[Redacted], Tiffanie M., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Jun 28, 2021

Appeal No. 2020000986 (E.E.O.C. Jun. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tiffanie M.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency. Appeal No. 2020000986 Agency No. 41341800619 DECISION On November 1, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 3, 2019 final decision 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. BACKGROUND During the relevant period, Complainant worked as a Sexual Assault Prevention and Response Program Manager, GS-12, for the Air National Guard and was assigned full-time to the Pennsylvania National Guard (PANG) 111th ATKW and Horsham Air Guard Station in Horsham, Pennsylvania. On August 27, 2018, Complainant filed a formal EEO complaint alleging she was subjected to harassment/hostile work environment based on sex (female) and 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. 2020000986 2 a. on April 8, 2017, an altered Sexual Assault Prevention and Response (SAPR) poster was placed in the Operations Group Commander’s office to humiliate Complainant; b. on July 25, 2017, the Wing Commander stated that the call sign for Lieutenant Colonel (LTD) “Sider” was only an issue with Complainant; c. on October 4, 2017, the Operations Group Commander used the call sign “Sider” at the Commander’s meeting which was a jab at Complainant; d. on March 14, 2018, the Operations Group Commander bullied Complainant during her facilitation of Green Dot training by yelling out the inappropriate comment “rape doesn’t really happen too often in the military”; e. on March 14, 2018, the Wing Commander recommended to the National Guard Bureau (NGB) SAPR that Complainant’s credentialing be removed and she be fired; f. on April 9, 2018, the Vice Wing Commander questioned Complainant about numerous indiscretions against her, including putting a Drill Status Guardsman (DSG) on orders for a day; g. on April 9, 2018, the Wing Commander questioned her schedule and asserted that Complainant was not engaged with the Wing; h. on April 9, 2018, the Wing Commander emailed the Captain requesting that Complainant’s evaluation be lowered; and i. on May 31, 2018, the Wing Commander notified Complainant of her removal from the Community Action Information Board/Integrated Board/Integrated Delivery System (CAIB/IDS) and stated he was going to document negative performance on her appraisal, and he was going to reassign her. After an investigation, Complainant was provided a copy of Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on October 3, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 2020000986 3 ANALYSIS AND FINDINGS To establish a claim of hostile environment harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on her statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her sex or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Since June 2016, Complainant worked as a Sexual Assault Prevention and Response Program Manager (SARC) for the Air National Guard (ANGRC) and assigned full-time to the Pennsylvania National Guard 111th Wing at Horsham Air Guard Station in Pennsylvania. While Complainant was assigned to work at the 111th Attack Wing (ATKW), her first-line supervisor was the Captain, Air National Guard Readiness Center (ANGRC) Sexual Assault Prevention and Response (SAPR) Program Administrator, and her second-line supervisor was the Lieutenant Colonel, ANGRC SAPR Branch Chief. The Operations Group Commander (“OGC”) (male) explained that Complainant was responsible for administering the SARP program within the Wing. He noted that Complainant had avoided any interaction with him, and she only spoke with him for approximately 20 minutes during her entire two and one-half years working on the base. OGC stated that after being notified by Complainant that someone had altered an SAPR poster, he took immediate action to rectify the matter. The OGC stated that he had directed the Ops Group to create a SAPR advocacy poster at his own expense. However, an unknown person defaced one of the posters. He acknowledged keeping defaced poster, contrary to Complainant’s allegations, with the hopes of identifying the culprit through matching handwriting. However, OGC abandoned this plan due to lack of expertise in such analysis. Moreover, OGC stated that during the weekly staff meetings, he voiced his displeasure regarding the altered SAPR poster and stated his support of the SAPR program on three different occasions. Complainant’s asserted that on July 25, 2017, the Wing Commander stated that the call sign for the Lieutenant Colonel (“Sider”) was only an issue with Complainant. OGC stated that the 2020000986 4 Lieutenant Colonel (LTD) informed him that he received negative feedback about his call sign from Complainant. The LTD stated Complainant told him that his call sign of “Sider” was offensive. Complainant had a discussion with the LTD and the Wing Commander regarding the LTD’s call sign. Following their discussion, the Wing Commander directed the LTD to remove the call sign from all name tags and correspondence to resolve the matter. Furthermore, OGC asserted that nobody knows the true origin of the call sign “Sider,” not even the Lieutenant Colonel, and that Complainant was relying on hearsay from an unknown source that the call sign had some sort of sexual innuendo associated with it. Regarding Complainant’s allegation that on March 14, 2018, OGC bullied Complainant during her facilitation of Green Dot training by yelling out the inappropriate comment “rape doesn’t really happen too often in the military,” OGC stated that the charge was an “outright fabrication” on Complainant’s part. OGC explained that he never used that term in the class and “it infuriates me that [Complainant] asserts that I stated the class was about rape.” He noted that this was an example of Complainant manufacturing a “salacious” comment to create a derogatory version of events that fits her accusatory narrative. The Wing Commander (male) acknowledged recommending to the National Guard Bureau (NGB) SAPR that Complainant’s credentialing be removed and she be fired. He said he did so because he had serious concerns about