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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003643 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003643 Agency No. ARBGAGGI9FEB00659 DECISION On June 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 8, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Medical Support Assistant ("MSA"), GS- 0675-05, at the Agency’s Womack Army Medical Center, Byars Health Clinic in Fort Bragg, North Carolina. On March 11, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination, including harassment, based on race (Haitian), color (Black), disability,2 and in reprisal for prior protected EEO activity 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 Complainant identified her disabilities as major depression and anxiety. 2020003643 2 a. On February 6, 2019, a co-worker called the Military Police because Complainant slammed their office door, resulting in her being escorted out of the clinic; b. On February 6, 2019, the Supervisory Health System Specialist detailed her to the front desk for 30 days and stated, “until we figure out what to do with you.” c. On March 25, 2019, the Supervisory Health System directed her to relocate to Room 1518 in order to accommodate her disability and comply with her physician’s recommendation. d. On March 26, 2019, the Supervisory Health System Specialist told her a reliable male source told her that Complainant told another co-worker that she was going to file a complaint against the Supervisory Health System Specialist and the Group Practice Manager. e. On March 27, 2019, the Supervisory Health System Specialist issued her a Fit for Duty Packet requesting she provide medical documentation to justify a job she had been performing since December 2017. f. On January 28, 2019, the Supervisory Health System Specialist denied her request to meet with her and a named co-worker, to address issues and concerns co-worker had with Complainant, and stated “the meeting will not change things.” g. On April 5, 2019, the Supervisory Health System Specialist came into her office and said “she is tired of people telling her that I am saying things, everything written up about me is true, she’s not saving me anymore and I need to shut my damn mouth.” h. On April 17, 2019, the Supervisory Health System Specialist gave Complainant a 3.9 on her appraisal which is the lowest appraisal of all the MSAs including the new MSAs who are not efficient yet. i. On June 20, 2019, the Colonel, Deputy Commander Primary Care Services issued her a Notice of Proposed Removal. j. On July 15, 2019, she found out the Group Practice Manager charged her with Absence Without Leave on July 2, 2019 for eight hours, on July 4, 2019 for four hours, and on May 29, 2019 for two hours. On May 8, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. 2020003643 3 ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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, as here, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. The Supervisory Medical Support Assistant was Complainant’s first-level supervisor (“S1”) and the Supervisory Health System Specialist was Complainant’s second-level supervisor (“S2”). The Group Practice Manager was Complainant’s third-level supervisor (“S3”) and the Colonel, Deputy Commander Primary Care Services was Complainant’s fourth-level supervisor (“S4”). Regarding claim h, Complainant claimed that on April 17, 2019, S2 gave Complainant a 3.9 on her appraisal which is the lowest appraisal of all the MSAs including the new MSAs. S2 stated that the appraisal was based on Complainant’s work performance as measured against the elements in her written performance plan. He noted that Complainant was rated as Outstanding in three elements and Fully Successful in four elements of her performance plan. He stated that Complainant did not receive a low performance score and “actually, it is the best one she has had in the last 4 ratings cycles.” Complainant failed to provide evidence that discrimination or retaliatory animus played any role in the performance appraisal at issue. 2020003643 4 Regarding claim i, Complainant asserted that on June 20, 2019, S4 issued her a Notice of Proposed Removal. S4 (African American) confirmed that on July 11, 2019, she issued Complainant a Notice of Proposed Removal from her Medical Support Assistant for the following reasons: Conduct Unbecoming, Creating a Disturbance Without Injury, and Loafing. Specifically, S4 stated that on February 2, 2019, Complainant’s actions caused a disturbance in the workplace when she slammed the door and caused a co-worker to call the Military Police as she feared for her safety. S4 also noted that on or about January 28, 2019, Complainant lied to her co-worker about them having a meeting with S2, and when the co-worker refused to follow her to S2’s office, Complainant moved closer to the co-worker and physically pressed her knee into her thigh. Finally, S4 stated that on March 6, 2019, Complainant was overheard making a statement that she had over 150 scanned records in a computer but she would not complete the scans and subsequently, a management official discovered six to seven months of unsecured patient records which had not been uploaded to Healthcare Artifacts and Image Management Solution (HAIMS). S4 said she considered Complainant’s actions and conduct to be detrimental to the efficient operations of the Byars Health Clinic. The record does not reflect that Complainant was actually removed from her Medical Support Assistant position. Again, Complainant failed to prove that it was not her conduct that provoked the proposed removal but rather discriminatory or retaliatory factors. Regarding claim j, S3 (Mexican American, brown) acknowledged that Complainant was charged with AWOL on July 2 and 3, 2019, and she was charged AWOL for two hours on May 29, 2019. He said this occurred because she failed to follow the proper procedures for notifying and securing permission from her supervisory chain before an absence. Complainant failed to prove the proffered reasons were a pretext masking discriminatory or retaliatory factors. Reasonable Accommodation Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. The Commission will assume without deciding that Complainant is a qualified individual with a disability. In claim c, Complainant claimed that on March 25, 2019, S2 directed her to relocate to Room 1518. S2 and S3 noted that Complainant brought in a letter from Complainant’s physician stating that Complainant could not work near or around employees, in open spaces, near light, nor in places with noise. The physician recommended that management place Complainant in an office with no windows where she could close the door and turn off the lights. note from her physician recommending that she be removed from the open work area without the sun. As a result, Complainant was relocated to Room 1518, which was consistent with her doctor’s recommendations. In sum, the record evidence supports the Agency’s finding that management accommodated Complainant within her medical restrictions provided by her physician. 2020003643 5 Harassment 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 race, color, disability or protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As an initial matter, since we have already concluded there was no discriminatory or retaliatory motivation with regard to claims c, h, i and j, they cannot be considered as evidence in support of Complainant’s overall harassment claim. Therefore, we will now address only her other allegations provided in support of her harassment claim. Regarding allegation a, Complainant alleged that on February 6, 2019, a co-worker called the Military Police because Complainant slammed their office door, resulting in her being escorted out of the clinic, S2 (Caucasian, white) explained the co-worker called the Military Police because Complainant was angry, throwing items on her desk, as well as slamming the door and her cabinets to the point when a potted plant fell off a cabinet. The coworker indicated she was fearful of Complainant based on her behavior and that is why she called the police. Other employees stated that Complainant was a “bully” towards her coworkers. Regarding claim b, Complainant alleged that on February 6, 2019, S2 detailed her to the front desk for 30 days in order to “figure out what to do with you” S2 asserted that Complainant was not assigned to the front desk. In addition, she stated that none of Complainant’s co-workers have been assigned to the front desk. She stated, however, the front desk is one of the many duties an MSA may be asked to perform. Regarding claims d and g, Complainant claimed that on March 26, 2019, S2 told her someone had told her that Complainant had said that she was going to file a complaint against S2 and S3. She also said that on April 5, 2019, S2 came into her office and said “she is tired of people telling her that I am saying things, everything written up about me is true, she’s not saving me anymore and I need to shut my damn mouth.” S2 explained she and other employees could hear Complainant stating that she was going to the EEO office because S2 was trying to get rid of her. S2 had a discussion with Complainant about all of her conversations about her and asked Complainant “not to broadcast this so everyone can hear this. It causes disruption among the workforce.” She stated that she does not have an issue with Complainant stating her views but had asked Complainant to please to close her door when doing so. In addition, S2 stated that there was no conversation relating to S3. 2020003643 6 Regarding claim e, Complainant claimed that on March 27, 2019, S2 issued her a Fit for Duty Packet requesting that Complainant provide medical documentation to justify a job she had been performing since December 2017. However, S2 asserted that Complainant was not given a Fit for Duty packet. Regarding claim f, Complainant alleged that on January 28, 2019, S2 denied her request to meet with her and a named co-worker, to address issues and concerns co-worker had with Complainant, and stated “the meeting will not change things,” S2 explained that Complainant wanted to have a meeting with the co-worker but she informed Complainant that it was not the right time to do so, because the co-worker felt threatened by Complainant. 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 any adverse treatment from a supervisor. 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. Here, the preponderance of the evidence does not establish that any of the involved management officials were motivated by discriminatory or retaliatory animus. Complainant’s claim of ongoing harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (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. 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. 2020003643 7 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). 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. 2020003643 8 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 November 22, 2021 Date