[Redacted], Irene M., 1 Complainant,v.Christine Wormuth Secretary, U.S. Department of Army, Agency.

Equal Employment Opportunity Commission

Oct 27, 2021

Appeal No. 2020003862 (E.E.O.C. Oct. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irene M.,1 Complainant, v. Christine Wormuth Secretary, U.S. Department of Army, Agency. Appeal No. 2020003862 Hearing No. 410-2017-00214X Agency No. ARLEE16JUN02416 DECISION On June 23, 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 June 1, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Licensed Practical Nurse, GS-0620-06, at the Agency’s Kenner Army Health Clinic at Fort Lee in Virginia. On September 9, 2016, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when, on August 14, 2014, her request to transfer to a different department was denied but, in May 2016, she became aware that White employees were allowed to transfer to different departments. 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. 2020003862 2 Complainant wished to transfer out from the Troop Medical Clinic One (TMC1) to the Active Duty Clinic (ADC). Complainant stated that she met with the Deputy Commander for Nursing (Asian) on August 14, 2014, because of what she claimed was a hostile environment in TMC-1. Report of Investigation (ROI), at 275. In August 2014, Complainant told the Deputy Commander that the main person causing all the stress and anxiety was the Clinical Nurse Officer in Charge at that time, who functioned as her front-line manager (S2). Complainant believed that S2 labeled her as not a team player when Complainant went outside and to upper management regarding unsafe practices. ROI, at 327. Complainant claimed that the Deputy Commander told Complainant that it was only “her perception about the unsafe environment.” In October 2014, the Nurse Practitioner requested that Complainant move with her to a new assignment. Management officials endorsed the transfer, but would need a nurse to swap with Complainant. The Deputy Commander asked for volunteers to swap but no one volunteered. On November 7, 2014, Complainant sent a letter to the Deputy Commander requesting a transfer to ADC with the Nurse Practitioner. The Deputy Commander averred that she evaluated Complainant’s request and consulted with the EEO and Labor Relations offices. The Deputy Commander added that the facility was working under a hiring cap and there were no slots open for her to be moved. Complainant prepared a memorandum for the Union Steward and the Office of Human Resources outlining concerns including unsafe and hostile work environment, high stress levels, and an alleged physical assault on her that occurred in the past year. Complainant later met with the Deputy Commander, HR officials, Complainant’s first-level supervisor (S1), and the Union Steward. The Deputy Commander informed Complainant that there were no LPN positions available in the Active Duty Clinic (ADC) into which Complainant could be reassigned. Officials asked Complainant to allow the new supervisor (S1) the opportunity to fix the environment issues. Complainant acknowledged that she agreed to give S1 a chance to improve the work environment. Complainant also acknowledged that S1 made an effort to improve the working conditions; however, “it was in vain.” Complainant made no further reports of a hostile work environment and did not ask to be reassigned after December 2014. ROI at pp. 19, 280, 365, 369, 387-388, and 424. Management stated that no further discussions with Complainant were held regarding reassignment. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion and issued a summary judgment decision finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. 2020003862 3 CONTENTIONS ON APPEAL On appeal, Complainant maintains the AJ erred in entering judgment because there were genuine disputes of material fact and credibility. Specifically, she argues the Agency offered inconsistent reasons and lied when it said she could not be transferred because there were no vacant positions. Accordingly, Complainant requests that the Commission reverse the final order. 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. Here, however, Complainant has failed to establish such a dispute. The Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to rebut. Agency officials stated that there were no available LPN positions to which Complainant could be transferred and that it was required to comply with a hiring cap. Complainant failed to show that the Agency’s reasons were pretextual. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020003862 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). 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. 2020003862 5 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 October 27, 2021 Date