[Redacted], Thomasina B., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2021004997 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Thomasina B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004997 Hearing No. 490-2017-00045X Agency No. ARCELROCK16MAR01088 DECISION 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 10, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Officer at the Agency’s Engineering and Construction Division, Southwest Division in Little Rock, Arkansas. On May 25, 2016, Complainant filed an EEO complaint alleging that the Agency: 1. subjected her to harassment (sexual and non-sexual) on the bases of sex (female) and religion (Baptist) 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. 2021004997 2 a. on August 21, 2012, Complainant received an email from her second-line supervisor, the Chief of the Engineering and Construction Division, which stated, “Read Proverbs 25:17”; b. in December 2013, the Chief insisted that Complainant follow him to his church before meeting other employees at a Christmas party, after Complainant told him no; c. on January 6, 2014, the Chief told Complainant that he could train anyone to do her job; d. on April 2, 2014, after Complainant emailed the Chief to inform him that his whiteboard had come in and was huge, he responded, “that’s what all the girls say!”; e. on May 29, 2014, the Chief emailed Complainant a cartoon picture of a man urinating with a sign that read, “Pissoir”; f. on January 14, 2015, the Chief sent Complainant an email stating that he assumed that she found a different job or had simply chosen to take up a new career as a stay-at-home mom or home health nurse; g. on February 10, 2015, Complainant heard the Chief say, “sometimes I feel like Moses leading the people,” and reading from the book of Numbers using his work cell phone; h. on February 19, 2015, the Chief yelled and cursed at Complainant, and stated that he was “pissed off”; i. on May 14, 2015, the Chief informed Complainant that she was required to annotate the days that she would be out of the office with a green dot on the calendar; j. on March 2, 2015, the Chief said to Complainant, “anyone 12 to 50 can be pregnant, this is Arkansas”; k. on March 3, 2015, Complainant overheard the Chief say, “I think if you have small children, you should not be able to telework”; l. on March 9, 2015, the Chief said to Complainant, “if you want to wear a dress, you might get a special visit from [the Commander of the Southwestern Division] directly; m. on May 12, 2015, the Chief emailed Complainant a cartoon picture of a large- breasted woman pushing a wheelbarrow labeled “Toilets: Brenda - we’re #1 in the #2 business”; n. on May 18, 2015, after Complainant informed the Chief that someone stated that he would “like to do it” with another employee, the Chief replied, “I would like to do it with [the employee] too”; o. on May 20, 2015, the Chief told Complainant that asking someone if they are in an administrative position is like asking if they are pregnant; p. on May 26, 2015, the Chief taped a comic strip of a female character applying for a job on Complainant’s door, after she was absent from work the previous day; q. on May 28, 2015, Complainant overheard the Chief say, “Divine Jones was the one that polished Hugh Grant’s knob and got caught”; 2021004997 3 r. on July 16, 2015, a coworker (CW1) stated that an employee walked so straight that it looked like she had a book on her head and the Chief responded, “I was going to say stick up her ass”; s. on July 21, 2015, Complainant asked the Chief if everything was ok, and he replied, “well, I guess. We just closed the door and had an hour-long conversation about your female part, and [Complainant’s first-line Supervisor] was talking about his penis”; and t. on July 29, 2015, Complainant overheard the Chief say, “lifeguard at a nude beach,” in response to another employee’s comment that there was no other job in the world that would love to have; and 2. retaliated against Complainant when on January 30, 2016, it removed her from her Administrative Officer position.2 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ denied both parties’ motions to compel. For Complainant’s motion, the AJ determined that additional information was not necessary and that the parties were able to sufficiently brief the issues. The AJ then found that Complainant’s retaliation claim failed because she went to the Union to complain, and Complainant cannot show that she engaged in protected EEO activity or that the management officials were aware of such activity. The Agency also provided a legitimate, nondiscriminatory reason for claim 2. Specifically, Complainant was removed based on her own assertions that she was unable to continue working, and she provided supporting medical documentation. Complainant explicitly stated that she did not have any intention of returning to work and immediately filed for disability retirement. The AJ determined that Complainant did not present proof that the Agency’s reasons were pretextual. For Complainant’s harassment claims, the AJ found that she did not provide evidence to show that she was subjected to verbal or physical conduct due to her sex or religion, or that the conduct was sufficiently severe or pervasive to constitute a hostile work environment. 2 We note that the Agency should have processed claim 2 as a mixed-case claim and provided Complainant with a final agency decision with appeal rights to the Merit Systems Protection Board (MSPB). Nevertheless, the Commission properly may assume initial jurisdiction of a mixed-case issue (i.e., an adverse action which is properly within the jurisdiction of the MSPB) when, for example, the allegation is so firmly enmeshed in the EEO process that it would unduly delay justice and create unnecessary procedural complications to remand it to the MSPB. See Richardson v. Dep’t of Veterans Affairs, EEOC Appeal Nos. 01982915 01984977 (Nov. 5, 2001). Here, we find that this claim is so firmly enmeshed in the EEO forum that it would better serve the interests of administrative economy to address it in the instant appeal. 2021004997 4 The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed, and Complainant provided a brief in support of her appeal. The Agency opposed Complainant’s appeal. