[Redacted], Alexandria P, 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Oct 12, 2022

Appeal No. 2021003829 (E.E.O.C. Oct. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alexandria P,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2021003829 Hearing No. 570-2019-01519X Agency No. 2019- WHSFMD-027 DECISION On June 21, 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 June 8, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 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 an Accountant, GS- 0510-13, at the Agency’s Financial Management Directorate (FMD) in Alexandria, Virginia. Complainant began working at the Agency, in the Field Accounting and Reporting Team, Audit Support and Internal Controls (FMDI) on August 17, 2018. She is a black African-American female (age 50 at the time, year of birth [YOB] 1969). Report of Investigation (ROI) at 105 and 506-08. 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 2021003829 Her first-line supervisor from that date until April 2, 2019 was the Assistant Director of FMDI (Supervisor, (42 at the time, YOB 1977, white-Caucasian, non- Hispanic, male). ROI at 222, 507, and 535-38. Complainant’s first-line supervisor from April 15, 2019 until July 7, 2019 was the Acting Assistant Director of FMDI (later referred to as Assistant Director [36 at the time, YOB 1983, black, female]). She was previously, like Complainant, an accountant and government lead within FMDI. ROI at 675-77. Complainant’s second-line supervisor was the Deputy Director of FMD (later referred to as Director [37 at the time, YOB 1982, Asian, male]). ROI at 744-46. Complainant’s team members included Supervisor; Assistant Director; an accountant (49 at the time, YOB 1970, African-American, female); an accountant (later referred to as Coworker 1 [40 at the time, YOB 1979, African-American, male]); an accountant (later referred to as Coworker 2 [36 at the time, YOB 1983, white, male]); an accountant (35 at the time, YOB 1984, white male); and Complainant. ROI at 105. On January 23, 2019, Complainant anonymously initiated EEO contact, and she did not waive anonymity during the counseling process. ROI at 17 and 35. When the EEO Investigator later informed management of Complainant’s EEO contact, she did not reveal Complainant’s identity. ROI at 20. On January 30, 2019, Supervisor emailed FMDI Team members requesting that they update their work schedules and provide that documentation to him that same day. ROI at 213- 14. On February 1, 2019, Complainant sent her work schedule to Supervisor. Id. at 213. On February 8, 2019, Supervisor informed Complainant that he was not able to approve her work schedule because it fell outside of the Agency’s defined windows for start and stop times. Applicable Agency administrative instructions and guidance for Alternate Work Schedule (AWS) Program on which Supervisor relied for the disapproval required employees to start their days between 0630 and 0900 and end their days between 1500-1830. ROI at 213. The administrative instructions and guidance also provided that in lieu of holidays for regular days off (RDOs), are to be the first regular work day immediately preceding the holiday. ROI at 540. On February 12, 2019, Complainant sent an email to Supervisor reminding him that he had agreed to her schedule before she started in her position, and questioning his disapproval of her schedule. In response, Supervisor informed Complainant that leadership had reminded him of his obligation to adhere to the written guidance so that all FMD team members were treated consistently. Supervisor also informed Complainant that he would permit her to change her schedule so that he would not have to approve a schedule that contradicted the administrative instructions. ROI at 212. Complainant compared herself to her coworkers who, she asserted, just happened to be white males and at the same level. According to Complainant, “we are all GS 15-14 and yet, we are treated very differently. For instance, white males get a lot of concessions such as compensatory time, no harassment and total inclusion. White males asked and they shall receive whatever they ask for. 3 2021003829 On the other hand, when I request situational telework or training, I have to answer one million harassing emails.” ROI at 509. Complainant identified Coworker 1, asserting that he was treated more favorably than her because he is "a white male" and because he is friends with Supervisor. ROI at 508-09. This was inaccurate as Coworker 1 is an African-American without prior EEO activity. ROI at 776-77. On February 17, 2019, Supervisor promoted Complainant from a GS-13 to a GS-14. ROI at 121. On March 17, 2019, Complainant received an SF-50 stating that she would be realigned from FMDI to FMD Manpower Management Division Field Accounting and Reporting Team. ROI at 35. On February 28, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to harassment on the bases of sex (female), color (Black), age (YOB: 1969), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On