[Redacted], Zada C., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionDec 21, 2021Appeal No. 2021003044 (E.E.O.C. Dec. 21, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zada C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003044 Hearing No. 451-2014-00216X Agency No. ARCCAD13FEB00975 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 March 31, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Information Technology Specialist, GS-2210-13 in the IT Operations and System Support Branch at the Agency’s Corpus Christi Army Depot (CCAD) facility in Corpus Christi, Texas. In 2009, Complainant accepted a reassignment from her CCAD position to a position in Germany. In 2010 and 2011, while Complainant was in Germany, the department underwent a significant reorganization. The IT division became a CCAD Directorate and transitioned from one division with two branches to five divisions with eight branches. During the reorganization, Complainant’s position changed from a branch chief position to a division chief position. 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. 2021003044 2 Upon her return in August 2012, she sought to be placed back into her original position pursuant to the Department of Defense (DOD) Civilian Personnel Management Employment in Foreign Areas and Employee Return Rights policy (hereafter “DOD Instruction”). The Agency instead placed her in a branch supervisor position in the Enterprise Tech Management Division, Enterprise Customer Intelligence Branch, which was the same grade as her previous position. On July 15, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Black), color, and sex (female), when: On January 15, 2013, she was reassigned to a different supervisory position upon returning from an overseas assignment. 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 requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s September 4, 2014, motion for a decision without a hearing and issued a decision without a hearing on February 11, 2021. 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. Complainant filed the instant 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). 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). Upon review we find that the record in the present case was fully 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. 2021003044 3 Here, Complainant has failed to establish such a dispute. Thus, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Assuming Complainant established a prima facie case of discrimination, we find that she failed to show by a preponderance of the evidence that the Agency’s asserted legitimate reasons for its actions were pretext for discrimination based on race, color, and sex. The evidence consistently shows that during the three years Complainant was in Germany, the department and her position underwent significant changes. Upon her return, her prior branch supervisor position had been converted to a division supervisor position and was occupied. Notably, DOD Instruction provides that upon return from a foreign assignment, an employee shall be placed in the position she held immediately before the assignment to foreign duty if such position exists; and if the position does not exist, the employee shall be placed in another existing or new position for which she is qualified, in the same DOD component, in a grade equal to the position which she held immediately before her foreign duty assignment. The Agency asserts that Complainant’s prior position no longer existed as it was changed to a division supervisor position with new functionality and duties because of the restructure of the organization. The Agency asserts that they placed her in a different supervisory position in the same DOD component of the same grade that fit her skills, knowledge, and experience based on the needs of the organization. Complainant asserts she believes she was not placed in her same position based on her race, color, and sex because two non-Black male employees that returned from foreign service were placed back in their original positions. The evidence shows that Comparator 1 was returning to a nonsupervisory GS-11 position, and Comparator 2 was not in the same organizational component as Complainant. To be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Complainant v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001), req. for recon. denied, EEOC Request No. 05A20020 (Jan. 28, 2002) (citations omitted). Here, Complainant failed to establish that a similarly situated employee was treated more favorably. Furthermore, Complainant argues that the Agency generated several personnel actions to “cover up” their denial of her return rights under the DOD Instruction. Specifically, SF50s and SF52s were generated to indicate that she had been placed back in her original position and then reassigned to her new role although she was never functionally placed in her prior position upon her return. Viewing the evidence in the light most favorable to Complainant, Complainant has failed to establish that any alleged departure from Agency policy was related to her race, color, or sex. 2021003044 4 Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Thus, we find that Complainant failed to show by a preponderance of the evidence that the Agency’s actions were motivated by discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing the AJ’s decision finding no discrimination. 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). 2021003044 5 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. 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 21, 2021 Date Copy with citationCopy as parenthetical citation