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and she must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Through her attorney, Complainant asserts that a summary judgment decision was inappropriate because there are outstanding discovery requests. However, the AJ denied Complainant’s motion to compel, and we note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). Here, Complainant did not argue, nor establish, that the AJ abused their discretion when denying Complainant’s motion to compel. Complainant also argues that there are issues of material facts and credibility. For example, Complainant stated that she repeatedly reported the harassment to the Supervisor, who simply denied that she had done so. Complainant also alleged that she told CW1 of the harassment, and both the Supervisor and CW1 lied or made misrepresentations in their statements. Complainant Deposition at 95. However, Complainant provided no evidence to prove that either the Supervisor or CW1 were not truthful, aside from her own assertions. 2021004997 5 The Commission has found that mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant disputes the AJ’s determination that she did not engage in protected EEO activity. However, even assuming, arguendo, that Complainant established a prima facie case of retaliation, the Agency proffered legitimate, nondiscriminatory reasons for claim 2. The Supervisor averred that Complainant’s removal was based on her stated intent to not return to work; supporting medical documentation; rejection of a reasonable accommodation; turning down a reassignment; and no indication during the ensuing months that she had any desire to return to work. ROI at 208. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant asserts that the Agency’s reasons are not worthy of credence because it is not the Agency’s standard practice to immediately terminate an employee for medical inability to perform; rather, they are allowed to continue employment until they receive a decision on their disability retirement applications. However, we find that Complainant provided no supporting evidence, and while Complainant cited to “MSJ Oppo Ex. A at 6; MSJ Opp Ex. Z; Agency’s MSJ Ex. 4 at 25” as evidence, no exhibit proved Complainant’s contention. Complainant also provides vague arguments that the Chief had a history of removing “problem employees,” without any details or evidence. Accordingly, we find that Complainant did not establish that the Agency retaliated against her when it terminated her employment. Regarding the harassment claims, Complainant contends that she has shown that she suffered from harassment because of her sex and religion; that the harassment was severe and pervasive; and there is a basis to impute liability onto the Agency. Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2021004997 6 It is undisputed that Complainant belongs to protected categories based on her sex and religion. However, Complainant did not show that she was subjected to unwanted verbal conduct due to her protected bases, or that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. We find that some of the complained of actions were simply work-related and Complainant provided no connection to a basis, such as the requirement that Complainant use a green dot on the calendar to indicate her absence or the Chief’s comments related to the Agency’s policy against teleworking with children at home. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of her protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). There is no evidence that the work-related incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. Regarding the claim of harassment based on religion, we find that that the evidence does not support that the Chief’s religious-based comments were unwanted. CW1 testified that Complainant was a willing participant in the religious conversations, and she initiated religious conversations with CW1 and invited her to join Complainant and the Chief in listening to Christian music or watching videos. ROI at 585, 590.3 Another coworker (CW2) corroborated that both Complainant and the Chief initiated religious conversations, and that Complainant willingly participated. CW2 also stated that the Chief only shared Bible verses with those who welcomed it and that Complainant sought the Chief’s advice many times, knowing that he may discuss the Bible. ROI at 578-9. The evidence also shows that Complainant reciprocated by emailing a Bible verse to the Chief. ROI at 415. For the sexual harassment claim, CW1 testified that Complainant routinely participated in “the sexual innuendo conversations.” For example, Complainant discussed the sexually explicit films Monster’s Ball and Boogie Nights with the Chief and asked CW1 to draw a phallic symbol and encouraged her to show it the Chief. ROI at 586, 591, 332. On appeal, Complainant attempts to bolster her sexual harassment claim by adding other allegations; for example, that the Chief stared “lecherously” at her body. 3 In addition to affidavits for the instant EEO complaint, Complainant and witnesses provided sworn statements for the Agency’s internal investigation into Complainant’s allegations. The Agency’s internal investigation concluded that Complainant was not subjected to discrimination or sexual harassment. ROI at 536. 2021004997 7 Even crediting Complainant’s claim that she was subjected to conduct that was sex-based or sexual in nature, and unwanted, we find that the harassment did not have the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. For example, the Chief responded that he made the comment in response to Complainant’s whiteboard message and sent the cartoons to be funny, and Complainant responded, “That’s funny!” and “Don’t make me spit my orange out!!! Nerd” to these emails. ROI at 221-2, 405, 407. The Supervisor averred that he and Complainant discussed the “Pissoir” cartoon, which the Chief sent to illustrate cultural differences while traveling abroad, and that Complainant stated that she found it humorous. ROI at 204. CW1 attested that she believed that Complainant treated the Chief like an older brother, constantly joking with him, and that Complainant repeatedly told CW1 that the Chief was the best boss she ever had. ROI at 333, 586, 592. CW2 added that Complainant also told her that she loved working for the Chief. ROI at 579. Further, another witness testified that Complainant seemed very comfortable and friendly with the Chief, and she seemed to value his advice and input. ROI at 346. As such, we find that any alleged sexual harassment or sex-based harassment did not rise to the level of an unlawful hostile work environment. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 2021004997 8 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). 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. 2021004997 9 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 October 31, 2022 Date