[Redacted], Chantelle M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Aug 2, 2021

Appeal No. 2020002371 (E.E.O.C. Aug. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chantelle M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2020002371 Agency No. DIA-2018-00085 DECISION On February 19, 2020, 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 January 21, 2020, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether Complainant established by the preponderance of the evidence in the record that she was subjected to discrimination based on sex and/or disability. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GG-0301-13 Staff Officer in the Agency’s Defense Resources and Infrastructure Office, DIA Headquarters in Washington, D.C. 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. 2020002371 2 On September 27, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and disability (physical) when: 1. On May 4, 2018, Complainant’s first-line supervisor (S1A) instructed Complainant to change her work schedule from an alternate work schedule (AWS) to a basic work schedule while Complainant’s doctor had her working four hours per day; 2. On May 4, 2018, S1A notified Complainant that her Civilian Fitness Program (CFP) would be temporarily suspended based on her doctor’s instruction for light work; 3. During the pay period ending June 23, 2018, Complainant’s new first-line supervisor (S1B) told Complainant to change her timesheet three times even after Complainant showed her paperwork and the leave bank application that directed her to use a different leave code, resulting in Complainant missing a timely paycheck. After Complainant did what was requested of her, her second-line supervisor (S2) went back in and made adjustments himself; 4. S2 charged Complainant leave without pay (LWOP) for July 3, 5, and 6, 2018, stating that no one knew Complainant was going to be on leave, even though Complainant had submitted her leave request in April 2018 and placed it on the calendar; 5. Between May and July 2018, S1B deleted Complainant’s July 2018 leave dates from the office calendar. Prior to S1B deleting the leave, Complainant’s leave for July 2018 was approved sometime in April 2018; and 6. On July 3, 2018, Complainant was scheduled for a one-on-one meeting with S2 at 8:00 a.m. On July 2, 2018, Complainant notified S2 that her start time was 8:30 a.m. and proposed meeting with him at 9:00 a.m. S2 informed Complainant that he was meeting with someone else at 9:00 a.m. and told her to work it out with her peers if she had a conflict and let him know the resolution. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s final decision found that the legitimate, nondiscriminatory explanation for S1A requiring Complainant to switch from her AWS to a basic work schedule was that Complainant’s physician indicated that Complainant could only work four hours per day and that Complainant’s AWS required employees to work eight nine-hour days and one eight-hour day per pay period. The Agency determined that Complainant failed to rebut this legitimate, nondiscriminatory reason or otherwise establish pretext. 2020002371 3 Regarding the CFP, the Agency found that the legitimate, nondiscriminatory reason for suspending Complainant from the CFP program was that Complainant’s physician had placed her on light duty. Again, the final decision stated that Complainant failed to rebut this reason or otherwise establish pretext for discrimination. The Agency found that the legitimate, nondiscriminatory reason for S1B asking Complainant to modify her timesheet three times as alleged in claim (3) was that Complainant would not correct her timesheets until after S1B sent her three emails and held a meeting with Complainant and S2. The Agency concluded that Complainant did not establish that this legitimate, nondiscriminatory reason was pretextual. Regarding Complainant’s leave on July 3, 5, and 6, 2018, the Agency’s final decision stated that the legitimate, nondiscriminatory reason for charging Complainant LWOP was that Complainant’s requests for leave on these dates had not been approved. The Agency found that Complainant did not establish pretext. The Agency’s final decision determined that the legitimate, nondiscriminatory explanation for claim (5) was that S1B accidentally deleted one of Complainant’s leave dates from the shared office calendar, although S1B subsequently added the leave back. The Agency found that Complainant failed to establish that this legitimate, nondiscriminatory reason was a pretext designed to mask animus based on sex and/or disability. Regarding claim (6), the Agency’s final decision found that Complainant failed to establish a prima facie case of discrimination because she could not identify a similarly situated employee who was treated more favorably than she was. Finally, the Agency’s final decision found that, because Complainant either failed to establish a prima facie case of discrimination or pretext for discrimination, Complainant could not establish that she was subjected to discriminatory harassment based on sex and/or disability. The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that she is experiencing insomnia, depression, headaches, loss of appetite, and damage to her professional reputation as a result of the discrimination. Complainant states that morale is poor at the Agency because of widespread harassment of employees who are minorities. In response to Complainant’s appeal, the Agency contends that Complainant has offered nothing more that bare assertions and her subjective beliefs, which are insufficient to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions or to establish pretext. 2020002371 4 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”). To prevail in a 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 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). To establish a claim of harassment a 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; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Regarding claims (1) and (2), the Agency’s legitimate, nondiscriminatory reasons for changing Complainant from her AWS to a basic schedule and for suspending her participation in the CFP was that her physician had placed her on light duty, working four hours per day. 2020002371 5 Working four hours per day made Complainant ineligible for the AWS, and working light duty precluded participation in the CFP. We find that Complainant has not established by preponderant evidence in the record that these legitimate, nondiscriminatory reasons were pretextual. Regarding claim (3), S1B stated that she asked Complainant to change her timesheet because the leave bank informed her that Complainant was only approved to participate in the leave bank through June 12, 2018, and that her extension request was not approved by the leave bank by the deadline for the pay period ending June 23, 2018. Although Complainant contends that S1B’s requests were contrary to Complainant’s paperwork and leave bank application, the record contains multiple July 2018 emails from Agency payroll personnel to Complainant and/or S1B to make the changes that S1B asked Complainant to make for her timesheet for the pay period ending June 23, 2018. We therefore find that Complainant has not established by the preponderance of the evidence that the Agency’s legitimate, nondiscriminatory reason was a pretext for discrimination. The Agency’s legitimate, nondiscriminatory reason for charging Complainant LWOP for July 3, 5, and 6, 2018, was that her leave requests for that date had not been approved. Although Complainant contends that her leave requests for these dates were approved sometime in April 2018, there is no documentation corroborating her statement that the leave was approved, and Complainant has not otherwise established that the Agency’s legitimate, nondiscriminatory reason was a pretext for discriminatory animus. Regarding claim (5), the Agency’s legitimate, nondiscriminatory explanation is that S1B accidentally deleted one of Complainant’s leave dates from the office calendar. A mistake made by an agency is not evidence of pretext unless there is evidence that the mistake was based on a complainant's protected classes. See Vickey S. v. Dep't of Def., EEOC Appeal No. 0120112893 (Nov. 17, 2015); Hsieh v. Dep't of Veterans Affairs, EEOC Appeal No. 0120120980 (June 4, 2012); Carroll v. Dep't of Justice, EEOC Appeal No. 01A20985 (Jan. 21, 2003). We find that there is no evidence that S1B mistakenly deleted one of Complainant’s leave entries from the shared calendar based on her sex and/or disability, and Complainant has not otherwise established pretext for discrimination by preponderant evidence. We find that Complainant failed to establish a prima facie case of discrimination regarding claim (6) because she failed to establish that she was subjected to an adverse action. The record reflects that Complainant did not attend the scheduled one-on-one meeting with S2 outside of her tour of duty, and there is also no evidence in the record that Complainant made arrangements to switch times with one of her coworkers. Finally, Complainant has not established that she was subjected to discriminatory harassment. Our conclusions that Complainant failed to establish pretext for discrimination and/or a prima facie case of discrimination as discussed above precludes a finding that she was subjected to harassment based on sex and/or disability. 2020002371 6 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 finding no discrimination. 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. 2020002371 7 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 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 2, 2021 Date