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

Equal Employment Opportunity Commission

Dec 15, 2021

Appeal No. 2021000853 (E.E.O.C. Dec. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Daria P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000853 Hearing No. 410-2020-00204X Agency No. ARBENNING19AUG03019 DECISION On November 16, 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 October 20, 2020 final order concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Practical Nurse, Grade GS-6, Step 8, at the Agency’s Consolidated Troop Medical Clinic (CMTC) in Fort Benning, Georgia. Complainant’s direct supervisor was a supervisory nurse (Caucasian/American Indian). Complainant’s second-level supervisor was a physician’s assistant (Caucasian/white). Certain administrative duties related to Complainant’s schedule for seeing patients were handled by a Practice Manager (African American/Black), hereinafter “PM.” 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 2021000853 On September 17, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (Caucasian/white) when: a. On August 5, 2019, and August 9, 2019, PM went up to Hallway A, where Complainant works, to intimidate Complainant. b. On August 8, 2019, PM did not block off Complainant's schedule for Infantry Basic Officer Leaders Course, which resulted in an Officer Candidate School (OCS) candidate coming into the clinic for a part-one physical. c. On August 12, 2019, PM went up to Hallway A and gave Complainant ugly stares. d. On August 13, 2019, PM singled her out at a "huddle" by asking Complainant's second- level supervisor why Complainant locked Hallway A. After 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. On July 22, 2020, the AJ issued an Acknowledgement Order that stated the parties had until August 10, 2020, to further supplement the record beyond the report of investigation. Neither Complainant nor the Agency supplemented the record or filed motions. On August 12, 2020, the AJ held a status conference wherein the AJ discussed the case with both parties. On September 28, 2020, the AJ issued a decision without a hearing finding no discrimination. On October 20, 2020, the Agency issued a final action that adopted the AJ’s finding in the decision without a hearing. The instant appeal followed. On appeal and through Counsel, Complainant contends that the AJ’s summary judgment was based on inferences that improperly favored the Agency. Counsel asserts summary judgment was improper because witnesses’ testimonies had corroborated Complainant’s accusation that PM had harassed Complainant. Additionally, Counsel attacked the AJ for procedural irregularity and arriving at conclusions in a manner that showed bias against Complainant’s case. Counsel requested the matter remanded to a different AJ for a hearing. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 3 2021000853 A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a 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. We reject Counsel’s assertion that the AJ erroneously prevented Complainant from objecting to a decision without a hearing before it was issued. The AJ gave both parties the opportunity to file any pre-decisional document or supplement the report of investigation to advance their positions, but neither party did so. Complainant also had an opportunity to clarify her claims during the initial conference with the AJ. The AJ’s decision, therefore, was based on the preponderance of the evidence found in the report of investigation. Complainant’s speculative assertion, that another AJ may have decided differently, does not convince us that the AJ prejudiced the outcome of this case. 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. The AJ correctly held that Complainant did not establish a prima facie case of disparate treatment discrimination based on race. The record revealed that PM was not in Complainant’s chain of command. Both of Complainant’s supervisors identified as Caucasian or white as did Complainant. Both the supervisory nurse and the officer-in-charge supported temporarily locking Hallway A at Complainant’s request so that she would not be bothered. More, importantly, Complainant’s comparators, including other CMTC nurses of different races, had similarly reported having unpleasant interactions with PM. Moreover, we concur with the AJ that Complainant was never subjected to adverse action. Complainant was not blamed or disciplined for the scheduling problems that she claimed PM had caused. Furthermore, Complainant was permitted to rectify her scheduling conflicts by providing an alternative date for the OCS candidate’s physical examination appointment. We also analyzed, and agree with, the AJ’s determination that Complainant’s claims regarding PM’s conduct in the context of a hostile work environment claim failed. Complainant did not establish that PM harassed her with based on discriminatory intent, so the Agency cannot be held liable for a hostile work environment. Britany C. v. U.S. Postal Serv., Appeal No. 2019001456 (May 29, 2019. We remind Complainant that EEO laws protect employees from discriminatory harassment but not from common workplace acrimony. Here, Complainant was subjected to garden-variety indignities or petty slights from her coworker PM rather than discrimination by the Agency. Lassiter v. Dep't of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012). Additionally, to the extent that Complainant reported PM’s harassment, CMTC management intervened appropriately by limiting unnecessary contact between them. 4 2021000853 CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s summary judgment and the Agency’s implementing final action. 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. 5 2021000853 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 December 15, 2021 Date