[Redacted], Dolly H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Aug 2, 2021

Appeal No. 2020003283 (E.E.O.C. Aug. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dolly H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020003283 Hearing No. 570-2018-00395X Agency No. EU-FY16-153 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 20, 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., 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issues are whether the Administrative Judge abused her discretion when she dismissed Complainant’s hearing request; and whether Complainant established that the Agency subjected her to discrimination or harassment based on her age, color, disability, race, or sex, or in reprisal for protected EEO activity. 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. 2020003283 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Human Resources Specialist (GS-12) at the Agency’s Europe Human Resources Division in Sembach, Germany. Complainant reported to her first-line supervisor (S1) (age 36, undisclosed disability status, Caucasian, white, male, prior EEO activity) and second-line supervisor (S2) (age 56, disability, White, white, female, prior EEO activity). Complainant stated that she also reported to a coworker (CW) (age 48, disability, Caucasian, white, male, prior EEO activity) when he acted as the Chief. Complainant stated that she left the Agency in May 2017. Report of Investigation (ROI) at 926-7. On November 10, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American), sex (female), color (Black), disability (physical and mental), and age (43), and in reprisal for prior protected EEO activity (EEO complaint number EU-FY15-114), when: 1. Complainant was subjected to harassment because: a. during the week of September 12, 2016, S2 searched Complainant’s office and found a box of fingerprints, which Complainant was falsely accused of hiding; b. during the week of September 12, 2016, S2 contacted the Defense Logistics Agency (DLA), without Complainant’s knowledge, and stated that Complainant was exercising her return rights. S2 then informed Complainant that she would not be extended and intended to place Complainant on the Priority Placement Program (PPP) by October 1, 2016. S2 also informed Complainant that she needed to come to work without being excessively late and lead her team, which Complainant believed was an ultimatum; c. during the week of September 12, 2016, S2 told Complainant that she needed to reply to CW’s emails, which she had already been doing; d. on an unspecified date, CW withheld Complainant’s medical documentation from S2, which were related to Complainant’s absences and tardiness, noting that Complainant cannot drive when she experiences vertigo; e. on February 21, 2017, Complainant received a memo instructing her to schedule an appointment to register for PPP within seven days of her return to regular duty. On or about February 24, or 25, 2017, S1 informed other employees that they would not be going into PPP, but he did not inform Complainant that she would not be going into PPP; f. on April 11, 2017, Complainant did not receive a letter from S1 regarding her status in the Restructuring for Student Achievement reduction-in-force; and g. on May 24, 2017, S1 rejected Complainant’s timesheet and questioned the 61 hours of leave without pay (LWOP); 2020003283 3 2. on August 8, 2016, Complainant learned that S1 was selected for the position of Supervisory Human Resources Specialist (GS-13), advertised under vacancy announcement number DoDEA-HQ-16-1608943-MP. Complainant also applied for this position; 3. since February 6, 2017, Complainant was subjected to harassment and discrimination when: a. on February 14, 2017, S2 informed Complainant that her previously approved telework had stopped, and she was placed on LWOP until she provided medical documentation regarding her work restrictions, which required Complainant to use her Family and Medical Leave Act leave and had her work pile up; b. on February 21, and 22, 2017, S1 directed Complainant to report to work or take leave, but no office space was set up to accommodate Complainant’s disability; c. on February 23, 2017, S1 informed Complainant that he had a workspace available for her, but when she reported to work, she found that no equipment or workstation had been set up for her; d. on February 22, 2017, CW asked Information Technology if Complainant had “walked” her computer to have them fix it, and on February 28, 2017, CW entered Complainant’s building. Complainant believed that S1 and S2 had CW spy on her to see if she was able to climb stairs and was really working; and e. since the approval of her reasonable accommodation request on February 24, 2017, S1 did not provide clear instructions on her assignments;2 4. on April 11, 2017, S1 notified Complainant that she must exercise her return rights within 30 days, and that her request for an extension of 60 days was denied; and 5. on May 9, 2017, S1 only granted Complainant five days of administrative leave for out-processing, when at least ten days were granted to others. The Agency noted that Complainant received the notice of right to file a formal complaint for claim 2 (EEO complaint number EU-FY16-109) on July 8, 2016, but she did not file a formal complaint. Complainant then raised the claim again when she initiated EEO counseling for the instant complaint on September 28, 2016. The Agency dismissed claim 2 because Complainant did not timely file a formal complaint. ROI at 615-6. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). 2 Complainant alleged discrimination and harassment based on her physical disability (ankle injury) and in reprisal for requesting a reasonable accommodation for the incidents in claim 3. 2020003283 4 Complainant requested a hearing, but the AJ dismissed the hearing request on the grounds that Complainant failed to respond to her Show Cause Order. The AJ stated that she emailed the order regarding the Initial Conference to Complainant’s work and personal email addresses, and that neither was returned as undeliverable. The AJ noted that Complainant did not appear for the teleconference on March 19, 2019, and on March 20, 2019, the AJ issued a Show Cause Order for Complainant to explain why her hearing request should not be dismissed for failure to prosecute. Complainant did not respond, and as such, the AJ remanded the complaint to the Agency to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). Regarding Complainant’s harassment claim, the Agency found that Complainant established a prima facie case of reprisal because CW and the Chief of Labor and Employee Relations (CLER) (age 38, no disability, Caucasian, white, male, prior EEO activity) were involved in her prior EEO complaint, and the alleged harassment occurred subsequent to, or were contemporaneous with, her EEO activity. However, the Agency determined that the record did not establish that the complained of conduct was based on Complainant’s protected status, and that they were not severe or pervasive. The Agency also found that management officials accommodated Complainant and provided legitimate, nondiscriminatory reasons for their actions, and that Complainant did not establish that the proffered reasons were pretexts for discrimination. