Merideth C.,1 Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 28, 2017

0120150064 (E.E.O.C. Feb. 28, 2017)

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

Merideth C.,1
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120150064

Hearing No. 440-2013-00179X

Agency No. DON-12-61040-03380

DECISION

The Commission accepts Complainant’s appeal2, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s August 4, 2014, 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The
Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the
final order.

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 Complainant filed her appeal on October 4, 2014, indicating therein that she received the
final order on September 4, 2014. The Agency urges the Commission to dismiss
Complainant’s appeal as untimely, but presented no evidence (e.g., certified mail receipt) in
support. Where, as herein, there is an issue of timeliness, “[a]n agency always bears the
burden of obtaining sufficient information to support a reasoned determination as to
timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting
Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992)). The Commission
finds that the Agency presented insufficient evidence rebutting Complainant’s claim as to when
she received the final order. Accordingly, the Commission accepts the appeal as timely.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management
Analyst at the Agency’s Commander, Navy Region Midwest in the N8 Department in Great
Lakes, Illinois. On February 15, 2012, Complainant’s driving privileges on Naval Station
Great Lakes were suspended for six months for various traffic citations. On April 24, 2012,
the Executive Officer sent an email to the Executive Director informing him that Complainant
had received a citation for driving her vehicle/parking on base after she had already been
banned from driving on base until August 2012. The Executive Director sent an email to
Complainant’s supervisors and the Human Resources (HR) Department advising them of the
situation and requesting that they determine if any action was necessary. No further action was
taken.

On May 7, 2012, Complainant informed her supervisor (S1-1) that her cousin had died.
Complainant did not submit a written leave request to attend the funeral. S1-1 contacted the
HR Department for information on sick leave for bereavement. The HR Specialist informed
S1-1 that an employee is entitled to use sick leave to attend the funeral of a family member, but
that the regulation definition of a family member does not include a cousin. Additionally, a
Support Agreement review meeting was scheduled for May 10, 2012, the day Complainant
requested sick leave. Complainant was the Regional Support Agreement Manager, and the
only subject matter expert on support agreements. On May 9, 2012, S1-1 informed
Complainant that he was denying her leave request for May 10, 2012, because of a scheduled
Support Agreement review meeting, which could not be rescheduled.

On May 23, 2012, S1-1 issued Complainant a Letter of Caution and Requirement because of
her work attendance. In the letter, S1-1 noted that Complainant had accumulated multiple
instances of unscheduled leave which had a significant impact on her duties, morale, and the
Agency’s mission. S1-1 directed Complainant to submit all leave requests for five days or
more, 30 days in advance; contact him or another member of management within two hours of
her reporting time for an emergency absence; provide acceptable medical documentation in
support of sick leave; and noted that she would be charged absent without leave (AWOL) for
any absences that were not approved in advance.

On June 12, 2012, Complainant was informed by her second-level supervisor (S2) that there
would be a change in her supervisory chain, and that she (S2) would be Complainant’s
supervisor. On October 1, 2012, the planned supervisory change proposed in June 2012 was
put into effect, and S2 became Complainant’s immediate supervisor.

Complainant had been on the voluntary Command Assessment Team for approximately a year
when management solicited other volunteers. On April 22, 2013, S2 informed Complainant
that a co-worker (CW1) was being appointed to the Command Assessment Team.
Complainant claims that CW1 did not volunteer, and that S2 was attempting to preclude her
participation in the Team. S2 stated that she wished to rotate membership on the Team with
various members of her staff.
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In April 2013, S2 met with Complainant to discuss her mid-term performance review.
Complainant claims that during the meeting, S2 gave her accolades regarding her performance.
Complainant alleges that S2 made statements in her written review that were not measureable
and alluded to Complainant having a communication problem. Complainant subsequently
requested that the wording in the assessment be changed. On May 31, 2013, S2 requested that
Complainant come to her office to discuss the evaluation. S2 informed Complainant that they
would need to discuss each item in the evaluation. Complainant told S2 that she needed a
moment and returned to her desk. S2 later went to Complainant’s desk to see if she wished to
continue discussing the review. Complainant told S2 she was upset and to leave her alone. S2
returned to her office. Approximately 30 minutes later, another employee reported to S2 that
Complainant had collapsed, and someone called 911. The fire department took Complainant to
the hospital, and S2 followed the ambulance to the hospital. S2 waited in the emergency
room’s waiting room and kept Complainant’s family updated on her condition. Complainant
left the hospital through another exit after she saw S2 in the waiting room.

