Alisa M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 13, 2019

0120182277 (E.E.O.C. Nov. 13, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Alisa M.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182277
Hearing No. 480-2015-00119X
Agency No. DON143594901114

DECISION

On June 22, 2018, 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
June 5, 2018, 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.

ISSUES PRESENTED

Whether the EEOC Administrative Judge (AJ) correctly found that Complainant was not
discriminated against and subjected to a hostile working environment based on her race (African-
American), color (black), national origin (American), sex (female), and/ or reprisal (union
activity/current EEO complaint) when the following incidents occurred:

1. From March to April 2013, her second-level supervisor, the Commander (CDR) refused to
meet with her;

2. In April 2013, CDR angrily stated to Complainant, “you need to pay attention to what you
are doing”;

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.
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3. In approximately September 2013, CDR issued Complainant a “non-graded” Performance
Appraisal Review System (PARS) rating, while other coworkers outside her protected class
received their PARS with a good report and on time;

4. In approximately late September/early October 2013, a manager (M1) asked her if she was
“falling behind on training because [she] takes so much leave;”

5. In October 2013, her first-level supervisor, the Lieutenant Commander (LCDR1) told her
“M1 tells me you take a lot of leave;”

6. On December 12, 2013, LCDR1 issued her a Letter of Caution;

7. On December 18, 2013, LCDR1 tasked her to complete the work assignments of a
coworker, (C1);

8. On January 22, 2014, M1 asked her if she had called patients on her list even though M1
knew that she was previously out of the office for a few days;

9. On January 23, 2014, C1 asked LCDR1 if Complainant could complete a task that C1 was
originally given in order to assist M1, and LCDR1 asked Complainant, “isn’t filing your
job?”;

10. On January 27, 2014, C1 yanked Complainant’s chair back to the point that Complainant
was almost parallel to the floor and angrily stared down her;

11. On January 29, 2014, C1 asked Complainant to make reminder calls to patients that M1
had asked him to make;

12. On February 25, 2014, LCDR1 questioned Complainant about a patient Complainant had
booked;

13. On February 26, 2014, LCDR1 questioned her about why a patient had been waiting for so
long and did not question any of her coworkers about the patient;

14. In February 2014, C2 called Complainant an “Angry Black Woman” during a conversation
with C2, Complainant, and C3;

15. CDR and LCDR2 did not provide requested guidance on booking patient appointments;
and

16. Unlike her coworkers, Complainant was not allowed adequate time to complete her training
on “training days.”

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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Medical Support
Assistant, GS-5 at the Agency’s Occupational Health Clinic, Naval Hospital facility in Twenty-
nine Palms, California.

Incident 1

Complainant alleged that she assumed that the CDR would want to meet with her, a new employee
in the unit, upon CDR’s return from leave, but that it never happened. Complainant stated that she
continuously approached the CDR about her performance, and encouraged constructive criticism,
but she never welcomed her for any discussion of her performance. Complainant stated her belief
that CDR’s behavior was based on negative comments she received from other employees about
her, asserting that being ignored was discriminatory, and that she did not specifically request to
meet with CDR.

CDR denied refusing to meet with Complainant.

Incident 2

Complainant testified that while she could not recall the exact circumstances, CDR angrily told
her that she needed to pay attention to what she was doing. She remembered approaching CDR
and asking her how she believed Complainant was performing, asserting that CDR must have been
frustrated with her.

CDR admitted making the statement, which she asserted was not made angrily, when Complainant
was taking in a lot of information while training for a clinic in which she had never worked; and
that she had suggested that Complainant might want to pay more attention to some topics over
others especially as it applies to the clinic business.

Incident 3

Complainant alleged that CDR issued her a “non-graded” PARS rating. She argued that other
coworkers outside her protected classes timely received their PARS with a favorable report,
identifying two Health Technicians, C1 who had been in his position for several years, and C2,
who had been in his position for at least two years, as comparators. Complainant, who received
an “Acceptable” PARS, did not dispute that she had only been in the clinic for a period of nine
months when this incident allegedly occurred; and that the PARS for her position only has two
levels of performance - acceptable or unacceptable.

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CDR did not deny issuing Complainant a non-graded PARS. She explained that following
discussions with Complainant’s formal supervisor about each element and feedback, it was
decided that she would be on a “training PARS” basically, an ungraded PARS which allow new
employees an opportunity to learn the duties of their position to ensure they would be successful
in a clinic where she had no prior work experience, and for which they had no knowledge.

Incident 4

Complainant alleged that when she approached M1 about taking leave, M1 asked her if she was
falling behind on training because she took so much leave.

