[Redacted], Roxanne C., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Aug 18, 2021

Appeal No. 2020000708 (E.E.O.C. Aug. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxanne C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020000708 Agency No. DHAJ7-18-0019 DECISION On October 7, 2019, 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 September 5, 2019 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as an Administrative Assistant, Grade GS-7, in the Administrative Branch for the Joint Education and Training Directorate (also known as “J7”) at the Agency’s Defense Medical Readiness Training Institute (DMRTI) out of Fort Sam Houston- Joint Base San Antonio, Texas. On October 8, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (Black) and 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. 2 2020000708 a. On July 19, 2018, during a teleconference, the Comptroller stated Complainant was not to be communicated with because Complainant was working outside of her role, she was only a GS-07, and the Comptroller told his staff not to communicate with Complainant. b. On July 19, 2018, the Comptroller stated in the presence of Complainant's Director and other leaders from DMRTI, the Comptroller needed to make those comments because he needed to be in control, and everything needed to come through his office. The Comptroller inferred Complainant was loud and verbally assaulted a Budget Analyst and accused Complainant of sending derogatory and harassing emails to the Education and Training staff. c. Since July 19, 2018, Complainant has been singled-out and ostracized for filing an EEO complaint, Complainant's roles have been reduced or taken away, she has been demeaned in emails with her peers, and the Education and Training Resource Management office appeared to have the Budget Technician assigned to scrutinize Complainant’s daily work activity. d. On August 7, 2018, the Comptroller sent an email with her peers listed, stating she needed to focus on processing authorizations and vouchers to personnel outside her command. e. On September 7, 2018, the Resource Management Officer sent an email stating Complainant sent requests to circumvent the financial system. f. On September 18, 2018, Complainant telephoned an employee [Ms. F] for assistance after sending her an email, the Budget Technician stated Complainant will not speak to her in that manner and tone after she said "hello". g. On September 20, 2018, the Comptroller sent an email stating Complainant needed to follow the Budget Technician's directions and respond back in a timely manner. h. On September 20, 2018, the Resource Management Officer sent a traveler a defamatory email trying to destroy Complainant's character, without facts. i. On November 19, 2018, the Comptroller and the Budget Technician sent an email to headquarters making it appear that Complainant was incompetent in doing her job. j. On unspecified dates, the Comptroller implied Complainant constantly asked for promotion from him. After an investigation, the Agency provided Complainant with a copy of the report of investigation. The Agency also notified Complainant of her right to request a hearing before an EEOC Administrative Judge (AJ) in a letter dated May 28, 2019. Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f). On September 5, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. 3 2020000708 The instant appeal followed. Through counsel, on appeal, Complainant argues that the Comptroller received treatment for substance abuse after the allegedly discriminatory incidents. According to Complainant, the Comptroller’s substance abuse problem undermined his credibility in denying discriminatory motives. Next, Complainant argues the that she acquired newly discovered evidence that would have resulted in a finding of discrimination. Specifically, Complainant contends that an anonymous recording of the July 19, 2018 teleconference, referenced in claim (a), corroborated Complainant’s version of events. Counsel for Complainant asserted that the EEO investigative report was deficient because this evidence was not considered. Finally, Complainant stated that the final decision made incorrect inferences and should have resulted in a finding of discrimination in Complainant’s favor. In support of this position, Complainant’s attorney pointed-out testimony that corroborated Complainant’s allegation in that Complainant had been depicted as an “angry black woman” and that the Comptroller had treated her more harshly after she initiated contact with an EEO Counselor. ANALYSIS AND FINDINGS 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). EEO 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”). We have reviewed, and reject, Complainant’s challenges that the record lacked new evidence that rendered it defective. Regarding the Comptroller’s purported treatment for substance abuse, and a purported recording of the July 19, 2018 teleconference, we question the probative value of either assertion. First, we cannot discern how the Comptroller’s purported condition would be reflective of discriminatory animus toward Complainant. Second, we are unpersuaded regarding a recording having captured overtly hostile “words, tenor and context” against Complainant. The EEO investigator interviewed most parties present during the July 19, 2018 teleconference. Complainant’s brief on appeal and her response to the Agency’s opposition brief, did not identify significant factual discrepancies between witnesses’ recollections and the recording of the teleconference. 