On June 5, 2013, Complainant met with S2 to discuss the mid-year evaluation. Complainant
indicated that she wanted someone present during the discussion. S2 informed Complainant
that she could have someone like a Human Resources representative present however,
Complainant stated that she did not trust them. Complainant went to the restroom across the
hall from S2’s office while S2 attempted to find someone to sit in on the meeting. Shortly
thereafter, S2 went to the restroom and noticed that Complainant was in there as well. S2 told
Complainant that she would take care of setting up the meeting and then left the restroom.

In June 2013, a new Budget Officer assumed the position and became Complainant’s new first-
level supervisor (S1-2). S1-2 served in the U.S. Navy Reserve along with Complainant in the
same unit. On December 8, 2013, S1-2 had drill for the weekend. During that weekend, S1-2
spoke with the Commanding Officer and the Executive Officer of the Navy Operational
Support Center about Complainant. The Commanding Officer and the Executive Officer
served in the same unit as S1-2 and Complainant. S1-2 informed them that Complainant had
been off work from her civilian job for voluntary military service for several months. They
told S1-2 that Complainant told them that her civilian job was fine with her being away. S1-2
informed them that he had to pull people away from other duties to cover for her being out.

On January 13, 2014, S1-2 visited the Navy Operational Support Center at Great Lakes to get
a complete listing of Complainant’s military reserve drill days during the week and her annual
training orders to accurately complete all time and attendance. S1-2 was responsible for
approving Complainant’s time and attendance, and because of Complainant’s multiple absences
and that her military duty was not limited to one specific set of orders, S1-2 was having a
difficult time tracking her time and attendance in the system.

On January 15, 2014, S1-2 met with Complainant on her second day back after over two
months of military leave. S1-2 provided Complainant with instructions on his plan to catch up
on the Support Agreement workload now that Complainant had returned.

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On October 23, 2012, and subsequently amended, Complainant filed a formal complaint
alleging that the Agency discriminated against her and subjected her to a hostile work
environment on the bases of race (African-American), sex (female), color (Black), disability,
and in reprisal for prior protected EEO activity when:

1. On May 9, 2012, she was denied leave to attend her cousin’s funeral by her
supervisor (S1-1);
2. On August 29, 2012, she discovered that the Executive Director had his assistant
make inquiries with regard to her driving privileges on base;
3. On October 1, 2012, her second-level supervisor (S2) changed her supervisor from
S1-1 to herself without sending her notification;
4. In December 2012, Complainant was the only person in her department who did not
receive a monetary award;
5. On April 22, 2013 Complainant was obstructed from participation on the Command
Assessment Team;
6. On April 24, 2013, Complainant was subjected to accusations related to her
Performance Assessment;
7. On May 31, 2013, Complainant was taken to the hospital Emergency Room;
8. On June 5, 2013, her privacy was invaded in the restroom;
9. On December 8, 2013, her supervisor (S1-2) used his civilian position and military
authority to solicit military information for civilian purposes; and
10. On January 15, 2014, she had restrictions imposed on her when S1-2 informed her
that she was restricted to her desk 80 percent of the time and that each time she left
her desk she needed to inform him.3

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ granted summary judgment in favor of the Agency, and issued a
decision without a hearing on June 6, 2014.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the AJ found that there was no
evidence that the alleged incidents were based on discriminatory or retaliatory animus. For

3 The Agency dismissed an additional claim pursuant to 29 C.F.R. § 1614.107(a)(4) as having
been raised in a negotiated grievance procedure that permits allegations of discrimination.
Complainant raised no challenges to this dismissal before the AJ or on appeal; therefore, the
Commission will not address it in this decision. Additionally, the AJ denied Complainant’s
motion to amend her complaint to include a denial of reasonable accommodation claim.
Complainant raised no challenges to the AJ’s denial of her motion to amend, and the
Commission finds no evidence that the AJ abused her discretion in denying the motion. The
Commission notes that the AJ allowed Complainant to submit evidence related to several
additional claims as background evidence in support of her hostile work environment claim.
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example, as to claim (1), the Agency offered evidence that its bereavement leave policy did not
permit leave for the death of a cousin, and that Complainant was needed for an important
meeting on the day she wished to take off. Regarding claim (4), S1-1 affirmed that he did not
give Complainant a higher performance award because she had discipline and attendance
issues. With respect to claim (5), S2 asserted that she wished to rotate membership on the
Command Assessment Team and that Complainant had held the position for over a year. As to
claim (9), S1-2 stated that he was responsible for certifying Complainant’s time and had
trouble determining what her military orders were, so he spoke with Complainant’s
Commanding Officer, and asked him what the plans were for Complainant’s schedule. With
regard to claim (10), S1-2 attested that he asked other employees to let him know when they
needed to be away from their offices. Accordingly, the AJ found that Complainant had not
been discriminated against or subjected to a hostile work environment as alleged.