January 17, 2019, Supervisor 1 denied Complainant's request for compensatory time while approving compensatory time for coworker 1; 2. On February 8, 2019, Supervisor 1 directed Complainant to alter her Regular Day Off with the federal holiday and reflect the change in her timecard in a manner contrary to HR guidance; 3. On April 2, 2019, Complainant received a Standard Form 50 that realigned her to another department; 4. On April 15, 2019, Complainant was not provided the opportunity to serve as the Acting Assistant Director for the Audit Support and Internal Controls Division; 5. On or about April 17, 2019, the Acting Financial Management Directorate (FMD) Director (Director) repeatedly questioned, via email, Complainant's attendance at the Town Hall despite knowing she was there, and embarrassed her at the event by calling her out to sit up front; 6. On May 8, 2019, the FMD Accountant (Accountant) made the snide comment to Complainant of, "I hope you enjoy your breakfast," and after she stated she was on the 9th floor, he responded, "Yeah, right, like I'm going to believe you," and the Acting Assistant Director (Assistant Director) failed to address FMD Accountant’s threatening behavior towards her; and 7. On May 9, 2019, Assistant Director made comments targeted at Complainant during a mandatory staff meeting. 4 2021003829 On April 17, 2019, the Agency accepted the Complaint for investigation. ROI at 63-5. 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. The parties engaged in discovery. On November 30, 2020, the Agency filed a motion for summary judgment (Agency's Motion). On December 21, 2020, Complainant filed an opposition to the Agency's Motion (Complainant's Opposition). On January 5, 2020, the Agency filed a reply to Complainant's Opposition. After considering the entire record, and viewing the facts in the light most favorable to Complainant, the AJ concluded that summary judgment in favor of the Agency was appropriate because Complainant had failed to establish that any of the challenged actions were based on her sex, age, color, or EEO activity; and that there were no material facts in dispute that warranted a hearing on the issues. The AJ adopted the Agency's Motion and reply in its entirety, finding the Agency's legal analysis to be correct. The AJ also found that the Agency had set forth legitimate reasons for the actions taken; and that Complainant had not set forth any facts or evidence to demonstrate that those reasons were false or pretextual. For example, the AJ observed that Supervisor notified Complainant that he could not approve her work schedule because it fell outside of the Agency's defined requirements. The AJ noted Supervisor’s statement that, notwithstanding the fact that he previously notified Complainant that she could work her requested schedule, he was reminded by leadership that he must adhere to the written guidance to ensure that all team members were treated consistently, which was why he ultimately could not approve Complainant’s request. According to the AJ, Complainant failed to set forth any facts or evidence, nor did the AJ find any in the record, to demonstrate that this reason was false or otherwise a pretext for discrimination or retaliation. As another example, the AJ noted Complainant’s assertion that she was denied compensatory time while her younger colleague, Coworker 1, was granted compensatory time. In response, observed the AJ, Supervisor provided the circumstances surrounding the two requests for compensatory time, which demonstrated such different circumstances that they were not appropriate for comparison. The AJ also noted Supervisor’s statement that, in denying Complainant's request, he was working to ensure that team members were complying with Administrative Instruction 28 and applicable regulations. Specifically, Supervisor stated that he was enforcing the policy that, where an employee is scheduled for a regular day off through an alternative work schedule on the same day as a federal holiday, the employee's regular day off shifts to the workday immediately preceding the holiday. The AJ noted Supervisor’s explanation that, instead of changing her regular day off to the Friday before Martin Luther King, Jr. Day, Complainant wanted to change her regular day off to the Tuesday after Martin Luther King, Jr. Day, and then be granted compensatory time so that she may 5 2021003829 come in and work on that day because she had an important meeting that she did not want to reschedule. The AJ observed that Supervisor went on to explain that this situation was different from Coworker 1’s situation in that Coworker 1’s regular day off was scheduled for the last day of a pay period, and a last minute requirement came in requiring him to work such that he would have worked more than 80 hours for the pay period to complete the required task on his regular day off. Stated another way, asserted the Agency, there was no opportunity to reschedule Coworker 1’s day off because the other days in the pay period had already