[Redacted], Kristie O., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2020004010 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kristie O.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020004010 Hearing No. 541-2017-00128X Agency No. ARCARSON16NOV04422 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 2, 2020, final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final action finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management and Program Analyst, GS-0343-11, in the Plans, Analysis, and Integration Office (PAIO), at Fort Carson in Colorado. During the relevant time, Complainant’s first level supervisor (S1) was the Supervisor for Strategic Planning. Complainant’s second level supervisor (S2) was the Deputy Garrison Commander (DGC). As of January 2016, S1 supervised five employees: Complainant, a GS-13 Lead, Management and Program Analyst (Lead), a GS-12 Plans Specialist (Coworker 1), a GS-12 Management and Program Analyst (Coworker 2), and a GS-13 Installation Sustainability Resources Specialist. 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. 2020004010 2 As a result of downsizing at Fort Carson, Complainant’s position, along with approximately 60 other positions, was no longer “tracked” on the Table of Distribution and Allowances (TDA). Complainant stated she learned of the removal of her position from the TDA in approximately November 2015.2 She acknowledged she was not told she had to leave as a result of her position no longer being tracked on the TDA. Complainant states she began looking for permanent positions on the TDA in Fort Carson; however, she did not find any available positions at Fort Carson. In an effort to help find Complainant a permanent position on the TDA, S1, in June 2016, gave Complainant a position description for a GS-11 position in another area (DPTMS), which was a permanent position on the TDA, to see whether Complainant was interested in the position. S1 told Complainant if she was interested in the position, S1 would approach the Director of the other area and find out more about the position. S1 stated Complainant told her she was not interested in the position because it was mission essential. According to S1, mission essential meant that on days when there are weather delays, mission essential employees were required to come on post. S1 stated at the time she presented Complainant with the position description, she did not know it was an obligated position. S1 noted an obligated position meant the incumbent person was overseas and had certain rights to come back and claim the position. S1 stated when it was discovered the position was obligated, she discussed this with Complainant but as Complainant was not interested in the position, she did not recall discussing what the actual return rights would be for the position. On December 7, 2016, Complainant filed an EEO complaint alleging that she was subjected to a hostile work environment on the bases of sex (female), age (63), and in reprisal (claims (f) and (g) only) for prior protected EEO activity, from April through November 31, 2016, by her supervisor (S1), when S1 refused to help her obtain a more secure employment position authorized by the Fort Carson Table of Distribution and Allowance (TDA) when: a. In April 2016, S1 denied her request to perform duties for the EEO Office; b. From May to November 8, 2016, S1 has not taken action to compensate her for performing higher level duties (GS-12); c. In May 2016, S1 denied her request for developmental training; d. In June 2016, S1 gave her a position description (PD) to apply for a position occupied by an employee, located overseas, with return rights; e. On October 12, 2016, S1 asked her if she was willing to perform administrative duties for the Deputy Garrison Commander (DGC); f. On October 31, 2016, and November 28, 2016, S1 canceled her telework days; and g. In November 2016, Complainant was not selected for a vacant GS-12 position even after it was downgraded to a GS-11 position in Plans Analysis and Integration Office, for which she applied. 2 Complainant is not claiming she was removed from her position, but rather was just removed from the TDA. Furthermore, Complainant is not claiming that her removal from the TDA was discriminatory. 2020004010 3 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. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision without a hearing on May 18, 2020, finding no discrimination. The Agency subsequently issued a final action on June 2, 2020. The Agency’s final action fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On appeal, Complainant reiterates her contention that the Agency subjected her to a hostile work environment when S1 failed to place her into an authorized position. Complainant states although PAIO had a vacant authorized GS-12 position, they did not place her in that position. Rather, she notes that S1 created a new GS-11 position description to enable a younger person to qualify and be placed in the position. Complainant claims Coworker 1 asked S1 why Complainant was not given the opportunity for the position and that S1 told Coworker 1 that Complainant was at retirement age. Complainant relies on a declaration from the Lead attached to her appeal in support of her contentions. Complainant also argues the EEO Office had a vacant GS-11 position where the Agency could have done a Management Directed Reassignment (MDR) for her. Complainant provides a document on appeal from another person’s EEO complaint which she claims shows the Agency did an MDR for Coworker 1. Complainant also notes that during this timeframe, the Agency conducted an investigation into complaints of a hostile work environment created by S1. Complainant claims the finding of the investigation showed a “poor work climate” which had been going on for several years. In response to Complainant’s appeal, the Agency states Complainant recites a litany of events without citation to the record. The Agency objects to reliance on any documentation in her brief which is outside of the record. Specifically, the Agency notes Complainant attaches an undated declaration to her appeal, but does not make an affirmative showing as to why this evidence was not reasonably available prior to or during the hearing. The Agency notes the declarant is a current Fort Carson employee, and the declaration could have been provided at any time prior to appeal. The Agency notes that Complainant has not provided evidence that she was subjected to unlawful discrimination. The Agency states it has articulated sufficient nondiscriminatory reasons for its actions, and Complainant provided no significant rebuttal or any evidence that such reasons are a pretext for discrimination. 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. 