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

Equal Employment Opportunity Commission

Dec 7, 2021

Appeal No. 2020003951 (E.E.O.C. Dec. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wanita Z.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003951 Hearing No. 570-2017-01200X Agency No. ARHQOSA16JUL02758 DECISION On June 26, 2020, 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 July 17, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Management Specialist/Chief of Administrative Services, GS-2003-13, at the Agency’s Facilities Management Office, Arlington Hall Station (AHS) Army National Guard (ANG) facility in Arlington, Virginia. She later retired in January 2017. On November 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (58) 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. 2020003951 2 a. On or around August 15, 2016, her first line supervisor, Facility Manager, ANG, AHS (“Supervisor 1”) informed her she would no longer have any communication with the Army National Guard Units in the 54 states/territories; b. In late April 2016, Supervisor 1 informed her that she was being removed from her position of Chief of Administrative Service, and made the Supply Management Specialist for AHS; c. On or around February 17, 2016, Complainant was subjected to a hostile work environment (non-sexual harassment) when Supervisor 1 stated it was best if Complainant was not traveling and remaining closer to home now that she was raising her granddaughter; and d. In early February 2016, after stating that Complainant really should enjoy retired life with her husband, Complainant’s second line supervisor, Deputy Chief of Staff, ANG-AHS (“Supervisor 2”) directed Complainant to stay in the office and let the “guys” travel. Complainant also alleged that the Agency discriminated against her on the bases of sex (female) and color (white) when: e. From June 17, 2016 to the present, Supervisor 1 failed to take appropriate action after Complainant notified him that her former subordinate (“Co-worker”) had been sending emails throughout the organization that disparaged her work performance; and f. On or around February 17, 2016, Supervisor 1 failed to take appropriate action after witnessing Co-worker yell, “you are so fucking unprofessional,” at Complainant, and then slam her office door as he walked out in the middle of her team meeting. On December 6, 2016, the Agency issued a partial acceptance/dismissal of Complainant's complaint. Therein, the Agency accepted claims “a” (“Claim 1”) and “e” (“Claim 2”) for investigation but dismissed claims “b” through “d” and “f” for untimely EEO Counselor contact. Claim 1 The investigation showed that Complainant worked as a Supply Management Specialist at AHS- ANG from April 2007 until her retirement in January 2017. In 2013, a Command Management Assistance Team (CMAT) was established in the Facilities Management Office to provide administrative services support to the 54 State Army National Guards. The Agency authorized two new civilian positions to support this mission, a Program Manager for Administrative Services and an Administrative Services Specialist position. In the meantime, Supervisor 1 (white, male, YOB: 1962) assigned Complainant to serve additional duty at the Acting Team Lead of the CMAT until a new GS-13 Program Manager for Administrative Services could be hired and trained. Complainant was not removed from her Supply Management position. CMAT required significant travel to perform staff assistance visits to State Army National Guards. 2020003951 3 The Agency subsequently hired Co-worker to serve in the Administrative Services Specialist position, with Complainant and Co-worker traveling and performing CMAT duties together until the Program Manager position was later filled. In February 2016, Supervisor 2 (white, male, YOB: 1951) decided it was no longer necessary for the CMAT to send three employees on travel for staff assistance visits and he indicated the travel should be done without Complainant. Supervisor 2 stated this was because it was not cost- effective to have three employees traveling. He stated the decision to remove Complainant from the CMAT team was because her primary duties were that of a Supply Management Specialist and he had received complaints from some staff that they were not receiving their supplies on time. He stated he felt it would be in the best interest of the installation to have Complainant available to address supply issues. He acknowledged that he instructed to Supervisor 1 to remove Complainant was the CMAT team. Supervisor 2 approved an Administrative Services Travel Plan but noted by hand that it would need to be done without Complainant. Complainant states that on August 15, 2016, Supervisor 1 told her he was removing her from the Chief of Administrative Services position and reassigning the duties to Co-worker and Program Manager. She alleges that during this conversation, Supervisor 1 stated “I am removing you from the Chief of Administrative duties the boys will travel so you can spend time taking care