Complainant’s work performance and did not believe she had the trust of the Wing, which negatively affected the effectiveness of the program, He said he sent his memorandum to the NGB because he has no authority to take any disciplinary action. However, NGB did not take any action. The Vice Wing Commander (male) stated that on April 9, 2018, he sent Complainant an email questioning about numerous concerns about her actions, including putting a Drill Status Guardsman (DSG) on orders for a day. Specifically, he stated that Complainant brought a DSG in as a judge in a civilian status after he had requested and been excused from duty that drill weekend. He explained to Complainant that it was an “huge” issue as Complainant should have cleared this action with DSG’s supervisor and chain of command. The Vice Wing Commander also informed Complainant the seriousness of directing one of the DSGs to come in while in an unpaid status to perform official duties because if, for example, this individual had a car accident or was hurt while traveling to/from the base, the individual is not legally or medically protected in any line of duty. Moreover, the Vice Wing Commander stated that he stayed calm while Complainant was emotional as they discussed what had gone wrong with her approach and how do it better in the future. Complainant asserted that on April 9, 2018, the Wing Commander questioned her schedule and asserted that she was not engaged with the Wing. He stated that he does not recall the date, but he recalled asking Complainant about her schedule. He asserted he was only asking if her schedule was being tracked formally and officially and that he wanted to make sure she was in the correct status on the correct days. 2020000986 5 In addition, the Wing Commander asserted that Complainant seems to be a totally different person than the person whom the Agency had interviewed. For instance, the Wing Commander noted that Complainant’s attendance and productivity worsened over time. He stated that because Complainant either refused to or was unable to work with Wing leadership, he had genuine concerns about the status of the SAPR program. He noted that the Vice Wing Commander had done a “superb” job building a team to pick up some of the pieces that Complainant had abandoned and reestablish trust in the program with the Airmen. Regarding Complainant’s allegation that on April 9, 2018, the Wing Commander emailed the Captain requesting that Complainant’s evaluation be lowered, he does not recall asking that her evaluation be lowered because he never saw it. Instead, he simply responded to the Captain who was seeking input for Complainant’s appraisal and stated his objective appraisal of her performance. Complainant also claimed that on May 31, 2018, the Wing Commander notified Complainant of her removal from the Community Action Information Board/Integrated Board/Integrated Delivery System (CAIB/IDS) and stated he was going to document negative performance on her appraisal and reassign her. The record contains a copy of the Wing Commander’s memorandum concerning SAPR Program Ineffectiveness. The memorandum confirms the Wing Commander requested that Complainant be removed from her SAPR Program and Sexual Assault Response Coordinator (SARC). Specifically, the Wing Commander believed that these failures have ultimately resulted in irreparably broken trust between her and the Wing. The Wing Commander noted that on March 10, 2018, a Wing Chaplain Assistant observed Complainant with both hands and her ear to the closed door of the Chaplain office while a Captain was having a private conversation with a Squadron Commander, a Chief and a distraught Airman. When the Wing Chaplain Assistant asked Complainant if she needed something, she said she did not and returned to her office. He noted that when this incident was discussed with Complainant, the Wing Chaplain, Captain and the Wing Champlain Assistant, Complainant became very emotion and defensive stated that she was only listening to determine if she could interrupt for some help with something. The Wing Commander determined that this incident has broken the trust “within our Resilience Team, broken my trust in [Complainant], and most importantly the trust of our Airmen.” Further, the Wing Commander noted that in October 2017, Complainant became adversarial with an Officer in the Wing Inspector General office over a formal complaint that had been filed by a Wing member. The Officer fielded Complainant’s concerns as best as he could but had to end the conversation because of Complainant’s frustration and rudeness. The Officer then came to him extremely displeased with the way he was spoken to and treated by Complainant in the presence of a Senior Non-Commissioned Officer who was working in the office. Finally, the Wing Commander stated that he had met with Complainant on several occasions, but he had not been able to rehabilitate her and she had “crossed a threshold that demands action.” 2020000986 6 He requested that Complainant be removed from the 111th Attack Wing for the good of the Airmen. However, the record reflects that Complainant is still working in her position. The image which emerges from considering the totality of the record is that there were conflicts and tensions with the management style of the leadership of the Wing that left Complainant feeling aggrieved. The statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002); Ferrell v. Dep't of Navy, EEOC Appeal No. 01994603 (no discriminatory animus found when supervisor used profanity) (citing Schaulis v. CTB/McGraw Hill, Inc., 496 F. Supp. 666, 670 (N.D. Cal. 1980)). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, there is nothing in the record to establish that management was motivated by discriminatory or retaliatory animus In sum, Complainant’s claim of ongoing discriminatory harassment/hostile work environment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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 2020000986 7 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). 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 2020000986 8 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 June 28, 2021 Date