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

Equal Employment Opportunity Commission

Aug 2, 2022

Appeal No. 2021000636 (E.E.O.C. Aug. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barbie W.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000636 Agency No. ARFTBUCH19JUL02435 DECISION On October 29, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 13, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 During the relevant time, Complainant worked as a Budget Analyst, GS-0560-11, at the Agency's Resource Management Office (RMO), U.S. Army Garrison Fort Buchanan in Puerto Rico.2 On October 3, 2019, Complainant filed a formal EEO complaint alleging she was subjected to discriminatory harassment based on sex (female) when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 The record reflects that on February 29, 2020, Complainant retired from Agency employment. 2021000636 2 1. On February 9, 2012, the Resource Management Director, also Complainant’s first- line supervisor (“S1”), failed to treat her with dignity and respect when he threatened to take away her compressed work schedule for being late to work. 2. On September 8, 2014, S1 authorized the acting supervisor to telephone Complainant with intimidation about returning to work before doctor’s orders. 3. In December 2014, the Chief, Manpower and Agreements ignored her verbal request for reassignment to the Manpower section. 4. On April 27, 2015, S1 issued her a Memorandum for Tardiness and Unscheduled Absences. 5. On May 22, 2015, S1 threatened to disapprove her annual leave for her son’s Air Force graduation ceremony. 6. On May 29, 2015, S1 yelled at her to stop reading the Bible verse during the duty day actions. 7. On February 20, 2018, the Manpower Section Supervisor insulted her regarding an employee’s travel profile. 8. On June 18, 2018, S1 hindered her from creating an employee’s travel profile. 9. On May 10, 2019, S1 threatened to take away her compressed work schedule for arriving to work to work 10 minutes late. After an investigation,3 Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on April 5, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Complainant claims that management created a discriminatory hostile work environment. 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 3 The record reflects that S1 retired from Federal Service prior to the investigation and efforts to contact him to obtain his testimony were unsuccessful. 2021000636 3 conduct was taken because of her protected bases - in this case, her sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Regarding claims 1 and 9, Complainant claimed that on February 9, 2012 and again on May 10, 2019, S1 threatened to take away her compressed work schedule because she reported to work 10 minutes late, and that S1 failed to treat her with dignity and respect when doing so. S1 called Complainant into his office and spoke to her in a “rude and unprofessional manner. She believed a double standard exists because male employees are allowed to work flexible hours and they have not been subjected to harassment by S1. However, the Chief, Manpower and Agreements, (male) stated that Complainant’s compressed work schedule was not taken away in either instance referenced above. Complainant has provided no evidence to the contrary. Regarding claim 2, Complainant claimed that on September 8, 2014, S1 authorized the Acting Supervisor to telephone Complainant with intimidation about returning to work before doctor’s orders. The Acting Supervisor explained he called Complainant while she was on medical leave but she was not available. He informed Complainant’s mother that S1 requested he call her for information on Complainant’s return to work. Complainant’s mother responded that she would forward the message to Complainant. While Complainant may have felt pressured by this telephone call, she has not provided additional evidence that the call was intended to be harassing or that male employees were treated more favorably. Regarding claim 3, Complainant asserted that in December 2014, she met with the Chief, Manpower and Agreements, regarding S1. She also said requested reassignment to the Manpower Section. The Chief stated that he does not recall this conversation and Complainant provided no other evidence of the matter. Regarding claim 4, Complainant alleged that on April 27, 2015, S1 issued her a Memorandum for Tardiness and Unscheduled Absences. The record contains a copy of the Memorandum for Tardiness and Unscheduled Absences dated April 27, 2015. Therein, S1 placed Complainant on notice that her habitual tardiness and unscheduled absences would be no longer tolerated because of the impact upon the daily operations of the unit. Complainant previously received a similar memorandum on March 12, 2015 and April 24, 2015. Moreover, Agency data confirmed a continued pattern of tardiness and unscheduled absences for Complainant. Regarding claim 5, Complainant claimed that on May 22, 2015, S1 threatened to disapprove her annual leave for her son’s Air Force Graduation ceremony. The record, however, reflects that S1 approved her request for annual leave for her son’s graduation. Regarding claim 6, Complainant claimed that on May 29, 2015, S1 yelled at her to stop reading the Bible verse during the duty-day-actions. The Acting Supervisor acknowledged Complainant always had a Bible on top of her desk but he said he did not witness Complainant reading during the duty day actions. However, he also stated that he did not witness S1 or the 2021000636 4 Chief, Manpower and Agreements, insult or demean Complainant regarding Bible reading or any other matter. Regarding claim 7, Complainant claimed that on February 20, 2018, the Chief, Manpower and Agreements, insulted Complainant regarding an employee’s travel profile. The Budget Officer (female) stated that Complainant informed her she had a meeting with the Chief to clarify the situation but noticed the Chief became agitated. She then brought the situation to S1 and said his attitude was one of indifference to the matter. Finally, regarding claim 8, Complainant stated that on June 18, 2018, S1 hindered her from creating an employee’s travel profile by not sharing pertinent information regarding a purchase request. She claimed that S1, “made important telephone calls and meetings for a Purchase Request that was over $100,000 and he did not include her in the calls or meetings. Moreover, Complainant stated that S1 knew the Directorate of Plans, Training, Mobilization and Security (DPTMS) was one of her accounts and it was her responsibility to process the Purchase Request correctly.” The Agency determined, and the record so supports, that the matter raised in claim 8 amounts to nothing more than a challenge to the authority of Complainant’s supervisor regarding work assignments within his section. Issues relating to such routine work assignments generally do not constitute discriminatory harassment. Here, the image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. The preponderance of the evidence does not establish that S1 was motivated by discriminatory animus. Complainant’s hostile work environment claim is precluded based on our findings that Complainant failed to establish that any of the actions proffered to support the claim were motivated by her sex. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021000636 5 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). 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). 2021000636 6 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 August 02, 2022 Date