M1 admitted making the statement but denied that it was in the context of Complainant’s leave
request. CDR testified that if M1 made the statement as alleged, it was not inappropriate for clinical
managers, responsible for tracking staff workload, to question why work was not being completed
as tasked.

Incident 5

Complainant alleged that LCDR1 told her that M1 informed him that she took a lot of leave.

LCDR1 could not remember this comment but did not deny that he may have made a similar
comment, asserting that he might have been trying to clarify some information he had received.
He explained that upon on his arrival, he had no access to personnel files; that Complainant and
her coworkers shared information about each other with him; and that, on one occasion,
Complainant was absent from work and did not return his call when he attempted to ascertain
where she was. He added that upon her return, she had coded her time off as an unauthorized
absence; that she had unused leave; and that he would have approved her absence if she had
requested leave.

Incident 6

Complainant alleged that LCDR1 issued her a Letter of Caution, while she was at her desk doing
her work, without explanation; and that she had not been a part of some argument that might have
occurred between C1 and M1, adding that C3 did not receive a letter of caution like she did.

LCDR1 asserted that had Complainant read the Letter of Caution, she would have realized it had
nothing to do with an argument between C1 and M1; that the Letter of Caution related to the
relationship between Complainant and M1. The letter, among other things, indicated that each had
made multiple complaints toward each other that had not been substantiated. LCDR1 reiterate his
expectations that the staff would work professionally with each other, and if there are personal
issues between staff members to attempt to work them out together. Finally, he indicated that the
failure to adhere to “the requirements set forth in the letter could be considered a deliberate failure
to follow a direct order and grounds for further corrective action up to and including removal from
federal employment.”
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M1 stated that she had also received such a letter; and LCDR1 had previously issued a Letter of
Caution to C1 for hostility toward staff members.

Incident 7

Complainant alleged that LCDR1 tasked her to complete C1’s work assignments involving some
patients’ files that C1 had updated. She admitted that filing was one of her duties.

LCDR1 could not remember this incident. He stated, however, that as a doctor, it was his
responsibility to assign work as needed to operate the clinic; he asserted that he organized the
clinic so that the staff worked as a team; and that others might have been assigned work they felt
were Complainant’s job duties as well. CDR agreed with LCDR1’s. She added that the patient
volume on the date in question was higher than normal; and that, as a medical assistant,
Complainant had to complete some tasks before C1, a Health Technician, could perform his.

Incident 8

Complainant alleged that upon her return from leave, M1, who knew she had been away for a few
days, condescendingly asked her if she had called patients on her list. She admitted that she had
been asked to call patients, which she did, but contended that others could have equally completed
the task.

Incident 9

Complainant alleged that C1 asked LCDR1 if she, Complainant, could complete a task that C1
was originally tasked with in order to assist M1 with another matter; and that LCDR1 asked her
whether filing was not her job.

LCDR1 asserted that he probably did ask Complainant the alleged question because she refused
to file patient charts when directed to do so.

Incident 10

Complainant alleged that C1 yanked her chair back to the point that she was almost parallel to the
floor, and angrily stared down her. She admitted that she did not report the alleged incident to
management.

C1 denied Complainant’s allegation.

Incident 11

Complainant alleged that C1 asked her to make reminder calls to patients who had appointments
that M1 had asked him to make, asserting that C1 is neither her boss nor supervisor.
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Neither Complainant, C1, nor management disputed that Complainant refused to do the task as she
testified in her affidavit.

Incident 12

Complainant alleged that LCDR1 condescendingly questioned her about a patient she had
admittedly booked when he should have asked M1 in her capacity as a supervisor.

Incident 13

Complainant alleged that LCDR1 questioned her about why a patient had been waiting for so long;
and that she responded that the patient had informed her he had returned for an afternoon
appointment following morning lab work. She felt this was harassment because two other
coworkers had interactions with the patient but were not questioned.

The record indicates that part of Complainant’s duties included checking patients in and out for
appointments; and that LCDR1 was authorized to question her about a patient’s presence.

Incident 14

Complainant alleged that C3, who is married to an African-American woman, called her an “Angry
Black Woman” during a conversation with him and two other coworkers; and she did not know
why he referred to her in such a manner. She contended that she was offended by the comment
but did not report the incident to management.

C3 testified that he had commented to his coworker, not Complainant, that his wife went Angry
Black Woman” on him.

Incident 15

Complainant alleged that CDR and LCDR2 did not provide her with requested guidance on
booking patient appointments. She explained that although she continued to ask, verbally, for
guidance to assist her and to help her learn the position, she was continuously ignored. She stated
that LCDR2 was in and out a lot because he was preparing to retire; that the work environment
was becoming tenser at that time; that she was given different instructions on booking methods
from different individuals; and that she asked LCDR2 if they could get the correct procedure in
writing, so there would be less mistakes. She asserted that LCDR2 told her she could go into his
office and review his books if needed and provided no real guidance. She admitted that she
received training from C1 and another employee.

