Mica B.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

May 21, 2020

2020002262 (E.E.O.C. May. 21, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mica B.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2020002262 Agency No. 19-00024-02414 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 16, 2019, dismissing her complaint of unlawful 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 At the time of events giving rise to this complaint, Complainant worked as a Logistics Human Capitol Manager, NH-0346-04, at the Agency’s Naval Sea Systems Command (NAVSEA) facility in Washington, DC. On March 11, 2019, Complainant contacted an EEO Counselor.2 On June 20, 2019, Complainant filed a formal complaint. She supplemented her complaint in August 2019, with a 20-page clarifying statement, containing 75 allegations. As restated by the Agency, Complainant alleged that the Agency subjected her to harassment and discrimination on the bases of race (African- American), sex (female), and reprisal for prior unspecified EEO activity, when: 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 The Agency noted the date of Complainant’s EEO contact as March 19, 2019. In her complaint, Complainant states that she first made EEO contact on May 20, 2018. 2020002262 2 A The Deputy Director, SEA06L3, (“S1”) (Caucasian male) subjected her to harassment (non-sexual), when: 1. On February 1, 2018, S1 accused her of failing to do her job in front of NAVSEA senior logisticians and guests; 2. On February 2, 2018, in a meeting, S1 asked Complainant if she felt qualified and stated he “was sent here to get rid of people and that there are a lot of people in here who don’t like to work;” 3. On or about February 28, 2018, S1 started assigning Complainant additional oversight and reporting requirements, with unattainable tasks, that her co-workers were not assigned; 4. On or about February 28, 2018, S1 prevented Complainant from directly interacting with a named management SES official (S4), in a “SEA06L3 Logistics Drumbeat,” when direct emails were the standard method of communication; 5. During May 2018, S1 required Complainant to carbon copy the Team Lead (S3) on all of her emails and run all decisions through them, unlike her team members; 6. On or around March-May 2018, Complainant informed a named management official (Capt K) in a meeting with S1 and the SEA06L3 team leader that S1 was harassing her and provided email proof of his (S1’s) displaying threatening language, to which Capt K stated that S1 did not really mean what he said. The harassment intensified after this incident; 7. On or around May 2018, the Team Lead and S1 denied Complainant the opportunity to compete for the promotion, but required Complainant to do the GS- 15 equivalent duties under the guise of collaboration; 8. On or around September 2018, S1 denied Complainant attendance at recruitment fairs, and replaced her with someone else, that caused Complainant’s approval rating to be lower than expected, because S1 stated Complainant did not meet her recruitment objectives; 9. On or around January 2019, S1 allowed the deletion of Complainant’s “NMCI computer account” to hinder her ability to support her IG / EEO case. B. SEA06L3 Team Lead (S3), the SEA06 Chief of Staff (S2) and (S4) subjected Complainant to unsolicited actions to remove her from her position, such as: 1. On or around June to July 2018, S3 began offering to find Complainant a job where she would be happy; 2. On or around August 2018, S2 invited Complainant to meet with her and S4 where they offered her an opportunity to move from SEA06 Senior Logistics Career Field Manager to an undetermined job in the SEA06 Program management competency team. 2020002262 3 C. Management (“S2, S3, S4 and S5”) subjected Complainant to harassment when: 1. Management removed Complainant from her position during her detail to the Pentagon. Specifically, management announced her incumbered position as a vacancy on USAJOBS, and 2. They required Complainant to report to two first line supervisors, unlike other employees who were on detail. D. In January 2019, management (S1) and (S5) subjected Complainant to harassment when she received a lower than expected appraisal, because she did not meet her recruitment objective that caused her to receive less money; and E. On March 4, 2019, Management (S1, S2, S4 and S5) harassed her when she was issued a proposed suspension letter. The pertinent record shows that S1 became Complainant’s immediate supervisor in January of 2018. Complainant raised EEO concerns in May of 2018, when she approached a named management official (Captain K) (African-American) regarding S1’s alleged harassing behavior and threatening emails. S1 is a Caucasian male. Complainant also claimed she was being stigmatized as a woman and African American for her communication style and in retaliation for filing two Inspector General Reports from August 2018 to December of 2018. On March 4, 2019, the Agency issued Complainant a Notice of Proposed Suspension for “Failure to Follow Instructions, Disrespectful Conduct and Inappropriate Conduct.” She received the Notice of Proposed Suspension on March 8, 2019. She initiated contact with the EEO Counselor on March 11, 2019. (Her complaint referenced March 8, 2019, as the date of the most recent act of discrimination.) On March 18, 2019, Complainant submitted a written response to the Proposed Suspension. Thereafter Complainant’s name was removed from the organization charts. On June 6, 2019, the Agency provided Complainant with a Notice of Right to File. The Notice of Right to File noted that Complainant had alleged the time frame of discrimination as from January 29, 2019 through March 11, 2019. The record on appeal documents that, on July 12, 2019, S4 (the SEA 06SES) issued Complainant a Decision Letter and Letter of Reprimand, which inaccurately stated that Complainant failed to provide a response to the proposed suspension. The decision letter also stated that the action will be placed in Complainant’s official personnel file for a period of two years. 