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

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2021004844 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Martha Z.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004844 Hearing No. 480-2020-00777X Agency No. DON-20-63394-01079 DECISION On September 1, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 4, 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. At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS- 0510-13, at the Agency’s Surface Warfare Center in Port Hueneme, California. On January 17, 2020, Complainant filed a formal EEO complaint in which she alleged that the Agency discriminated against her and subjected her to a hostile work environment in reprisal for prior protected EEO activity when:2 1. On March 19, July 23, and August 12, 2019, Complainant was denied the opportunity to attend various training courses; 2. On July 10, 2019, the Accounting Officer yelled at Complainant prior to her performance discussion and on January 3, 2020, the AO was verbally hostile and rude to Complainant; 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. 2 These incidents have been consolidated and placed in chronological order for clarity. 2021004844 2 3. On November 19, 2019, the AO issued Complainant a letter of reprimand which Complainant felt threatened her career and position. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to reprisal or a hostile work environment as alleged. Thereafter, the Agency fully implemented the AJ’s decision in its final order. This appeal followed. 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). In order 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by retaliatory animus. To merit a hearing on her claim of retaliatory harassment, Complainant must raise a genuine issue of material fact as to whether: (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 classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2021004844 3 The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, to ensure that her harassment claim survives summary judgment, Complainant must present enough evidence to raise a genuine issue of material fact as to whether 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 raise a genuine issue of material fact as to whether Agency management officials were motivated by unlawful considerations of her previous EEO activity. Only if Complainant raises genuine issues of material fact as to both of those elements, hostility and motive, can the question of Agency liability for retaliatory harassment be brought before an AJ for a hearing. The conduct at issue in the case now before us consists of the alleged denial of training opportunities, criticisms of Complainant’s work performance by the AO, and a letter of reprimand. IR 79-92. Construing the evidence in the light most favorable to Complainant, the Commission finds that the totality of the conduct at issue was insufficiently severe or pervasive to raise a genuine issue of material fact as to the existence of a hostile work environment. Rather, all of these incidents involved common workplace occurrences and as such were neither severe nor pervasive enough to rise to the level of harassment. Lexie T. v. Dep’t of the Interior. EEOC Appeal No. 2020005022 (March 8, 2022) citing Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the evidence in the record raises no genuine issue of material fact as to whether retaliatory animus played a role in any of the incidents comprising her claim. Regarding incident (1), the AO averred that the course held in March 2019 fell during Mid-Year, which was one of the busiest times of the year for the office, and that the courses held in July and August of 2019 had only a limited number of seats. The AO confirmed that she had to consider the dates of the courses, the workload requirements of the office, and who needed the training the most. Complainant was allowed to attend two other classes, however. IR 130-34. As to incident (2), the AO averred that when she tried to discuss Complainant’s performance issues and interpersonal difficulties with her coworkers, Complainant became angry and used abusive language toward her. IR 127, 132. With respect to incident (3), the letter of reprimand dated November 19, 2019, indicated that Complainant was receiving the reprimand for using threatening language toward her supervisor and team lead. IR 97-98, 100-06, 128-30, 198-99. Beyond her own affidavit testimony, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradict or undercut the explanations provided by the AO for her actions or which would cause us to question the AO’s truthfulness as a witness. The Commission therefore finds that Complainant has not presented evidence sufficient to raise a genuine issue of material fact as to whether she was subjected to a hostile work environment. 2021004844 4 Moreover, to the extent Complainant claims that she was subjected to disparate treatment in connection with any of the incidents individually, the Commission finds that she has not proffered evidence sufficient to raise a genuine issue of material fact as to whether a reasonable fact finder could conclude that the explanations put forward by the AO were pretexts designed to conceal a retaliatory motivation. Ultimately, we agree with the AJ that Complainant failed to establish an evidentiary dispute sufficient to raise a genuine issue of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to reprisal or a retaliatory hostile work environment by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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). 2021004844 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 April 5, 2022 Date