The record contains evidence that Complainant received extensive training. Moreover,
Complainant did not establish that she received less training than her similarly situated co-workers
who were outside of her protected groups.

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Incident 16

Complainant alleged that unlike coworkers, she was not allowed adequate time to complete her
one and half-hour early morning Thursday training on “training days.” She explained that M1 had
asked her to open the door to allow patients in for appointments during her training hours; that she
initially did not complain about the assignment but that she later did complain as she was falling
behind in her training and needed to catch up; that M1 had indicated she was also falling behind
on her own training, as all employees took the training at the same allotted time; and that she did
inform CDR about the matter but that was after she had completed all her assigned training.

There is no evidence that Complainant was treated any differently than her co-workers with respect
to the amount of time provided to complete their training.

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. Complainant timely requested a hearing. Over
Complainant’s objections, the AJ assigned to the case granted the Agency’s May 15, 2015, motion
for a decision without a hearing and issued a decision without a hearing on May 30, 2018. The AJ
found, in pertinent part, that Complainant’s claims of disparate treatment failed because she did
not show that she was aggrieved as she did not suffer any adverse action or harm from the alleged
management actions; and that because most of the alleged incidents were nothing more than
ordinary work-related interactions, Complainant’s harassment claim also fail. 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.

CONTENTIONS ON APPEAL

On appeal, Complainant, among other things, reiterates her allegations. She also contends that the
AJ improperly conducted credibility determinations in issuing her decision, which constituted an
abuse of discretion and a misapplication of the legal standards for summary judgment. She also
asserts that she established that the Agency’s purported “legitimate” nondiscriminatory reasons
for its adverse actions were a pretext of discrimination; and that the AJ failed to provide any
analysis concerning her allegation of reprisal. Complainant requests that the Commission reverse
the Agency’s final order.

In response, among other things, the Agency reasserts its position; and requests that the
Commission affirm its final order.

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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. (Aug. 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). 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”).
ANALYSIS AND FINDINGS

AJ’s Issuance of a Decision Without a Hearing

We must 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.

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, among other
things, contends that the AJ improperly conducted credibility determinations in issuing her
decision. We disagree. With respect to each incident, the AJ assumed that Complainant’s version
of the events was correct.
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Ultimately, the AJ correctly determined that there are no genuine issues of material fact or
credibility that merited a hearing. Therefore, the AJ’s issuance of a decision without a hearing was
appropriate.

Disparate Treatment

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). She must initially establish a prima facie case by demonstrating that she was subjected to
an adverse employment action under circumstances that would support an inference of
discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. 802 at
n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for
its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, national origin, sex, and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for its actions set forth in incidents 3, 6, and 9. Regarding incident 3,
the CDR explained that following discussions with Complainant’s supervisor it was decided that
Complainant would be on a “training PARS,” which allow her an opportunity to learn the duties
of her position to ensure she would be successful in her new position. Regarding incident 6,
LCDR1 stated that he issued letters of caution to both Complainant and M1 because he was
concerned about their conduct in the workplace. Finally, with respect to incident 9, LCDR1 stated
that he probably did ask Complainant the alleged question because she refused to file patient charts
when he directed her to do so. We find no persuasive evidence of pretext or that discriminatory
animus played any role with respect to the Agency’s actions in incidents 3, 6, and 9.

With regard to Complainant’s harassment and hostile work environment claim, we first note that
under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that
Complainant’s claim of a hostile work environment must fail with respect to incidents 3, 6, and 9.
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 in incident 3, 6, and 9
were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC
Appeal No. 01982923 (Sept. 21, 2000).

With respect to incidents 1, 2, 4, 5, 7, 8, 11, 12, 13, 15, and 16, we find that Complainant’s claim
also fails because she did not describe any severe or pervasive management conduct, verbal or
physical, that was based on her membership in her protected classes that in any way altered the
terms and conditions of her employment.
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For the most part, all these incidents involved work related assignments in line with Complainant’s
duties, or her being asked work-related questions or being subjected to work-related comments.
Regarding incidents 10 and 14, assuming these matters took place as alleged by Complainant, the
record indicates that she never reported them to management. Consequently, she was unable to
establish liability on the Agency’s part. We therefore conclude that Complainant has presented no
genuine issues of material facts in dispute to warrant a reversal of the AJ’s decision or the Agency’s
final order adopting it.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevent the timely filing of the request. Any
supporting documentation must be submitted with your 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).
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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

November 13, 2019
Date