[Redacted], Edwina W., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 2020000524 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edwina W.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000524 Hearing No. 410-2016-00276X Agency No. ARSTEWART15APR01279 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 15, 2019, 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Nurse Specialist in Fort Stewart, Georgia. On June 24, 2015, Complainant filed a formal complaint, as amended, alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian) and reprisal for prior protected EEO activity when: 1. Beginning in December of 2014, her first-level supervisor (S1) and the Army Community Service (ACS) Director failed to take appropriate actions to correct the harassing and unprofessional conduct by several of her coworkers, including engaging in racially charged discussions in the work place, and verbally abusing, insulting, and making derogatory or degrading comments to her; 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. 2020000524 2 2. Since March of 2015, S1 treated her less favorably by allowing the Team Lead to assign her a heavier workload than her coworkers; 3. S1 verbally abused her in an aggressive manner and accused her of insubordination; 4. The ACS Director announced in a staff meeting that all term employees' positions would not be renewed; therefore, her position would be eliminated; 5. Within a two-week period, S1 changed her work assignments on two occasions; 6. S1 provided unclear guidance and failed to respond to her requests to work from home, preventing her from completing assigned tasks, but allowed other staff members to work from home; 7. S1 directed her to sign a Memorandum for Record (MFR) which documented a conversation between the two of them and which allegedly contained fabricated and untruthful statements; and 8. S1 allowed the Team Lead to speak to her in a condescending and aggressive manner, which she viewed as hostile. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ initially found, with regard to claim 1, that Complainant did not show that the alleged comments were specifically directed towards her due to her race. In addressing claim 2, the AJ noted that Complainant’s workload was nevertheless adjusted after she brought the alleged disparity to the attention of management. The AJ also noted regarding claim 4, that the ACS Director made a true statement regarding the non-renewal of all term employees, as Complainant along with about five other employees were classified as term employees. The AJ further observed, with respect to claim 6, that the ACS Director’s subordinates were generally not allowed to work from home due to patient-privacy concerns. The AJ further found no evidence of animus with respect to Complainant’s remaining claims, noting that Complainant’s allegations of abuse were nothing more than disagreements between supervisors and subordinates as to the prioritization of work assignments. The AJ found that Complainant’s allegations were simply petty annoyances concerning personality conflicts regarding imperfect supervisors, which did not rise to the level necessary to establish a hostile work environment. The AJ observed that Complainant nevertheless conceded that much of the alleged harassment was resolved as soon as she brought it to the attention of management. The AJ ultimately found no evidence that the management was motivated by discriminatory or retaliatory animus and that Complainant did not show that she was subjected to discrimination or a hostile work environment. 2020000524 3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed without specific comment. 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting 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. 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. 2020000524 4 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. 2020000524 5 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 February 25, 2021 Date