Nia G.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 8, 2019

0120172484 (E.E.O.C. Feb. 8, 2019)

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

Nia G.,1
Complainant,

v.

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

Appeal No. 0120172484

Agency No. DON 15-68093-03014

DECISION

On July 17, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s June 16, 2017 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 period at issue, Complainant was a Medical Laboratory Technician for a company
identified as Arora Group, Inc. (hereinafter referred to as AGI), which worked under a contract
with the Agency. Complainant worked at the Agency’s Clinical Laboratory, Directorate for
Clinical Support Services, Naval Hospital Camp Lejeune in Camp Lejeune, North Carolina.

On November 17, 2015, Complainant filed the instant formal complaint. Complainant claimed
that the Agency discriminated against her based on disability and in reprisal for prior 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.

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1. on August 13, 2015, she was terminated from her contractor position of Laboratory
Technician; and

2. from March 15, 2015 until August 13, 2015, she was subjected to constant scrutiny,
hateful and abusive behavior, and was ignored and tormented.

Complainant identified herself as deaf, and wears hearing aids. Complainant stated, however,
that her hearing impairment does not affect her ability to perform her job.2

The record further reflects that sometime during the November-December 2014 period,
Complainant filed an EEO complaint against a Lieutenant for inappropriate behavior. Because
of a settlement agreement, the Lieutenant was removed from the laboratory and sent to a medical
clinic. The record further reflects that there were several occasions when the Lieutenant was
required to come back to the hospital, but such visits were minimal.

After the investigation of the instant formal complaint, Complainant was provided with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge or a final decision within thirty days of receipt of the correspondence.
Complainant did not respond. On June 16, 2017, the Agency issued the instant final decision
finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

Disparate Treatment: Claim 1

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie 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 Department of
Community 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).

2 For purposes of this analysis, we assume, without so finding, that Complainant was a qualified
individual with a disability.

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This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

Regarding claim 1, Complainant asserted that on August 13, 2015, she was terminated from her
contractor position of Laboratory Technician.

The Division Officer was responsible for all contractors, and was Complainant’s direct
supervisor for administrative oversight. The Division Officer stated that when Complainant
started working for the Agency at the end of 2013, she had problems qualifying for Hematology.
Specifically, the Division Officer stated that Complainant “never really made it through
Hematology the first time. She certified some tests incorrectly…to give her a breather from her
struggles in Hematology, we moved her elsewhere, which was a kind of disservice because she
was not forced to face the challenge of qualifying.”

Further, the Division Officer stated that when Complainant returned in 2015, she was given
competency training just like all other laboratory technicians. The Division Officer stated that
Complainant was instructed on the Standard of Procedures and policies, and one of the
Hematology technicians was assigned to train Complainant, “but [Complainant] was not
successful. She took the competency test three different times, which was not normal. Normally,
a trainee gets one chance to pass, and if they fail, they get a second chance to test. If you fail the
second time, we have to make a judgment call to find out if the trainee should work in the lab
and be allowed to certify results independently. If we conclude the trainee cannot, then they are
removed and placed elsewhere to work.”

The Division Officer stated that the Medical Laboratory Director decided to give Complainant
three chances “which was unprecedented. We were really trying to give [Complainant] the best
opportunity to pass, but we did not think she took the training opportunities seriously. She
claimed people were scrutinizing her, but when you fail twice, we had to scrutinize her
results…after the second failure, but before the third, [Medical Laboratory Director] and I met
with [AGI official] and [AGI official] from the contracting company; they agreed with our
position and plan.”

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The Division Officer stated that AGI decided to terminate Complainant, not the Agency. The
Division Officer explained “what we did as the hospital was to ask for another contractor who
could perform the work. [Complainant] worked directly for her contract company, and we were
onsite supervisors. So, after the third failure, I asked the Arora Group to send someone else to
do the job. I made no request or demand that [Complainant] be fired from the contracting
company.”

The Medical Laboratory Director (unknown disability/prior protected activity) stated, “I think
our lab went above and beyond trying to get [Complainant] to full functionality as a tech.
[Complainant’s] lack of motivation and her inability to work well with others compounded the
problem, and kept her from performing the level she should have performed at. I think it was a
performance issue, not a personal issue.”

Further, the Medical Laboratory Director stated that Agency management “never asked for
[Complainant] to be terminated from the Arora Group, and that was not our decision. Her
employer elected to terminate her from their company. What we requested was for
[Complainant] to rotate out of the position and have a new contractor take her place.”

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext for discrimination or motivated by discriminatory animus.

Hostile Work Environment: Claim 2

With regard to Complainant’s hostile work environment claim, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

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 her protected basis – in this case, her
disability and prior protected activity. Only if Complainant establishes both of those elements—
hostility and motive—will the question of Agency liability present itself. Here, Complainant
simply has provided no evidence to support her claim that her treatment was the result of her
disability and/or prior protected activity.

Complainant alleged that from March 15, 2015 until August 13, 2015, she was subjected to
constant scrutiny, hateful and abusive behavior, and was ignored and tormented.
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The Hematology Technical Supervisor stated that she did not observe anything that suggested
Complainant was subjected to constant scrutiny, hateful and abusive behavior, or that she was
ignored and tormented. Regarding the claim that management officials found a way to allow
employees to bully Complainant and continue treating her the same way she was treated by the
Lieutenant, the supervisor stated “I disagree because I did not see any management officials
looking for a way to treat her badly. I only saw management officials trying to do the best we
could for [Complainant].”

Regarding Complainant’s allegation that it was wrong of management officials to place her back
into Hematology where she had previously been harassed by the Lieutenant, the supervisor
explained that Complainant was a contractor employee “with specific job obligations, one of
which was to work in Hematology. If we had not placed her in Hematology, she would not have
fulfilled the obligations of the contract she was assigned to. She had already completed the other
areas of her certification and needed to finish Hematology. The contract stated the three areas in
the main lab, and one of our branch medical clinics were where she worked.”

The supervisor stated at the time Lieutenant was removed from the laboratory and sent to a
certain medical clinic. The supervisor stated that management “felt it would have been
inappropriate to send her to the clinic where [Lieutenant] had been moved.”

With respect to Complainant’s allegation that she requested to work with different trainer but her
requests were ignored, the supervisor explained to Complainant why it was not possible for a
certain trainer who works the night shift because contractors are not allowed to work nights.

The Division Officer disputed the claim that Complainant’s concerns were taken lightly. The
Division Officer stated “I was never getting any productivity from [Complainant]. Because she
was always absent from the lab, I had to put her on a specific training schedule to become
competent in all of the areas. We started with the things we knew she would do well, to build
her up towards Hematology. She had complaints every day about someone not liking her. I
listened to her complaints a lot, and I think she wanted to vent a lot. But she never brought
anything actionable for us to follow up on.”

Further, the Division Officer stated that she did not receive reports of mistreatment in the
workplace from other employees. The Division Officer noted that there were several employees
“who were burnt out from dealing with [Complainant], because they felt like [Complainant] was
always scrutinizing them. But I have not received any allegations of discrimination, reprisal, or
hostile work environment from anyone except [Complainant].”

Based on the evidence developed during the investigation, we conclude Complainant failed to
establish an essential element of her claim of harassment/hostile work environment – that her
disability and prior protected activity played any role in the incidents she alleged as part of her
claim.

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CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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 prevented 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).

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
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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

February 8, 2019
Date