of your granddaughter” (of whom Complainant had recently taken custody). Complainant believed “the boys” to mean Co-worker and Program Manager and she found this statement offensive. Complainant noted that she was later assigned duties at AHS (which was to become the 55th state) which did not involve travel, while Co-worker was assigned to the 54 state and territories which required extensive traveling. She felt this statement and the decision to remove her from travel was sexist and ageist because Co-worker also had a child at home. She also noted that she had previously asked if she would still be Chief of Administrative Services and still travel after a Program Manager was hired or if she should apply for that position and she was told that nothing would change. Complainant also stated there had been ongoing disputes between Co-worker and herself and continued harassment from Co-worker and she believed this is why Supervisor 1 decided to separate them. Supervisor 1 indicated he did not recall speaking to Complainant on August 15, 2016, but that on June 21, 2016, he made a decision to split some of her duties between Complainant and Program Manager. He stated Complainant and Program Manager had been performing the same duties while Program Manager adjusted to the job, but it was always the intent to cut back on the Complainant’s travel once Program Manager had participated in a complete annual cycle of state site visits. He asserts that Program Manager’s sole duties involved performing Administrative Services duties whereas Complainant’s Position Description required she spend 25% of her time on Administrative Services duties and her primary duties consisted of supply management. He stated that Co-worker’s duties were also strictly Administrative Services. It was not cost- effective for three employees to travel. Therefore, only Program Manager and Co-worker were allowed to travel so Complainant could focus on her supply management duties. He denied telling Complainant that he was reassigning her duties so that she could spend time taking care of her granddaughter. 2020003951 4 Claim 2 Complainant also stated that she was discriminated against when Supervisor 1 failed to take appropriate action after she notified him that Co-worker had been sending emails throughout the organization that disparaged her work performance. On June 17, 2016, Co-worker replied to an email request for assistance sent by Complainant and he copied a number of people on the email. In it, Co-worker stated that Complainant “should have been able to assist and resolve the issue. Since we took over this MDEP, you have not participated in any aspects of managing this MDEP, to include participation in the PEG, POM, RVB, PBACs, assisting the other program managers with account transactions, and all other facets of oversight and management. Therefore, I will ask [Supervisor 2] for my immediate relief from duty as assistant MDEP manager.” In response, Supervisor 1 emailed Co-worker, Complainant, and Program Manager to say they would “meet to discuss the MDEP. Sending a Mass Distributed e-mail to this many people is Unacceptable.” Co-worker replied that he had copied other people because they were stakeholders and he wanted to keep them informed because they had been confused and frustrated by the management process. Supervisor 1 responded that most of the people who were copied “had nothing to do” with the issue and “the message dealt with issues between staff (you and [Complainant]) within the Facility Office. We cannot do business like that.” Complainant states that she spoke to Supervisor 1 about Co-worker’s email and requested an apology from Co-worker. She said Supervisor 1 told her that he would set up a meeting between Co-worker and her, but the meeting never happened and the issue was never resolved. She believed this was because Supervisor 1 wanted to protect another male and he was afraid Co- worker would file an EEO complaint against him. However, Supervisor 1 states he did address the issue by emailing Co-worker and he was not aware that Complainant was unhappy with the action he took. Supervisor 2 stated he told Supervisor 1 to look into the matter and Supervisor 1 reported that he had spoken to Complainant and Co-worker. He states that Complainant never informed him that she was dissatisfied with Supervisor 1’s handling of the matter. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. She also sought to amend her complaint to include two additional claims: 1) a hostile work environment created by Co-worker, from late 2015 through the time that Complainant was forced to resign on January 30, 2017; and 2) constructive termination from the Agency’s failure to resolve the hostile work environment. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on April 21, 2020. As to the accepted claims, the AJ granted summary judgment in favor of the Agency, finding that Complainant had failed to present any evidence to show that the Agency’s articulated reasons for its actions were pretextual. 