4 2020000708 Reprisal We analyzed the reprisal aspect of Complainant’s broadly in the interest of protecting employees from retaliation that may reasonably 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 Title VII prohibits any words or actions that have a chilling effect of discouraging a reasonable employee from engaging in EEO activity. Christeen H. v. U.S. Postal Serv., EEOC Appeal No. 0120162478 (June 14, 2018). Complainant disagreed with Agency management’s decision to shift some of her Defense Travel System responsibilities to the Comptroller’s staff. It is clear that Complainant found emails and comments by the Comptroller and members of his staff disparaging. Nevertheless, we fail to see how any of the aforementioned words or actions would have deterred Complainant or a reasonable employee from their rights to the EEO process. Hostile Work Environment/Harassment In its final decision, the Agency applied the Supreme Court’s disparate treatment test from McDonnel Douglass Corp. v. Green, 411 U.S. 792 (1973). We determined that Complainant’s claims more appropriately framed in the context of unlawful harassment or a hostile work environment. To establish her hostile work environment claim, Complainant also show must show events occurred because of protected status and that the harassing conduct was sufficiently severe or pervasive. In other words, to prove Agency harassment, Complainant must show that she was subjected to conduct that was either so severe or so pervasive that a reasonable employee in Complainant's position would have found the conduct was hostile or abusive. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant must also prove that the conduct was motivated by of animus against at least one her protected characteristics, in this case, her race/color, her gender, or her engagement in EEO activity. Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997). Only if Complainant establishes both of the elements----abusiveness/hostility as well as a discriminatory motive, can the Agency the be held liable for harassment. Wibstad v. U. S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998). We note that all of the communications, that Complainant described as demeaning or disparaging were related to her position’s primary duties which included authorizing travel plans, approving travel vouchers, and issuing government travel cards. Claim a. and Claim b. - July 2018 Teleconferences The first July 2018 conference was called to discuss the Agency’s Defense Travel System transition from the old version for the Medical Education and Training Command (DTS METC) to a new version of the DTS for the Defense Health Agency (DTS DHA). 5 2020000708 When Complainant questioned the DTS DHA manager about the transition to DTS DHA, J7’s Comptroller (Commander/Grade O-5, male, Caucasian, no EEO activity) stated that Complainant was “only a GS-7.” The Comptroller told the DHS DHA manager not to answer because Complainant because Complainant was working outside of her role. Complainant then interrupted the Comptroller by stating her name and that she was a grade GS-7. The senior management official on the teleconference directed both Complainant and the Comptroller to stop. In a following teleconference, the Comptroller explained the prior statements he had made about Complainant. The Comptroller’s office was responsible for oversight and management of J7’s travel and that he wanted to be in control of information and inquiries regarding travel programs. Complainant stated that the Comptroller offered to apologize but Complainant indicated she would not accept an apology because she did not believe the Comptroller was sincere. To the extent that the Comptroller mischaracterized Complainant as verbally assaulting a member of his staff, witnesses and Complainant confirmed that, earlier that month, Complainant had a heated exchange of words with an employee on the Comptroller’s staff (GS-12, male, Hispanic, EEO activity unknown) who had accused Complainant of insufficient planning after a meeting. Claim f. - Phone Call Sometime between June 2018 or September 2018, Complainant and the Comptroller’s staff Budget Technician (Grade GS-7, female, Caucasian, no-EEO activity) had a mutually unpleasant telephone conversation wherein Complainant was upset about having to deal with a Defense Travel System problem on her day-off. Complainant and the Budget Technician disputed the date of that phone call. They accused each other of speaking a disrespectful manner. Claim c., Claim d., Claim e. Claim g., Claim h. and Claim i. - Emails According to Complainant, beginning July 2018, Budget Technician began excessively emailing two or three times a day. Complainant