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

Equal Employment Opportunity Commission

Feb 10, 2022

Appeal No. 2020004162 (E.E.O.C. Feb. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jutta A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004162 Hearing No. 451-2015-00131X Agency No. ARUSAR14FEB00563 DECISION On July 8, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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 Supervisory Logistics Management Specialist, GS-0346-12, at the Agency’s 4th Expeditionary Sustainment Command (ESC) in Fort Sam Houston, Texas. On April 11, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. Following several amendments to her complaint, the Agency accepted the following claims for investigation: 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. 2020004162 2 a. Between December 2012 and June 2013, the Commanding General of the 4th ESC (4th ESC CG) made inappropriate sexual remarks to Complainant; b. On June 6, 2013, Complainant reported the sexual harassment to the Commanding General of the 79th Sustainment Support Command (79th SSC CG), but the 79th SSC CG failed to investigate her allegations; c. In January 2014, Complainant did not receive a time-off award; d. On January 3, 2014, the 4th ESC Assistant Chief of Staff-1 (Complainant’s initial first level supervisor) denied Complainant’s leave request for the week of January 6, 2014; e. During the week of January 6, 2014, a negative employment referral for a position with the 143rd ESC was given regarding Complainant; f. Beginning on January 7, 2014, the 4th ESC Assistant Chief of Staff-1 ceased all communication with Complainant; g. On April 4, 2014, Complainant was placed on administrative leave and escorted from the work center; h. On August 11, 2014, the 4th ESC Operations Officer mocked Complainant during a during she had with the 4th ESC Chief of Staff; i. Complainant received an email that contained a reference to “RIDE SALLY ANN”; j. On August 14, 2014, Complainant’s name was removed from the contact list of Section Leads, and Complainant has been repeatedly excluded from email correspondence; k. During a temporary duty trip from August 4-8, 2014, Complainant was not asked to introduce members from her command; l. On August 28, 2014, Complainant found out her security clearance was suspended; m. The 4th ESC Assistant Chief of Staff-2 (Complainant’s subsequent first level supervisor) denied Complainant the opportunity to attend a training; and n. In December 2014, Complainant received an unfair performance appraisal.2 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. Following discovery, the Agency filed a motion for a decision without a hearing, which Complainant opposed. With regard to her sexual harassment allegations, Complainant maintained that the 4th ESC CG, on five separate occasions between July 2012 to June 2013, made “unnecessarily sexual remarks” towards her. Specifically, Complainant alleged that “there was one time when [the 4th ESC CG] asked the Complainant if she had any difficulties with the [physical fitness] events. 2 Citing to 29 C.F.R § 1614.107(a)(1), the Agency dismissed claims o, p, q, and r. As Complainant has not raised any specific arguments regarding the dismissal, we exercise our discretion to limit our review to the matters discussed herein. EEOC Management Directive for 29 C.F.R. Part 1614, Chap. 9 (EEOC MD-110) at § IV.A (Aug. 5, 2015) (“Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion not to do so and may focus only on the issues specifically raised on appeal.”). 2020004162 3 The Complainant stated that the hardest event for her was the pushup event. Then, [the 4th ESC CG] made the comment that she did have big breasts, but that was not a bad thing.” Complainant also recalled “[t]here was another time when [the 4th ESC CG] asked the Complainant if she had a man and where was her man. He also told the Complainant to tell her man that he, meaning [the 4th ESC CG] will be making late night phone calls to Complainant.” Additionally, Complainant alleged that the 4th ESC CG asked her whether she drank alcohol, told her he wanted her to come to his hotel room during a staff assist visit, and invited her to visit him in Houston. See Complainant’s Response to Agency’s Motion for Decision Without Hearing (Complainant’s Response) at 11-12. Complainant admitted that she did not have much interaction with the 4th ESC CG; however, “during the few times she did, she was very uncomfortable due to the unwelcomed sexual remarks.” Complainant asserted that when she reported the harassment to the 79th SSC CG, the 79th SSC CG asked Complainant for permission to share her complaint with the 79th Sexual Harassment/Assault Response Program (SHARP) Director. Complainant stated that she gave the 79th SSC CG permission to share her complaint with the SHARP Director, but she was unaware that the SHARP Director had previously worked with the 4th ESC CG. Complainant maintained that the SHARP