[Redacted], Kristie D., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2020004016 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristie D.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020004016 Hearing No. 451-2018-00002X Agency No. ARFTSAM12DEC05084 DECISION On July 1, 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 decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-0201-11, at the Agency’s US Army Medical Command USAMITC, Administrative Support Division, Human Resources Branch in Fort Sam Houston, Texas. On February 12, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African American) and color (dark-skinned) when: 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. 2020004016 2 1. In December 2011, management denied Complainant her choice of cubicle in the new Human Resources (HR) area; 2. In February 2012, Complainant was denied a work schedule of 6:00 am to 2:30 pm; 3. In March 2012, Complainant was verbally reprimanded by a supervisor in front of three other employees; 4. On September 27, 2012, Complainant was not given a FY 2012 end-of-year monetary award; 5. In September 2012, Complainant was denied the opportunity to have her previous position in USAMITC upgraded to GS-12 while she was still assigned to the position; and 6. On December 17, 2012, Complainant was not selected for vacancy announcement No. NCFR1217070771944, GS-0201-12, Human Resources Specialist. 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 requested a hearing but because Complainant was assigned overseas and was unavailable for a hearing, the AJ issued an order on April 6, 2017, dismissing the hearing request without prejudice and directing Complainant to again request a hearing within 30 days of her return to the continental U.S. On August 23, 2017 Complainant requested reinstatement of her hearing request. The AJ denied the request as untimely and dismissed Complainant’s complaint with prejudice. The Agency issued a final order fully implementing the AJ’s decision and Complainant appealed that final order. In EEOC Appeal No. 0120180928 (May 16, 2019), we found that Complainant failed to show that she sought to reinstate her complaint within the 30-day time-frame following her return to the continental U.S. as directed by the AJ and thus affirmed the ruling that Complainant was not entitled to a hearing. However, we also found that the AJ erred in dismissing the complaint itself rather than just the hearing and remanded the matter to the Agency to issue a final decision on the merits pursuant to 29 C.F.R. § 1614.110(b). The Agency subsequently issued a final decision (FAD) finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Specifically, the FAD found that management officials articulated legitimate nondiscriminatory reasons for their actions during the investigation into the complaint. With regard to claim 1, Complainant’s then first-line supervisor (S1: Hispanic, Brown/Caucasian) explained that cubicles were assigned at random and nobody received preference. With regard to claim 2, S1 and Complainant’s second-level supervisor (S2: African American, black) both explained that because Complainant was in a managerial role her shift had to be during the facility’s “core hours” which were from 7:00 AM to 5:00 PM. With regard to claim 3, S2 maintained that Complainant was only reprimanded in front of the Human Resources Chief. With regard to claim 4, S2 explained that she denied the award “due to a lack of substantiated qualitative or quantitative contributions [by Complainant] during the award period.” 2020004016 3 With regard to claim 5, S2 denied considering upgrading the position and maintained that the current holder of that position was a GS-11. Finally, with regard to claim 6, S1 explained that he was the referring official and S2 was the selecting official. S1 said that the selectee (SE: Caucasian, white) was “the most experienced, capable, skillful and qualified” of all the candidates. S2 said that she supported S1’s choice and she knew SE to be “an experienced and knowledgeable HR Specialist with ‘impeccable’ customer service skills.” The FAD determined that Complainant failed to establish that these articulated reasons were pretextual or that management’s actions were based on her protected bases. With regard to harassment, the FAD found that the actions complained of were not based on Complainant’s protected bases and were not severe or pervasive enough to constitute harassment. In sum, the Agency concluded that no discrimination was established as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. 2020004016 4 This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established her prima facie case of discrimination. With regard to claim 1, S1 averred that nobody was promised a cubicle and that “if I provided a certain seat to [Complainant], I would have had to do the same for everybody. She wanted to be in a certain seat and I said it was not going to be promised. I would never promise her a seat.” With regard to claim 2, S1 averred that Complainant was: [A] senior HR specialist and she was responsible for several divisions during this time. She was never denied a work schedule. She asked me what I thought about a 6:00 AM to 2:30 PM shift. I just told her it was outside of the core [facility] hours and it would not be doable. She then requested in writing to work 6:30 to 3:30 PM and that was granted and she was happy with that arrangement. S2 similarly averred that: [N]o one in HRB reports prior to 6:30 AM due to mission. It was my directive to all my Branch Chiefs that all management employees could take part in AWS (alternate work schedule) however would not report prior to 0630; it was not just addressed to [Complainant] but to all nonunion personnel in my division who wished to participate in AWS. With regard to claim 3, S2 denied reprimanding Complainant in front of her coworkers and averred that: In the privacy of my office, I provided the counseling along with [the Acting HR Chief] to [Complainant] in private. I did not reprimand her in front of anyone other than administering the counseling along with the acting HR Chief, . . . [name omitted]. [Complainant] signed the document after which I provided her a copy for her records. Additionally, I provided a copy of the counseling to her supervisor [S1] upon his return. With regard to claim 4, S2 averred that: The On-the-Spot award was given to those employees who went above and beyond to support the mission during the time period 1-30 Sept 2012. Based on [Complainant’s] timesheet 1-21 Sept 12, she contributed only 58 hrs in direct support of the HR mission therefore [she] did not put in the hours and/or the effort of the other employee's during the time of the award. 