2020004010 4 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). At the outset, we note that on appeal Complainant presents for the first time a second declaration from the Lead3 and a July 18, 2019 memorandum from another employee’s EEO complaint. Neither of these documents were part of the record available to the AJ when considering the Agency’s motion for a decision without a hearing. As a general rule, no new evidence will be considered on appeal absent an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VI.A.3 (Aug. 5, 2015). Because Complainant failed to make such a showing, we decline to consider the exhibits she submitted on appeal that were not part of the record that was before the AJ when she made her decision. Upon review, we find the record and claims in the present case fully developed. We find the AJ properly determined the present case was suitable for summary judgment. Regarding claim (a), the record reveals S1 did not allow Complainant or Coworker 1 to perform collateral EEO duties because S1 determined they were both needed in their duty stations. S1 noted if Complainant was allowed to help in the EEO Office it would have negatively impacted the mission that Complainant performed in PAIO. Further, Complainant noted that S1 told her she did not want PAIO to look like they did not have sufficient work. Regarding claim (b), S1 stated Complainant did not perform higher graded duties warranting a higher salary. S1 noted that the duties Complainant identified were either in her position description, were not higher graded duties, or consisted of duties she was being trained to do but did not perform on her own. The Lead noted that Complainant came to her and asked to learn additional duties to get to the next higher level and the Lead stated she taught her some duties. The Lead clarified that, “[she] did not say Complainant was performing higher graded duties, just that Complainant asked to learn this and [she] was teaching her.” The Lead also stated, “I cannot even say these were higher graded duties.” To the extent Complainant performed some of the identified duties on her own after receiving training, we note that it was of a limited scope and duration and that Complainant did not show such work warranted a higher salary. 3 We note the original investigation contained a March 9, 2017 declaration from the Lead and a subsequent rebuttal of that declaration from Complainant. 2020004010 5 Regarding claim (c), the record reveals the developmental training Complainant asked about was based on an MDR to Coworker 2 who had been at the GS-12 - a level which Complainant had not achieved. The developmental training program of the coworker was not available to Complainant, who was a GS-11. Regarding claim (d), S1 gave Complainant the position description for the only GS-11 position that was available at the time. S1 stated she did not know when she provided the position description to Complainant that the incumbent had return rights, and she stated she was trying to assist Complainant by providing her a vacant permanent position description on the TDA. Regarding claim (e), S1 noted that at the time personnel were being moved to different offices. S1 stated while discussing the upcoming move with the DGC, he asked her if she had someone available to help him out on administrative duties. S1 stated she thought of Complainant as Complainant had been her administrative assistant over in the Director of Human Resources and she was a superb administrative assistant. S1 noted the DGC did not specifically mention he wanted Complainant by name. S1 explained that without mentioning Complainant’s name to the DGC, she went and asked Complainant if she wanted to or would be willing to do some administrative duties for the DGC. S1 noted she told Complainant if she wanted to do it, S1 could meet with the DGC and find out what administrative duties meant. S1 stated Complainant got “heated” and said she did not want to do it and that she had worked hard to get away from administrative duties. S1 noted she told Complainant it was not a problem and that she “just removed that idea from the table.” Complainant stated that S1 had told her the assignment may have an impact on room allocation with the upcoming movement of personnel. However, S1 noted Complainant stated she was not interested. In response to Complainant’s concern that S1 would not allow her to do EEO collateral duties but would allow her to perform administrative duties for the DGC, S1 stated she knew the administrative duties for the DGC would be very few. S1 explained she knew the DGC did his own administrative work and that she did not even think Complainant would be doing administrative duties every day. In contrast, S1 stated she did not know how much time she was going to be needed for the collateral EEO duties. Regarding claim (f), Complainant stated that she and Coworker 1 had their telework days cancelled on October 31, 2016, and November 28, 2016, and that subsequently the Lead also had her telework cancelled. Complainant stated she figured S1 had a business reason for cancelling telework on October 31. Regarding November 28, Complainant stated that S1 asked her and Coworker 1 to come in that day to complete a climate survey. Complainant noted she had already done the climate survey, but S1 told her to come in anyway in case something else is required. Complainant noted that after that time she was out on leave for over two weeks and then sometime after November 28, S1 took away telework completely. Complainant stated at a meeting in January, she inquired about having to come in on her telework day and was told it was mission related, that they were behind on work. Complainant stated she was not behind on her work. S1 explained that on October 31, 2016, she was getting ready to go on leave and had to pass on what she had been doing to Complainant, Coworker 1, and the Lead. 2020004010 6 S1 stated that she had a round table discussion on the mission and what had been accomplished so everyone came in for that day. S1 stated that on November 28, she cancelled telework for everyone because the office was behind on their mission. Regarding claim (g), the record reveals that the Agency had a program for interns and was trying to place them in jobs once they graduated the program. S1 explained that on October 28, S2 sent her an email that came from Headquarters, that they needed to place four interns that were graduating. The interns were GS-11s and S1 decided to take one of the interns. In an attempt to prove pretext, Complainant claims Coworker 1 asked S1 why Complainant was not given the opportunity for the GS-12 position and that S1 told Coworker 1 that Complainant was at retirement age. However, a review of the record reveals that Coworker 1 did not state what was alleged by Complainant. During the fact-finding investigation Coworker 1 denied that S1 discussed Complainant’s age. Rather, Coworker 1 noted that S1 stated Complainant was going to retire and that this was said “early on when the discussion of her position, that her position was removed from the TDA.” Thus, we do not find Complainant established that the Agency’s actions surrounding the GS-12 position were motivated by discriminatory animus. 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. CONCLUSION Accordingly, the Agency’s final action finding no discrimination is AFFIRMED. 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). 2020004010 7 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. 2020004010 8 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 January 22, 2021 Date