passed. The AJ asserted that Complainant did not dispute these facts; and that she had not set forth any facts or evidence, nor did the AJ find any in the record, to demonstrate that these reasons were false or a pretext for discrimination or retaliation. The AJ found that the circumstances surrounding Supervisor’s approval of Coworker 1’s compensatory time and disapproval of Complainant's compensatory time were not similar enough to find discriminatory or retaliatory motivation. According to the AJ, the only facts or evidence of discriminatory animus set forth by Complainant was an affidavit from Coworker 3 stating that Acting Assistant Director told Coworker 3 that" the reasons [Coworker 3] and [Complainant] have so many problems with management is because they have issues with people over forty." See ROI at 794. The AJ noted Assistant Director’s affidavit statement that she had no recollection of making the alleged statement, nor did she ever recall making any statement comparing or grouping Complainant and Coworker 3. See ROI at 680. Notwithstanding, for the purpose of assessing summary judgment, the AJ assumed that Assistant Director did make the statement and found that it was a stray remark. Citing to Commission precedent, the AJ asserted that a stray remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved. According to the AJ, Assistant Director's statement was unaccompanied by any discrete act by her. Indeed, observed the AJ, she was not even the management official responsible for any of the discrete acts at issue in this complaint. Accordingly, the AJ found that Complainant had not set forth any legally sufficient facts or evidence to demonstrate that the Agency's reasons were a pretext for discrimination or retaliation. Regarding the alleged harassment in claims 1-7, the AJ noted Complainant’s argument that the actions and events underlying the allegations at issue occurred because of her sex, age, color, or EEO activity, which have created a hostile work environment. However, the AJ found that Complainant's claim of hostile work environment failed for lack of any evidence of discriminatory or retaliatory motivation. In addition to lack of discriminatory or retaliatory motive, the AJ also found that the issues raised by Complainant were neither severe or pervasive, nor sufficiently chilling to state a claim of a hostile work environment based on race, color, or reprisal for protected EEO activity. 6 2021003829 Again, citing to precedent, the AJ observed that the Commission has routinely dismissed claims alleging hostile work environments on various Title VII bases for failing to state a claim in situations more serious than Complainant's. The AJ also assumed arguendo that all of the issues alleged by Complainant occurred as she alleged, such as her claims that, inter alia: Supervisor directed Complainant to alter her regular day off with the federal holiday; Director questioned Complainant's attendance at a Town Hall; and Accountant commenting to Complainant that he "hope [she] enjoy[ed] her breakfast." According to the AJ, at most, these actions may be characterized as the type of "petty slights and annoyances" not meant to be covered under Title VII. The AJ granted the Agency's Motion and issued a decision without a hearing on June 3, 2021. 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. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates her allegations. She contests the AJ’s decision, arguing that the Commission improperly found in favor of the Agency; and asserting, without supporting evidence, that the Agency’s stated reasons for the challenged actions was pretextual. Complainant also alleges, for the first time on appeal and without supporting evidence, that Assistant Director was unqualified for the Acting Assistant Director position; and alleging that the AJ abuse his discretion in finding that the Agency had articulated legitimate non-discriminatory reasons for Complainant’s non-selection for the position. On appeal, among other things, the Agency reiterates it’s stated reasons for the challenged actions and expresses agreement with the AJ’s decision. The Agency opposes Complainant’s appeal, asserting that her version of the “Factual Background” in her Appeal Statement is based solely on her testimony and personal opinions, without reference to any of the record evidence, including emails and records contained throughout the ROI. 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. 7 2021003829 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. Given that Complainant had access to the ROI concerning her complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. 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 implementing 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. 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). 8 2021003829 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. Such requests do not alter the time limits for 9 2021003829 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 October 12, 2022 Date