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

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020000511 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tanya D.,1 Complainant, v. John E. Whitley Acting Secretary, Department of the Army, Agency. Appeal No. 2020000511 Hearing No. 451-2016-00107X Agency No. ARFTSAM15APR01390 DECISION On September 19, 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 August 15, 2019, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. ISSUE PRESENTED The issue presented is whether the EEOC AJ correctly found that Complainant was not discriminated against and subjected to a hostile work environment as alleged. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst, GS-0343-13 at the Agency’s US Army Medical Command (MEDCOM), Manpower 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. 2020000511 2 Division in Fort Sam Houston, Texas. Complainant held the position from 1989, until her retirement on March 28, 2015. On May 27, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), national origin (Hispanic), age (64), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. on December 18, 2014, Complainant submitted her Voluntary Early Retirement Authority (VERA), Voluntary Separation Incentive Pay (VSIP) package, prior to the closing date of VSIP and received a disapproval recommendation on December 14, 2014, by her supervisor (S1). S1 had previously indicated to Complainant that her SIP retirement would depend on abolishing Complainant’s position, which S1 indicated he was unwilling to do; and 2. on March 27, 2015, Complainant received the final disapproval notice from the Chief of Staff, Complainant’s fifth-level supervisor (S5). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On June 20, 2019, the AJ assigned to the case issued a Notice of Intent to Issue Summary Judgment (NOI), informing the parties that she had determined that the case may be appropriate for summary judgment. The NOI stated the issues before the AJ, outlined the legal standard for summary judgment, and provided the applicable substantive legal standard. The NOI further described the grounds upon which the AJ based her determination that the case was appropriate for a summary judgment decision. The AJ provided the parties fifteen days to respond to the NOI. The AJ informed the parties that unless a party demonstrated that there was a genuine issue of material fact in dispute, no hearing would be held in this matter. The AJ served the NOI on all the parties. The AJ stated that the Agency’s Response to the NOI was electronically filed and served on July 5, 2019. The AJ stated that although both Complainant and her designated attorney representative were served with the NOI and with the Agency’s responsive pleadings, Complainant did not file any responsive pleadings. The AJ determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on July 22, 2019. The following facts were stated in the ROI regarding Claims 1 and 2. Complainant indicated that she was not certain if S5 and the G8/9 Deputy Chief of Staff (S4) were aware of her national origin but asserted that S1 and Complainant’s second-level supervisor (S2) became aware of her national origin when she first met them. 2020000511 3 Complainant stated her belief that S1 and S2 became aware of her age through review of her personnel records, but she was not certain that S5 and S4 were aware of her age. Complainant stated her belief that all the identified management officials became aware of her prior protected EEO activity through notification from the EEO office. Complainant stated her belief that S1 was responsible for the alleged discrimination in the instant complaint. S1 acknowledged awareness of Complainant’s national origin but denied knowledge of her age and prior protected EEO activity. S2 denied knowledge of Complainant’s age but believed that since she was retirement eligible, S2 indicated that Complainant was older than him. He also believed that Complainant was Hispanic. S2 acknowledged awareness of Complainant’s engagement in prior protected EEO activity. Complainant alleged that on December 16, 2014, S5 distributed a memorandum outlining the fiscal year 2015 VERA/VSIP buyout guidelines. The guidelines indicate that a VERA/VSIP retirement was more financially beneficial to Complainant than a regular retirement. However, the Agency would have to eliminate a position to enable Complainant to receive the financial benefit. Complainant stated that she met the requirements for VERA/VSIP and submitted her application for VERA/VSIP to S1 on December 18, 2014. Complainant stated that she informed S1 that she wanted to retire sometime in January 2015. Complainant asserted that S1 responded that he would make it happen. Complainant stated that she inquired to S1 on a weekly basis about the status of her VERA/VSIP application. Complainant asserted that S1 assured Complainant that her application was being processed. Complainant alleged that when she inquired about the status of her application, S1 would question why she wanted to retire. Complainant asserted