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal and submitted a brief in support of her appeal.3 The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL Through her attorney, Complainant states that, after she left the Agency, she no longer had access to her work emails. Complainant asserts that she was unable to receive the AJ’s notices regarding the Initial Conference or the Show Cause Order, and that, but for her lack of access to her work emails, her complaint would likely have never been remanded for a final decision. Complainant argues that the Agency erred in finding that Complainant was not subjected to harassment or retaliation. Complainant asserts that the Agency conceded that she established a prima facie case of retaliation, and that there was a nexus between her protected EEO activity and the issues with CW and CLER. Complainant also argues that there was a “culture of harassment” that extended beyond CW and CLER, and that the nexus between S2 and CW was evident because they work together. 3 Complainant also uploaded a copy of a formal EEO complaint filed on May 12, 2020, against a different federal agency. This decision will not address this unrelated complaint. 2020003283 5 Complainant states that she provided evidence that S2 accused Complainant of hiding the box of fingerprints and further harassed her in contacting DLA to inform them that Complainant would exercise her return rights and that her time overseas would not be extended. Complainant also states that S2 often encouraged Complainant to respond to CW’s emails and “submit to his orders,” and that CW withheld Complainant’s medical documentation. Complainant requests that the Commission overturn the Agency’s final decision. STANDARD OF REVIEW 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 (EEO MD-110), at Chap. 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”). ANALYSIS AND FINDINGS Hearing Request We note that under 29 C.F.R. § 1614.109, AJs are granted broad discretion in the conduct of administrative hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See Malley v. Dep’t of the Navy, EEOC Appeal No. 01951503 (May 22, 1997). In this case, Complainant asserted that her hearing request likely would not have been dismissed if she still had access to her work emails. However, we note that the AJ emailed the March 5, 2019, Order Re-scheduling the Initial Conference and the March 20, 2019, Show Cause Order to Complainant’s work and personal email addresses. While Complainant stated that she did not have access to her former work email account, she did not dispute the fact that the AJ also sent the orders to her personal email address.4 Accordingly, we find that the AJ did not abuse her discretion when she dismissed Complainant’s hearing request because Complainant did not respond to the AJ’s Show Cause Order. Claims We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See EEO MD-110, at Chap. 9, § IV.A.3. On appeal, Complainant did not contest the Agency’s procedural dismissal of claim 2; the Agency’s finding of no discrimination on Complainant’s disparate treatment claims based on age, color, disability, race or sex; or the 4 The record shows that Complainant used this same personal email address during the EEO investigation. ROI at 1132-6. 2020003283 6 Agency’s finding on Complainant’s reasonable accommodation claim. As such, we will not address these claims in the instant decision. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). A complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). On appeal, Complainant argued that there was a nexus between CW and S2 based on the fact that they work together to establish a prima facie case of reprisal. However, Complainant only made bare assertions that CW informed S1 and S2 of her prior EEO activity, but S1 and S2 stated that they were not aware of Complainant’s prior EEO activity. ROI at 928, 993, 1017. We find that Complainant did not provide any evidence to show that S1 and S2 were aware of her prior EEO activity, and that she did not establish a prima facie case of reprisal for claims 4 or 5. Accordingly, we find that Complainant did not establish that the Agency retaliated against her in claims 4 or 5. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had 2020003283 7 the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to statutorily protected classes based on her age, color, disability, race, sex, and prior protected EEO activity, and that she was subjected to unwelcome conduct. However, we find that Complainant did not show that the complained of conduct was due to any of her protected classes. As noted above, Complainant did not establish that S1 or S2 were aware of her prior EEO activity. Even crediting Complainant’s assertion that S2 harassed her when S2 accused Complainant of hiding the box of fingerprints; contacted DLA to inform them that Complainant would exercise her return rights and that her time overseas would not be extended; and encouraged Complainant to respond to CW’s emails and “submit to his orders,” we find that Complainant did not provide evidence showing that S2’s actions were due to Complainant’s age, color, disability, race, or sex. We also find that, while CW was aware of Complainant’s EEO activity, there is no evidence that he retaliated against her. For example, CW stated that any medical documentation would not be shared with S2 because it would only be provided to the first-level supervisor. ROI at 983. The record does not contain any evidence to support Complainant’s allegation of a “culture of harassment,” and there is no evidence that the allegedly harassing incidents were based on Complainant’s protected classes. As such, we find that Complainant did not establish that the Agency subjected her to harassment based on her age, color, disability, race or sex, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ did not abuse her discretion when she dismissed Complainant’s hearing request, and we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her age, color, disability, race or sex, or in reprisal for prior protected EEO activity. 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. 2020003283 8 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. 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. 2020003283 9 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