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

Equal Employment Opportunity Commission

Oct 26, 2021

Appeal No. 2020003940 (E.E.O.C. Oct. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jaleesa P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003940 Hearing Nos. 420201900293X, 420201900376X Agency Nos. ARREDSTON18AUG03114, ARREDSTON18NOV04818 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s May 27, 2020 Final Order concerning a consolidated 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. BACKGROUND During the relevant time frames, Complainant was employed by the Agency as a Human Resources (“HR”) Specialist, GS-12, at the Agency’s Civilian Human Resources Agency (“CHRA”), Civilian Personnel Advisory Center ("CPAC") at Redstone Arsenal, Alabama. On September 27, 2018, and February 15, 2019, Complainant filed formal EEO complaints (“Complaint 1” and “Complaint 2”) alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and reprisal (prior protected EEO activity).2 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 Complaint 1; Agency Case Nos. ARREDSTON17APR01343 (“2017 Complaint,” discussed infra) and ARREDSTON06MAR01496 (Feb. 28, 2006) (allegation of nonselection resolved by settlement agreement, S3 named management official). 2020003940 2 The complaints, which were consolidated at the hearing stage, raised the following claims: Complaint 1: Hearing No. 420201900293X, Agency No. ARREDSTON18AUG03114 a. On June 21, 2018, Complainant’s second level supervisor (“S2”) gave her a performance rating of “3, Fully Successful” for the annual performance period of April 1, 2017, through March 31, 2018 (“FY18”), and, b. On June 28, 2018, S2 denied Complainant’s request for reconsideration of her FY 2018 performance rating. Complaint 2: Hearing No. 420201900376X, Agency No. ARREDSTON18NOV04818 a. On October 4, 2018, Complainant’s first level supervisor (“S1”) included inaccurate and false performance elements on her Mid-Year Review for FY19 that were on Complainant’s previous evaluation period that ended on March 31, 2018, and, b. On January 16, 2019, S1 issued Complainant a Letter of Counseling (“LOC”) regarding conduct, timeliness, and accuracy of work products. The Agency accepted the complaints and conducted an investigation. The evidence developed during the investigation of the complaints shows that as an HR Specialist for the Staffing Branch, the bulk of Complainant’s responsibilities entailed advising supervisors and managers seeking to fill vacancies and create new positions within their organizations. HR Staffing Specialists at the GS-12 level were expected to be able to explain complex regulations and facilitate ongoing hiring processes, research position requirements and ensure all staffing actions comply with federal regulations. The position also entailed evaluating applicant qualifications to determine whether they met the technical requirements for various positions. All staffing requests were entered into the RPA Tracker. Any time an action was taken on the request, the assigned HR Specialist would enter notes in the RPA Tracker, to allow the requesting organizations updated information on the status of their requests. Complainant and her colleagues were required to note updates in the RPA Tracker every week, which were then reviewed by Management. On July 3, 2017, Complainant had filed a previous EEO complaint (“2017 Complaint”), which was resolved through mediation. The 2017 Complaint alleged that between February and May 2017 the former director and a former branch chief (Complainant’s first and second level supervisors at the time), and others, created a hostile work environment for Complainant based on her use of FMLA leave, as well as race, color, sex, and reprisal for prior protected EEO activity. 2020003940 3 Complainant’s third level supervisor (“S3”) (African American, female), the CHRA Director, GS-15 (also referenced as the Director, Redstone CPAC) was involved with Complainant’s underlying protected EEO activity for her 2017 reprisal claim. Specifically, Complainant repeatedly attempted to report the harassment to S3, and finally met with S3 in April 2017 to discuss harassment and racism in the workplace. Believing S3 would not take any action to stop the harassment, Complainant initiated EEO contact for her 2017 Complaint. Complainant also recounts that S3 provided witness testimony for her 2017 Complaint and was part of the relief that was sought to resolve the matter. Complaint 1 In the Fall of 2017, following the resolution of her 2017 Complaint, Complainant was assigned to Recruitment/Placement in the Staffing Branch, part of the Staffing and Classification Division of CHRA.3 S2 (African-American, female), a Supervisory HR Specialist, GS-14, and the Staffing and Classification Division Chief, became Complainant’s second level supervisor. Due to high employee turnover, and a staffing shortage, S2 was also one of multiple Supervisory HR Specialists to act as first line supervisor to Complainant and the other GS-12 HR Staffing Specialists for FY18. On June 21, 2018, S2 met with Complainant and provided her with her FY 18 annual