that she felt she was being “hassled” by S1 but did not report it to anyone. Complainant alleged that on February 26, 2015, S1 sent out an email stating that S2 indicated that effective immediately, no more buyouts would be approved for the G8/9 section. Complainant stated that she went to human resources and spoke with a Human Resources Compensation Specialist (HRCS) who informed her that he had not received Complainant’s VERA/VSIP application. Complainant stated that she later learned that S1 held her application from December 19, 2014 until March 2015. Complainant stated that she got her application from S1 in March 2015, and gave it to HRCS for further processing. Complainant asserted that when she got her application from S1, S1 disapproved the application and backdated it for December 19, 2014. Complainant alleged that S1 told Complainant that S1 disapproved the application based on information from S4, that no more applications would be approved from their section. Complainant stated that she was scheduled to meet with S5 on March 29, 2015, to discuss her VERA/VSIP application but became ill and could not make the meeting. Complainant stated that she voluntarily retired on March 28, 2015. Complainant stated her belief that her sex and national origin were motivating factors relating to the denial of her VERA/VSIP application based on the historical personal treatment she has received as a Hispanic female. 2020000511 4 Complainant asserted her belief that her age was a factor because S2 and S1 mentioned indirectly that they were waiting for senior employees to retire in order to establish lower grade intern positions. Complainant also asserted her belief that S2 and S1 were hoping that Complainant would retire without VERA/VSIP so that S2 and S1 could retain Complainant’s position. Complainant believed that her prior protected EEO activity was a factor because S4 was identified in the previous EEO complaints Complainant filed. Complainant claimed that S4 approved VERA/VSIP for a comparator coworker (C1) (Hispanic, female, over 40, no prior EEO activity). S1 stated that he received Complainant’s VERA/VSIP application from Complainant sometime in December 2014. S1 stated that Complainant had been undecided on whether she wanted to retire. S1 recalled receiving Complainant’s application in December 2014, but did not recall signing it at that time. S1 stated that he did not recall if he forwarded Complainant’s application to S2. S1 stated that he did not recall mentioning to Complainant that he had processed her retirement applications when Complainant inquired during staff meetings. S1 recalled telling Complainant numerous times that he would forward the package with an understanding that S1 did not have a position to abolish. S1 stated that he mentioned to Complainant that he would hate for Complainant to leave because she was a very good worker but denied harassing Complainant. S1 asserted that in February 2015, he emailed his staff to communicate them that he was informed by S2 that effective immediately, there would be no more approvals for buyouts for the G8/9 staff. S1 stated that regardless of when he signed Complainant’s VERA/VSIP application, S1 disapproved it because he was not going to abolish Complainant’s position to allow her to retire under VERA/VSIP. However, S1 asserted, he was not the final approving authority. S1 stated that S2 agreed with him regarding not abolishing Complainant’s position and also recommended disapproval on Complainant’s VERA/VSIP application. S1 denied making any decisions based on Complainant’s protected classes. S1 asserted that Complainant never complained to him that she felt she was being subjected to a hostile work environment. S1 asserted that he was aware of C1’s VERA/VSIP approval and asserted that C1 was a supervisor. S1 stated that on the day Complainant decided to retire, S1 was not on duty but he was informed by phone by one of his staff members that Complainant submitted her retirement notification. S1 stated that he met with Complainant and informed her that he had proposed a recommendation to S2 on possibly finding a position in another department so that Complainant could receive the buyout. S1 asserted that Complainant decided to proceed with her retirement. S2 provided supporting testimony, adding that S2 told S5 that if S5 decided to approve Complainant’s application, S2 was willing to eliminate a position based on S5’s approval. S2 stated that Complainant failed to show up for the meeting with S5 to discuss her application. 