[Redacted], Danita S., 1 Complainant,v.Christopher C. Miller, Acting Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2020000369 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Danita S.,1 Complainant, v. Christopher C. Miller, Acting Secretary, Department of Defense, Agency. Appeal No. 2020000369 Hearing No. 420-2019-00100X Agency No. 2017-MDA-003 DECISION On September 20, 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 August 20, 2019 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a NH-III (GS-12/13 equivalent) nonsupervisory General Engineer assigned to the Missile Defense Agency Directorate (MDA) located in Redstone Arsenal, Alabama. On December 21, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to a hostile work environment based on her sex (female) when: (1) on November 18, 2016, the Ground Test (DTG) Acting Deputy Director (ADD) (male) criticized her briefing by calling it unprofessional, and stated she is not paid to think or make recommendations and needs to focus; (2) on July 26, 2016, she was informed by her supervisor (S1A) (male) that she could not use 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. 2020000369 2 regular time (RG) timecode the same day she was performing inactive duty training; (3) on June 27, 2016, S1A counseled her and told her that she could no longer work anything with the training program; (4) on June 23, 2016, a General Engineer (GE1) (male) told her that she could not call two-letter (directors) to get two-letter briefings.2 After 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s June 19, 2019 motion for summary judgment and issued a decision without a hearing on July 30, 2019 finding that Complainant was not subjected to discrimination. The Agency subsequently issued a final order fully adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. FACTUAL BACKGROUND Complainant began her employment with the MDA in late December 2015. Complainant named S1A and ADD as the responsible management officials relevant to the claims at issue herein. In early January and February 2016, Complainant contacted the MDA Human Resources office (HR) numerous times regarding her dissatisfaction with her position and the hiring process in general. She also requested that her position and pay be changed. In June 2016, Complainant was assigned with creating a training program for the DTG team members. Complainant built the framework, wrote the policy, and put together a list of topics. Complainant’s estimated time to complete the first module of the training program she developed was 24 months. Complainant affirmed that ADD was very upset about the training program she had developed, and not satisfied that it would take 24 months to complete. Accordingly, S1A reassigned the training program effort to a non-supervisory Engineer (GE2) (female). GE2 was to update existing two-letter briefings for a training notebook. Complainant’s task was to get the updated briefings. Complainant reached out to two-letter staff members for updated briefings and if they did not respond to her in a timely manner, she then contacted the Senior Executive Service (SES) Director personally. GE1 was a non-supervisory Engineer, and Complainant’s peer. He told her that it was inappropriate for her to contact members of the SES directly for briefings on their respective programs, and that she needed to contact her peers and counterparts in the respective two-letter offices. 2 Complainant’s claim that she had been discriminated against based on reprisal when on January 22, 2017, she received an overall score of 76 on her annual performance appraisal was dismissed by the AJ at the Initial Teleconference because Complainant had initially opted to use the Agency’s grievance process to resolve all issues related to her performance appraisal. We note that Complainant does not raise this issue on appeal. Accordingly, we shall not address it herein. 2020000369 3 Complainant admitted during her deposition that GE1 would have treated a male the same way, but she was embarrassed when he told her she could not contact the SES members. Complainant said ADD and S1A were intimidating when they told her she had jumped the chain of command and could not contact SES members directly. Complainant was a reservist in the U.S. Army and sought to use military pay codes the same day as regular civilian graded time. She sought to use four hours as regular civilian graded time, and four hours in a military pay status on the same day. S1A questioned whether the use of military pay codes and regular civilian timecodes was permissible. S1A contacted HR for assistance because he did not know what the rules were. An MDA Payroll Clerk (PRC) (female) was assigned to address questions about pay codes and advised S1A (and Complainant) that the use of military pay codes and regular civilian pay codes during the same day was not permitted. PRC based this advice on her understanding of the U.S. Office of Personal Management’s guidance on the use of military pay codes and said she had given the same advice to both male and female reservists at MDA. Complainant alleged that S1A’s action of asking PRC for advice was discriminatory because he should have trusted what Complainant told him about the use of timecodes, and not scrutinized her about every detail. For the 2016 rating cycle, under the Agency’s Acquisition Demonstration performance management system Complainant’s received a 76. Complainant received a general pay increase, salary increase and contribution award. Complainant’s 2016 performance appraisal noted areas to improve in (a) Problem Solving: “requires assistance is providing solutions to complex problems, did not deliver integrated ground test schedule during rating period and damaged DTG project server schedule;” and (b) Communication: “generates data but needs help to transform into useful information, inability to work within chain of command, struggles to understand how integrated master schedules contribute to the Ballistic Missile Defense System.” In September 2016, Complainant sent an email to the Director of DTG (male) requesting to be transferred. She noted that S1A was the most incompetent supervisor she had ever met and that she did not need another counseling session, she needed to get rid of her supervisor. Complainant was reassigned to the MDA THAAD3 offices in December 2016 and assigned a new supervisor (S1B). For the 2017 rating cycle, with S1B as her supervisor, Complainant received a score of 75. Complainant received a general pay increase but no increase of salary or contribution award. Complainant’s 2017 performance appraisal noted similar improvement areas in (a) Problem Solving: “problem multitasking causing [Complainant] to be late on several tasks, tends to pass challenging issues on to contractors instead of tackling them head-on; (b) Communication: “struggles writing clear and concise meeting notes, needs to proofread and spellcheck documents, 3 THAAD stands for “Terminal High Altitude Area Defense.” The Terminal High Altitude Area Defense element provides the Ballistic Missile Defense System with a globally-transportable, rapidly-deployable capability to intercept and destroy ballistic missiles inside or outside the atmosphere during their final, or terminal, phase of flight. 2020000369 4 doesn’t understand the chain of command and on several occasions received phone calls about her working outside the chain of command; and (c) Leadership/Supervision: “appears uninterested in attending meetings and learning more about the THAAD weapon system.” ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or 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 their 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). 2020000369 5 We agree with the AJ’s decision and find that the alleged events, taken individually, or collectively, were insufficiently severe or pervasive to establish a hostile work environment. Rather, at best, they describe routine workplace events and/or petty slights or trivial annoyances that are not covered by Title VII. We note that the Agency has articulated legitimate, non-discriminatory reasons for the employment actions at issue herein and Complainant has not advanced any argument or produced any evidence to allow the trier of fact to conclude that the Agency’s reasons are not worthy of belief. Even when considering Complainant’s claims in the light most favorable to her, the record is devoid of evidence to support the conclusion that any employment action was motivated by discriminatory animus. Accordingly, we find that Complainant was not subjected to discrimination or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final order. 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. 2020000369 6 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. 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 January 11, 2021 Date