performance rating. Complainant, along with all other GS-12 HR Specialists within CPAC, was subject to annual and mid-term performance ratings based on six elements: (1) Customer Service (2) Quality, (3) Fill Time Production, (4) Routine Production/ Product Updates and Delivery, (5) Civilian Human Resource Advisory and (6) Training and Development. Elements could be scored “5, Outstanding,” “3, Fully Successful,” or “1, Unacceptable.” An overall rating was based on the average score of the six elements. For FY18, Complainant’s rating of record was “Fully Successful,” as she scored a 3 on all of her elements except for Element 2, where she scored a 5. For FY17, Complainant’s rating of record was “Outstanding,” as she scored a 5 in all of her elements except for Element 2, where she scored 3. However, there were only 5 elements in the FY17 performance appraisal, and they were slightly different than the metrics used in FY 18. Complainant also had different rating officials. Complainant believed she deserved a “5, Outstanding” for FY 18, based on her especially challenging workload that year. In addition to managing her assignments, Complainant inherited requests from a coworker who retired, as well as open requests from coworkers. Several assignments came with significant errors, including the omission of a technical requirement for a position, and, due to misinterpretation of a regulation, recommending an unqualified applicant for a position. Complainant believed the “F3, Fully Successful” penalized her for mistakes that she didn’t make. She also noticed that a few of her colleagues who received over all ratings of “5, Outstanding” were responsible for the errors in the inherited assignments. 3 S2 testifies that Complainant joined her branch in September or October 2017, and Complainant testifies that she did not start working in the Staffing Branch until November 2017. 2020003940 4 Two witnesses (“W1” and “W2”), both GS-12 HR Specialists testified that based on their first- hand knowledge of Complainant’s work and customer service, and of the assignments she received, Complainant should have been rated “5, Outstanding” for FY 18. During the relevant time frame, W1 (African-American, female), Complainant’s coworker since 2001, worked in the same organization, with S2 and S3 as her second and third level supervisors, but on a different team, with a different first level supervisor/FY 18 rating official than Complainant. However, from her years of working with Complainant directly off and on, W1 described her as an “expert staffing specialist [who others] on her team called upon for assistance.” W2 (African American, male, prior EEO activity), Complainant’s coworker since 2009, had 10 years of experience working with Complainant in staffing, and they worked in the same branch from 2016 through 2018. W2 observed that Complainant’s “customers trust her advice. Co-workers at her level GS- 12 go to her for knowledge. She is eager to help and ensure it is correct.” W1 and W2 testified that they found Complainant’s rating of “3, Fully Successful” hard to believe. The witnesses also attributed Complainant’s lowered rating to S2’s lack of familiarity with her work, and to the sheer volume of work Complainant was expected to manage. W1 noted that S2 was not present to observe the extent to which Complainant is asked questions and relied on by others on her team. W2 explains that due to a staffing shortage and employee turnover, which, in his opinion resulted from Redstone CPAC Leadership’s unfair treatment of employees, Complainant had multiple supervisors during the rating period. To W2’s knowledge, S2 did not oversee Complainant’s performance, as she was not Complainant’s rating official throughout the year. This observation is consistent with Complainant’s mid-year transfer to S2’s branch, and her FY18 Performance review, which only lists S2 as her rating official for the annual review at the end of the rating period. W1 and W2 corroborated Complainant’s assertions about the challenges arising from her inherited workload, and W2 testified, “Complainant immersed herself in numerous HR processes and was given three different organizations, in addition to her current workload, after an HR Specialist retired.” Another witness (“W3”) (African American, female), an HR Specialist and Complainant’s coworker since 2004, who reported to S2, and S3 during the FY 2018 rating period, testified that she experienced similar conduct from S2. W3 recounted how S2 continued to assign her staffing work from July 2018 through January 2019, even after W3 notified S2 multiple times and provided supporting documentation, that she was on a full-time detail assignment. At the end of the year, S2, the subject of a recent EEO Complaint filed by W3, obtained permission from S3 to rate W3’s work, including for her detail period. W3 recounts that like Complainant, she received a “3, Fully Successful” even though S2 was aware that the staffing assignments were in addition to a full time workload. Also similar to Complainant, W3 alleges that S2 disregarded many of her accomplishments over the past year or did not acknowledge the complexity of her work when assigning the “3, Fully Successful” rating. On June 26 and 28, 2018, Complainant provided S2 with written acknowledgement of the June 21, 2018 face to face meeting, then notified S2 that she intended to request reconsideration of her FY18 Performance Rating through “appropriate channels.” 