2020000511 5 S2 stated that Complainant walked off the job when she learned of the disapproval of her application. S2 asserted that he had his staff contact human resources to ensure that Complainant was formally retired, rather than resigning. S2 stated that Complainant failed to process out of the organization. S2 also denied making any decisions based on Complainant’s protected classes. S2 stated that there were three VERA/VSIP applications approved for employees within the Manpower Division, including C1.2 S2 asserted that in each case, a position was removed from the Manpower Division’s “TDA2” (an undefined acronym). S2 asserted that none of the employees who were approved were supervised by S1. S2 stated that Complainant believed that he was partly responsible for an alleged hostile work environment in previous complaints she filed. S4 stated that in February 2015, he was made aware of a VERA/VSIP application from C1. S4 stated that he recommended approval on C1’s application because her department offered a position to be eliminated. S4 stated that at that time, he informed S2 that he was not going to support any further VERA/VSIP requests because he could not afford to abolish any more positions. S4 stated that at that time, he was not aware Complainant had submitted her application. S4 stated that he did not recall when he was made aware that Complainant had submitted her application. S4 stated that when he received Complainant’s application, he sent it through staffing and informed S5 that he was not going to support Complainant’s VERA/VSIP application. S4 denied making any decisions based on Complainant’s protected classes. S4 stated that he did not recall if Complainant complained about a hostile work environment, but he was aware of issues within the department. S5 acknowledged that he was the final approving authority regarding VERA/VSIP. S5 stated that sometime in March 2015, Complainant was scheduled to meet with him to discuss her VERA/VSIP application. S5 stated that he did not recall Complainant attending the meeting. S5 stated that he was not aware of Complainant’s VERA/VSIP application until around March 23- 25, 2015. S5 stated that he supported S2’s decision to disapprove Complainant’s VERA/VSIP application. S5 stated that he disapproved Complainant’s application on March 27, 2015. S5 asserted that Complainant took a voluntary retirement and S5 was told that Complainant left the workplace without informing anyone of her intentions, asserting that Complainant retired under a voluntary retirement option. S5 denied making any decisions based on Complainant’s sex, national origin, age, or engagement in prior protected EEO activity. S5 asserted that he was not aware of Complainant complaining about being subjected to a hostile work environment. 2 S2 indicated that an application was accepted for a Caucasian, female with prior grievance activity. 2020000511 6 HRCS provided supporting testimony, adding that the involved management officials followed the appropriate regulatory guidelines with the exception of the fact that Complainant’s application could have been disapproved at the director’s level. HRCS stated that he did not have any reason to believe that the involved management officials considered Complainant’s protected classes in making decisions regarding Complainant’s application. HRCS stated that Complainant never complained to him that she felt she was being subjected to a hostile work environment. In rebuttal, Complainant stated that management’s testimony was misleading. She denied that she has been undecided about retiring. Complainant stated that S1 never mentioned anything to her about abolishing a position. Complainant asserted that there was no mentioning of the possibility of finding a “bill payer” from anywhere else. Complainant denied walking off the job. In her decision, the AJ stated that Complainant could not establish a prima facie case of discrimination on any protected basis. The AJ stated that even if Complainant could establish a prima facie case of discrimination, Complainant’s claim of discrimination still failed because the record was insufficient to support a finding of pretext. The AJ observed that the record evidence established that granting VERA/VSIP was conditioned upon the abolishment or restructuring of a position-or identifying a “bill payer” to justify the VSIP-and the condition that no backfill was permitted once the position was identified. The AJ stated that Complainant’s position was neither abolished nor restructured and in the staffing action, it was noted that Complainant’s request did not meet Agency “guidance” and that the organization was growing. Based upon those recommendations, the AJ noted, S5 disapproved Complainant’s VSIP request. The AJ noted that Complainant could not offer any specific evidence in support of her bare assertions of discrimination and therefore was relying solely on general conclusory statements, which were insufficient to refute the Agency’s legitimate, nondiscriminatory reasons for its actions. The AJ found that the Agency had articulated non-discriminatory reasons for Complainant’s claims of discrimination and concluded that summary judgment in favor of the Agency was appropriate because viewing the evidence in the light most favorable to Complainant, the record showed that there were no material facts in dispute and Complainant had proffered no evidence to show that the Agency’s articulated reasons for its actions were a pretext for discrimination. Therefore, the AJ issued Summary Judgment in favor of the Agency. The Agency subsequently issued a final action adopting the AJ’s decision