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

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2022002065 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lidia B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022002065 Hearing No. 410-2019-00408X Agency No. 9R1M1800387TF22 DECISION 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 January 30, 2022, 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. 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tool Specialist, GS- 0301-09, at the Agency’s Robins Air Force Base in Georgia. On July 3, 2018, and as subsequently amended, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Caucasian), sex (female), color (White), age (55), and in reprisal for prior protected EEO activity 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. 2022002065 2 1. on February 8, 2018, Complainant was confronted by her immediate supervisor (S1) and her third-level supervisor (S3) regarding a suspense (a monthly duty) and told by S3 that he would be back to check on the status; 2. on February 8, 2018, Complainant informed S3 that she had been advised by the Employee Assistance Program (EAP) to go home for the day due to stress at work, to which S3 replied, “how convenient”; 3. on February 15, 2018, S3 called a meeting with Complainant and her second-level supervisor (S2) during which S3 berated Complainant, repeatedly saying, “we’re the only squadron that didn’t have charts,” while pointing at Complainant; 4. on May 10, 2018, Complainant became aware that her name had been left off the overtime schedule for May 12, 2018; 5. as recently as June 30, 2018, S3 refused to allow Complainant to work overtime to complete her work even though he gave her more work than she could complete during her regularly scheduled work day; 6. on May 15, 2018, Complainant received a “Fully Successful” rating on her Civilian Performance Plan, Progress Review, and Appraisal for 2018; she did not receive a monetary award and believes that an “Outstanding” award was merited; 7. on June 7, 2018, Complainant became aware that she had been charged eight hours Absent Without Leave (AWOL) on May 18, 2018; 8. on a regular basis, S3 is overly critical of Complainant’s work and watches her with unnecessary scrutiny (directing and allowing others such as S1 to do so) which is humiliating, frustrating, and stressful; and 9. between February 12, and August 23, 2018, S2 subjected Complainant to unwarranted scrutiny and criticism by yelling at her (including in front of other employees) and treating her in a demeaning manner. In Claim (1), Complainant explained that the duty was to put a slide together. Complainant had been out sick, but came into work on February 8, 2018, because she knew the slide needed to be done that day. After S1 inquired about the slide, S3 came by Complainant’s desk and also inquired about it. When Complainant said that she was still working on the task, S3 said he would come back after a meeting to check on Complainant’s progress. Complainant asserted that her heart rate spiked as a result, and she went to Occupational Medical Services (OMS). Complainant protested that S3’s inquiry was inappropriate because S1 had already stopped by. Complainant argued that, if she had been a man, S3 would not come back to check on her progress. S3 explained that the slide requirement had begun in November 2017, and that Complainant had struggled each month to gather information for the slide and provide the information in a timely manner. As a result, S1 and S3 sought to ensure that Complainant would complete the task prior to a briefing with Group Leadership. S3 explained that Complainant had “several weeks to populate the one slide for the briefing. The slide should have be [sic] populated on a weekly basis and only required last minute changes the week of the brief, that conversation has taken place with [Complainant] in the past.” 2022002065 3 S3 added that Complainant was granted eight hours of overtime to work on the slide. S3 said that “if there was any stress it was because [Complainant] put it upon herself when she did not populate the slide that she had ample time to do during normal work hours [in] addition to the 8 hours of overtime that she was compensated for.” S3 noted that it is normal for him to follow up with his employees regarding work deadlines. S1 observed that Complainant missed several meetings and generally avoided going to meetings, “occasionally taking leave to avoid briefing the commander on FOD and tool control, avoiding major inspection, taking leave up to a week [avoiding] the inspectors.” S1 had to handle Complainant’s duties for her. Claim (2) grew out of Claim (1). Complainant said that EAP advised her to go home for the day. Complainant left her phone in her car, and when she got to her car, she discovered that S3 had tried to reach her several times. Complainant picked up the phone the next time S3 called and told him that she was going home. S3 responded, “how convenient.” Complainant interpreted the remark to mean that S3 “could care less about what happened to me for the undue stress he imposed.” In response, S3 reiterated that Complainant had plenty of time to complete the task. During the day, S3 was concerned because the task had not been completed. When Complainant was not at her desk, S3 sought to determine her whereabouts and after discovering Complainant was leaving