2020004016 5 With regard to claim 5, S2 averred that Complainant’s previous GS-11 position “was never upgraded. The GS-12 position was not the result of an upgrade; it was created from a restructure of a vacant requirement.” Finally, with regard to claim 6, S2 averred that, although she was technically the selecting official, “it was [S1] that would make the hiring decision for this position.” S2 further averred that, with regard to their respective qualifications: [SE] is an experienced and knowledgeable HR Specialist with impeccable customer service skills who has worked for this organization since 2009; she is extremely professional a team player and always goes above and beyond to ensure mission success. [S1] hired both [Complainant] and [SE]; he knows them both professionally and has worked with them on day-to-day actions over the last three years; he is fully aware of the qualifications of both individuals. S1 averred that the position in question was for a lead position to assist him and that: After interviewing and assessing the candidates on the list I realized there was no one qualified for the job. I requested from CPAC a second referral listing. I then conducted additional interviews and made a determination based on the most experienced, capable skillful, and qualified person who can serve as Lead for the position. . . . [S2] was the selecting official but I had a significant influence in the selection. I was thorough and meticulous throughout the process. Remember, the Lead person will be my right-hand person in running HR operations. When asked why he did not interview or select Complainant, S1 averred that he “already knew her capabilities and performance level and leadership skills. She did not have the capabilities for the lead position. To have her serving as my assistant would have been a detriment [sic] move for the branch. She was not the right person for this lead position.” The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. With regard to claim 1, Complainant averred that prior to the office move she and SE were shown the new office location and told to select their preferred seats. Complainant maintains she made her selection but was out on leave when the office move occurred. Upon her return she found that SE was occupying the seat that Complainant had selected and when she tried to complaint to S1 he would not speak to her because he was talking on the telephone. Complainant then went to talk to S2 who told her that since Complainant had more seniority, she was entitled to the seat of her choice. Complainant maintains that despite this, SE was allowed to keep the seat Complainant had selected. In her rebuttal Complainant maintains she was the only one denied her preferred seat and disagrees with various comments by S2 about the matter, but Complainant does not specifically address S1’s contention that nobody got to select their seat. 2020004016 6 With regard to claim 2, Complainant averred that S2 told her that she could not begin her shift at 6:00 am “due to union regulations. I said to her ‘But I’m not union and since I'm not union I should not have to follow their regulations.’ She said I had to and she couldn't allow anyone in Administrative Services Division (ASD) to work a 6:00 AM tour.” We note that such a comment undercuts Complainant’s claim that she was treated differently based on her protected bases. Complainant identified other coworkers who she averred were allowed to begin their shift at 6:00 am. S1, however, maintained that the coworkers identified by Complainant worked “in the Procurement Branch, whom [sic] are employees working under a different supervision. The HR Branch has different mission in servicing and supporting Command Personnel [sic].” S1 further averred that nobody else in the HR Branch had a shift beginning at 6:00am. In her rebuttal statement, Complainant contends that S1 “fabricated his story” concerning Complainant asking him what he thought about a 6:00 AM to 2:30 PM shift, then making a request to him in writing to work 6:30 to 3:30 PM and being “happy” with that arrangement. Instead, Complainant denies ever having a discussion with him about this matter. In addition, Complainant points to union regulations that state that the facility’s core hours are 7:00 am to 5:00 pm. We note that, again, such evidence undercuts Complainant’s claim that she was treated differently than others by not being allowed to begin work at 6:00 am. With regard to claim 3, Complainant did not deny sending the email in question but maintained that she and the recipient of the email joked all the time. In any event, Complainant maintained, the issue was not the fact that she was disciplined for the email but that she was issued a reprimand “in front of other people.” Complainant averred that S2 called her into her office with the recipient of the email and his second-level supervisor, as well as one of Complainant’s coworkers who was a Lead worker (CW1: Mexican-American, brown). Complainant averred that S2: [P]resented me the email and asked if I sent it. I said yes. That is when she began to tell me that I shouldn't do this, she said I am supposed to be professional and what she was going to do to me for sending the email. In front of everyone, during the meeting, I turned to [the recipient of the email] and asked 'don't we clown around and do stuff like this?' and [he] said 'yes, we do'. [S2] said it doesn't matter and she turned to [CW1] and told him to reprimand me in writing. . . . [CW1] He just said yes in front of her. When [CW1] and I were alone again, he said he thought it was ridiculous. He said he did not want the disciplinary action to go into my personnel file and that he would go online to the Office of Personnel Management website and find the minimal disciplinary measure that would not go in my file. That is what he did. CW1 confirmed Complainant’s contention that the reprimand was issued in front of the people identified by Complainant and noted that he recalled Complainant “stating that she did not believe she should be reprimanded verbally or in writing. She was upset as I explained the email she sent to [the recipient] was unprofessional and behavior like was [sic] unacceptable.” 