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

Equal Employment Opportunity Commission

Feb 15, 2022

Appeal No. 2021001427 (E.E.O.C. Feb. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nida R.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021001427 Hearing No. 480-2020-00069X Agency No. DON-19-62874-01189 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s November 23, 2020 final order concerning an 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. During the relevant time, Complainant was an applicant to the Secretary position at the Agency’s facility at Yokota Air Base, Japan. On March 19, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), and color (Black/Brown) when: 1. On December 6, 2018, Complainant received a notification email from the Human Resources Office withdrawing her official job offer as Secretary due to her failure to complete a condition of employment and her lack of professionalism to be the “face” of the Office of the Chief of Staff; 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 2021001427 2. On November 21, 2018, during a meeting with the Security Deputy (SD), SD did not assign a new security representative to process Complainant’s clearance application, upon her request, and did not forward her application to the next reviewing office for feedback; 3. On about November 15, 2018, the Security Representative (SR) told Complainant that all questions were to be referred elsewhere, and he hung up the phone on her; and 4. On November 14, 2018, SR was not pleased with Complainant’s request to submit her SF86 through eQIP, as she had requested several times, and he refused to release Complainant’s SF86 forms before her meeting with SD. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ notified the parties sua sponte of an intent to issue a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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 discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. 3 2021001427 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 discriminated against by the Agency as alleged. The record shows that Complainant was applying to be the principal executive assistant for the Chief of Staff (“COS”) for Headquarters, United States Forces, Japan. The position requiring the incumbent to have high level of interpersonal skills as they would, among other things, be dealing directly with senior level officers from all services. The position required an active security clearance. The Agency’s legitimate, non-discriminatory reason for not submitting Appellant’s security application to OPM was that it contained errors that would cause OPM to reject it, which was explained to Complainant. Complainant conceded that her security clearance application did contain errors and she had not followed instructions on how to submit her fingerprints, issues which she characterized as “trivial.” Regardless, proving pretext requires more than disagreement with the Agency’s actions. The Agency later rescinded the job offer based, at least in part, on what they characterized as her uncooperative and “less-than-professional manner” during the security clearance application process. From her first contact with Agency security personnel, it is undisputed Complainant demonstrated a resistance to complying with the requests of security staff. Complainant insisted that the requested process be changed to do it the way she wanted - to open an electronic eQIP application rather than submitting a paper application as initially requested. Even though security staff told her that her previous clearance profile had been deactivated, Complainant insisted and eventually went to the COS to get her way so she could fill out an eQIP application electronically. Complainant continued to resist security staff advice and instructions for how to fill out her eQIP application as they went back and forth on correcting the errors in her application. Security staff described her as “verbally aggressive” and said that she was not interested in working with them. As the AJ noted, “it is not surprising that Complainant’s conduct led to the withdrawal of the tentative offer, especially considering that she was applying to be the administrative assistant to the Office of the Chief of Staff” where she would have to diplomatically interact with a variety of potentially difficult and high level personalities. The evidence of record fully supports the AJ’s conclusion that Complainant’s demonstrated inability to work cooperatively with security staff and be flexible and receptive to the established security clearance processes at USFJ supported the COS determination that Complainant was not the right fit for the position. The AJ also correctly found that it was not material whether the Agency’s business practices were the most efficient or correct, but rather that there was no evidence of a discriminatory motivation. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 4 2021001427 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). 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). 5 2021001427 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 February 15, 2022 Date