for the day, commented that it was convenient. Thereafter, S3 worked with another employee to populate the chart and brief Group Leadership. S3 emphasized to the investigator that Complainant did not inform anyone that she was leaving her work area. Regarding Claim (3), Complainant suggested that S3 wanted to let S2 know that Complainant failed to complete the chart task and wanted to embarrass Complainant. Complainant acknowledged that she did not complete the chart. S3 acknowledged having a follow-up discussion with Complainant but denied berating her. Rather, S3 wanted to discuss the slide requirement and ensure that Complainant stayed ahead of the deadlines in the future. S3 confirmed that Complainant’s squadron was the only one of four squadrons without the slide. Complainant explained, in Claim (4), that she was never informed whether her overtime requests were approved, and identified May 10, 2018, as an example. On that day, there was a sheet of names with individuals approved for overtime, but her name was not on it. Complainant asserted that she was being retaliated against for filing a prior EEO complaint. S3 expressed uncertainty as to what overtime list Complainant referred to but explained that Complainant tended to request overtime at the last minute with insufficient explanation. S3 said that Complainant has been told repeatedly to request overtime in advance. S3 reproduced an email from January 3, 2018, by S1, which stated that daily overtime was canceled, and weekend overtime needed to be approved prior to noon on Thursday. 2022002065 4 The record further contains a calendar for the year 2018, containing Complainant’s leave requests, signed by Complainant on January 1, 2018. S1 signed the calendar on February 8, 2018 but disapproved eight days of leave. All eight days were consecutive Fridays between May 11, 2018, and July 20, 2018, with the exception of June 6, 29, and July 6, 2018. However, the calendar further indicates that Complainant was seeking to have every Friday off between April 13, 2018, and July 27, 2018, along with a handful of other Fridays throughout the year. Complainant complained in Claim (5) that S3 added tasks to her workload beyond what she can do in an eight-hour day. Complainant affirmed that she has been denied a parking pass, which would allow her to park closer to the building. Complainant argued that S3 would not have added tasks to her workload if she was a man. S3 denied Complainant’s accusation and denied that Complainant had an unsustainable workload. Rather, S3 said that Complainant’s supervisors were trying to keep her on task and not work on other tasks that were not her responsibility. S3 further noted that Complainant had access to golf carts and a truck, which negated the necessity of a parking pass. Regarding Claim (6), Complainant detailed the elements in her performance appraisal that she believes were improperly lowered, and then accuses S1 of not liking white people. S1 asserted that Complainant received the appropriate performance rating and that her work did not merit a higher rating or a monetary award. S1 denied Complainant’s allegation that he did not like white people. As to Claim (7), Complainant explained that her air conditioner went out on May 18, 2018. Complainant had a puppy at home and the forecast was for very hot weather, so Complainant was concerned about getting the air conditioner fixed as soon as possible. To that end, Complainant arrived at work at 6:00 a.m., one hour before her regularly scheduled tour of duty. Complainant emailed S3 and asked to work the one hour and to leave at 10:00 a.m., but when S3 asked if the change in schedule had been pre-approved, Complainant said it was not, and to consider the last hour and 15 minutes “as a gift.” Complainant went home. S3 then charged Complainant with seven and a half hours of AWOL because she was scheduled to be at work until 3:45 p.m. Complainant said that AWOL happened “when you leave without telling anyone.” However, Complainant insisted that she told S3 that she was leaving. Complainant asserted that S3 acted against her because she was a woman: “I’m pretty secure in myself and I am bold. He can’t hurt me and I think that comes into play and that is what bothers [S3]. I am going to say what I have to say. He is not going to influence me.” S3 explained that Complainant had been informed multiple times that she would not be compensated for time performed outside of her duty hours without prior approval. When Complainant informed S3 that she arrived early, S3 asked whether she had prior approval for an early arrival. Instead, Complainant left without telling him. Because Complainant was not approved for leave on May 18, 2018, S3 put Complainant on AWOL for 7.5 hours. According to S3, Complainant “told two production mechanics that she was going home. 2022002065 5 She did not request leave from me or any supervisor. She did send an e-mail stating that she was leaving and stated it was scheduled on her leave planner which was also not true.” In Claim (8), Complainant alleged generally that S3 humiliates her by unnecessarily scrutinizing her work and has kept her from being promoted. S3 broadly denied the allegations. S1 also denied being influenced by S3. Rather, S3 said that Complainant has never lived up to her mission requirements and was always trying to avoid work and is hard to find on the property. In Claim (9), Complainant clarified her allegation by contending that S2 was being sarcastic and subjected Complainant to more scrutiny than necessary. Complainant contended that S2 should have tried to motivate her to work rather than the exact opposite. Complainant identified two employees who witnessed the event. Three co-workers provided affidavits in which they speculated that Complainant was subjected to an “uncomfortable and/or toxic work environment.” One co-worker believed that Complainant would have been treated better if she were younger and another co-worker believed that S3 did not respect women in the workplace. A third co-worker acknowledged that Complainant was treated rudely by S3 but did not think the treatment arose out of discriminatory animus. 