stated if she did not respond quickly, the Budget Technician would elevate the matter to the Comptroller. The Comptroller would then send emails to her chain- of-command that Complainant was not timely in answering emails; the Comptroller would also email these messages about Complainant to his staff. The Comptroller’s messages stated that he found Complainant’s response times unsatisfactory, that the Budget Technician was the lead for travel programs, and that Complainant needed to follow the Budget Technician’s guidance. In her memorandum for the EEO Counselor, Complainant wrote: “I was not formerly notified that [the Comptroller’s Budget Technician] was my new supervisor.” In an August 2018 email, Complainant requested contact information, from the Budget Technician, for an auditor at Lackland Air Force Base. After questioning the reason that Complainant needed to contact an auditor, the Comptroller emailed her supervisor and reminded them his office was responsible for travel program auditing. The Comptroller further wrote that Complainant needed to focus on travel processing duties. 6 2020000708 In September 2018, the J7 Resource Management Officer (Grade GS-12, female, Caucasian, no- EEO activity) sent an email apologizing to a Reserve Colonel who had sought assistance with a travel reimbursement but was unable to reach Complainant. In describing the problem, the Resource Management Officer had used the metaphor “crickets” in reference to the Colonel finding Complainant non-responsive. In September 2018, Complainant sent the Budget Technician emails about being denied the ability to permit approval authorities in the government new travel card system. Later, the Resource Management Officer emailed, explaining that Agency management recently decided to centralize approval authorities for the new government travel cards program in the Business Branch, whereas Complainant worked in the Administrative Branch. The Resource Management Officer’s apologized in the email for not having informed Complainant of this change earlier. In November 2018, the Budget Technician had emailed asking Complainant to help with customers who needed their cards activated for upcoming travel. After Complainant did not respond to the Budget Technician’s email for two days, the Comptroller contacted Complainant’s Division Chief (EEO statuses unspecified) and second-level supervisor. Complainant’s Division Chief then directly emailed Complainant with specific instructions to immediately provide those travelers with training certifications and statements of understanding. Claim i. - Accused of Asking for Promotion Complainant admitted that, on two separate dates, she had asked the Comptroller for a promotion. The Comptroller stated that Complainant’s doing so had made him uncomfortable because he was not in her chain-of-command. Complainant stated that on both occasions, she had obviously been joking. Sworn statements both contested and concurred with Complainant, concerning potential discriminatory motivations for Agency actions. For example, Complainant’s direct supervisor (Lieutenant/Grade O-3, female, mixed-race, no EEO activity) and another co-worker (Sergeant/Grade E-5, female, Caucasian, no EEO activity) supported Complainant’s position. However, on the other hand, Complainant’s second-level supervisor, (Commander/Grade O-5, male, Pacific Islander, no EEO activity) stated he did not know whether Complainant had been subjected to discrimination. Meanwhile, an Instructor/Registrar (Grade GS-2, male, Hispanic, no EEO activity) did not witness any discrimination but opined that that Complainant had been wrongfully talked down to based on her grade. Apparently, Complainant declined to request a hearing before an EEOC AJ so we are without an AJ’s credibility determinations about witnesses. Taken altogether, Complainant has failed to prove Agency discrimination by a preponderance of evidence. Instead, we find evidence within of record was, at best, in equipoise. Therefore, Complainant failed to meet her burden of persuading us that the Agency acted out of unlawful animus toward her. Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). 7 2020000708 Moreover, Complainant has not demonstrated that she experienced hostility sufficient to rise to the level of discriminatory harassment. We note that Agency management made decisions that changed Complainant’s work that caused her anxiety and made her feel less important. Furthermore, revealed that Complainant has experienced organizational acrimony and individual personality conflicts. EEOC has consistently held that such everyday workplace indignities do not rise to the level of discriminatory harassment. Silvia B. v. Dep’t of the Treasury, EEOC Appeal No. 0120173290 (Oct. 24, 2018). CONCLUSION Based on our review of all evidence in addition to all submissions on appeal, the Commission AFFIRMS the Agency’s final decision finding of no discrimination. 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. 8 2020000708 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. 9 2020000708 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 18, 2021 Date