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

Equal Employment Opportunity Commission

Mar 10, 2022

Appeal No. 2021004952 (E.E.O.C. Mar. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elsa S.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004952 Hearing No. 531-2020-4952X Agency No. ARAPG19OCT03927 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 7, 2021 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 Health Experience Analyst, GS-0301-11, at Kirk United States Army Health Clinic located at Aberdeen Proving Ground, Maryland. On December 3, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment based on her race (African American)2 when: (1) on August 23, 2019, Complainant had a meeting with the Lieutenant Colonel (LTC) and the Acting Division Human Resources Chief (HR Chief) to discuss Complainant’s concerns of patient safety, which were not addressed by the Deputy for Clinical Services (DCS) over the previous 18 months; (2) on September 10, 2019, Complainant 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 The Notice of Acceptance included the bases of both race and sex, but Complainant later clarified that race was the only basis of discrimination for her complaint. 2021004952 2 brought concerns to the Major (S1) regarding the Health System Specialist (HSS) sabotaging her employment; (3) on September 12, 2019, Complainant was professionally humiliated in front of a customer by her co-worker, the Deputy Commander for Administration/Chief of Staff (C1); (4) on September 18, 2019, Complainant’s second-line supervisor (S2) issued Complainant a notice that she would be placed on administrative leave until further notice; and (5) from on or about October 2019 to present, HR Chief continued to communicate with Complainant directly and indirectly by phone and email despite her allegation of discrimination against HR Chief. 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 assigned to the matter granted the Agency’s motion and issued summary judgment decision finding that Complainant failed to prove discrimination as alleged. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a discriminatory hostile work environment. In addition, the AJ concluded that there was no evidence that the conduct at issue was based on Complainant’s protected class. More specifically, regarding claim (1), Complainant felt that this incident was harassing because any time HR is present in a meeting, it is for disciplinary reasons, and also because HR Chief was present on the advice of S1 whom Complainant specifically requested not be present. The AJ determined that Complainant failed to bring forward any actual evidence that this meeting, which she requested, involved racial animus, or had anything to do with her race. As to claim (2), Complainant claimed that HSS removed Complainant’s email address from an email allegedly containing information that Complainant needed to perform her duties and was “sabotaging” her employment. Complainant challenged the order in which S1 spoke to the involved parties to gather information. The AJ found that the record demonstrated that, even before meeting with Complainant, S1 instructed HSS to return Complainant to the email list. With respect to claim (3), Complainant alleged that C1 interrupted Complainant and another employee and escorted Complainant to a meeting that Complainant was missing. The AJ noted that the record showed that, like Complainant, two White employees were also summoned to the meeting and the tardiness of one of those employees was publicly noted at that meeting. The other employee was not physically in the building and thus could not be retrieved from her office like Complainant. As to claim (4), Complainant was placed on administrative leave until further notice in order to preserve the integrity of a separate hostile work environment investigation in which Complainant was the accused. Finally, with regard to claim (5), Complainant claimed that HR Chief had a vendetta against her because of Complainant’s race and prior internal complaints. The AJ noted that while Complainant claimed that HR Chief’s tone and demeanor with her were aggressive, according to Complainant’s own admission, it was Complainant who told HR Chief that she could go to hell and “once again cussed her out.” 2021004952 3 The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 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 factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, 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. 2021004952 4 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. 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). 2021004952 5 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 March 10, 2022 Date