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

Equal Employment Opportunity Commission

Nov 18, 2021

Appeal No. 2020003845 (E.E.O.C. Nov. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamela W.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003845 Agency No. ARCETULSA18APR01241 DECISION On June 22, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 22, 2020 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. BACKGROUND During the relevant time, Complainant worked as a Staff Accountant, GS-0510-12, at the Agency’s Finance and Accounting Branch of the Resources Management Office (RM), at the Tulsa District Executive Office for the Army Corps of Engineers in Tulsa, Oklahoma. On April 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment based on race (African American), sex (female), 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. 2020003845 2 1. On February 6 and 14, 2018, while detailed to the Accounting Officer position at the Tulsa District, Resources Management Office (RM), the Financial Manager treated a male employee more favorably by allowing him to perform all supervisory duties. 2. On February 25, 2018, she received a non-selection notification for the Accounting Officer position, SWHB185213008173, for which she interviewed on February 2, 2018. 3. On March 29, 2018, the Accounting Officer, under her supervisor’s coercion, “accidently” sent an email to Complainant, which was meant for the Human Resources (“HR”) Specialist, asking him to read the “lengthy email chain,” and then they could “discuss the next step” after Complainant voiced concerns about performance standards. 4. On April 3, 2018, the Financial Manager encouraged the Accounting Officer to question Complainant (“pick with”) and make false accusations against Complainant as it relates to leave approval and leave status, because Complainant filed an EEO complaint against him. 5. On July 10, 2018, the Accounting Officer sent repeated email requests for information which were already submitted by Complainant, and included the supervisor, on routine emails, which is not a common practice for all employees in the office. 6. On August 13, 2018, the Accounting Officer, along with the Financial Manager, administered Complainant a Letter of Counseling, citing conduct issues and failure to follow instructions. 7. Since August 7, 2018 and onward, the Accounting Officer denied Complainant developmental and promotion opportunities, when she did not leave Complainant in charge during her absence even though Complainant is the senior Staff Accountant. Following 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request on January 27, 2020. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The instant appeal followed. 2020003845 3 ANALYSIS AND FINDINGS 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). During the relevant period, the Accounting Officer was Complainant’s first-level supervisor (“S1”) (Caucasian female) and the Financial Manager was Complainant’s second-level supervisor (“S2”) (Caucasian male). Regarding Complainant’s claim that on February 6 and 14, 2018, while detailed to the Accounting Officer position at the Tulsa District, Resources Management Office (RM), S2 treated a male employee more favorably by allowing him to perform all supervisory duties, S2 stated that he does not recall the incidents of February 6 and 14, 2018. However, he noted that some duties may well have been assigned to the named male employee because he had a different position than Complainant. Specifically, the named male employee is a Budget Officer, and Complainant is an Accountant. Complainant claimed that on February 25, 2018, she received a non-selection notification for the Accounting Officer position, SWHB185213008173, for which she interviewed on February 2, 2018. S2 was the selecting official for the Accounting Officer position. He stated that he implemented a panel of five Agency officials, including himself, to review the candidates’ resumes. 2020003845 4 Following the interviews, the panel recommended S1 for the Accounting Officer position because she had approximately eleven years of experience as a GS-13 supervisor and is a Certified Public Account (CPA). S2 stated that he did not select Complainant for the Accounting Officer position because Complainant was ranked third or fourth overall based on her resume. He also noted that Complainant spoke of her years of experience with the Corps of Engineers, but that her supervisory experience was back in the 1990s at the GS-11 level. The Supervisory Program Analyst (“Panel Member 1”) (African American female) was a member of the selection panel. She stated that she received a list of the candidates’ resumes from S2 and was asked to provide her ranking of the candidates’ resumes. Panel Member 1 stated that S2 set up the interviews with the top candidates. The record reflects that four candidates were interviewed, including Complainant. During the interviews, each panel member asked a question and they discussed each candidate after each interview. Following the interviews, Panel Member 1 stated that the panel was asked who they thought was the best candidate based on the resumes and interviews. She stated that the panel recommended S1 for the Accounting Officer position. Further, Panel Member 1 stated that she felt that S1 was more qualified than Complainant because she has approximately eleven years of supervisory experience, has a Master’s degree and multiple certifications (Certified Public Accounting, Certified Defense Financial Manager, Certified Government Auditing Professional and DOD Financial Management (DoDFM) Certification Level 3). She also noted that S1 has extensive experience dealing with senior leaders and DoD audits. Finally, Panel Member 1 stated that she felt S1 was more prepared to handle the requirements of the subject position. Panel Member 1 stated that she did not recommend Complainant for the Accounting Official position because she lacked leadership and conflict resolution skills compared to S1. In addition, she stated that Complainant did not interview well and her resume as not as strong as S1’s resume. Complainant claimed that on August 13, 2018, S1, along with S2, gave Complainant a Letter of Counseling, citing conduct issues and failure to follow instructions. The record contains a copy of Complainant’s Letter of Counseling dated August 13, 2018, in which S1 placed Complainant on notice that the last five months since she became her supervisor, there have been repeated instances where Complainant failed to follow instructions and acted discourteously and unprofessionally. She stated that she had hoped these instances would resolve. S1 stated that the subject letter of counseling was not a disciplinary action but an effort to assist Complainant. In sum, management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Complainant failed to prove, by a preponderance of the evidence, that this proffered reason was a pretext for discrimination. Complainant simply provided no evidence that this matter was in any way motivated by her race, sex or unlawful retaliatory animus. 2020003845 5 Harassment 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 her protected bases - in this case, her race, sex and prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her race, sex or prior EEO complaint. As an initial matter, we will not include the issues discussed above as part of Complainant’s claim of ongoing discriminatory harassment because we have already concluded that her race, sex or retaliatory animus did not play a role in these events. Complainant also claimed that on March 29, 2018, S1, under her supervisor’s coercion, “accidently” sent an email to Complainant which was meant for HR Specialist, asking him to read the “lengthy email chain, and then they could “discuss the next step” after Complainant voiced concerns about performance standards. S1 (Caucasian, female) asserted that there was no retaliation or coercion. She explained that she sought guidance from HR regarding performance management. S1 stated that the email to Complainant was an accident and she was already communicating with HR for assistance with writing the performance plans. Regarding Complainant’s leave requests, S1 stated that she was trying to document Complainant’s leave request and clarify the leave process. At that time, she had only been with the Agency for approximately one month, and she was learning the new process. In addition, S1 stated that she was not accusing Complainant of leave abuse. Complainant claimed that on April 3, 2018, S2 encouraged S1 to question Complainant (“pick with”) and make false accusations against Complainant as it related to leave approval and leave status because Complainant filed an EEO complaint against him, S2 stated that he was aware of the email communication concerning Complainant’s leave but he asserted that he never encouraged S1 to pick with Complainant about anything. Regarding Complainant’s allegation that on July 10, 2018, S1 sent repeated email requests for information which were already submitted by Complainant, S1 stated that she was simply seeking clarification of certain information. The record reflects that there may indeed have been conflicts and tensions with S1 and S2’s management style that left Complainant feeling aggrieved. According to S1, when she first was selected to the position (for which Complainant was not selected), Complainant would not talk to her and after repeated attempts to meet with her, “it was like a huge negotiation just to get her into my office to get her to speak to me for the first two weeks just to have a face to face conversation.” 2020003845 6 However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks 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. Here, the preponderance of the evidence does not establish that S1 or S2 was motivated by discriminatory or retaliatory animus. 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. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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 2020003845 7 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. 2020003845 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 November 18, 2021 Date