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

Equal Employment Opportunity Commission

Aug 17, 2021

Appeal No. 2020001566 (E.E.O.C. Aug. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celine B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020001566 Agency No. ARMEPCOM16DEC04962 DECISION On December 23, 2019, 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 November 26, 2019 final 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Inspector, GS-2210-09, at the Agency’s Military Entrance Processing (MEPS) Command in Chicago, Illinois. On March 7, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian), disability (hearing loss), and age (59) 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. 2020001566 2 1. on or about September 15, 2015, the First Sergeant (1SG) asked Complainant if she minded being the only white person in MEPS headquarters; 2. on or about March 2, 2016, 1SG told Complainant that she hired a white person so Complainant would not be the only one in MEPS headquarters; 3. on or about April 20, 2016, the Lieutenant Colonel (LTC) discussed Complainant’s salary in an open forum with other employees and asked Complainant when she planned to retire; 4. on or about June 15, 2016, and on several other occasions, LTC asked Complainant when she planned to retire; 5. on or about November 1, 2016, 1SG failed to address two coworkers’ (CW1 and CW2) discussion regarding who Complainant was voting for; 6. on November 8, 2016, 1SG failed to address CW2’s comment, “your boyfriend (Donald Trump) won the election” and CW1’s comment, “blacks are going to be profiled again, you don’t understand you are white;” 7. on or about November 9, 2016, LTC and 1SG gave Complainant a rating of “3” on her annual performance evaluation; 8. on or about November 18, 2016, LTC directed Complainant to go to Sam’s Club to buy snacks for the MEPS store; 9. on or about November 18, 2016, 1SG called Complainant out for yelling at LTC and directed her to go to Sam’s Club to buy snacks for the MEPS store; 10. on or about November 21, 2016, and on several occasions, LTC contacted Complainant after work to assist with Information Technology issues; 11. on or about December 1, 2016, and on several other occasions 1SG contacted Complainant after work; and 12. on or about December 15, 2016, 1SG did not invite Complainant to celebrate her promotion to Sergeant Major. Complainant contended that her condition “makes it hard to hear at times but [she is] able to adjust and continue working.” Complainant asserted that, as the Information Technology Systems Administrator she provided, among other things, technical advice for all IT system matters and the MEPS liaison between sections and service liaison counselors in resolving all computer-related issues. Additionally, Complainant installed and configured software and troubleshot local area computer problems. Complainant asserted that she was subjected to harassment as a result of the 2016 presidential elections. Complainant refused to discuss politics with CW1 and CW2, but they continued to broach the subject. Complainant said that she complained to her chain-of-command, but they did nothing and that the continued discussion of politics made her very uncomfortable. According to Complainant, since the election, she was asked at least six times when she was going to retire due to her age. Complainant’s first-line supervisor, 1SG, denied Complainant’s allegation that she hired a white person so that Complainant would not be the only white person in MEPS. 1SG noted that there were other white people in the office. 2020001566 3 Moreover, 1SG was not involved in the hiring process. Furthermore, LTC denied discussing Complainant’s salary or retirement plans. 1SG added that Complainant never raised any concerns about her co-workers’ comments to her. After the 2016 presidential election, Complainant received her performance appraisal for the fiscal year ending October 31, 2016, from 1SG. The record reflects that a rating of “3” is an “average” appraisal, whereas a rating of “1” was the best available rating and “5” was the worst. Complainant protested that she had not been told during the year that her performance was lacking and found the timing peculiar. Complainant noted that a coworker, an African-American man, did not receive his appraisal at the same time. Complainant believed “that because [she] is a white older woman who was perceived as supporting Trump and have a hard time hearing,” her appraisal was downgraded. 1SG noted that she came within Complainant’s chain of command in July 2015. 1SG explained that she rated Complainant a “3” because Complainant did not have the technical knowledge necessary to provide sound technical advice to anyone in MEPS. Specifically, 1SG stated that Complainant did not troubleshoot issues and only referred employees to the Help Desk or simply decided to re-image a computer. 1SG noted that she spoke to other ITs in the battalion and concluded that Complainant needed to perform more troubleshooting. 