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

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2021000547 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erika H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000547 Hearing Nos. 410-2017-00439X & 410-2019-00543X Agency Nos. ARBENNING16MAY02050 & ARBENNING19JAN00091 DECISION On October 27, 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 September 30, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Cook in the Nutrition Care Division (NCD) of the Agency’s Martin Army Community Hospital in Fort Benning, Georgia. Complainant filed two EEO complaints (July 25, 2016 and February 7, 2019) alleging together that the Agency discriminated against her on the bases of sex (female), disability (Major Depressive Disorder and Generalized Anxiety), and reprisal for prior protected EEO activity (prior EEO complaints and sexual harassment claim) when: 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. 2021000547 2 1. on May 1, 2016, management did not convert her term position to a permanent status; and 2. on December 20, 2018, management denied Complainant reasonable accommodation of reassignment to a different department. The Agency accepted Complainant’s complaints for EEO investigation.2 During the investigation, for claim (1), Complainant stated initially she and two male coworkers (also Cooks) were told that they would be converted from term to permanent, but management later informed her that she had to compete for a permanent position. The Agency later converted Complainant to permanent status on June 26, 2016. During the investigation, management stated that the two other term employees were converted to permanent based on their own disabled veteran status and Complainant provided her husband’s disabled veteran status for her conversion purposes. Management stated that Human Resources subsequently informed it that Complainant could not be converted based on her husband’s status but could be hired with a hiring panel. Management stated that it wanted to hire all three term employees permanently. As to claim (2), Complainant stated that she was placed outside of NCD pending a sexual harassment investigation prompted by her allegation that male coworkers were making inappropriate sexual comments to her. Complainant stated that the matter caused her great stress and she could not return to NCD. She stated the Agency had an obligation to accommodate her and it delayed her reassignment by interpreting her resume too narrowly to find an alternate reassignment position. Complainant stated that she submitted supporting documentation to management on October 19, 2018 for reassignment. Complainant stated that she accepted a GS- 04 Human Resources Assistant position with the Agency effective May 24, 2019. The Agency stated that it conducted a facility-wide search for a reassignment position and could not locate a vacant, funded-position for Complainant based on her resume. It stated that it was not required to create a position. Regarding Complainant’s sexual harassment allegations, the Agency noted that its investigation found the claims unfounded but agreed to reassign Complainant because she said she was unable to work in the NCD area and interact with her coworkers there. At the conclusion of the EEO investigations, the Agency provided Complainant with a copy of the reports of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The assigned AJ issued a Notice of Proposed Summary Judgment, to which both parties responded. On September 17, 2020, the AJ issued a decision without a hearing. 2 In an August 9, 2016 final decision, the Agency dismissed claim (1), pursuant to 29 C.F.R. § 1614.107(a)(5), as moot because the Agency converted Complainant to permanent status on June 16, 2016. Complainant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 0120162843. On February 7, 2017, in a decision for Appeal No. 0120162843, EEOC reversed the Agency dismissal and remanded the matter for processing from the point processing ceased. 2021000547 3 The AJ found that Complainant failed to show any genuine issues of material fact exist, that the Agency’s actions were motivated by discriminatory factors, or that reassignment was the only effective accommodation or that there was a vacant funded position available when she requested accommodation. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. 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 for Complainant. 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. As to claim (1), Complainant did not show that the Agency’s initial inability to convert her to permanent with her two male coworkers was based on improper motives. The initial conversion was based on disabled veteran status. Notably, the Agency converted Complainant to permanent effective June 26, 2016. For claim (2), reassignment is an accommodation of last resort after it is determined that an employee cannot perform the essential functions of her current position, with or without reasonable accommodation, and there are no other effective accommodations that would have allowed Complainant to remain in her position. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA, EEOC No. 915.002 (October 17, 2002). 2021000547 4 Complainant only sought reassignment as accommodation, stating that she could not return to NCD. Notably, the Agency reassigned Complainant to a Human Resources position, outside of NCD, two months later and there was no showing of unreasonable delay. 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. 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. 2021000547 5 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 April 21, 2022 Date