[Redacted], Judi S., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 2, 2022

Appeal No. 2021002115 (E.E.O.C. May. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Judi S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021002115 Agency No. 20-00027-00126 DECISION On February 18, 2021, 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 January 22, 2021 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 time, Complainant worked as a Deployment Readiness Coordinator at the Agency’s Recruiting Department Marine Corps facility in Garden City, New York. On December 26, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (African American) when: A. On August 29, 2019, the following incidents occurred: 1. her duties were restricted to only performing administrative work; 2. military spouses supported by Complainant’s program were contacted in order to inquire if she was doing her job and were directly offered training; and 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. 2021002115 2 3. she was required to attend the same training as her Unit Readiness Coordinators, which she usually conducts. B. On October 21, 2019, an Agency official directed the Eastern Recruiting Region (ERR) to stop providing family readiness training to the first recruiting region due to an unfavorable report about Complainant’s performance. Following an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination was established. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (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”). Here, we agree with the Agency's finding that no discrimination was established. To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or 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, 411 U.S. at 802 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). 2021002115 3 The record reflects Complainant has held the position of Deployment Readiness Coordinator since 2015. In her role, Complainant implements the Agency’s family readiness vision and assists unit Marines, Sailors and their families as a link for two-way communication between the Agency's Commander and military families. While the record does not discuss in detail, it nevertheless indicates that the Agency's Eastern Recruiting Region (ERR) conducted an investigation of the program in which Complainant worked. The record further indicates that Complainant’s department failed the inspection. Because of the failed inspection, and at the direction of the Chief of Staff (COS), Complainant's direct supervisor was told to restrict Complainant's duties until improvements were made in deficient areas. In claim A1, Complainant alleges that the Agency restricted her to administrative duties only. The record however, indicates, specifically that the COS recommended that Complainant’s duties be limited to focusing on the elements highlighted in the failed inspection and to preparing for re-inspection. The COS provided affidavit testimony that he decided to restrict Complainant's official travel due to the failed inspection, and averred that she could return to travel upon passing a reinspection. Moreover, the record indicates that COS required Complainant to attend training by an ERR representative so that she could understand the proper execution of her duties. In claim A2, Complainant alleges that a co-worker contacted military spouses to inquire about the job Complainant was doing in her capacity as Deployment Readiness Coordinator (DRC). Complainant contends that her co-worker wanted her White friend to take over Complainant's position. Complainant further averred that the staff at ERR treats her differently because of her race. However, other than Complainant's bare assertions, there is no evidence of record to support this assertion. Specifically, the record indicates that Complainant's colleague was in Complainant's district in March 2019, met with marines and spouses and asked if they were getting the support they needed. According to the record, Complainant's colleague received feedback that the Marine families did not know who their DRC was and did not feel connected to the readiness program. The record further discloses that another of Complainant's colleagues reached out to a personal friend who was also a Marine wife and offered her assistance with deployment readiness if she needed assistance. There is no evidence that Complainant's colleagues were specifically checking up on the work that Complainant was doing. Regarding claim A3, the record discloses that as a result of the failed inspection, Complainant's COS determined that retraining was in order to see and understand the proper execution of duties. As such, a regional representative conducted training that Complainant attended in an attempt to help in improvement and preparation for reinspection of the program. In claim B, Complainant alleges that a co-worker directed the ERR to stop providing family readiness training due to an unfavorable report about Complainant's performance. Complainant avers that a co-worker reached out to other DRCs and representatives and discussed Complainant's performance. The record, however, indicates that Complainant was restricted from training due to the failed inspection and the failure of the programs under her direct responsibility. 2021002115 4 Complainant was instructed to plan for a representative from the ERR to conduct any requested training until the inspection failures were corrected. The record indicates that instead, Complainant asked a co-worker to conduct a one-hour training on the readiness program for a military spouse. However, Complainant's co-worker recommended rescheduling the requested training, advising Complainant that the training required a few hours conduct, and that more notice was necessary so that the spouse could receive training reference material. Finally, the record indicates that based on the recommendation of the Chief of Staff, Complainant was instructed to temporarily pause program-related trainings, because refresher training was identified as an area of concern following the inspection. Even assuming that Complainant established a prima facie case of race discrimination, we determine that the Agency articulated legitimate, nondiscriminatory reasons, for its actions, as delineated above. Complainant has failed to demonstrate, by a preponderance of the evidence, that the proffered reasons for the disputed actions were a pretext designed to mask discrimination based on her race. There is simply no evidence, beyond Complainant’s bare assertions that her race was a factor in any of the actions at issue. Finally, to the extent that Complainant’s claims can be construed as a claim of harassment, we determine that Complainant has not shown that the subject claims reflect severe or pervasive Agency actions. Moreover, any claim of harassment is precluded based on our findings that Complainant has not established 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. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s finding of no discrimination for the reasons set forth herein. 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. 2021002115 5 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. 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. 2021002115 6 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 May 2, 2022 Date