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

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020003837 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christal G.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2020003837 Hearing No. 570-2019-00925X Agency No. 2018-WHSFMD-059 DECISION On June 30, 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 May 5, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as an Accountant, GS-14, at the Agency’s Washington Headquarters Services, Financial Management Directorate in Alexandria, Virginia. On August 21, 2018, Complainant filed a formal EEO complaint: 1. Complainant claimed that the Agency subjected her to a hostile work environment based on age (59) when: a. On April 14, 2018, two named Agency officials, CS and TD, instructed a named individual, NS, not to attend the bi-weekly meeting so that a named individual, Mr. L could witness Complainant’s lack of knowledge and inability to perform the job. 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 2020003837 b. On April 28, 2018, CS and TD called Complainant “stupid” and said, “[y]ou’re mad because you are receiving a negative performance appraisal.” c. On multiple dates, including in April 2018, Mr. L humiliated Complainant during a staff meeting, used profane language when speaking to her, and during the course of the staff meeting, harassing her via long-winded emails, and enlisted others in his quest against her. 2. Complainant alleged that the Agency subjected her to a hostile work environment on the bases of age and in reprisal for EEO activity when: a. On May 14, 2018, Mr. L. attempted to prohibit Complainant from using “official time” to work on her EEO complaint. b. On May 26, 2018, Mr. L. refused to certify Complainant’s timecard for failing to adhere to a new FDMI timecard submission policy, resulting in her being charged 80 hours of annual leave. c. On May 30, 2018, named Agency official, JL, denied Complainant's request to be moved from under Mr. L’s supervision. 3. Complainant alleged that she was subjected to a hostile work environment based on reprisal for her EEO activity when: a. On March 8, 2019, Mr. L. issued Complainant a Letter of Reprimand for failure or delay in carrying out written or oral regulation, orders, rules, procedures or instructions. b. On April 15, 2019, she was not provided an opportunity to serve as the Acting Assistant Director for the Financial Management Directorate, Audit and Internal Controls. c. On April 25, 2019, named Agency official AC sent an email to JL accusing Complainant of making “inaccurate claims and accusations” when replying to her email. d. On May 8, 2019, named Agency accountant, MS, approached Complainant and another named accountant, RM, in the cafeteria and said, “I hope you enjoy your breakfast.” e. On May 8, 2019, while speaking with an Agency Project Manager, EF, outside of the office suite, Mr. S. walked back and forth staring at Complainant and breathing hard. 3 2020003837 f. On May 9, 2019 during a mandatory staff meeting, named Agency official AC made sarcastic comments regarding Complainant and RM. g. On May 9, 2019, AC said, “what did I tell you in the meeting today about limiting your personal calls to 10 minutes?” in the presence of Complainant's co-workers. Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s January 10, 2020 motion for a decision without a hearing and issued a decision by summary judgment on April 29, 2020. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. To prove her harassment/hostile work environment 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. 4 2020003837 Complainant must also prove that the conduct was taken because of a protected basis - in this case, her age or prior EEO 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). Here, we concur with the AJ's finding, based on the record evidence, that the actions Complainant uses to support her hostile work environment claim either did not occur or were experienced by other employees outside her protected groups as well. We note, for example, with respect to Complainant's specific contention that an Agency official used profane language when speaking to her, the record indicates, and Complainant acknowledges, that that the named official used profanity during staff meeting and with other employees. There is no indication that the alleged conduct was directed at Complainant specifically. Moreover, for those that did occur, the AJ found that Complainant failed to demonstrate any nexus between the allegedly discriminatory actions and any of her protected bases. Beyond Complainant's bare assertions, the record evidence fully supports the AJ’s determination that there is no support for the claim that she was subjected to harassment based on her age or as a result of retaliatory animus. Complainant asserts that Mr. L. refused to certify her timecard resulting in a charge of 80 hours of annual leave. However, the record discloses that Complainant failed to follow a new time card procedure which required her to differentiate between her regular workload and additional tasks which were considered premium time. The record reflects that Complainant's timecard was corrected and 80 hours of annual leave was restored. The record indicates that Complainant was issued a Letter of Reprimand for her failure to produce a work product for an assignment with high visibility that she was given. Agency management witnesses explained that due to Complainant's failure to produce the work product with which she was assigned, she was disciplined. Complainant provided no evidence that she was treated less favorably than similarly situated individuals or that the true reason for the discipline was based on any of Complainant's protected categories. Complainant also claimed she was not provided the opportunity to serve as Acting Assistant Director. However, the record indicates that the individual selected possessed prior relevant audit experience, was familiar with other directorates involved and understood audit terminology. Complainant presented no evidence, other than her own belief, to demonstrate that discriminatory factors played a role in her not being allowed the opportunity to serve in the Acting position. Complainant’s bare statements and speculation, without corresponding probative evidence, do not suffice to demonstrate pretext. See Nagle v. Dep't of the Treas., EEOC Appeal No. 0120092440 (Feb. 4, 2011). 5 2020003837 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. Here, the preponderance of the evidence does not establish that the responsible management officials were motivated in any way by discriminatory or retaliatory animus. Complainant’s claim of 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 age or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Official Time The AJ properly determined that the “official time” claim as framed reflected an inaccurate representation of the facts. Complainant put 12 hours of overtime on a time sheet, without ever asking permission before taking this time. The AJ properly found that the pertinent provision of the EEO Management Directive states that an employee and an agency should arrive at a mutual understanding of the amount of official time to be used prior to the use of such time. Here, the record reflects that the Agency ultimately approved the hours requested. CONCLUSION We determine that the AJ properly issued a decision without a hearing finding that Complainant failed to establish that she was subjected to discriminatory harassment. We therefore 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. 6 2020003837 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. 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. 7 2020003837 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