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

Equal Employment Opportunity Commission

Mar 11, 2021

Appeal No. 2020002869 (E.E.O.C. Mar. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fidela B.1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020002869 Hearing No. 430-2017-00087X Agency No. ARBRAGG16APR01196 DECISION On February 26, 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 January 16, 20202, 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. At the time of events giving rise to this complaint, Complainant worked as a Supervisory Contract Specialist and served as a Director at Contracting Command (ACC), Mission and Installation Contracting Command (MICC), 419th Contracting Support Brigade (CSB) at the Agency’s Fort Bragg facility in North Carolina. 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 Timeliness is not an issue; the final Agency decision was delivered to Complainant on January 31, 2020. 2020002869 2 On May 16, 2016, Complainant filed an EEO complaint alleging that she was discriminated against on the bases of religion (Christian), race (African-American), sex (female), and reprisal for prior protected EEO activity by the Brigadier General (RMO31), and subjected to a hostile work environment by the Colonel Commander (RMO2), the Deputy Commander (RMO3), and the Chief Attorney (RMO4) when: 1. from January 2015 to April 30, 2016, Complainant was subjected to continuous harassment and a hostile work environment based on her race and sex by RMO2, RMO3, and RMO4 and they intended to discredit her as an African American supervisor when the following occurred: a. from January 2015 to present, RMO2 and RMO3 denied Complainant the authority to perform her duties to include hiring authority, authority to approve leave without pay and advance leave with pay, and the authority to approve telework for her employees; b. during May 2015, RMO3 stated to Complainant that African American Supervisors cannot hire GS-13 African Americans or promote African Americans. RMO2 and RMO4 were present; c. on January 3, 2016, Complainant was informed by her subordinate, the Supervisor, Contract Specialist (E1) that she (E1) was reporting everything that happens in the department to RMO3 in department meetings. E1 informed Complainant that she would stop providing RMO3 updates; d. on January 3, 2016, E1 informed Complainant that she would stop reporting everything in staff meetings to RMO2 and RMO3. E1 also stated that she would stop providing updates to the 419th CSB, without providing the same updates on MICC Center Bragg Procurement actions to Complainant; e. on or about February 25, 2016, in a joint meeting between MICC Center Bragg Director (Complainant), her Division chiefs, and RMO3, RMO3 informed attendees that he was everyone's supervisor in the meeting and he would not go through the Director (Complainant). RMO3 stated that all work for him; f. on or about February 29, 2010, Complainant's subordinate, the Division Chief (E2), informed Complainant that he asked RMO3 why Complainant was not allowed to perform her job and RMO3 stated that the Command did not trust Complainant to perform her job, so they pulled Complainant's responsibilities to the 419th GSB Commander and Deputy Director's office. E2 told Complainant that this was racism and "You should hire a lawyer"; 3 Responsible Management Official (RMO). 2020002869 3 g. on March 9, 2016, RMO3 directed Complainant to remove a Contract Specialist (E3) from the Procurement system based on credit issues and denied Complainant's request to keep E3 on the Procurement system although the Civilian Personnel Advisory Center (CPAC) Human Resources Advisor, stated that if the employee is a trusted employee he can remain on the system; h. on or about March 9, 2016, Lieutenant Colonels (LTC) LTC1 and LTC2 overheard RMO3 shouting at Complainant. LTC1 stated to LTC2 that RMO3 was yelling at Complainant like she is a dog again; i. on March 23, 2016, during a peer review with Installation Management Command (IMCOM) and MICC staff members present, RMO3 and RMO4 accused Complainant of entering into an illegal agreement (an agreement she had no authority over) with IMCOM; 2. on or about April 4, 2016, after Complainant returned from her appointment at the Garrison EEO office, RMO1 informed Complainant that he was removing her from her position, Supervisory Contract Specialist and Director, NH-1 102-04, MICC, Fort Bragg to procurement Analyst (Technical Director), 419th Contracting Support Brigade (CSB), Fort Bragg, North Carolina. Complainant was forced to retire because she was subjected to a hostile work environment by RMO2, RMO3, and RMO4 (incident a); and, 3. on April 29, 2016, Complainant became aware that RMO1 temporarily detailed her from her position as Supervisory Contract Specialist and Director, NH-1102-04, MICC, Fort Bragg to Procurement Analyst (Technical Director), 419th CSB, Fort Bragg, North Carolina. Complainant believes this was based on reprisal (Prior EEO activity- ARBRAGG16APR01196) (incident b). 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 Agency submitted a motion for a decision without a hearing. 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. 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. 2020002869 4 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. On appeal, Complainant submitted a detailed appellate brief arguing that summary judgment was inappropriate. Despite the detailed arguments, we find that Complainant has failed to establish that such facts were in dispute to warrant a hearing. 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, 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. 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). 2020002869 5 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. 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. 2020002869 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 March 11, 2021 Date