[Redacted], Patricia B., 1 Complainant,v.Lloyd J. Austin III Secretary, Department of Defense, (Organization of the Joint Chiefs of Staff) Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001391 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patricia B.,1 Complainant, v. Lloyd J. Austin III Secretary, Department of Defense, (Organization of the Joint Chiefs of Staff) Agency. Appeal No. 2020001391 Agency No. 2018-JCS-005 DECISION On December 2, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 4, 2019 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. Complainant worked as a Financial Management Analyst, GS-0505-13, at the Agency’s Office of the Comptroller in Suffolk, Virginia. In a formal EEO complaint filed on August 27, 2018 and later amended, Complainant alleged that she had been subjected to discrimination and a hostile work environment on the bases of her race (African-American) and in reprisal for prior protected EEO activity when: a. In August 2015, Complainant received a lower performance award after management lowered her performance rating; b. In November 2017, Complainant felt harassed during an interview when the Comptroller failed to ask her interview questions and only discussed his concerns about emails she sent to coworkers and when her former Branch Chief repeatedly interrupted her answers; 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. 2020001391 2 c. On December 21, 2017, the Chief of the Accounting and Financial Management Branch asked Complainant to change her leave slip and later contacted her doctor’s office; d. In December 2017, Complainant was denied a promotion when she was not selected for a GS-14 Supervisory Financial Management Analyst position; e. On an unspecified date, Complainant’s request to transfer out of the Comptroller’s Office was denied by management while a White employee was allowed to transfer out; f. In February 2018, Complainant’s former Branch Chief instructed one of her coworkers not to help her with a report after she had been out on leave for two months; g. On May 17, 2018, Complainant received a three rating on one of her performance elements at the direction of her second-line supervisor/former Branch Chief; h. On May 23, 2018, Complaint received a warning via email entitled, “Conduct Notification” from a Supervisory Financial Management Analyst; i. On January 8, 2019, in a meeting with her peers and her superiors, the Major told Complainant, “the problem is down there,” a statement that Complainant characterized as derogatory and harassing statement made because the Deputy Comptroller told him of her EEO case; and j. On January 23, 2019, the Deputy Comptroller told Complainant that disciplinary actions would be taken against her if she continued to publicly accuse management of intentionally disparaging her reputation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. When Complainant failed to respond to the notice, the Agency issued its final decision in which it found that Complainant failed to prove that she was subjected to discrimination or reprisal as alleged. The instant appeal followed. ANALYSIS AND FINDINGS Hostile Work Environment To establish a claim of 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 classes; (4) the harassment affected a term or condition of employment 2020001391 3 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The antidiscrimination statutes are not civility codes. 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). Therefore, 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 classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Complainant asserted that based on her protected classes, management officials subjected her to a hostile work environment. Complainant alleged several incidents of what she characterized as harassment, including a lower-than-expected performance award, being questioned during an interview, a manager’s request that she change her leave status, a nonselection, the denial of a transfer request, and a negative performance evaluation. It is well established that routine work assignments, instructions, and admonishments such as those described above are generally not severe or pervasive enough to constitute harassment. Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017); Genaro D. v. Dep’t of Homeland Security, EEOC Appeal No. 0120142618 (Dec. 19, 2016); Gray v. U. S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). After reviewing the evidentiary record in its entirety, the Commission finds that the totality of the conduct at issue was insufficiently 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, there is no persuasive evidence in the record that discriminatory or retaliatory animus played a role in any of the Agency's actions. The record reflects that each of the alleged incidents was more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. With respect to incident (a), the Deputy Comptroller stated that Complainant had actually received a higher award than one of the individuals to whom she compared herself. In addition, the Deputy Comptroller noted that awards were not calculated until all ratings were finalized; therefore, there was never an opportunity to lower Complainant’s performance award. As to incident (b), there is no corroborating evidence in support of Complainant’s claim regarding the interview in question. Further, Complainant has not demonstrated that officials had discriminatory or retaliatory motives during the interview. Regarding incident (c), the former Branch Chief did ask Complainant to change her leave request because the dates on the leave request form did not match those listed in Complainant’s medical documentation. 2020001391 4 Concerning incident (d), the selection panel members interviewed the candidates and had determined that the selectee had a better interview performance than Complainant. More specifically, one panelist stated that Complainant did not explain the processes of the Planning, Programming, Budgeting, and Execution System as well as the selectee and another panelist confirmed that the selectee demonstrated better customer service-oriented skills. In addition, the selectee’s resume listed a broader depth of experience. As a result, the panel recommended the selectee for selection. With regard to incident (e), the Deputy Comptroller averred that the comparator was not transferred, but rather was detailed for 120 days and later returned to his position. Additionally, the Deputy Comptroller noted that management looked into transferring Complainant; however, Complainant rejected the office who was willing to accept her. With regard to incident (f), Complainant’s supervisor at the time averred that she asked one of Complainant’s coworkers to assist Complainant in clearing several items in the report in question and later reassigned the coworker to another project. As to incidents (g) and (h), the supervisor who conducted the appraisal and issued the email received input from Complainant’s second-level supervisor regarding her rudeness and unprofessionalism during the course of work-related communications. Regarding incident (i), Complainant’s supervisor stated that the official merely stated that there were problems at the Suffolk location, where Complainant worked, which Complainant took to be derogatory. Concerning incident (j), the Deputy Comptroller described Complainant as one of her most qualified employees, averred that she unsuccessfully tried to shop Complainant around to other offices after Complainant requested a transfer, and stated that she told Complainant to stop making unsubstantiated comments about her colleagues. Beyond her own speculative and conclusory assertions, Complainant presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents which contradict or undercut the explanations put forth by the named officials for their actions in these incidents or which would cause us to question the veracity of these officials as witnesses. The Commission therefore finds that Complainant has not shown that she was subjected to a discriminatory or retaliatory hostile work environment. To the extent Complainant claims that she had been subjected to disparate treatment, the Commission finds that 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. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020001391 5 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. 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). 2020001391 6 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 August 3, 2021 Date