that Complainant failed to prove that the Agency subjected her to discrimination as alleged. CONTENTIONS ON APPEAL In her Appeal Brief, among other things, Complainant reiterates her allegations. Citing the Commission’s Management Directive, Complainant asserts that the AJ improperly issued the Decision and Order, arguing that the AJ misapplied the laws governing summary judgment when the AJ allegedly ignored countless disputed issues, misstated relevant facts, and employed an 2020000511 7 erroneous legal standard to analyze Complainant's case of discrimination based on her protected classes. Complainant asserts that she filed a response to the NOI on July 5, 2019, asserting that the AJ misapplied the law by not considering Complainant's timely response to the NOI that was submitted the same day the Agency submitted its response to the NOI. Complainant respectfully requests that the Commission reverse the Agency's Final Action, and that this case be remanded for further processing and a hearing on the matter. The Agency did not submit an Appeal Brief. STANDARD OF REVIEW In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Nov. 9, 1999) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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 determine whether the AJ appropriately issued the decision without a hearing. 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. 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 the non- moving party. 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. 2020000511 8 ANALYSIS AND FINDINGS AJ’s Issuance of a Decision Without a Hearing An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully 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. Here, Complainant’s contentions include a reiteration of her allegations that she was subjected to discrimination based on her protected classes. As a preliminary matter, we find that Complainant’s claim that her response to the NOI was not considered to be irrelevant. Our review of the record appears to suggest that the AJ did not receive Complainant’s response to the NOI. However, we find that the AJ’s issuance of summary judgement was proper pursuant to 29 C.F.R. Sec. 1614.109(g)(3). The AJ sua sponte determined that the record had been adequately developed and there were no genuine issues of material fact. We have taken into consideration Complainant’s response to the NOI and her appeal. However, we find that Complainant has not demonstrated that there were material facts in dispute or that the AJ’s summary judgment decision was not appropriate. Disparate Treatment and Harassment Claims The Commission has adopted the burden-shifting framework for analyzing claims of discrimination outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. She must demonstrate that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden is again on Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, it is Complainant’s obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 2020000511 9 Assuming Complainant had established a prima facie case, the Agency has articulated legitimate, nondiscriminatory reasons for the disapproval of Complainant’s VERA/VSIP request because it was conditioned upon the abolishment or restructuring of a position. Specifically, management stated that the delay in processing and the denial of Complainant's VERA/VSIP was based on the lack of Agency willingness to abolish or restructure a position. Complainant asserted that other employees had their VSIP approved, identifying C1 as a comparator. However, there is no evidence that any of those employees who had their VERA/VSIP approved were similarly situated to Complainant. While C1 is not a proper comparator because she was not under S1’s supervision, we would note that C1 was granted VERA/VSIP and she was of the same national origin and age group as Complainant. Complainant also challenged the Agency’s reason for denying the VERA/VSIP, asserting that management’s explanation that they would have to abolish her position to grant her request was pretextual. However, as pointed out previously, record evidence demonstrates that some of the seven employees approved for VERA/VSIP were within Complainant’s protected classes. Therefore, we find no evidence to support Complainant’s allegations that disapproval of her VERA/VSIP request was motivated by discriminatory animus. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) (asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail). As such, we determine that Complainant’s disparate treatment claims fail and she does not prevail. Likewise, we find that, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a 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 Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Therefore, we conclude that Complainant’s claim of harassment similarly fails. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision and the Agency’s final order adopting it. 2020000511 10 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). 2020000511 11 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 May 19, 2021 Date