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

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2021000343 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kacie G.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000343 Hearing No. 531-2019-00419X Agency No. ARAPG18APR01202 DECISION On October 19, 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 September 14, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Resource Development Specialist, Grade GS-11, for the Strategic Planning and Business Management Division, at the Agency’s Edgewood Chemical & Biological Center in Aberdeen Proving Ground, Maryland. Prior to Edgewood Chemical & Biological Center’s staff reorganization, which involved more than 500 employees, including Complainant, Complainant’s direct supervisor was her Division Chief. Complainant’s second-line supervisor was the Deputy Director of the Engineering Directorate (Engineering Deputy). 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 2021000343 Complainant’s third-line supervisor was the Director of the Engineering Directorate (Engineering Director). Complainant’s fourth-level supervisor was the Chemical & Biological Center Director (Center Director). One of Complainant’s co-workers was a GS-13 Mechanical Engineer. Another coworker had originally been hired as a Pathways Intern but, upon completing the internship, was promoted to a GS-11 Management Program Analyst. On May 19, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African American), color (Black), age (55), and in reprisal for EEO-protected activity (Agency No. ARAPG15DEC0490) when: 1. From December 2017 to present, Agency management has assigned Human Resources (HR) support tasks to Mechanical Engineer, which denies Complainant the ability to perform the essential functions of her job and is a continuing effort to reduce her responsibilities, which impacts her ability to grow and advance in her career, and from December 2017 to present, management created a developmental/intern position for Management Program Analyst that was not required/authorized on the table of distribution and allowances (TDA), contains HR duties that are currently listed in Complainant’s job description, and she is no longer allowed to perform these functions of her job as outlined in her Position Description (PD). 2. On February 27, 2018, Division Chief denied Complainant opportunity for cross training due to her “attitude,” her “going around and digging up dirt,” and “others refuse to work, engage, or trust her,” and in April 2018, the Chief of the Workforce Management Office denied Complainant the opportunity for cross- training/detail in the Workforce Management Office, yet hired three new employees who were assigned to the Workforce Management Office, leaving Complainant no opportunity for the required training/detail. 3. From March 2018 to present, the Engineering Director discussed/discusses restructuring the division and not realigning the Training Coordinator position (Complainant’s position) under HR, which is an act of retaliation by the Engineering Deputy, because supporting HR is a primary function in Complainant’s position description and listed on her Individual Development Plan for future development. 4. Complainant’s current job series and grade (GS-0301-11) do not logically reflect the same grade as the other Training Coordinators (GS-0343-12) within Edgewood Chemical and Biological Center and has not been corrected to date. 5. From December 20, 2017 to April 2, 2018, Complainant notified management (including Division Chief, Engineering Deputy, Engineering Director, and the Center Director) 11 times about the disparate treatment and hostile work 3 2021000343 environment she endured, and nothing has been done to correct the hostile behavior and environment. After an 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. However, on August 25, 2020, after giving the parties an opportunity to respond, the AJ issued a decision by summary judgment in favor of the Agency. 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). The instant appeal followed. On appeal, Complainant contended that depositions of management had elicited conflicting testimonies regarding the rationales for Agency decisions that impacted Complainant’s position following the staff reorganization. Complainant further argues the AJ had ignored sworn statements from co-workers that supported Complainant’s position that she had been subjected to a hostile work environment. ANALYSIS AND FINDINGS 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). We carefully reviewed the record and find that it is adequately developed. As an initial matter, we reject Complainant’s contention that the Agency or AJ impeded her ability to pursue the instant complaint as a pro se complainant. To the contrary, Complainant was granted leeway in being able to depose all of the managers who were named in her discrimination complaint. 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. 4 2021000343 Here, Complainant has failed to establish such a dispute within the record and has not presented material evidence that contradicts the facts of record. We considered Complainant’s claims primarily in the context of reprisal. EEOC analyzes such claims broadly in the interest of protecting employees from retaliation that may reasonably deter protected activity. EEOC Compliance Manual, Sec. 8, “Retaliation,” No. 915.003 (May 20, 1998) at 8-15; Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Consistently, we have held that Title VII prohibits words or actions that have a chilling effect of discouraging a reasonable employee from engaging in EEO activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). 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 her protected activity; (3) the Agency subjected the Complainant to adverse treatment; and (4) a clear nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). We find, as did the AJ, that Complainant satisfied the first two elements of reprisal for her first four claims. It is undisputed that, in April 2018, Complainant and the management entered a settlement agreement, where the Agency agreed to upgrade Complainant’s position to Grade GS- 11 and revise her position description to accurately account for the work she performed on behalf of the Edgewood Chemical & Biological Center. Indeed, Complainant’s chain-of-command in the present complaint was aware of Complainant’s prior EEO activity, if not directly involved. Claim 1 concerned the Agency’s relieving Complainant of her administrative human resources duties and reassigning them to other employees as a result of the Summer 2018 reorganization. The record revealed that the reassigned HR duties were a tangential responsibility whereas Complainant’s day-to-day duties remained supporting training requests and processing training- related vouchers. Given that the organizational reorganization shifted duties among approximately 550 personnel in two geographically separated locations, we fail to see a nexus between reassignment of Complainant’s HR duties and her EEO-protected activity. In Claim 2, Complainant accused her Division Chief of undermining her efforts to seek advancement through cross-training. To the contrary, Complainant acknowledged that her Division Chief had inquired about detail a for her in the Workforce Management Office. The Chief of the Workforce Management Office stated there were no detail opportunities for Complainant. Thereafter, according to Complainant, there were at least three new hires in the Workforce Management Office. However, Complainant’s deposing of the Chief of the Workforce Management Office revealed that none of the new hires resulted from detail opportunities. To the contrary, one of the hires had converted to government civilian position after working in the same capacity as a contractor employee. Another new hire had been hired through a Schedule A appointment. In any event, we find that Complainant was not denied an opportunity but rather she was not selected for other positions for which she had not applied. Although Complainant and her supervisor were unsuccessful in their efforts to locate a cross- training or detail, we find that the record evidenced non-retaliatory reasons behind their lack of success. 5 2021000343 Regarding Claims 3 and 4, we observed, as did the AJ, despite the 2018 reorganization, Agency management had ultimately decided to retain Complainant’s position as a Grade GS-11, Training Coordinator for the Engineering Directorate. We concur with the AJ in that the Training Coordinators who were GS-12 Training Coordinators for HR or other Directorates had different position descriptions and were under different supervision and were thus not valid comparators. Indeed, those positions had been GS-12 graded before the reorganization. Independent of the reorganization, the Agency had conducted a desk audit of Complainant’s position and determined that it had been properly classified as a Grade GS-11. Complainant has failed to persuade us that the Agency’s decisions not to move or increase her grade were motivated by discriminatory animus. In Claim 5, Complainant has alleged that her supervision has disparaged her in order to thwart her career progression. On the other hand, managers denied that they had problems with Complainant’s performance, but rather testified that Complainant’s co-workers had reported to them that they had found working with Complainant difficult. Complainant has not met her burden to prove discriminatory treatment. Complainant v. Dep’t of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the AJ’s decision which became the Agency’s final action in the absence of an Agency 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. 6 2021000343 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. 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. 7 2021000343 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations March 2, 2022 Date