[Redacted], Susie K., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Jul 29, 2021

Appeal No. 2020002823 (E.E.O.C. Jul. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susie K.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2020002823 Hearing No. 570-2018-00977X Agency No. 2017-HRD-069 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 14, 2020, finding no discrimination concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Ombudsman, GS- 14, at the Agency’s Washington Headquarters Services (WHS), Human Resources Directorate (HRD), Office of the Director, in Alexandria, Virginia. On October 15, 2017, Complainant filed an EEO complaint, which was later amended, alleging that she was subjected to a hostile work environment and discrimination 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. 2020002823 2 1. On February 26, 2018, Complainant became aware she was removed from the Executive Team email server list and the WHS, Pentagon, HRD Director’s List server list. 2. On July 19, 2017, during a meeting with the HRD Deputy Director (D1), D1 shoved books across the table towards Complainant, accused her of being disrespectful, lying, untrustworthy, and advocating for assisting an employee with an EEO complaint; 3. On June 22, 2017, Complainant’s supervisor (S1), the HRD Director, accused Complainant of being disrespectful and ordered her to schedule a meeting with D1 to apologize;2 and Complainant also alleged that she was subjected a hostile work environment and discrimination based on race (African American), color (black), and sex (female) when: 4. On June 22, 2017, S1 and the WHS Deputy Director informed Complainant that WHS, HRD would be removed from her service population, and in August 2017, the duties were assigned to a white male, Ombudsman for Pentagon Forces Protection Agency.3 After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request.4 The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 2 The Agency dismissed claim 3 due to untimely EEO Counselor contact because Complainant should have reasonably suspected discrimination at the time of the alleged incident on June 22, 2017, but she did not contact an EEO Counselor until September 1, 2017. Upon review, we affirm the Agency’s dismissal of claim 3 to the extent that it is a discrete incident due to untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). We note that the Agency considered, as do we, claim 3 as part of the harassment claim. 3 We find that claim 4 will be considered as timely because it is part of the timely raised harassment claim. 4 Complainant contends on appeal that the AJ improperly denied her motions to restore a dismissed claim(s) and to amend her complaint (adding 14 new incidents). However, Complainant subsequently withdrew her hearing request, thereby effectively choosing to extinguish all hearing matters, including the AJ’s denial of her motions. See Complainant v. Dep’t of the Treasury, EEOC Appeal No. 0120110521 (Sept. 6, 2012), request for reconsideration denied, EEOC Request No. 0520130032 (Mar. 22, 2013) (when complainant chose to withdraw her hearing request, she also chose to extinguish all outstanding hearing matters, including prehearing determinations and discovery). Thus, we need not discuss the AJ’s denial of Complainant’s motions and/or any hearing matters. 2020002823 3 Regarding claims 3 and 4, the record reflects that on May 24, 2017, the Assistant Director of HRD Personnel Services (PS) Division, sent an email to management, including D1, indicating that he was suspending all telework and changing all work schedules to flex-tour (8 hours per day, 40 hour per week, Monday through Friday) effective June 12, 2017. D1 forwarded the foregoing email to Complainant on May 25, 2017. In response, Complainant emailed D1 that since she had many emails to respond at that time, she would advise D1 on the issues/concerns about the matter. D1 responded to Complainant indicating that the PS team needed to focus on production and meeting HRD mission requirements; spending time complaining about management’s decision based on current mission failure seemed counter-productive; and this matter was not negotiable. One hour later, Complainant responded to D1 indicating that whether the matter was negotiable or not should not be the standard for creating and maintaining a work environment; many HRD employees felt that coming to D1 to discuss matters of workplace challenges/concerns was a waste of time; and they took matters directly to D1’s superiors (the WHS Deputy Director or higher level). Based on the foregoing, D1 felt that Complainant accused her of violating employees’ rights and Complainant, as an Ombudsman, failed to remain neutral between management and its employees. D1 noted that she and the PS Division made a decision to suspend telework schedules only after communicating with HRD employees concerning a mission failure in order to improve the organizational performance. D1 reported to S1 regarding Complainant’s disrespectful and insubordinate conduct against D1, described above. S1 and the WHS Deputy Director had a meeting with Complainant regarding D1’s concern. Complainant denied she was disrespectful and insubordinate to D1. Since Complainant and D1 (the HRD Deputy Director) did not work well together, S1 decided to remove HRD from her service population. Complainant indicated that she thereafter apologized to D1 for offending her. D1 denied the incidents as alleged in claim 2. Regarding claim 1, S1 noted that as the Director of HRD, he had a discretion to remove Complainant from his email list. Specifically, S1 stated he made a decision to remove Complainant, and three other non-supervisors, from the Executive Team server list in order to limit the server list to only HRD supervisors. S1 stated that Complainant’s ombudsman program recently expanded to cover not only HRD but also the rest of WHS (2,000 employees) and the Chief of Management Officers staff (100 employees). Due to this additional workload, Complainant did not attend HRD leadership meetings and S1 believed HRD was less important to Complainant. Also, the information S1 shared with his leadership team primarily concerned the matters regarding the management of HRD and was not generally applicable to the broader ombudsman service population. 2020002823 4 S1 also stated that he also removed Complainant, including three Security Policy employees, from the WHS, Pentagon, HRD Director’s List server list in order to limit his email server to his own administrative staff. Complainant was not part of S1’s administrative support staff. S1 noted that the information he shared with his administrative staff primarily concerned the matters regarding administrative staff actions which needed not be shared with Complainant’s ombudsman service population. Complainant filed the instant appeal. 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 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"). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Furthermore, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Upon review, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2020002823 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). 2020002823 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 July 29, 2021 Date