2020003940 5 When Complainant submitted a number of emails evincing positive customer feedback in FY 18, prior to S2 becoming her first level supervisor, S2 declined to consider them. When Complainant submitted her completed reconsideration request to S2 on July 10, 2018, S2 informed Complainant on July 13, 2018, that under the Agency’s administrative grievance policy, the request was untimely and would not be considered. Complainant contends that she was never informed of a deadline. S3 contends that she had “no knowledge or bearing” on the issue of Complainant’s request for reconsideration, reasoning that if S2 determined Complainant’s submission to be untimely, it would not have reached her desk. Complainant alleges that S3 ignored and/or did not respond to her email requesting a meeting to discuss reconsideration. Complaint 2 On July 22, 2018, S1 (African American, female) a Supervisory HR Specialist, GS-13, began working CPAC as the Staffing Branch Chief, and Complainant’s supervisor. S1 was Complainant’s rating official for FY19, and she reported to S2 as her first level supervisor. On October 4, 2018, Complainant met with S1 to discuss her Mid-Term Review for FY19 and discovered that S1’s evaluation of her performance included her “inherited” assignments from her FY18 review. Complainant argued that she should not be evaluated based on these assignments because they did not represent her work product. Complainant alleges that she spent a substantial amount of time researching corrections and responding to grievances raised as a result of her colleagues’ past errors. Complainant further alleges that S1 responded to her assertions by taking out a printed copy of an email from S2 instructing her to include the assignments on Complainant’s performance rating form. S1 also reasoned that the assignments were still open, so they were included. Complainant testifies, “[S1]’s mid-point review was strictly personal in nature… I will stand by my professionalism… I am not new to working as a HR Specialist. I know how to manage my time when it comes to my work.” Between October 9 and December 18, 2018, S1 drafted seven Memorandums for the Record (“MFRs”) documenting instances where she perceived deficiencies in Complainant’s conduct, performance, and timeliness. A few of the MFRs simply reveal that S1 and Complainant had different approaches to handling workloads. Other MFRs documented instances where S1 counseled Complainant on her assigned requests that were delayed or subject to grievance actions. The MFRs also state that on October 17 and November 14, 2018, during their biweekly meeting, S1 counseled Complainant on (unspecified) “inconsistencies” in her RPA Tracker notes. They reveal that S1 disputes Complainant’s explanation of a heavy work load, and believes Complainant simply feels she should not have to compete “inherited” assignments. Along with the MFRs, S1 testified to her ongoing concerns about Complainant’s performance, referencing emails she sent to Complainant on November 28, 2018 and December 14, 2018 listed several specific assignments that hadn’t been updated in accordance with the weekly policy, and recalling that Complainant is “always late” and received verbal counseling and an email addressing her tardiness. 2020003940 6 On December 20, 2018, S1 became aware that Complainant filed Complaint 1, naming S2 as a responding management official because she was contacted by an EEO investigator to be interviewed as a witness. S2 testifies that she became aware of Complaint 1 in December 2018, when S1 told her about it. The EEO investigator interviewed S2 about Complaint 1 in January 2019. S3 testified that she was notified of Complaint 1 in January 2019, when she was contacted by the EEO investigator.4 Contrary to Complainant’s assertions, neither S1, nor S2, indicated any knowledge of the 2017 Complaint, as both testified that they were unaware of Complainant engaging in any EEO activity prior to Complaint 1. S3 testified that she “may” have provided testimony or Complainant’s 2017 Complaint because she is a supervisor but could not recall. On January 16, 2019, S1 issued Complainant a Letter of Counseling (“LOC”) regarding conduct, timeliness, and accuracy of work products. The LOC did not constitute discipline and was not placed in Complainant’s personnel file. Part 2(a) of the LOC lists several assignments where Complainant was the servicing HR Specialist, and she had not properly updated the RPA Tracker for over two weeks. Parts 2(b) through 2(f) identified specific requests which were delayed due to mistakes S1 attributed to Complainant. The requests identified in 2(b) and 2(c) concerned applicants who filed grievances over their nonselection for positions assigned to Complainant. Complainant credits her colleagues originally assigned to the