Genny L.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120172722 (E.E.O.C. Oct. 24, 2018)

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

Genny L.,1
Complainant,

v.

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

Appeal No. 0120172722

Agency No. 16-00027-01692

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 July 13, 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 worked as a Staff Accountant, GS-14, at the Agency’s
Risk and Compliance (RFK) Branch, Fiscal Division, Program and Resources Department,
Headquarters Marine Corps facility in Washington D.C. Complainant served as the Manager’s
Internal Control Program (MICP) Coordinator.

On July 22, 2016, Complainant filed the instant formal complaint. Complainant claimed that she
was subjected to harassment/a hostile work environment based on race (Caucasian), national origin
(Persian) and sex (female) when:

1. Since she began her current position on August 23, 2015, her first-line supervisor (“the
supervisor”) has complained about her accent and has become increasingly abusive and
in some cases offensive.

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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2. As a result of this situation, Complainant has become so anxious that it is difficult for
her to talk around her supervisor for fear of being ridiculed. The supervisor continues
to become increasingly disrespectful toward Complainant in the presence of other
employees, undermining her standing and authority in the workplace. This situation
has started to have a negative impact on the outcome of Complainant’s work and her
health has begun to suffer.

3. The supervisor does not allow Complainant to telework, but allows others in her group
to telework.

4. On or around March 30, 2016, Complainant approached the supervisor to ask a question
about the Marine Corps Internal Control (MCIP) Appointment Letter. The supervisor
turned away from her and shouted “I don’t understand her. Someone come explain what
she is saying.”

5. On or around April 6, 2016, the Fiscal Division Director sent an email asking the
supervisor to brief the Senior Assessment Team (SAT) and at the start of the meeting,
the supervisor approached Complainant and told her in a loud voice “Get over there
and brief!”

6. On or around April 7, 2016, the Operations Section Head sent Complainant an email
regarding clarification of duties. Complainant responded to the email saying that she
would be willing to set a meeting to discuss those duties. The supervisor called
Complainant to his office in the morning and started to shout in a loud and abusive
fashion accusing her of not responding to the email.

7. On or around April 7, 2016, during a meeting with Complainant’s supervisor and the
Operations Section Head, the supervisor started to scream at Complainant, “do the job
yourself,” and “you were not ‘allowed’ to work with [the Operations Section Head’s
team] to finish the assignment.” The supervisor also said, “this is your job and you
have to do it by yourself with no help from anyone.”

8. On or around April 11, 2016, Complainant and her team were scheduled to attend a
meeting with INTEL. The supervisor did not permit any member of Complainant’s
team to accompany her to the meeting, with no prior reason given.

9. On or around April 14, 2016, the supervisor asked Complainant to do some work and
report back to her on the next day. When Complainant informed the supervisor, it was
her Alternative Work Schedule (AWS) day, the supervisor yelled “you are not allowed
to have AWS any longer. I will take it away from you.” The next pay period
Complainant was no longer on AWS schedule.

10. On or around April 14, 2016, the supervisor scheduled a staff meeting for 10:45 a.m.
to 12:00 p.m. which Complainant confirmed that morning.
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11. There was no none there when Complainant reported to the scheduled meeting location.
When Complainant returned to the workplace, she became aware that the supervisor
had taken everyone to lunch.

12. On or around May 16, 2016, the supervisor changed Complainant’s work schedule
from 6:30 a.m. – 3:30 p.m. to 7:30 a.m. – 4:30 p.m.

After the investigation of the 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). In accordance with Complainant’s request, the Agency issued a final decision, pursuant to
29 C.F.R. § 1614.110(b).

In its July 13, 2017 decision, the Agency found that Complainant did not show by a preponderance
of the evidence that she was discriminated against on the bases of race, national origin, and sex.

The instant appeal followed.

ANALYSIS AND FINDINGS

Harassment of an employee that would not occur but for the employee’s race, color, sex, national
origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v.
United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department
of the Treasury, EEOC Request No. 05970077 (March 13, 1997).

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 bases -- in this case, race, national origin and sex. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, the evidence simply does not establish that the incidents
occurred as alleged by Complainant and/or occurred because of her race, national origin or sex.

The record reflects that on August 23, 2015, Complainant began her employment with the Agency
as a Staff Accountant at the Headquarters Marines Corps Programs and Resources Department.

On April 22, 2016, Complainant’s supervisor conducted a face-to-face progress review of
Complainant’s performance. The supervisor advised Complainant that she did not think she was
performing at the GS-14 level and the reasons why, and she also provided Complainant with a 4-
page document explaining what she needed to do to bring her performance to an acceptable level.