Director ultimately did not investigate her allegations of sexual harassment, citing Complainant’s lack of communication. See Complainant’s Response at 12-16. With regard to claim c, concerning the time-off award, Complainant maintained that the 4th ESC Assistant Chief of Staff-1 recommended Complainant for the award, but due to a mistake, Complainant never received the award. Complainant asserted that “[t]he Agency stated they were going to correct the mistake and process [the award] at the next board, but that never happened as the Agency never intended for Complainant to receive an award despite her supervisor’s intension [sic] of giving Complainant an award.” See Complainant’s Response at 16-20. As for claim d, Complainant maintained that the 4th ESC Assistant Chief of Staff-1 verbally granted her leave request, but later disapproved her request after being informed that Complainant had filed a grievance against the 4th ESC Assistant Chief of Staff-1 concerning the time-off award. Id. at 20-22. For claim g, Complainant vehemently denied making any threats in the workplace. See Complainant’s Response at 24-28. She maintained that the Agency retaliated against her by suspending her clearance based on these false allegations (claim l). Id. at 28-35. Furthermore, Complainant claimed that the denial of her training request was also retaliatory because the Agency denied her request because her clearance had been suspended (claim m). Id. at 35-36. Concerning claim n, Complainant asserted that prior to her complaint, she would usually receive an overall performance rating of 1, which was the highest rating that an employee could receive. See Complainant’s Response at 36-37. Complainant maintained that after she filed her complaint, she received a rating of 2, even though her performance warranted an overall rating of 1. Id. 2020004162 4 As for the remaining claims, Complainant provided a lengthy recitation of the events, basically disputing the Agency’s version of events and reiterating that she had been harassed. See Complainant’s Response at 1-65. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s February 28, 2020, motion for a decision without a hearing and issued a decision without a hearing on May 19, 2020. In issuing the decision, the AJ first addressed Complainant’s allegations of sexual harassment. Having reviewed the record, the AJ noted that the 4th ESC CG was “very emphatic that he never spoke to Complainant in such a manner as alleged.” However, the AJ found that “[e]ven if taken as true, Complainant’s own allegations of [the 4th ESC CG’s] statements do not amount to actionable sexual harassment,” as the remarks were isolated in nature. Furthermore, the AJ concluded that there was no basis to hold the Agency liable because Complainant “voluntarily elected not to pursue the matter any further as evidenced by her decision to not respond to [the SHARP Director] or contact another SHARP specialist as she stated she would.” As for the remaining claims, the AJ found that the Agency had either articulated legitimate, nondiscriminatory reasons, which Complainant failed to rebut, or had denied the alleged actions.3 When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).4 This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant vehemently opposes the AJ’s finding of no discrimination. Through her attorney, Complainant argues that the AJ’s issuance of a decision without a hearing was improper because “genuine disputes of material fact exist” and emphasizes that the Commission has long held that summary judgment should not be used as a “trial by affidavit” where credibility is at issue. In arguing that she had been subjected to discrimination, Complainant largely recites the same facts that she previously presented to the AJ and reiterates the same contentions as to why the alleged actions were discriminatory. Despite acknowledging the existence of genuine disputes of material fact, Complainant nevertheless requests that the Commission reverse the Agency’s final order and enter judgment in her favor. The Agency opposes the appeal and requests that the Commission deny Complainant’s appeal because the record shows that Complainant was not subjected to sexual harassment and/or reprisal. 3 For example, the AJ found that the real reason for the revocation of Complainant’s clearance was not reprisal, but rather her threatening email. Additionally, the AJ found no persuasive evidence that the Agency gave Complainant a negative employment referral. 4 We note that the Agency issued a final order on July 2, 2020, approximately 44 days after it received the AJ’s decision on May 19, 2020. 2020004162 5 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Furthermore, 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. 2020004162 6 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. 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. 2020004162 7 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 February 10, 2022 Date