request with causing the applicants to pursue grievances and argues that they should have received LOCs as well. However, the LOC cites emails and RPF Tracker records to show how Complainant’s actions (or inaction) over a period of months contributed to the applicants’ decision to file grievances. While the LOC concedes that Complainant “inherited” the requests identified in 2(d), 2(e) and 2(f) from a colleague who had since left the Agency, it asserts that once they were assigned to her, Complainant took no action on any of these complaints for a period of months. Complainant attributes all of the delays to her workload and alleges that her coworkers have similar performance issues due to the staffing shortage, yet they were not held to the same standard. According to the LOC, S1 reassigned the requests identified in 2(d), 2(e) and 2(f) to Complainant’s coworkers. In both the LOC and her MFRs, S1 indicates frustration, and a perception that the reason Complainant was not completing her assignments in a timely matter was due to a sense that she should not have to complete “inherited” assignments. Complainant vehemently denies this, offers copious examples of variables in the staffing process that block timely completion, and explains that with respect to her inherited cases in particular, she had to correct prior errors and address grievances arising from her coworker’s actions. To the extent Complainant argues that her workload precluded her from timely completing her assignments, according to her MFRs S1 rejects this possibility, without explanation. 4 Complainant initiated EEO contact for Complaint 2 in November 2018, but there is no evidence that S1, S2, or S3 knew about Complaint 2 during the time frames relevant to her reprisal claim. 2020003940 7 After its investigation into the complaints, 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. Over Complainant’s objection, the AJ subsequently issued a decision by summary judgment in favor of the Agency on April 22, 2020. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged in both of her complaints. The instant appeal 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). 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 in Complainant’s favor. On appeal, Complainant argues, without any further explanation, that “Management’s testimony was a pretext to disguise the discrimination in question.” While questions of credibility can, in some instances create a question of fact sufficient to overturn summary judgment, in light of the documentary evidence supporting the Agency’s legitimate nondiscriminatory reasons, Complainant’s statement alone does not warrant a reversal of summary judgment. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120140054 (Sept. 23, 2014), Weinstock v. Columbia Univ., 224 F.3d 33 (2nd Cir. 2000) (“At summary judgment stage . . . unsupported allegations do not create a material issue of fact”). 2020003940 8 Disparate Treatment To prevail in a disparate treatment claim, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder 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). Prima Facie Case - Race and Sex Discrimination To establish a prima facie case of disparate treatment on the bases of race and sex, Complainant must show that (1) she is a member of a protected class, (2) she was subjected to an adverse employment action concerning a term, condition, or privilege of employment, and (3) she was treated differently than similarly situated employees outside her protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep’t of Def., EEOC Appeal No. 0120070257 (April 14, 2008), Saenz v. Dep’t of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998), Trejo v. Soc. Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009). It is well established that in order for comparative evidence relating to other employees to be considered relevant, all relevant aspects of the employees' work situation must be identical or nearly identical, i.e., that the employees report to the same supervisor, perform the same job function, and work during the same time periods. See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006) citing Anderson v. Dep’t of Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003), Stewart v. Dep’t of Def., EEOC Appeal No. 01A02890 (Jun, 27, 2001), Jones v. United States Postal Serv., EEOC Appeal No. 01983491 (Apr. 13, 2000). In order to be considered similarly situated, the employee(s) with whom the complainant is comparing themselves must be similar in relevant aspects, such as conduct and performance, so that it would be expected that they would be treated in the same manner. Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) request for reconsideration denied, EEOC Request No. 05A20020 (Dec. 28, 2002). Regarding Complaint 1, Complainant identified four similarly situated comparator employees with S2 as their supervisor and rating official, and S3 as their higher level rating official, yet unlike Complainant, all received a FY18 Performance Rating of “5, Outstanding.” 