Regarding allegation 1, Complainant alleged that since she began her current position on August
23, 2015, her supervisor has complained about her accent and has become increasingly abusive
and in some cases offensive.
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Complainant claimed that due to this situation, she has become so anxious that it is difficult for
her to talk around her supervisor for fear of being ridiculed. Complainant claimed further that the
supervisor continues to become increasingly disrespectful towards Complainant in the presence of
other employees, undermining her standing and authority in the workplace. This situation has
started to have a negative impact on the outcome of Complainant’s work and her health has begun
to suffer.

The supervisor (African-American female) denied subjecting Complainant to harassment. The
supervisor stated that on one occasion, she told Complainant that she had “a very thick accent and
she needed to slow down and think about what she was saying so she could be clear and
understood. All her complaints started when I wanted her to start doing her job.”

The supervisor explained that the first six months Complainant was satisfied with her new position
and she wanted her “to get comfortable in speaking and give her topics she was comfortable with
as she was terrified of speaking even though when she interviewed she said she had done this. She
never told me she had any issues with the way I spoke to her. No one else has addressed this to
me neither.” The supervisor stated that during the relevant period, Complainant had failed her
mid-point, and she was considering putting her on a Performance Improvement Plan.

Another Accountant (white, American male), also Complainant’s coworker, stated that
management did not subject Complainant to harassment, but said, “I think it was based more in
personalities.” The coworker further stated that while the supervisor was stern with Complainant,
she was stern with other employees “as well as needed.” The coworker also stated that he may
have heard the supervisor “once or twice tell [Complainant] she could not understand her and
asked her to repeat herself.”

Regarding allegation 3, Complainant also alleged that on or around March 30, 2016, Complainant
approached the supervisor to ask a question about the Marine Corps Internal Control (MCIP)
Appointment Letter. She said the supervisor turned away from her and shouted, “I don’t
understand her. Someone come explain what she is saying.” The supervisor denied this incident,
but stated that Complainant has a heavy accent and “sometimes I would ask her to repeat herself…I
talked to her about slowing down as many coworkers would complaint about not being able to
understand her.”

Comments about an employee’s accent may, under certain circumstances, raise an inference of
national origin discrimination. Here, however, we find that merely asking Complainant to speak
more slowly or repeat herself to aid in understanding her does not, without more, reflect an animus
based on national origin. Tran v. Department of the Army, EEOC Appeal No. 0120152004 (March
28, 2013).

The Branch Chief (White, Hispanic male), also Complainant’s second level supervisor,
acknowledged Complainant shared her concerns about the supervisor being harsh with him. The
Branch Chief further stated that he counseled the supervisor to direct any critical comments to
Complainant privately, to avoid undermining her role in a lead position.
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The Branch Chief indicated that the supervisor did express concern with Complainant serving as
a lead as she did not feel Complainant was successfully completing the job. The Branch Chief
stated that he told the supervisor to make efforts to help Complainant improve her performance in
a positive way.
The Branch Chief stated that the supervisor had a tendency to be sometimes harsh in her dealings
with others too, and not just Complainant. The Branch Chief stated that management had
counseled the supervisor “regarding her professional temperament. There have been issues
regarding [the supervisor] addressing others above her as to her professionalism, her tone.” The
weight of the evidence seems to indicate that the supervisor sometimes acted harshly towards other
employees too, including those outside Complainant’s protected groups.

Regarding allegation 2, Complainant asserted that the supervisor did not allow her to telework, but
allowed others in her group to telework. The supervisor stated that Complainant never requested
to telework. The supervisor also stated that Complainant was never told she could not telework
and “had she requested to telework and followed the associated procedures she would have been
allowed to do so.” Complainant produced no evidence to rebut the supervisor’s claim that she
never requested telework.

Regarding allegation 4, Complainant alleged that on or around April 6, 2016, the Fiscal Division
Director sent an email asking the supervisor to brief the Senior Assessment Team (SAT) and at
the start of the meeting, the supervisor approached Complainant and told her in a loud voice “Get
over there and brief!”

The supervisor explained that as a Staff Accountant, Complainant was responsible to brief the
Senior Assessment Team meeting. The supervisor stated that when she walked into the meeting,
she informed Complainant that she needed to brief the team but she “said ‘no, you did not tell me.’
I told her [we] had discussed this many times prior, so to get up there and brief. She did not brief;
the senior leader did, and she just clocked the slides.”

Further, the supervisor maintained that following the meeting, Complainant thanked her for
making her get up and brief the team “as she was not afraid anymore. I told her later that she did
not brief, she just clicked the slides, and asked if she understood that; she just walked away. She
still to this day has not briefed and this is part of her job to manage this meeting.”

The Branch Chief stated that he was part of the meeting “but I do not know that I would call it
yelling; but it was audible. Briefing is part of [Complainant’s] function as a lead. If she was to
brief, she should have known ahead of time and been given time to prepare for this.” Furthermore,
the Branch Chief stated that the supervisor was counseled regarding her professional tone.

