[Redacted], Golden L., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2020000577 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Golden L.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000577 Hearing No. 430-2018-00265X Agency No. ARBRAGG17MAY01714 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 16, 2019, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue is whether the Administrative Judge properly issued a decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her sex or in reprisal for protected EEO activity. 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. 2020000577 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Family Readiness Support Assistant at the Agency’s 92nd Civil Affairs Battalion in Fort Bragg, North Carolina. On November 4, 2016, Complainant requested an Agency van and driver for December 6, 2016, to pick up toys for a toy drive. Report of Investigation (ROI) at 459. However, on November 28, 2016, Complainant went to pick up the toys, without a driver, and was involved in an accident in an Agency van on the return trip, at approximately 10:45 p.m. ROI at 274. On December 1, 2016, Complainant submitted a request for six hours of compensatory time for November 28, 2016. Complainant’s then first-line supervisor (S1) (male) denied Complainant’s request because he was not informed of the need to work extra hours until later that evening; there was no mission requirement for Complainant to work beyond her tour of duty; and Agency policy states that requests for compensatory time need to be made at least 48 hours in advance. ROI at 305-7. On April 13, 2017, S1 issued Complainant a counseling memo on her performance. S1 stated that he was currently rating Complainant as Needs Improvement in the critical element of Perform a Variety of Office Automation/Clerical Functions. ROI at 167-9. On or about May 5, 2017, S1 issued Complainant a Notice of Proposed Five-Day Suspension for failure to follow instructions when Complainant did not request compensatory time 48 hours in advance on November 28, 2016. S1 noted that he considered Complainant’s failure to follow the proper procedures that had already been scheduled for Complainant to pick up the toys, with an Agency driver, on December 6, 2016, as an aggravating factor. S1 stated that had Complainant gone as scheduled during normal duty hours on December 6, 2016, she most likely would have avoided the serious late-night accident. ROI at 243-4. On June 9, 2017, Complainant received a performance evaluation, with an overall rating of “3.” ROI at 240-1. On July 19, 2017, Complainant’s new first-line supervisor (S2) (male) issued Complainant a Reprimand for Failure to Follow Instructions. S2 stated that on June 11, 2017, Complainant sent a text message to an acting supervisor to inform him that she had jury duty the following day.2 S2 stated that Agency policy requires that employees notify supervisors as far in advance as possible for court leave. S2 added that Complainant did not set out-of-office notifications or cancel a scheduled meeting due to the jury duty. ROI at 186-7. On August 22, 2017, the Battalion Commander (BC) (male) informed Complainant that the investigation into her vehicle accident was completed and that his decision on the proposed 5- day suspension would no longer be held in abeyance, and it would be issued in the near future. ROI at 188. 2 S2 stated that he was on leave at the time, and he was informed upon his return that Complainant called the acting supervisor to inform him that she had jury duty the following day. ROI at 675. 2020000577 3 On October 16, 2017, BC issued his decision to sustain the proposed 5-day suspension. BC noted that Complainant was given opportunities to respond to the proposal and she declined to reply. ROI at 342-3. EEO Complaint On June 22, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her sex (female) and in reprisal for prior protected EEO activity when: 1. on April 13, 2017, Complainant was issued a memorandum for record, for a Needs Improvement with regards to performing a variety of office automation/clerical functions; 2. on May 5, 2017, Complainant was issued a Notice of Proposed Five-Day Suspension; 3. on June 8, 2017, Complainant was issued a successful rating in blocks 1-5 in Part IV(b), and an overall rating of “3” in Part VI on her Civilian Performance Evaluation Report, DA Form 7223 for November 1, 2016, through October 31, 2017; and 4. on July 19, 2017, Complainant was issued a Notice of Reprimand for failure to follow Agency policy; Complainant also alleged that the Agency subjected her discrimination and harassment based on her sex and in reprisal for prior protected EEO activity when: 5. on August 22, 2017, Complainant was issued a Notice of Proposed Five-Day Suspension- Decision held in Abeyance, dated August 21, 2017; and 6. on October 17, 2017, Complainant was issued a Notice of Proposed Five-Day Suspension-Decision, dated October 16, 2017. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s November 1, 2018 motion for a decision without a hearing and issued a decision without a hearing on August 7, 2019. As an initial matter, the AJ found that Complainant did not raise any genuine issues of material fact; the investigative record was complete; and Complainant had ample notice with an opportunity to respond to the Agency’s motion for decision without a hearing. The AJ found that Complainant did not establish a prima facie case of discrimination based on sex or in reprisal for protected EEO activity. Specifically, the AJ noted that Complainant stated that she felt retaliated against for the November 28th accident, which the AJ indicated was not a protected basis. 