2020004016 7 The evidence thus contradicts S2’s claim that she herself provided the reprimand and that no one else was present except for the acting HR Chief. However, following a review of the record we find that this is insufficient to establish that S2’s articulated reason was a pretext to mask discrimination. Even according to Complainant’s and CW1’s version of events, they do not allege that S2 issued the discipline in front of Complainant’s coworkers generally or in front of employees who had no need to know about the matter. Instead they both indicate that S2 issued the discipline in front of the recipient of the email, his second-level supervisor, and Complainant’s Team Lead who was told to write up the reprimand. Furthermore, Complainant has not shown that S2’s action in disciplining her in front of those present was done because of Complainant’s protected bases. We note in this regard that Complainant and S2 share the same protected bases. Finally, we note that CW1 averred that he did not believe the reprimand was issued based on Complainant’s protected bases. Given the above, we find that Complainant has not shown that she was subjected to discrimination based on race and/or color when she was issued a reprimand. With regard to claim 4, Complainant averred that she moved to a different department on September 22, 2012 and the award was issued four days later. Complainant averred that “If they were given out September 26, 2012, I feel that I should have been included in that award. I contributed, I worked very hard in the branch and I also trained the employees that were there.” In her rebuttal statement, Complainant averred that S2’s testimony: [I]s totally preposterous. [S2] has went [sic] back and pulled hours worked for each employee which is out of the norm when employees are given awards at [the facility]. I had worked at [the facility] for more than two years and never once has this ever been done to determine who would get an award. This is ludicrous for her to try and cover up what she has done by giving awards unfairly and now to hide behind her wrong doings, she produced hours of work which is totally false because awards are not based on how many hours an employee worked to deem an award. Then she has also used against me training. She has stated, I attended training from 1-7 September 2012. Yes, I was on Government training that was approved by [S2] as the Division Chief in which the training was to support my position as Senior HR Specialist and to assist in supporting the mission. I also find these hours of work for [two of her colleagues who did receive the award] hard to believe being that they never made a full pay period of work. I was not one to procrastinate when it came to performing my duties and assisting customers; therefore, I didn't require overtime. . . . I feel I should have been included in that award. I contributed, I worked very hard in the branch and I also trained the employees that were there. With regard to claim 5, Complainant averred that evidence in the record shows that her position was upgraded to a GS-12 position after she vacated the position. Evidence provided by the Agency shows that a former colleague of Complainant’s (FC: race and color unspecified) was promoted to a GS-11 Human Resources Specialist position after Complainant vacated her own Human Resources Specialist position. Complainant, however, maintains FC’s promotion was not 2020004016 8 done to replace Complainant’s departure and that the person who was promoted into Complainant’s former position was hired at the GS-12 level. S2 denies Complainant’s claims. With regard to claim 6, Complainant averred that S2 intended to fill the position with a candidate of her choosing but that the candidate ended up accepting another Federal position instead. Complainant further maintains that SE initially did not make the referral list but that after SE complained to S2, SE’s name appeared on a subsequent referral list for the same position. Complainant further averred that SE told Complainant that S2 had told her, SE, that “I’m going to select you for this position so just make sure you can do the job” and that SE was subsequently selected. Complainant, however, believes she is more qualified than SE, averring that SE’s: [E]xperience in HR involved a lot of processing. She was not very qualified in the in the [sic] staffing aspect of HR. The work that we were doing was primarily staffing. She was more involved with processing (e.g. finding system errors and nature of actions, such as Service Computation Date Corrections).” With regard to S1’s comment “to have [Complainant] serving as my assistant would have been a detriment move for the branch” Complainant averred that S1 “has relied upon me for many special projects and suspense’s and all I can say is that [S1] is trying to keep his job. During many conversations with [S1] I know for a fact he is very intimidated by [S2] because of course she is his supervisor.” Following a review of the record we find that Complainant has not established, by a preponderance of the evidence, that the Agency’s articulated reasons for its actions are pretextual. With regard to the Agency’s articulated reasons, Complainant disagrees with the Agency’s reasoning, or asserts that management officials are being untruthful, or that S2 should be “fair across the board. Many may not believe that there is discrimination within one’s own race, but [S2] is a prime example that racism does exist within one’s own race. She has abused her position of authority by trying to gain acceptance by people of other races.” Despite Complainant’s contentions, however, we find that Complainant has not shown that management officials harbored discriminatory animus against her protected bases. Finally, to the extent that complainant is alleging that she was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994). A prima facie case of hostile work environment is precluded based on our finding that complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). 2020004016 9 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that discrimination occurred, and we AFFIRM the FAD. 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. 2020004016 10 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. 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 December 2, 2021 Date