2020002262 4 The Agency issued a final decision dismissing claims A-D for failure to comply with the applicable time limits and claims B-E for failure to state a claim. The Agency reasoned that Complainant had a reasonable suspicion of discrimination in May of 2018, because she complained to management of harassment due to her race and sex, but she did not make formal EEO contact until March 19, 2019. Next, the Agency dismissed Claim E for alleging a proposal to take a personnel action. The Agency stated that, although she received a notice of proposed suspension, she had not been suspended. The Agency dismissed claims B to E for failure to state a claim, concluding Complainant “failed to establish that she participated or opposed action covered in the EEO statutes.” The Agency found that Complainant had not engaged in prior EEO activity, because Complainant submitted IG hotline complaints and those complaints concerned S1 providing jobs to his friend and alleged ethics (conflict of interest) violations. This appeal followed. On appeal, Complainant argues that she properly stated cognizable claims of discrimination and a hostile work environment based on race, sex and reprisal for engaging in protected activity (IG Report). In addition, Complainant argues that all of her claims were timely filed, as they are part of a continuing pattern and practice of discrimination and a claim on ongoing hostile work environment. She states on appeal that she suffered adverse personnel actions, which were severe and pervasive during a period from February 2018 through July 2019. The Agency did not file a brief in opposition to Complainant’s appeal. ANALYSIS AND FINDINGS Timeliness The regulation at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires that complainants make EEO contact within 45 days of the date of the alleged discrimination. However, the Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002). Complainant learned on March 8, 2019, that she had been issued a Notice of Proposed Suspension. She made EEO contact three days later, alleging that the Agency discriminated against her. We further find that her suspension allegation is directly related to her other hostile work environment claims. Because she has raised a timely act of harassment in the form of the proposed suspension, her harassment claim as a whole is timely. 2020002262 5 Failure to State a Claim Regarding Race, Sex and Reprisal Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a). While the Agency claims that Complainant has failed to establish a nexus between her race and/or sex and the alleged retaliatory harassment, this is addressing the merits of the claim without a proper investigation and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim under Title VII or the Rehabilitation Act. See Osborne v. Department of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642 (August 15, 1991). Similarly, the Agency claims that Complainant has failed to establish that she engaged in prior protected EEO activity. Here, whether Complainant can prove that she engaged in protected EEO activity is an inappropriate consideration in determining whether she stated a claim. The Agency’s FAD conceded that Complainant raised her harassment concerns in May of 2018, which acknowledges that she engaged in prior protected EEO activity. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Here, Complainant has alleged an ongoing pattern of harassment and threats by management involving actions by five managers over an extended period of time. Moreover, she claims that management initiated pre-disciplinary actions against her for the first time in her career. In addition, on appeal and in her 20-page complaint, 75 allegations in her August supplemental statement, Complainant described ongoing harassing behavior that extended to July 2019 and a subsequent personnel action. We conclude that Complainant has provided sufficient allegations to state a viable claim of discrimination based on race, sex, prior EEO activity, and harassment, which requires further investigation and processing. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint is hereby remanded to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claim (ongoing harassment) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 2020002262 6 The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020002262 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 2020002262 8 “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. 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 May 21, 2020 Date