The Agency subsequently issued a final order fully implementing the AJ’s decision. The
instant appeal followed. Complainant failed to timely submit a brief or statement in support of
her appeal.4 The Agency submitted a brief in opposition to Complainant’s appeal in which it
urged the Commission to affirm its final order and the AJ’s decision.

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.

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (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 class; (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

4 The Commission granted two extensions for Complainant to timely submit a statement or
brief in support of her appeal. The Commission’s final extension allowed Complainant until
January 19, 2015, to submit a statement or brief in support of her appeal. Complainant
submitted a statement in support which was postmarked January 20, 2015. Complainant
presented no arguments or evidence to persuade the Commission to accept the untimely
submission beyond the second granted extension date.
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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).

Therefore, 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 classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline, and
general workplace disputes and tribulations. For example, as to claim (1), S1-1 denied
Complainant’s request for leave because a cousin was not defined as a family member under
the Agency’s bereavement leave policy and because Complainant was needed as a Subject
Matter Expert for a Support Agreement program review. ROI, at 125, 144.

With respect to claim (2), S2 confirmed that the Executive Director informed her that
Complainant had lost her driving privileges on base. ROI, at 129. S2 stated that S1-1 looked
into the matter with HR and they decided that the matter was a personal issue and not work-
related; therefore, they took no action. Id.

Regarding claim (3), S2 stated that she changed the whole department’s organization chart to
be in alignment with the Commander Navy Installation Command and the regional organization
chart. ROI, at 129. S2 confirmed that she notified the whole staff at an all-hands meeting and
sent an email with the new organization charts to all employees. Id. S2 noted that in her
absence, the Executive Director put the new organization chart on hold until some HR actions
were completed. Id. S2 affirmed that the changes went into effect October 1, 2012. Id.

As to claim (4), S1-1 stated that he did not feel it was appropriate to give Complainant a
monetary award because she had some disciplinary issues, problems with her attendance, and
been issued a Letter of Caution and Requirement. ROI, at 115. The record reveals that
Complainant did receive a $707.00 individual cash award.

With regard to claim (5), S2 affirmed that she replaced Complainant with another N8
employee because she wished to rotate membership on the Command Assessment Team to give
all N8 employees an opportunity to participate. ROI, at 131. Regarding claim (6), S2 stated
that she simply expressed to Complainant during the mid-term performance review that
communication with the entire N8 team was important and that there had been past complaints
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from the Installation Support Agreement Coordinators that Complainant was not
communicating with them. Id. at 131-32.

As to claim (7), S2 explained that Complainant collapsed following her attempt to discuss her
request for a change to her mid-term assessment. ROI, at 132. S2 stated that someone called
911 and Complainant’s family was notified. Id. S2 affirmed that she followed the ambulance
to the hospital, sat in the emergency room waiting room, and called to update Complainant’s
father periodically. Id. S2 emphasized that she sat at the hospital until she saw Complainant
look at her angrily before leaving another way. Id. S2 affirmed that she waited because she
wanted to ensure that Complainant was okay, that she had a ride, and to keep her father
updated. Id.

With respect to claim (8), S2 stated that Complainant wanted to meet with her in June 2013,
and wanted someone present other than HR. ROI, at 132. While S2 attempted to find
someone, Complainant left her office. Id. S2 went to the restroom sometime thereafter and
saw Complainant in there as well. Id. S2 emphasized that she used the restroom, told
Complainant that she would take care of setting up the meeting, and left the restroom. Id.

As to claim (9), S1-2 stated that he spoke with the Commanding Officer and Executive Officer
during his drill weekend about Complainant working for him in their civilian job. Agency’s
Motion for Summary Judgment, Attach. A. S1-2 confirmed that he asked about their plans for
Complainant based on her submitting numerous sets of orders. Id. S1-2 added that the
officers stated that Complainant told them her civilian job was fine with her being away and
that he simply noted that they had to pull people away to cover her duties while she was out.
Id. S1-2 confirmed that he verified Complainant’s orders with her requests for military leave
because he was having a hard time reconciling her time and attendance due to gaps in
submitted documentation. Id.

Finally, regarding claim (10), S1-2 affirmed that he spoke with Complainant when she
returned from military leave to plan how they would move forward. Agency’s Motion for
Summary Judgment, Attach. H. S1-2 had observed that Complainant was away from her
workspace at key times during the day. Id. As a result, S1-2 informed Complainant that he
expected her to be at her desk for 80 percent of the time and to let him know when she had to
be away for meetings, just as he had done with other employees. Id.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.
Moreover, to the extent Complainant claims that she was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency's explanation was pretext for discrimination or
reprisal. As a result, the Commission finds no basis to disturb the AJ’s summary judgment
decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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
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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 28, 2017
Date