2020000577 4 The AJ then found that even if Complainant could establish a prima facie case of discrimination, there was no evidence to show that the Agency’s nondiscriminatory reasons for its actions were pretextual. The AJ also found that Complainant did not show that she was subjected to harassment because there was no evidence that the incidents occurred because of Complainant’s protected bases, or that they were sufficiently severe or pervasive to cause a hostile or offensive work environment. 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. CONTENTIONS ON APPEAL Complainant’s Contentions Through her attorney, Complainant argues that the AJ improperly issued a decision without a hearing because she “ignored countless disputed issues, misstated relevant facts, and employed an erroneous legal standard to analyze Complainant’s case of sex and reprisal discrimination.” Complainant asserts that there are genuine issues of material fact, such as “confusion as to the Agency’s reason for the suspension.” Complainant also states that she did not have the opportunity to fully develop the record, and that the EEO investigator did not interview “several material witnesses.” Complainant argues that credibility determinations are needed because S1 lied in a sworn statement about not knowing where Complainant was travelling on the night of her accident, and S1 “sent Complainant an email implying that the car wreck…would not have occurred if a male soldier drove the vehicle.” Complainant asserts that a witness (W1) stated that S1 “made statements on females in the office space and how they need to be treated differently, are more sensitive, and that [BC] made inappropriate comments in the office.” Complainant states that she established a prima facie case of discrimination based on sex and in reprisal for protected EEO activity, and that the Agency’s reasons were pretext for discrimination. Complainant alleges that her supervisors were unable to properly articulate the reason for her suspension; and that S1 stated that he “did not know the location Complainant was travelling to pick up toys when she was involved in the wreck,” but there are emails that show that S1 was informed of the location in an email prior to Complainant’s departure. Regarding Complainant’s harassment allegation, she argues that the AJ’s determinations that there was no finding of causation and that the Agency’s actions were not sufficiently severe or pervasive to cause a hostile work environment were due to an erroneous interpretation of relevant facts and an improper application of the relevant law. Complainant requests that the Commission remand her complaint for a hearing. 2020000577 5 Agency’s Contentions The Agency argues that summary judgment was appropriate in this case. The Agency asserts that Complainant’s contention that she was unable to fully develop the record are untrue; specifically, Complainant chose not to engage in discovery and did not respond to the Agency’s Motion for Summary Judgment. The Agency also argues that Complainant alleged that the AJ used an erroneous legal standard to analyze her claims but only offered unsupported opinions and speculations. The Agency asserts that Complainant provided no evidence to support her claims of discrimination and harassment, aside from her subjective conclusions and belief. The Agency notes that management officials provided legitimate nondiscriminatory reasons for their actions, and that Complainant had not shown that they were false or pretextual. The Agency argues that, contrary to Complainant’s assertion that the Agency was unable to articulate the reason for her suspension, the management officials provided a detailed account of Complainant’s continuous violations that ultimately warranted a suspension. The Agency also argues that there is no evidence that the complained of actions were discriminatory in nature; notably, Complainant admitted that the claims were not based on her sex, and she stated that she was retaliated against for her vehicle accident. The Agency requests that the Commission affirm its final order adopting the AJ’s decision. STANDAR OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). 2020000577 6 ANALYSIS AND FINDINGS Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). On appeal, Complainant argued that the record was not complete because the EEO Investigator did not interview “several material witnesses.” However, Complainant did not identify these witnesses, nor describe what testimony they could provide. In addition, the record shows that the EEO Investigator noted that Complainant identified ten witnesses, and he contacted three; one witness failed to respond; and he decided not to contact the rest because the expected testimony, as described by Complainant, would have been redundant. ROI at 777. We also note that Complainant had an opportunity to engage in discovery during the hearing process and she chose not to respond to the Agency’s Motion for Summary Judgment. We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argued that there were material facts in dispute, such as “confusion as to the Agency’s reason for the suspension.” Complainant alleged that the Agency “alternat[ed] between justifying the suspension for her time and attendance or for failing to contact [an individual who had a scheduled meeting with Complainant] on a day Complainant was scheduled to be off while serving jury duty.” However, we note that the notices regarding Complainant’s suspension clearly show that it was related to the circumstances surrounding the events of November 28, 2016, and it was not related to issues when Complainant served on jury duty. 2020000577 7 Complainant also argued that a hearing is necessary because a credibility determination is needed because S1 “lied” when he stated that he “did not know the location Complainant was travelling to pick up toys when she was involved in the wreck,” but there are emails that show that S1 was informed of the location in an email prior to Complainant’s departure. However, the