1SG insisted she spoke with Complainant numerous times about her performance. LTC agreed with 1SG’s assessment of Complainant’s performance. The record reflects that Complainant received a rating of “1” for three out of the four previous years. In the fourth year, she received a rating of “2.” 1SG was Complainant’s senior rater only for the fiscal years ending October 31, 2015, and October 31, 2016. Complainant claimed that she was ostracized from the team and was the only employee not invited to attend 1SG’s promotion ceremony. 1SG denied that Complainant was excluded. Rather, employees were invited by word of mouth and all employees in the office were invited. LTC added that the luncheon was informal and consisted of a quick, verbal shout out to see if anyone wanted to attend. Complainant objected to being contacted at home because she does not get paid for work performed outside duty hours and explains that her supervisors need to talk to the helpdesk to walk through VPN issues. Complainant believed her supervisors’ attempts to contact her outside work hours constitutes harassment. 1SG could recall only two instances in which she contacted Complainant at home. In the first, 1SG received an email from another employee asking for additional assistance from Chicago MEPS, and sought to enlist Complainant’s assistance, but Complainant could not explain what the request was. 1SG then called two other personnel who completed the task. Complainant performed no work. In the other instance, 1SG contacted Complainant to ask if Complainant could come to MEPS prior to reporting to an off-site location to ensure that 1SG’s laptop and hotspot would work during a training session. 2020001566 4 Complainant also objected to going to Sam’s Club to buy snacks for the office because it was on her own time. 1SG denied directing Complainant to go to Sam’s Club. Rather, 1SG believed Complainant was volunteering her time and was unaware that Complainant was unhappy with volunteering her time until she stopped in January 2017. 1SG identified four other employees who volunteer to purchase snacks from Sam’s Club. Complainant suggested that her coworker, the MEPS Supply Technician, would be able to corroborate her claims. In his affidavit, the Supply Technician emphasized that he never witnessed first-hand any of Complainant’s allegations, but rather heard about them after the fact from Complainant. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Hostile Work Environment To establish a claim of discriminatory hostile environment harassment, 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 short, 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. 2020001566 5 Complainant must also prove that the conduct was taken because of a protected basis -- in this case, because of her race, disability, age, or for engaging in prior protected EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). In this case, Complainant has not shown by a preponderance of the evidence that her allegations actually occurred. Nonetheless, the Commission finds that the totality of the alleged conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. As a result, the Commission finds that Complainant was not subjected to a discriminatory hostile work environment as alleged. Disparate Treatment - Claims (7) - (12) To prevail on his disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). His first step would generally be to establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). In Claim (7), 1SG explained that Complainant received a “3” because she did not appear able to proficiently perform the duties of her job beyond referring employees to the helpdesk or re- imaging a computer. In Claims (8) and (9), 1SG and LTC denied directing Complainant to go to Sam’s Club and maintained that it was a voluntary task that other employees undertook as well. For Claims (10) and (11), 1SG acknowledged contacting Complainant outside work hours twice, but when Complainant did not engage, 1SG turned to other personnel to accomplish certain tasks. As to Claim (12), 1SG and LTC denied not inviting Complainant; rather the celebration was an informal event to which all employees were invited. 2020001566 6 At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Because Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Complainant presented no evidence, other than subjective beliefs and assertions, that the actions complained of were taken because of her protected classes. Such statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treasury., EEOC Appeal No. 0120092440 (Feb. 4, 2011). Thus, the Commission concludes that Complainant has not presented evidence sufficient to prove that she was subjected to discrimination or a hostile work environment as alleged. 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 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). 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. 2020001566 7 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. 2020001566 8 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 17, 2021 Date