2020003951 5 The AJ denied Complainant's Motion to Amend because Complainant did not provide, and the record did not support, any evidence that the Agency explicitly prevented or dissuaded her from including allegations of Co-worker’s harassment in her EEO Complaint, and her request to amend her complaint to include a hostile work environment created by her co-worker stemming from December 2015 through January 30, 2017, was, therefore, untimely. The AJ further found the allegations of hostile work environment were not like or related to the crux of Complainant’s complaint, which dealt with her Supervisor’s failure to take action in regard to disparaging emails sent by Co-worker about Complainant. The AJ noted that Complainant had not alleged, nor provided evidence, that she had informed Supervisor 1 or Supervisor 2 that Co-worker had repeatedly called her a “bitch” and a “cunt” and threatened the safety of her family, and this allegation was not like or related to the accepted claims. The AJ also noted this was factually distinct from her dismissed claim that Co-worker called her “fucking unprofessional” on a single occasion. In regard to Complainant’s constructive discharge claim, the AJ noted it was premature when raised in Complainant’s complaint as prospective actions are not cognizable. Complainant could have raised this within 45 days of her retirement in January 2017, but she did not do so until September 11, 2019 when she updated her Motion to Amend via the EEOC Public Portal. Therefore, the AJ found her constructive discharge claim was untimely. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action on May 31, 2020 pursuant to 29 C.F.R. § 1614.109(i). Complainant timely filed the instant appeal on June 26, 2020. However, the Agency issued a final agency action on July 17, 2020 adopting the AJ’s decision. On appeal, Complainant contends the AJ erred in denying her Motion to Amend the complaint and granting summary judgment in favor of the Agency. Complainant seeks to have the case reopened, her claims amended, and a hearing held. In support of her appeal, Complainant contends the hostile work environment was ongoing and that she contacted an EEO counselor in June 2016 within 45 days of one of the events that constituted the hostile work environment Co- worker created. She further contends that the Agency prevented her from timely amending her claims because the Agency misinformed her that she could only file against her supervisors and not a coworker, and she should have been able to amend her complaint because the claims were like or related to Claim 2. Complainant states her constructive discharge claim was included in her formal complaint and it was timely because it was like or related to claims that should have been included but for the Agency preventing her harassment claims. She states that nowhere in the AJ’s discussion of Complainant’s Motion to Amend did the AJ cite any EEOC case law or legal standard other than the EEOC’s standard for employer liability for co-worker harassment. Complainant’s appeal brief did not address the AJ’s summary judgment finding that the Agency articulated legitimate, nondiscriminatory reasons for its action and that Complainant failed to show these reasons were pretextual. The Agency contends on appeal that Complainant failed to timely raise her claims of hostile work environment and constructive discharge, and that the EEOC should dismiss Complainant’s appeal because the Merit Systems Protection Board (MSPB) has jurisdiction over Complainant’s constructive discharge claim. 2020003951 6 The Agency’s appeal brief also did not address the AJ’s summary judgment finding that the Agency articulated legitimate, nondiscriminatory reasons for its action and that Complainant failed to show these reasons were pretextual. ANALYSIS AND FINDINGS Motion to Amend As an initial matter, we address Complainant's Motion to Amend and the AJ's denial of her motion. A complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. After requesting a hearing, a complainant may file a motion with the AJ to amend a complaint to include issues or claims like or related to those raised in the complaint. 29 C.F.R. § 1614.106(d). Nevertheless, we have consistently held that AJ's have broad discretion in conducting hearings and matters such as discovery orders, scheduling (e.g., deadlines for submissions), and whether to accept or reject a motion to amend. See 29 C.F.R. § 1614.109(e). Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (“EEO-MD-110”) at 7-8 to 7-14 (revised Nov. 9, 1999). Here, in her Motion to Amend, Complainant indicated she had been subject to a hostile work environment when Co-worker called her a “bitch” at least 20-25 times in a year, called her a “cunt” on at least three occasions, and began making threats against her family (hereinafter, “Co- worker’s statements”), but Supervisor 1 did nothing. She stated these actions constituted a hostile work environment by the Agency and resulted in her early retirement and constructive discharge. She asserted that she had been prevented from raising a complaint about Co-worker. The evidence provided by Complainant does not support that she raised Co-worker’s statements in EEO counseling and does not show that she was prevented from including a harassment or hostile work environment claim in her original complaint. When asked for clarification about whether her claims had been identified correctly, she stated that Co-worker “was the center of this complaint” but she did not mention Co-worker’s statements. Complainant was correctly informed that it was only management’s inaction that was actionable. In any event, we agree Co- worker’s statements are not like or related to the accepted claims or reasonably expected to grow out of those claims as they are far more personal than disparaging her work, which is the crux of her formal complaint. We also agree her constructive discharge claim was not timely raised as it was premature at the time of her formal complaint and she did not amend to include this within 45 days of her retirement in January 2017. For these reasons, we agree with the AJ decision to deny Complainant’s Motion to Amend. Dismissed Claims EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. EEOC Regulation 29 2020003951 7 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.105. The Agency dismissed Complainant’s claims (b), (c), (d), and (f) pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. As alleged, these events occurred in February and April 2016. However, Complainant did not initiate contact with an EEO Counselor until July 19, 2016, which is beyond the 45-day limitation period for each of these claims. Complainant has not provided sufficient justification for waiving or tolling the time limit. Therefore, we find dismissal of these claims was proper. Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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 by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in her favor. Complainant has alleged that Supervisor 1’s actions in Claims 1 and 2 were motivated by age, sex, and color. A claim of disparate treatment, such as this one, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020003951 8 For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant must show that the agency's action was more likely than not motivated by discrimination, that is, that the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Baker v. U.S. Postal Serv., EEOC Petition No. (May 13, 1999). Absent a showing that the agency's articulated reason was proffered to mask discrimination, complainant cannot prevail. Burdine, 450 U.S. at 256; Crosland v. Dep’t of the Army, EEOC Petition No. 03990018 (July 1, 1999); Mongere v. Dep’t of Defense, EEOC Appeal No. 01970738 (March 18, 1999). Here, Complainant stated that to the extent her existing claims were not encompassed within the amendments sought, she did not oppose summary judgment on those claims. She did not set forth any evidence that the Agency’s articulated reasons for its actions were pretextual. We find the responsible Agency official articulated a legitimate, nondiscriminatory reason for the disputed actions. As to Claim 1, both Supervisor 1 and Supervisor 2 indicated that it was not cost effective to have three employees traveling for site visits. Supervisor 1 stated it was always intended to cut back on Complainant’s travel after Program Manager had participated in a complete annual cycle of visits. He further stated that Program Manager’s sole duties involved Administrative Services duties, as did Co-worker’s, whereas Complainant’s primary duties consisted of supply management with about 25% of her time working on Administrative Services duties. Supervisor 2 stated he was getting complaints from staff about not receiving supplies on time and he felt it was best to have Complainant available to address these supply issues. As to Claim 2, the record shows that Supervisor 1 sent two emails to Co-worker informing him that his mass distributed email about Complainant was unacceptable and they could not do business that way. While Complainant may have wanted a meeting or an apology instead, she has not shown that Supervisor 1 failed to take appropriate action. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). Although Complainant has alleged that the Agency acted discriminately, she has failed to prove, by a preponderance of the evidence, that the Agency actions were because of age, sex, or color. Therefore, her claims fail. We also note that the Agency’s argument that this appeal should be dismissed as a mixed case complaint is unavailing. 2020003951 9 Complainant’s constructive discharge allegations are not an accepted claim and her Motion to Amend to include them was denied. Therefore, they are not before the Commission. 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 Order Entering Judgement (which became the Agency’s final 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). 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. 2020003951 10 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. 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 December 7, 2021 Date