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 but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s investigation was inadequate because S2 was not interviewed. Further, Complainant claims that Agency officials provided conflicting and inaccurate testimony which constitutes evidence of pretext. Complainant argues that the record demonstrates that she was subjected to harsh and unwarranted treatment which created an unlawful hostile work environment. Accordingly, Complainant requests that the Commission reverse the final decision. ANALYSIS AND FINDINGS As an initial matter, Complainant argues on appeal that the investigation into her complaint was inadequate because the record does not contain an affidavit from S2. The Agency explained that S2’s name was misspelled several times during the investigation which led to the investigator using an incorrect email address to try to contact S2. Further, the Agency stated that S2 indicated that he was available for participation while the matter was pending before the AJ, but Complainant’s representative failed to request a deposition. 2022002065 6 To the extent Complainant challenges the adequacy of the investigation because the investigator did not interview S2, we find that the investigator made a good faith effort to do so and the failure to obtain his affidavit does not indicate that the investigation was inadequate. The record contains a memorandum from the investigator detailing her attempts to contact S2. As explained above, S2 initially did not participate in the investigation due to a clerical error. While the record shows that the investigator may have ultimately located S2’s correct email address, it is unclear whether he received the investigator’s subsequent email prior to the conclusion of the investigation. Thus, we cannot find S2 intentionally refused to participate in the investigation or that the Agency willfully withheld his testimony. We note that Complainant withdrew her hearing request, a process which would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Ultimately, we find that the Agency's investigation was sufficient to allow us to determine whether discrimination had occurred. See Emerson P. v. Dep't of Health and Human Servs., EEOC Appeal No. 0120180491 (Sept. 19, 2019). 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”). Disparate Treatment - Claims (4) - (7) To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In this case, as more fully detailed above, Agency management articulated legitimate, non- discriminatory reasons for its actions. In Claims (4) and (5), there is no indication that there was an overtime list, but S3 explains in depth how Complainant frequently failed to comply with the Agency’s procedures in requesting overtime, and therefore was denied the majority of the time. 2022002065 7 S1 further explained that Complainant’s work did not merit a rating better than “fully successful” and therefore she did not get a monetary award as alleged in Claim (6). S3 then explains that Complainant did not have approved leave on June 7, 2018, and left without approval. As such, Complainant was charged with 7.5 hours of AWOL. Complainant now bears the burden of establishing that the Agency’s stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The Commission finds no evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. Aside from conclusory statements and her subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination or reprisal. As a result, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment - All Claims To establish a claim of hostile work environment, 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; and (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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Complainant largely protests that she is overburdened with work, but her supervisors complain that she consistently submits improper leave requests, and at the same time requests overtime to complete her work. The evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, personality conflicts, and general workplace disputes and tribulations. We note that the antidiscrimination statutes are not civility codes. 2022002065 8 Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). As a result, the Commission finds that Complainant has not established that she was subjected to discrimination, reprisal, or a hostile work environment as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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. 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. 2022002065 9 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 March 2, 2023 Date