2020003940 9 However, all of the proffered comparators were the same sex as Complainant, and three of the four were also the same race as Complainant. Even if they received favorable treatment, Complainant cannot claim that the reason she was not rated “5, Outstanding” was because she is female and African American. Complainant offers no comparator evidence, or any other evidence (aside from bald statements) that race and/or sex were factors in S2’s decision not to accept Complainant’s request for reconsideration of her “3, Fully Successful” rating. As for Complaint 2, Complainant identifies three similarly situated comparators who she alleges were treated more favorably despite engaging in conduct and exhibiting performance deficiencies that S1’s LOC only attributed to Complainant. Among other things, Complainant argues that she was penalized for delays and mistakes when S2 allegedly directed S1 to include certain assignments from FY18 in her FY19 Mid-Year Review, and S1 later issued the LOC, while the comparator employees, who contributed to the delays and were responsible for the mistakes, were not held similarly accountable. As with Complaint 1, we are prevented from attributing race and sex to the unfavorable treatment Complainant experienced because some of the comparators who were treated favorably shared Complainant’s race and sex. On appeal, Complainant provides no evidence that would indicate a question of fact exists over whether sex or race was a factor in the Agency’s actions in Complaints 1 and 2. However, we note that the record is not clear on whether the “favored” comparator employees Complainant identified engaged in prior EEO activity. Therefore, the proffered comparator evidence cannot rule out reprisal as motivating factor. Likewise, Complainant argues both favoritism and retaliation for prior EEO activity as motivating factors for the alleged adverse actions. Prima Facie Case - Reprisal for Prior Protected EEO Activity Complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity, (2) the Agency was aware of the protected activity, (3) subsequently, she was subjected to adverse treatment by the agency, and (4) a nexus exists between the protected activity and the adverse treatment. See Hochstadt v. Worcester Found. for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), see also Kristy E. v. Dep’t of the Interior, EEOC Appeal No. Appeal No. 0720120037 (Oct. 31, 2013) citing Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Alternately, Complainant may establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). For instance, temporal proximity between an employer's knowledge of protected activity and an adverse action is sufficient evidence of causality to establish a prima facie case of reprisal if such temporal proximity is "very close." Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120072556 (Feb. 26, 2009) citations omitted, see also, Complainant v. Dep't Of Housing & Urban Dev., EEOC Appeal No. 01A54280 (Sept. 22, 2005) (an inference of retaliation arises given the temporal proximity, and 2020003940 10 stating that additional proof of causation is not required), Complainant v. United States Postal Serv., EEOC Appeal No. 01A04472 (Sept. 14, 2001) (stating that "the causal connection may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred"). For Complaint 1, and Claim 2(a), Complainant has not satisfied the requirements under prong 2 of the reprisal analysis. According to their sworn affidavit testimony, neither S1, nor S2 became aware that Complainant engaged in prior EEO activity until December 20, 2018, when they were notified about Complaint 1. Complainant has not provided any evidence that a question of fact exists over when S1 and S2 became aware that she engaged in prior protected EEO activity. As Complaint 1 and Claim 2(a) allege retaliatory actions that occurred prior to December 20, 2018, Complainant fails to establish a prima facie case for reprisal for these claims. The alleged retaliation in Claim 2(b), the LOC, occurred about a month after S1 became aware of Complainant’s EEO activity related to Complaint 1. Assuming, arguendo, that the temporal proximity was sufficiently close to create an inference of retaliatory motive, the record contains ample evidence demonstrating that S1 initiated the LOC months before she became aware of Complaint 1. Along with the seven MFRs, S1 testified in the record that in or around September or October 2018, she sought guidance from another Supervisory HR Specialist, GS-13 ,(“S4”) (African-American, male, prior EEO activity witness), who was also within S3’s chain of command, but worked in the Employee Relations Branch. S4 provided testimony confirming that S1 inquired about issuing the LOC well before December 20, 2018. S4 initially recommended that S1 verbally counsel Complainant, then consider the LOC as a measure of progressive discipline. After attempting to counsel Complainant, as documented in the MFRs, S1 drafted the LOC. S4 testified that he reviewed the LOC and confirmed that it comported with standard policies and procedures before S1 issued it to Complainant. Likewise, assuming, arguendo, that the record supported Complainant’s alternate (unsupported) grounds for reprisal, that S1 and