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

Equal Employment Opportunity Commission

Feb 23, 2021

Appeal No. 2020000707 (E.E.O.C. Feb. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elaine C.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000707 Hearing No. 420-2019-00207X Agency No. ARREDSTON17FEB00370 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s June 4, 2020 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., 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 order finding no discrimination. BACKGROUND At the time of the events giving rise to this complaint, Complainant was employed by the Agency as a GS-12, Logistics Management Specialist for the Logistics Support Activity located at Redstone Arsenal, Alabama. Her first level supervisor was S1, Supervisory Logistic Management Specialist. Her second level supervisor was S2. On April 7, 2017, Complainant filed a complaint alleging discrimination and harassment on the bases of race (Black), sex (female), and age (over 40) when: A. from June 2016 to the present, S1 asked her questions regarding her retirement plans to include stating “don’t you want to enjoy life, your kids, your husband”; 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. 2020000707 2 B. in December 2016, S1 went by her workstation stating “you will do what I tell you to do” after being told more duties were being added to her workload without training; and C. on January 26, 2017, she received an “excellence” and “3” rating on her performance evaluation for the period of January 1, 2016 through December 31, 2016.2 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 requested a hearing. The Agency submitted a motion for a decision without a hearing, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Regarding claim A, Complainant alleged that in or around December 2016, she and S1 were discussing children and other matters when he asked her, “How long you working? When do you want to retire? Don’t y’all want to enjoy your life?” According to Complainant, this only happened once. Complainant also alleged that, on another occasion, she overheard S1 tell someone that, “[w]hen you give [employees] extra duties, they want to retire.” According to Complainant, sometime before June 2016, she received an email from an Agency official, addressing retirement, and that the email was sent by management to everyone in her division. On another occasion, an email regarding incentives for early retirement was sent to all employees and S1 asked Complainant, as well as other employees, if the email was received. Complainant maintained that S1’s comment about retirement was discriminatory based on her race and sex because she is a Black female and he is a Black male. S1 denied asking Complainant or any other employee, in a one-on-one meeting, about their retirement plans. He stated that, when he first met with the Logistics Management team, to include Complainant, he told them that he was looking forward to retirement so that he could spend time with his family. S1 also stated that he did ask employees to give him notice when they planned to retire so that he could be sure that they received recognition for their service. Regarding claim B, the record indicates that S1 and Complainant had a dispute over a work assignment. In December 2016, S1 told several employees that they were going to have to take on some additional work because two employees were leaving. S1 was addressing: Complainant; C1, a Black female, age approximately 58 or 59; C2, who was a Black male contractor, age unknown; C3, a White female, age over 50; and C4, a White male, age over 60. 2 The record indicates that claim C was dismissed by the EEOC Administrative Judge because Complainant had already filed a grievance on this matter with the Agency pursuant to its negotiated procedures. Complainant has not contested this dismissal on appeal; therefore, claim C will not be discussed further in this decision. 2020000707 3 Complainant expressed concerns about how the additional duties would affect her current work and indicated that she would do the additional work when she was done with her current work. S1, according to Complainant, stated, “Well, you’re going to do what I tell you to do.” Complainant stated that she and S1 got into a discussion that Complainant described as loud and very ugly on both their parts. When Complainant mentioned their current work, S1 indicated that he had a report on what they were doing and that, “you guys are not doing anything . . ..” When C1 spoke up, S1, according to Complainant, “went off on her.” When asked how she was discriminated against based on her race, sex, or age, Complainant only stated that S1 was talking to her. S1 described Complainant as becoming very irate, very aggressive, disruptive and that she kept repeating “We[’re] busy. We can’t handle that.” According to S1, he asked Complainant to come into his office to discuss the matter rather than disrupting the workplace. S1 asked the employees who were part of that conversation to make a written statement regarding the conversation. S1 stated that he wrote up a counseling memo regarding the incident but decided not to give it to Complainant. 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). 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. With respect to claim A, we find that these matters, even if accurately described by Complainant, were not severe or pervasive enough to establish a hostile work environment. See Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). 2020000707 4 Moreover, with respect to claim B, the Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job- related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep't of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. In this case, we find no evidence that would raise a genuine issue of material fact that the actions set forth in claim B involve such discriminatory motives; nor do we find the actions were severe or pervasive enough to subject Complainant to unlawful harassment. CONCLUSION 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 finding no discrimination. 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. 2020000707 5 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. 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. 2020000707 6 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 23, 2021 Date