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

Equal Employment Opportunity Commission

Oct 12, 2021

Appeal No. 2021003133 (E.E.O.C. Oct. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kyoko H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003133 Agency No. ARIMCOMHQ19JUN02272 DECISION On May 4, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 5, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as an Investigative Analyst, GS-1805-9, at the Agency’s Criminal Investigation Division (CID), Washington CID Battalion, 3rd Military Police (MP) Group, U.S. Army Criminal Investigation Command (USACIC) in Carlisle Barracks, Pennsylvania. On July 29, 2019, Complainant filed a formal EEO complaint alleging she was subjected to discrimination based on race (Asian), sex (female), disability (gastroesophageal reflux disease- 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. 2021003133 2 GERD, migraines, asthma),2 and in reprisal for engaging in protected EEO activity (for reporting harassment in October 2018) when: 1. From October 31, 2018 through November 22, 2019, her supervisor, Chief Warrant Officer 2 (“S1”), subjected Complainant to harassment creating a hostile work environment as evidence by the following incidents: a. On October 31, 2018, S1 denied Complainant’s request to use Leave Without Pay (LWOP) on November 2, 2018; b. On April 4, 2019, S1 monitored Complainant through the Closed Caption Television (CCTV) without her knowledge; c. On May 21, 2019, S1 issued Complainant a written counseling for lateness due to delay at the post access gate; d. In June 2019, S1 instructed Complainant to annotate Absence Without Leave (AWOL) in the Automated Time Attendance and Production System (ATAAPS), despite the medical excuse she had provided; e. On June 5, 2019, S1 issued Complainant a written counseling for miscommunication; and f. On November 22, 2019, S1 became frustrated and raised his voice during Complainant’s midpoint performance review. 2. On April 26, 2019, S1 issued Complainant an annual performance rating of 1, Unsatisfactory, for the rating year ending in 2019. 3. On June 19, 2019, S1 issued Complainant a Notice of Proposed 5-Day Suspension, and on July 2, 2019, the Assistant Operations Officer issued a Decision on Proposed 5-Day Suspension. 4. On August 15, 2019, S1 issued Complainant a Notice of Proposed Removal and on September 4, 2019, the Assistant Operations Officer issued a decision on the proposal, suspending her for 14 days. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC 2 Complainant did not initially raise disability as a basis when he filed his complaint but raised it during the investigation and it appears the Agency accepted it as an amendment. 2021003133 3 Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on April 5, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3 The instant appeal followed. ANALYSIS AND FINDINGS Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, sex, disability or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. During the relevant period, Complainant was one of four employees assigned to CID Carlisle Barracks, and she was the only civilian employee. S1 (Caucasian male) acknowledged that his work relationship with Complainant began to deteriorate when he became the Special Agent in Charge (SAC), following the retirement of the former Chief Warrant Officer, and when he started holding Complainant accountable for her conduct and work performance. S1 stated that during his August 22, 2019 meeting with Complainant, he explained that if she did not manage her leave and needed to take additional time, LWOP would not be granted automatically and she would be charged AWOL. 3 Complainant stated that her disabilities were chronic, permanent medical conditions, specifically identified as gastroesophageal reflux disease (GERD), migraines and asthma. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021003133 4 S1 also stated that Complainant was required to first verbally ask him for leave and then submit a request in ATAAPS. If Complainant’s leave would be approved, she would be then required to send him a calendar invitation. Regarding 1.a., Complainant asserted that on October 31, 2018, S1 denied Complainant’s request to use Leave Without Pay (LWOP) on November 2, 2018. S1 noted that on October 31, 2018, she sent a calendar invitation stating that she had to drop off her car at a service department and get a flu shot on November 2, 2018. After a review of Complainant’s calendar invitation, he received a notification of a LWOP request in the ATAAPS system without attempting to verbally communicate with him. S1 stated that Complainant did not have any available leave. Thereafter, S1 consulted with the Agency Counsel, and he notified Complainant that he was denying her request for LWOP and suggested her to get her flu shot during a lunch break and make other arrangements for her car. Further, S1 stated that he checked the system and learned that Complainant did not have any leave available to cover her time off. He also emphasized the importance of Complainant communicating with him and others “to plan to ensure tasks were not getting missed. Although her absences were placing additional burden on others both in the office in the Battalion my focus was on ensuring the mission was getting accomplished.” Regarding claim 1.b., Complainant alleged that on April 4, 2019, S1 monitored Complainant through the Closed Caption Television (CCTV) without her knowledge, S1 stated between August 22, 2018 and April 4, 2019, Complainant was counseled nine times regarding policies, leave, and attendance. He noted that the most recently counseling was March 22, 2019. Between March 24-March 30, 2019, S1 was out of the office and returned to the office on April 1, 2019. He stated that as a result of Complainant being late to work, he reviewed the CCTV surveillance footage to determine if he had accurately certified Complainant’s timecard on March 29, 2019. S1 determined that Complainant showed up to work on March 25, 2019, on time, but she reported to work late from March 26, 2019-April 4, 2019. In addition, S1 discussed this matter with the Agency Counsel and she did not counsel him against using the CCTV to verify Complainant’s attendance. With respect to Complainant’s allegation that S1 does not review other employees on the CCTV, S1 asserted that he has no concerns regarding other employees’ use of leave. Regarding claim 1.c., Complainant asserted that on May 21, 2019, S1 issued Complainant a written counseling for lateness, due to delay at the post access gate. S1 stated that on May 21, 2019, he issued Complainant a written counseling for tardiness. At that time, he received a text from Complainant at 8:04 a.m., claiming a delay at the post gate. He noted that Complainant arrived at her desk at 8:15 a.m. S1 then called the desk sergeant and learned there was no delay. The next day, May 22, 2019, S1 decided to review the video footage of the incident and observed Complainant entered the gate at 8:03 a.m. without delay. 