Regarding allegation 5, Complainant asserted that on or around April 7, 2016, the Operations
Section Head sent Complainant an email regarding clarification of duties. Complainant responded
to the email saying that she would be willing to set a meeting to discuss those duties. The
supervisor called Complainant to his office in the morning and started to shout in a loud and
abusive fashion accusing her of not responding to the email.
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The Branch Chief stated that while he was not aware of this incident but Complainant brought it
to his attention. Consequently, the Branch Chief counseled the supervisor and told her if
Complainant “did not understand what she needed to be trained and she has a right to ask questions
if she did not understand. This is part of what led me to remove [supervisor] as her immediate
supervisor and put her under [Operations Section Head].”

Regarding allegation 6, Complainant asserted that on or around April 7, 2016, during a meeting
with Complainant’s supervisor and the Operations Section Head, the supervisor started to scream
at Complainant, “do the job yourself,” and “you were not ‘allowed’ to work with [the Operations
Section Head’s team] to finish the assignment.” The supervisor also said, “this is your job and
you have to do it by yourself with no help from anyone.”

The supervisor denied Complainant’s allegation. The supervisor explained that Complainant was
to work with her team, not the Operations Section Head’s team. The supervisor noted that
Complainant “was trying to push the work off on two others who were new. I was telling her she
was not to do this, and she was to do the work herself. In addition, the supervisors stated that she
never told Complainant that she was not allowed to ask questions or ask others for help.

Further, the supervisor stated that Complainant could always come to her for help “but she needed
to try to do it herself first. I became frustrated as she would always try to push the work off on
others.”

Regarding allegation 7, Complainant alleged that on or around April 11, 2016, Complainant and
her team were scheduled to attend a meeting with INTEL. The supervisor did not permit any
member of Complainant’s team to accompany her to the meeting. The supervisor stated that both
the other GS-13 team members who worked with Complainant were tasked with projects that made
them unavailable for the meeting in question. Complainant, as lead, was expected to run the
meeting on her own if needed. She did so, and the supervisor said she was not aware of any
problems that resulted from it. She added that Complainant never told her that she was upset by
having to go to the meeting by herself.

Regarding allegation 8, Complainant alleged that on or around April 14, 2016, the supervisor asked
Complainant to do some work and report back to her on the next day. When Complainant informed
the supervisor it was her Alternative Work Schedule (AWS) day, the supervisor allegedly yelled,
“you are not allowed to have AWS any longer. I will take it away from you.” The next pay period
Complainant was no longer on AWS schedule.

The supervisor stated that when she instructed Complainant to complete her work, she responded
it was her AWS day. The supervisor stated that she decided to take Complainant off the AWS
schedule because of her work performance problems. Specifically, the supervisor stated she
needed Complainant “to be there while I was there or another supervisor so she could learn her job
and we could be there to assist her…AWS is a privilege and not a requirement.
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She had been on it for months before I decided to take her off.” She stated that she had removed
others from AWS when work required it. The record indicates that Complainant was later allowed
to return to AWS.

Regarding allegation 9, Complainant alleged that on or around April 14, 2016, the supervisor
scheduled a staff meeting for 10:45 a.m. to 12:00 p.m. which Complainant confirmed that morning.
There was no one present when Complainant reported to the scheduled meeting location. When
Complainant returned to the workplace, she became aware that the supervisor had taken everyone
to lunch.

The supervisor stated that she had a scheduled meeting for April 13, 2016 and that her birthday
was “on April 14th the staff wanted to take me out. The staff got me a card which was passed
around the office and [Complainant] signed. They gave me a cake, balloons, etc. so [Complainant]
knew it was my birthday. I did not take them out, they took me out. I could not afford to take out
my staff, I did this for everyone on their birthday and [Complainant] received the same courtesy
on hers. I am not sure why she did not attend lunch.”

Regarding allegation 10, Complainant asserted that on or around May 16, 2016, the supervisor
changed Complainant’s work schedule from 6:30 a.m. – 3:30 p.m. to 7:30 a.m. – 4:30 p.m. The
supervisor stated that the change was made based on Complainant’s work performance and the
need for her to be at work when another manager was present. She further denied Complainant’s
allegations that she told her that she had to work longer than eight hours per day or could not take
a lunch break. Moreover, there is no other evidence supporting these allegations.

In sum, there is no evidence beyond Complainant’s bare assertions that her race, national origin or
sex played any role in the incidents cited in her complaint. Therefore, after a review of the record
in its entirety, including consideration of all statements on appeal, it is the decision of the Equal
Employment Opportunity Commission to AFFIRM the Agency’s final decision 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.
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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.

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.

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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
October 24, 2018
Date