complainant failed to show that the real reason for the Agency’s actions was discriminatory animus. CONCLUSION We AFFIRM the Agency’s final order which adopted AJ-2’s finding of 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). 0120180466 10 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 January 22, 2020 Date