evidence does not support Complainant’s assertion that S1 “lied.” The record shows that Complainant copied S1 on her email request for an Agency van and driver to travel to Shelby, North Carolina for December 6, 2016. ROI at 459. However, S1 stated that when Complainant informed him that she would be gone “for a couple of hours” to pick up the toys on November 28, 2016, he incorrectly assumed that she would be going to local destinations. ROI at 620. In a sworn statement, Complainant stated that on November 28, 2016, at around 1:30 p.m., she was informed that a van was available for her, and she “closed out her day.” On Complainant’s way out, she informed S1 that she would be “back in a few hours.” Complainant noted that she arrived at the first location at approximately 6:15 p.m. ROI at 274. We note that Complainant’s statement that she informed S1 that she would be “back in a few hours” supports S1’s misunderstanding that Complainant would not be traveling far if she planned to return in approximately three hours. S1 noted that Complainant’s trip actually took four hours each way, which is corroborated by Complainant’s own timeline. ROI at 623. We find that, while S1 was informed in the email that Complainant planned to pick up toys in Shelby on December 6, 2016, it is plausible that he believed that Complainant had changed the pick-up locations based on her statement that she would be “back in a few hours,” which is very different from a trip that would take at least eight hours. Complainant also alleged that S1 sent her an email implying that the accident would not have occurred if a male soldier had been driving the van, but she did not provide a copy of this email, nor cite to where it can be located in the record. In addition, while W1 stated that comments were made that females “need to be treated differently” and were “more sensitive,” she did not specify who made those comments. W1 stated that BC made “inappropriate comments,” but only gave an example of his reciting lyrics to a rap song, “to the sweat drip down my balls, to all these bitches crawl, to all skit skit motherfuckers.” Even taking W1’s assertions as true, we do not find a need for a hearing to address credibility issues because W1 also stated that she did not hear Complainant’s supervisors make any discriminatory comments about Complainant’s sex or prior EEO activity. ROI at 757. In sum, we find that the record was adequately developed; Complainant did not raise any genuine disputes of material facts; and Complainant did not show a need for credibility determinations. As such, we find that the AJ properly issued a decision without a hearing. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). 2020000577 8 For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and in reprisal for prior protected EEO activity, we find that the Agency proffered legitimate nondiscriminatory reasons for its actions. For claim 1, S1 stated that he issued a mid- performance counseling to Complainant regarding an area that needed improvement. S1 stated that he brought examples to show where Complainant had formatting issues, mismatched fonts, and a poorly written email. ROI at 607, 612-3. Regarding claim 2, S1 stated that he proposed Complainant’s suspension for Failure to Follow Instructions related to the vehicle accident that occurred on November 28, 2016. ROI at 724. S1 stated that his decision was based on the “15-6 investigation,” which focused on whether Complainant had permission to use the vehicle. S1 added that it was not necessary for Complainant to drive late at night to pick up the toys. ROI at 617-8. For claim 3, S1 stated that Complainant was given “successes,” which was similar to her previous performance ratings. ROI at 626. Regarding claim 4, S2 stated that he issued the reprimand because Complainant was not in compliance with the Agency’s policy to notify her chain of command as soon as possible of her jury duty. S2 stated that, while he was on leave at the time, he learned that Complainant called the acting supervisor to inform him that she had jury duty the following day. ROI at 675. S1 stated that Complainant claimed that she spoke with him on May 8, 2017, to inform him about her jury duty summons; however, S1 was on leave that day and not even in the country. ROI at 631-2. For claim 5, BC stated that he held the decision on the proposed suspension in abeyance pending the outcome of the investigation regarding the damage to the Agency vehicle. ROI at 655. Regarding claim 6, BC stated that he decided to suspend Complainant based on the information in the “15-6 investigation.” BC stated that he considered the relevant factors, such as the nature of the seriousness of the offense and Complainant’s past disciplinary record. BC noted that the suspension was progressive discipline, following Complainant’s prior counseling. ROI at 749. 2020000577 9 We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that her supervisors were unable to properly articulate the reason for her suspension, and that S1 lied. However, we note that S1 and BC provided their legitimate, nondiscriminatory reasons for Complainant’s suspension, and we addressed Complainant’s allegation that S1 lied, above. As such, we find that Complainant did not establish that the Agency discriminated against her based on her sex or in reprisal for prior protected EEO activity. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of her alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected her to harassment based on her sex or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her sex or in reprisal for protected EEO activity. 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. 2020000577 10 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. 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. 2020000577 11 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation