[Redacted], Rosita R., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 28, 2021

Appeal No. 2020000637 (E.E.O.C. Apr. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosita R.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000637 Hearing No. 480-2018-00097X Agency No. ARIRWIN16AUG04171 DECISION On September 26, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), 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 period at issue, Complainant worked as an Engineer Technician, Grade GS-11, in the Directorate of Public Works within the Agency’s Installation Management Command (IMCOM) at Fort Irwin, California. On December 25, 2016, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of national origin (Mexican-American), sex (female), religion (Catholic), color (Brown), disability, and in reprisal for protected EEO activity (prior 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. 2 2020000637 1) on August 10, 2016, Complainant’s supervisor denied her request to telework; and 2) since April 4, 2016 through December 2016, Complainant’s supervisor talked down to her, belittled, humiliated, and embarrassed her in front of others. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On May 1, 2019, the assigned AJ notified the parties that she was considering issuing a decision without a hearing. On May 16, 2019, Complainant responded to the AJ’s notice. In her response, Complainant withdrew Claim 1 regarding telework. Additionally, Complainant withdrew disability, national origin, sex, and color as bases. In support of the remaining retaliatory harassment allegation (Claim 2), Complainant made a discovery request for complaints against her managers, supervisory communications about Complainant’s complaint, and harassment and discrimination investigations which purportedly occurred within her organization from January 1, 2015 to May 16, 2019. On May 21, 2019, the Agency submitted its response. The AJ ordered the Agency to produce that information deemed relevant and thereafter the AJ conducted an in camera review of the Agency’s additional evidence. On July 18, 2019, the AJ issued a decision by summary judgment in favor of the Agency. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. On appeal and through counsel, Complainant argues that the matter merited a hearing, that the AJ’s in camera review was inappropriate, and that the AJ’s findings were erroneous because Complainant had sufficiently evidenced retaliatory harassment. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 3 2020000637 the non-moving party. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. In response to the AJ’s notice of intent to issue a decision without a hearing, Complainant made a broad request for Agency correspondence regarding her case or other discrimination claims against management at Fort Irwin. The AJ decided that Complainant’s request would result in the Agency producing information that was sufficiently sensitive to warrant non-disclosure. The AJ granted Complainant’s review in part by ordering the Agency to produce the requested evidence. The AJ partially denied Complainant’s discovery request by limiting the production order to in camera review. Such a finding and review was within the AJ’s discretion. We have held that overall, and including issues of in camera review, EEOC AJs have wide latitude in how they chose to conduct hearings. 29 C.F.R. § 1614.109(c); Lee v. Dep’t of Labor, EEOC Request No. 05910538 (July 5, 1991). Accordingly, we have considered, but have rejected, Complainant’s challenge to the AJ’s in camera review. The AJ may issue a decision without a hearing only after determining that the record has been adequately developed. Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We exhaustively reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Upon Complainant’s request, we have taken administrative notice of the Merit Systems Protection Board’s decision [Complainant’s supervisor] v. Dep’t of Army, MSPB Docket No. DE-0752-19-0022-I-1 (Feb. 28, 2019). We have also taken notice of the decision following the supervisor’s petition for rehearing en banc, [Complainant’s supervisor] v. Dep’t of the Army, 983 F.3d 1131 (2020). Here, it is undisputed that in 2018, Complainant’s supervisor was later removed for committing misconduct, interfering with a different Agency investigation, using abusive, offensive, disgraceful or inflammatory language, and lacking candor. We note, however, the supervisor’s disciplinary violations that caused his removal, occurred not at Fort Irwin in California, where Complainant was employed, but rather at the Agency’s White Sands Missile Range in New Mexico. The Agency removed the supervisor for acts that occurred between 2017 and 2018, when Complainant was no longer under his supervision. We disagree with Complainant’s contention that material facts are in dispute or that the AJ relied of on that supervisor’s credibility in rendering the decision now on appeal. Even if we were to exclude the supervisor’s denials, the remaining evidence of record failed to support Complainant’s discrimination allegations. Therefore, we cannot find that the AJ erroneously decided this matter without a hearing. Harassment of an employee that would not occur but for the Complainant’s race, color, sex, national origin, age, disability, religion or prior EEO activity is illegal, if it is sufficiently patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); Enforcement 4 2020000637 Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 3, 9 (Mar. 8, 1994). A single incident or group of isolated incidents will not be regarded as discriminatory harassment unless the conduct is severe. See Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII or the Rehabilitation Act must be determined by looking at all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. See Harris v. Forklift Sys., 510 U.S. 17 (1993). An “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive,” and the Complainant subjectively perceives it as such. In the present matter, Complaint does not challenge an Agency action regarding a specific term, condition or privilege of employment. Such a claim of harassment is actionable where it was sufficiently severe or pervasive to alter the conditions of Complainant's employment. Harris, at 21-22. We considered the alleged harassing incidents and remarks in the light most favorable to Complainant. Cobb v. Dep't of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). We are unpersuaded that Complainant was subjected to harsh treatment because of retaliation or another EEO-protected status. Witnesses asserted that Complainant’s supervisor (male, Hispanic, U.S. American national, Catholic) acted inappropriately and incompetently. Complainant acknowledged she had overheard many of the supervisor’s negative comments about her or learned about them from co-workers. Additionally, Complainant admitted that her supervisor had also berated a similarly-situated colleague who did not share her protected characteristics (male, Caucasian, U.S. American national, no religion). According to Complainant, the supervisor had also humiliated and talked down this colleague by insisting he take a shower and lying that Complainant had complained about the co-worker’s body odor. Furthermore, the Agency’s official administrative Article 15-6 investigation into their working environment concluded that, notwithstanding the supervisor’s behavior, Complainant had been insubordinate to the degree that warranted developmental counseling. The Article 15-6 investigation disclosed that Complainant had refused to do certain tasks and exhibited a poor attitude after receiving assignments. We find Complainant contributed to the workplace hostility. EEOC reviews claims of reprisal broadly so that employees are protected from any discrimination that is reasonably likely to deter protected activity. EEOC Compliance Manual, Sec. 8, “Retaliation,” No. 915.003 (May 20, 1998) at 8-15; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Consistently, we have held that the actions of a supervisor violate Title VII and constitute reprisal where the supervisor acts to intimidate an employee and interfere with her EEO activity in any manner. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998) (violation found where supervisor discouraged complainant by saying that filing an EEO complaint was the “wrong way to go about getting a promotion”). A supervisor who has a potentially chilling effect on employees seeking equal employment opportunity has committed a violation. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120072908 (Aug. 3, 2009), req. for recons. den. EEOC Appeal No. 0520090654 (Dec. 16, 2010). Title VII prohibits words or actions that have a chilling effect of deterring the 5 2020000637 complainant or a reasonable employee from protected activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). Here, Complainant has alleged that her supervisor attempted to interfere with her EEO activity by requesting that she provide him with minutes documenting her meeting with the EEO Counselor. After careful a careful reading, we find their correspondence evidenced miscommunication between Complainant and her supervisor. We concur with the AJ’s finding that Complainant’s emails described the meeting that she had scheduled on October 20, 2016, and that the record was unclear as to whether the supervisor had been notified or was aware of the meeting’s EEO-related purpose. CONCLUSION Having thoroughly reviewed of the record and all contentions on appeal, we AFFIRM the AJ’s decision without a hearing and the finding therein, that Complainant failed to establish discrimination as alleged. 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 Ch. 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, 6 2020000637 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. 7 2020000637 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 April 28, 2021 Date