S2 were aware of, and did not approve of, her 2017 Complaint, Complainant cannot establish the nexus between this EEO activity and her claims of retaliation in Complaints 1 and 2. The alleged retaliatory acts in Complaints 1 and 2 occurred over a year after the 2017 Complaint was resolved. In other words, the temporal proximity to the alleged retaliation in Complaints 1 and 2 is not “very close.” S1 and S2 had no involvement in the 2017 Complaint, and if they were aware of it, if left unexplained, Complainant’s protected EEO activity related to the 2017 Complaint, considered with the alleged retaliatory acts in Complaints 1 and 2 does not reasonably give rise to an inference of retaliation. Reprisal vs. Favoritism It is well established that favoritism, although unfair, does not necessarily establish a violation of laws prohibiting discrimination in employment. Jenkins v. Dep’t of Interior, EEOC Request No. 05940284 (Mar. 3, 1995), see, e.g. Riley G. v. United States Postal Serv., EEOC Appeal No. 0120182738, (Oct. 4, 2019) (complainant’s argument that another employee received favorable treatment by the supervisor because that employee “is extremely liked by [Supervisor] and she 2020003940 11 chooses not to discipline him for his many latenesses” alleged favoritism, and did constitute evidence that complainant received less favorable treatment because of his protected classes). Markey v. Dep’t of Transportation, EEOC Appeal No. 0120081150 (Jul. 22, 2009) (reporting and voicing opposition to favoritism in decision-making by supervisors and management, is not protected under the EEO statutes). Complainant opines that S1, as a new supervisor, felt she had to “make an example of” someone and chose Complainant to be the example, over her “favored” employees. W1, W2 and W3 all describe a culture of favoritism among CPAC Management, and attribute Complainant’s and their own lowered FY18 Performance Ratings, to retaliation for “speaking up,” and/or filing EEO complaints. According to W1, “once you file [an EEO complaint] against the organization you are treated differently. As if you are now the problem.” Such generalizations, while cause for concern, are insufficient to establish a question of material fact on whether the Agency’s actions were motivated by reprisal. Even assuming, arguendo, Complainant established a prima facie case of discrimination based on reprisal, the Agency presented legitimate, non-discriminatory reasons for its actions. Legitimate Nondiscriminatory Reasons Once Complainant has established a prima facie case, the burden of production shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. 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 his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993). We note that the Agency, as the employer, has broad discretion to set policies and carry out personnel decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567 (An employer has the discretion to determine how best to manage its operations and may make decisions on any basis except a basis that is unlawful under the discrimination statutes.) In other words, this Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) reconsideration denied EEOC Request No. 0520120603 (Jan. 31. 2013). The reasonableness of the employer's decision may, of course, be probative of whether it is pretext. Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n.6 (1st Cir. 1979) see, e.g. Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) recon. den., EEOC Request No. 05A20020 (Dec. 28, 2002). For instance, in Clinton M. v. Department of the Army, complainant, who did not dispute that he provided poor customer service on multiple occasions, was unable to 2020003940 12 establish pretext where the agency cited its operational goals and policy of patient safety and minimizing patient frustration as its legitimate nondiscriminatory reason for transferring the complainant, and the complainant could not show that the transfer was unreasonable with respect to business judgment. EEOC Appeal No. 0120172520 (June 14, 2018). Alternately, pretext may be demonstrated with evidence supporting “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Adalberto S. v. Dep’t of the Army, EEOC Appeal No. 0120170392 (Oct. 12, 2018) citing Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014) other citations omitted. Claim 1(a) and Complaint 2 - Performance Ratings and Letter of Counseling Claim 1(a) and Complaint 2 express Complainant’s disagreement with S1 and S2’s inclusion, as Complainant’s rating officials, of “inherited” assignments on her FY 18 Annual Rating, FY 19 Mid-Term Review, and LOC. Decisions on how to assess an employee’s performance concern an operational matter, and Complainant has not shown that the Agency’s decision to include these assignments is unreasonable in terms of business judgement. The assignments fell within Complainant’s position description, and regardless of past errors, the Agency was still obligated to process them in accordance with its governing regulations. A review of the LOC indicates that Complainant was not punished for others’ errors, but for her months of inaction