[Redacted], Nina M., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency.

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2020004068 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nina M.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Department of Defense Education Activity), Agency. Appeal No. 2020004068 Hearing No. 570-2017-00261X Agency No. EU-FY15-120 DECISION On July 7, 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 December 3, 2018 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-12, in the Human Resources (HR) Division in an Agency facility in Germany. On October 27, 2015, Complainant filed an EEO complaint alleging that the Agency treated her disparately and subjected her to hostile work environment harassment based on sex (female), disability (depression, stress, migraines, Post Traumatic Stress Disorder, hypertension, and extreme fatigue), and reprisal for prior protected EEO activity (instant pre-complaint) 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. 2020004068 2 1. in September 2015, management denied Complainant reassignment to the Agency’s Headquarters in Alexandria, Virginia, United States; 2. on July 9, 2015, management rated Complainant’s performance as “commendable,” which is lower than prior performance ratings, and she did not receive her rating until September 2015; 3. in December 2015, management changed Complainant’s staffing duties; 4. in December 2015, Complainant was given a new direct supervisor; 5. in March 2016, management issued Complainant a letter of counseling (LOC) for using profanity at a manager during a fire drill; 6. since filing the instant complaint, management has excluded Complainant from information and activities; 7. management delayed submitting Complainant’s completed work product and failed to include her on the submission email; 8. on April 15, 2016, management reprimanded Complainant for not transferring her work phone to her home while she was teleworking as an accommodation; 9. on May 25, 2016, management instructed Complainant to begin assisting the “in-processing” unit but did not discuss that unit not performing its own work; 10. on May 25, 2016, management sent her an email regarding “in- processing” Headquarters’ employees but Complainant did not have any input in the change in her duties; and 11. on June 2, 2016, management still had not moved Complainant to a separate office as she requested as reasonable accommodation. The Agency accepted Complainant’s complaint for EEO investigation. During the investigation, Complainant stated that she has little strength to do any activities and spends most of her weekends in bed. She also stated that she has difficulty concentrating and the HR staff sit four in a room so she can barely focus on her job task of reviewing records. Complainant stated that she was in the hospital and on life-support for several weeks starting on May 19, 2015 and did not leave the hospital until August 24, 2015. For claim (1), Complainant stated that there were vacancies at Headquarters to which she could have been reassigned. She stated that she requested a hardship transfer to Headquarters since September 2015. She noted that assignment to Headquarters would allow her to be two hours from relatives. As to claim (2), Complainant stated that management changed her rating while she was in the hospital probably because they thought she would not notice. Regarding claim (3), Complainant stated that management changed her from processing teachers to handling all GS-positions, which is more stressful, and she had recently been discharged from the hospital and was limited in her ability to handle stress. For claim (4), Complainant stated she was given a new supervisor (S1) who knew nothing about staffing and HR functions, so her job was more stressful. With regard to claim (5), Complainant stated that the LOC allegation was retaliatory, based on hearsay, and that the person she is accused of cursing at had screamed at and taunted her for walking the steps one at a time during a fire drill. 2020004068 3 Regarding claim (6), Complainant stated that her disability could be the only reason for her not receiving information or invites to activities as they were shared with everyone else well in advance. For claim (7), Complainant stated that she completed a pay package correction and her immediate supervisor delayed submitting to headquarters and, ultimately, she did so on her own and it was processed properly. Complainant stated her immediate supervisors are both males and they wanted to show she does not know what she is doing because she is a female and with a disability. As to claim (8), Complainant stated that management sought to upset her by issuing her a LOC for not transferring her phone while teleworking. Complainant stated phone forwarding was not required. Regarding claim (9), Complainant stated she was asked to complete a courtesy processing for a new employee hired by the Defense Logistics Agency (DLA), but when DLA requested his paperwork, she informed them that their Specialist should have completed his forms. Complainant stated that management asked her to assist because she is a female and to retaliate against her. For claim (10), Complainant stated that she is given the tasks of assisting new employees hired by Headquarters as needed, but others should be able to assist too. As to claim (11), Complainant stated that she shares an office space with three others and, with the constant talking, she is unable to concentrate to complete her job tasks. She stated there are empty office spaces, but management has failed to provide her solo space, even temporarily. Complainant stated that she requested a “temporary solution” so that she could work on a special project and other matters in quiet. She stated that management suggested she move to a quiet space to work on her special project, but they never provided it. She stated that management suggested using the conference room. Additionally, overall Complainant alleged that a female coworker is married to a manager and was treated more favorably. In response, during the investigation, management witnesses stated the following. Claim (1): Complainant requested a hardship transfer and management directed reassignment to Headquarters, but there were no vacancies at the time. However, they stated Complainant could apply for vacant positions when they arose. Claim (2): Complainant did very well during the performance rating period, but did not earn a rating of “exceeds” in elements 1 and 4 so she could not be rated as “exceptional” overall. Claim (3): there were staffing changes in the HR Division and management had to make some assignment changes consistent with staff skills and experience (management noted Complainant was excellent in GS and Educator Recruitment). Claim (4): two HR managers retired, so there was a need to assign temporary direct supervisors while permanent managers were hired. Claim (5): Complainant used profanity at a supervisor and then told others that she cursed him out. Claim (6): if Complainant was omitted from communication, it was in error and management sought to correct the error when realized. Claim (7): there was no intentional delay in submitting Complainant’s work product. Claim (8): Complainant’s supervisor tried to reach her via telephone on a day she teleworked and was unable to do so because her office phone was not transferred, so the next day he told her she had to forward her work phone when teleworking. Claim (9) and (10): Complainant was the most experienced and capable HR Specialist they had at the time and her skills were needed for the tasks. Claim (11): Complainant did not request to be moved as a reasonable accommodation and did not seem excited when her supervisor suggested it for her work on a special project. 2020004068 4 The Agency stated that Complainant’s reassignment request was not one of reasonable accommodation. Management stated that it provided Complainant limited commuting/telework from home due to her medical condition. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. Complainant requested a hearing. On November 5, 2018, the assigned AJ issued a summary judgment decision finding no discrimination. Specifically, the AJ found that Complainant failed to show that the actions individually or together were based on her protected classes. On December 3, 2018, the Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. 2020004068 5 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 Complainant to prevail, 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 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 the agency has articulated a legitimate, non-discriminatory 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). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on sex, disability, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Summarily, the Agency stated that Complainant requested a hardship transfer and then a management directed reassignment from the Agency’s Germany office to its United States Headquarters. Complainant stated that the reassignment would allow her to be closer to family following a serious and extended hospital stay in Summer 2015. The Agency cited Complainant as an experienced and skilled HR Specialist and stated that many changes to her tasks were based on the need for her skill level. Further, the Agency stated that it took actions, such as a LOC or verbal reprimand, based on business reasons and not discriminatory reasons. It noted that there were some managerial changes that required it to change her supervision. The record shows that the Agency granted Complainant telework as an accommodation related to her medical condition, and request for reassignment and use of an individual office were not truly reasonable accommodation requests. Complainant made bare assertions about the Agency’s discriminatory reasons for its actions. We find that Complainant failed to establish management’s proffered legitimate explanations were a pretext designed to mask the true discriminatory or retaliatory motivations behind the disputed actions. 2020004068 6 Harassment To prove her harassment/hostile work environment 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 sex, disabilities or protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. 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. Here, the preponderance of the evidence does not establish that management was motivated by any discriminatory or retaliatory factors. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000); Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination or unlawful retaliation. 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. 2020004068 7 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. 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. 2020004068 8 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 21, 2021 Date