Sherill S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 16, 2020

2020001627 (E.E.O.C. Sep. 16, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherill S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2020001627 Agency No. 19-00015-00123 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 13, 2019 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 worked as a IT Specialist/Senior Web/Data Developer, GG-2210-12 at the Agency’s Mission Support facility in Camp H.M. Smith, Hawaii. On January 10, 2019, Complainant filed the instant formal EEO complaint alleging that the Agency discriminated against her on the bases of race (Hispanic), sex (female), and reprisal for prior protected EEO activity (Agency Nos. DON-16-00015-03847 and DON-18-00015-01850) when: 1. On or about September 11, 2018, Complainant’s first-line supervisor (“S1”) (white male) denied her request for training. 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 2020001627 2. On or about September 17, 2018, Complainant became aware that no inquiry was either made, or was brought to the attention of the JIATF-W chain of command, regarding a physical assault incident which she reported to the Web and Database Branch Chief (“Branch Chief”) (white male). 3. On or about October 10, 2018, S1 informed Complainant that he had selected a SPAWAR (Space and Naval Warfare Systems Command) Contractor, and not Complainant, to be assigned as team lead for the web/database section. After an investigation of the accepted claims, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). On August 5, 2019, Complainant timely requested a hearing, on September 10, 2019, withdrew her request, and the AJ remanded the matter to the Agency to issue a final decision. The Agency issued its final decision on December 13, 2019, finding no discrimination. The instant appeal followed. On appeal, Complainant has not submitted a timely statement or brief. ANALYSIS AND FINDINGS 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 a complainant to prevail, he or she must first establish a prima facie case 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, non-discriminatory 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). 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, as here, 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). 3 2020001627 Complainant stated that she believed she was being retaliated against because she had reported the two alleged coworker assaults. It is undisputed that both S1 and the Branch Chief were aware of this report and the denial of training and non-selection for team lead occurred within the next month. The record shows that Complainant had also filed two previous EEO complaints, although neither S1 nor the Branch Chief were named in those complaints. Claim 1 Complainant stated that she requested a cyber training course by a Cyber Ethical Hacker (CEH) to be held in San Diego, California from October 1-5, 2018. On September 11, 2018, Complainant received an email from S1 denying her training request stating that the course she selected could not be justified as it did not relate to her current duties. Complainant stated that S1 advised that she could take other training courses that more directly related to her duties. S1 confirmed that he denied Complainant the opportunity to take the requested training and advised her that the training which she selected was not relevant to her current duties. S1 testified to approving other training that was in line with Complainant’s current duties. Complainant has not provided any evidence that the Agency’s articulated reasons for denying the particular training requested is pretext for discriminatory or retaliatory animus. Claim 2 Regarding Claim 2, Complainant stated that on September 17, 2018, she received an email from S1, in response to her September 16, 2018 email. Complainant’s email inquired about two incidents: one on August 9, 2017 and another on June 12, 2018. Complainant claimed that, on August 9, 2017, a co-worker blocked her path by putting his foot out and tripping Complainant. She also claimed that on June 12, 2018, a different co-worker shoved her hard enough to throw her badge into the air. In his email, S1 advised Complainant that, in speaking with the Branch Chief, it was S1’s understanding that Complainant did not want to action taken. Complainant stated that she did not want either co-worker disciplined, but instead wanted them to receive counseling, and she believed that the Branch Chief misunderstood her. While Complainant claimed that management ignored her assault allegations, the record shows that an initial inquiry into the matter was conducted by the Branch Chief. The Branch Chief stated that he asked Complainant if she wanted him to report the incident to the Chief of Staff (COS), which Complainant declined. Complainant stated that when she said she did not want the co- workers who she implicated in the assault allegations to receive discipline, she did not mean that she did not want any action taken. When Complainant informed S1 that she wanted the allegations investigated and non-disciplinary action taken, S1 promptly initiated an investigation on September 24, 2018, of the assault allegations of August 9, 2017 and June 12, 2018. On October 9, 2018, an investigation report was produced that determined there was not sufficient evidence to support Complainant’s claims. 4 2020001627 Complainant does not show by a preponderance of the evidence, that the Agency’s articulated reasons are pretextual. Instead, the record supports the Agency’s articulated reasons and demonstrates that it did conduct an investigation that did not uncover evidence to support Complainant’s allegations. Claim 3 Finally, regarding Claim 3, on or about October 10, 2018, Complainant was informed that another individual was selected as the web/database section team lead. Complainant stated that she was more qualified for the position. Complainant testified that a less qualified individual was selected to replace her as team lead, a position she had held since August 2014. The record includes emails between Complainant and S1 regarding his selection for team lead. The SPAWAR Contractor was rated as civilian rank equivalent to a GS-13, and the JW leadership with the Civilian Intelligence Personnel Office approved the decision. S1 stated that he had evaluated both the selectee and Complainant in terms of expertise, leadership abilities, civilian ranks, and predecessor recommendations. S1 stated further that he assessed them by personal observation, as well as a review of resumes and appraisals. S1 noted, among other matters, that the selectee had many years of experience and handled Share Point outages efficiently and expeditiously. Beyond her bare assertions, Complainant has not provided any evidence to demonstrate that the Agency’s articulated reasons are pretext for discrimination against Complainant based on her protected bases. Complainant has not shown that the alleged disparities in qualifications between herself and the selectee were “of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the [selectee] over [her] for the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 5 2020001627 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 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. 6 2020001627 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 September 16, 2020 Date