once the requests at issue were reassigned to her, and for her failure to provide weekly updates on the tracker despite receiving verbal counseling. These specific allegations are not in dispute. Additionally, Complainant has made many assertions, yet had not offered any persuasive evidence of pretext. While we note the dramatic contrast in witness and Management testimony regarding Complainant’s performance, these statements on their own are not sufficient to show that the Agency's specified reasons for issuing the LOC were contradictory, implausible, or unworthy credence. In other words, Complainant may be an excellent worker, but she has not established a question of material fact over whether the Agency’s stated reasons, pertaining to specific cases and incidents, were pretext for reprisal. Claim 1(b) - Denied Request for Reconsideration For Claim 1(b), the Agency’s legitimate nondiscriminatory reason for S2’s denial of Complainant’s request for reconsideration of her FY18 Performance Rating, was that Complainant missed the 15-day deadline to submit her request. The record contains the relevant provisions of the DoD Civilian Personnel Management System: Administrative Grievance System (“AGS”) 1400.25, Volume 771 (December 26, 2013), confirming that the 15-day deadline applied to Complainant, a non-bargaining unit employee. Specifically, the AGS allows for an employee “informally present a work-related problem to his or her immediate supervisor before filing a formal grievance” within 15 calendar days of the act or event. DoDI 1400.25- V771 Appx 2, section 3(a)(1), (3). Alternately, an employee may file a formal written grievance within 15 calendar days of the act or event. Id. at 3(b). 2020003940 13 On June 27, 2018, Complainant emailed S2, stating, in relevant part, “I am requesting for reconsideration and will provide requested information through appropriate channels.” S2 responded the same day, “for reconsideration through informal channels, you may identify which element/standards you are requesting reconsideration under and provide your rationale.” The record is devoid of evidence that would indicate Complainant took steps to pursue the informal process provided under the AGS. Complainant submitted her request for reconsideration as an attachment to an email to S2 on July 10, 2018. The 15-day deadline fell on July 6, 2018, as it is undisputed that Complainant became aware of her FY18 rating on June 21, 2018. On July 13, 2018, S2 informed Complainant that she would not consider her request because the 15-day deadline to file a grievance had passed. In response, Complainant appears to deny that she ever intended to initiate a formal grievance, telling S2 to show her the email where she said she would pursue a grievance. S2 referred Complainant to the June 27, 2018 email exchange. While Complainant’s email did not contain the term “grievance,” S2’s interpretation of “appropriate channels” is consistent within the context of her and Complainant’s other email exchanges in the record. Moreover, the attachment to Complainant’s July 10, 2018 request was entitled: “Administrative Grievance - #1 Customer Service, Fill Time Production #4 Routine Production/Product Updates and Delivery, and #6 Training and Development” (emphasis added). Complainant alternately argues that she was unaware of a deadline to submit her request, and witness testimony supports that S2 was not forthcoming with this information. Regardless, Complainant has not shown that a question of fact exists over whether S2’s actions, as they relate to her denial of Complainant’s request for reconsideration, were retaliatory. New Claims of Reprisal On appeal, Complainant raises new allegations of reprisal concerning events that occurred after the time frame for the complaints before us. Specifically, Complainant alleges that S1 continued to harass her because she has a “personal vendetta” against her based on her prior protected EEO activity. For instance, in her rebuttal to S1’s declaration, Complainant alleges that S1 regularly left her out of critical communications, so she had to learn details of her assignments from coworkers. In one instance, S1 notified a Branch Chief that Complainant was a point of contact for an assignment, and Complainant did not find out until the Branch Chief emailed asking about the assignment. In another instance, Complainant was prevented from timely updating the system after S1 approved a request for an extension but did not respond to Complainant’s emails asking about the status of the approval. Complainant alleges that S1’s intent was to professionally undermine her by using the delay in updating the system against her. These and other allegations were not included in Complainant’s formal complaint, so they cannot be adjudicated in this decision, at the appellate stage. If Complainant wishes to pursue these new harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003). 2020003940 14 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. 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. 2020003940 15 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 October 26, 2021 Date