2021003133 5 Regarding claim 1.d., Complainant alleged that in June 2019, S1 instructed Complainant to annotate Absence Without Leave (AWOL) in the Automated Time Attendance and Production System (ATAAPS), despite the medical excuse which Complainant had provided. S1 specifically explained that on June 9, 2019, Complainant did not call or text prior to the start of her duty day. S1 stated that approximately 2:00 p.m., Complainant finally called to say she was not going to work that day because she had to go to urgent care. S1 stated “going to the urgent care in the afternoon does not negate the fact that she did not call in the morning. We did not know what was going on.” Complainant had been told that texting was not an acceptable way to request leave. S1 instructed Complainant to mark her absence as AWOL because she did not contact S1 until after 2:00 p.m. and she did not follow the proper procedures. S1 asked Complainant during counseling for the June 9, 2019 incident if she was claiming FMLA and she said she was not. He stated, however, when he informed Complainant that he was charging her AWOL, she became angry and changed her response stating it was FMLA-related. Regarding claim 1.e., Complainant alleged that on June 5, 2019, S1 issued Complainant a written counseling for miscommunication. S1 stated that he issued Complainant a written counseling because she failed to comply with Battalion guidance to use an updated 4833 tracker form and for displaying an improper attitude. She responded to S1 stating she was unable to use the tracker form, and instead of asking for help, she simply refused to comply with the request. In addition, Complainant displayed an uncooperative attitude when responding to SFC’s request for a case file by responding as though the request was a burden to her. Thereafter, S1 stated that he received several calls asking what was going on and asking why we were not complying with the guidance. Regarding claim 1.f., Complainant claimed that on November 22, 2019, S1 became frustrated and raised his voice during Complainant’s midpoint performance review. S1 acknowledged that he became frustrated and raised his voice during Complainant’s midpoint performance review. He also noted, however, that Complainant raised her voice and argued every item that he reviewed with her. Moreover, S1 stated that he became frustrated by Complainant’s defiance, which he perceived as illogical. The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1’s management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. 2021003133 6 Here, the preponderance of the evidence does not establish that S1 was motivated by discriminatory or retaliatory animus with regard to any of the incidents alleged. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by S1 were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 2, Complainant alleged that on April 26, 2019, S1 issued Complainant an annual performance rating of 1, Unsatisfactory, for the rating year ending in 2019. S1 stated that as he read Complainant’s reported accomplishments, Complainant’s report contained accomplishments that occurred before and not within the rating period which he excluded from consideration when calculating her performance rating. He then calculated Complainant’s annual appraisal score and rating based on her accomplishments during the 2019 appraisal period, relying on counseling statements and case report metrics. S2 determined that S1’s expectations were reasonable, not arbitrary or something he created, and were based on Complainant’s position description and relevant regulations. He noted that Complainant had a duty to follow S1’s instructions. 2021003133 7 However, despite numerous attempts at counseling over the course of the performance rating period, Complainant’s performance yielded an unsatisfactory appraisal from S1. Regarding claim 3, Complainant alleged that on June 19, 2019, S1 issued Complainant a Notice of Proposed 5-Day Suspension, and on July 2, 2019, the Assistant Operations Officer issued a Decision on Proposed 5-Day Suspension. S1 stated that before issuing the Proposed Notice of 5-Day Suspension, he discussed the matter with the Agency Counsel and HR Specialist. He proposed that Complainant be suspended from her position for five days for failure to follow instructions, tardiness, and AWOL. He noted that Complainant was counseled from August 22, 2019 through June 19, 2019. The record contains a copy of the Notice of Proposed 5-Day Suspension in which S1 placed Complainant on notice that despite his counseling her in person and writing, she continues to violate S1’s written instructions related to her time and attendance. He also noted that from May 9, 2019 through May 16, 2019, Complainant failed to follow written instructions when she failed to call S1 to request sick leave. Furthermore, S1 stated that Complainant was AWOL on eight occasions. Furthermore, he stated that on June 13, 2019, Complainant was absent without approved leave when she failed to report to work. Further, S1 notified Complainant that she can respond to this notice in writing or both within seven days. He noted that S2 would issue Complainant a written decision concerning the proposed suspension. Regarding claim 4, Complainant asserted that on August 15, 2019, S1 issued Complainant a Notice of Proposed Removal and on September 4, 2019, the Assistant Operations Officer issued a decision on the proposal, suspending her for 5 days. S2 stated that after a review of Complainant’s rebuttal to the Proposed 5-Day Suspension and supporting documents, he determined that Complainant would be suspended from July 8, 2019, through July 12, 2019. He stated that he expects Complainant to return to work on July 15, 2019. S1 stated that within two weeks of returning from her suspension, Complainant again continued to do the same actions which she had just been suspended for. Once responsible management witnesses having articulated legitimate non-discriminatory reasons for the disputed 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; and McDonnell Douglas. Following a review of the record, we conclude that Complainant has failed to meet this burden. There is simply no evidence that other similarly situated employees were treated more favorably or any other evidence suggesting discrimination. In sum, there is simply no evidence that Complainant’s race, sex, disability or prior EEO activity played any role whatsoever in the matters at issue. 2021003133 8 CONCLUSION For the reasons stated above, the Agency final decision 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). 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. 2021003133 9 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 October 12, 2021 Date