[Redacted], Bella B., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001105 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bella B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001105 Agency No. DON (MC)-18-00264-00640 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 23, 2019, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Social Media Operations Officer, GS-1035-12, with the Marine Corps Installation Command, Operations Division located at Marine Corps Base Quantico in Quantico, Virginia. Her former first level supervisor was FS1. Her current supervisor was S1. Her second level supervisor was S2, Director, Communications Strategy Department (CommStrat). On November 27, 2018, Complainant filed a formal complaint, which was later amended, alleging that she was subjected to discrimination and harassment based on sex (female) 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. 2020001105 2 Claim 1: a. In or around March 2018, she became aware she was not selected for the Supervisory Public Affairs Specialist position under Vacancy Announcement #ST- 10096669-18-LMJ, even though she had been detailed twice to the position when the billet was vacant. b. Beginning in April 2018 to present, she was spoken of and introduced as “Ms. [her first name],” while all other civilians in the building are spoken of and introduced by their surname (Mr./Ms. Last Name). c. From April 2018 to present, she has not been invited to meetings and feels she is being treated as an outsider and not being used for her expertise. Complainant alleged management did not engage with her unless it was to see if she was at her desk. d. Since May 2018, when Complainant moved to a different office building in conjunction with the CommStrat merger, she was placed in a shared office workspace with junior Marines (not under her direct supervision), when all other civilian employees and some Marines have individual offices. e. On or around June 2018, Complainant became aware of a camera inside the office space by which S2 monitored movements of employees during work hours. Complainant states the command was made aware and the filming was not addressed. f. On or around June 26, 2018, S2 denied Complainant’s request for telework. g. Beginning in July 2018 to present, Complainant was directed by A1, Deputy Production Support to report her leave requests and movements during the workday to four supervisors. h. On or around July 12, 2018, S2 and A2, Supervisory Visual Information Specialist, berated her in front of an office full of Marines. i. On or around July 13, 2018, Complainant became aware that A3, the Deputy Assistant Chief of Staff, and A4, Supervisory Assistant Chief of Staff were making unfavorable comments about her to others. Some of the comments made regarding Complainant were, “She is screwing around on the job - not doing enough work - only managing social media - what a waste of time.” “She had her daughter at work and was just messing around,” “She is trying to telework in situations that go against what we believe should occur - We would expect that of the other [Public Affairs Office] employees, but not [Complainant’s first name].” j. On or around August 1, 2018, she became aware that a ceremony commemorating the CommStrat merger was held on July 30, 2018 in her building; Complainant was not told about the ceremony by management. 2020001105 3 Complainant also alleged that she was discriminated against based on reprisal for engaging in prior protected EEO activity when: Claim 2: k. On January 22, 2019, A2 raised his voice, was visibly upset, and treated her differently than others regarding a conversation about his hearing loss. l. On March 6, 2019, S2 asked B1, the Digital Engagement Chief, how long it takes to do her job and other job specific questions related to her position, which B1 relayed to her supervisor, S1. m. On March 14, 2019, while working on a Community Relations Project, she was informed by the Non-Commissioned Officer in Charge and the Graphic Specialist that A2 asked why she was in the Graphics Division, stating she was not allowed in there. 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. After Complainant’s election, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. This appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). On appeal, Complainant raises concerns with the adequacy of the Agency’s investigation. We note that Complainant was informed that she had the right to a hearing before an EEOC Administrative Judge. The hearing process would have afforded her the opportunity to conduct discovery and to cure alleged defects in the record. Despite the above referenced arguments, the Commission determines that the investigation was properly and adequately conducted. 2020001105 4 After reviewing the Agency’s final decision, the record, and the parties’ arguments on appeal, we find no persuasive evidence that discriminatory animus of any kind play a role here. In reaching this determination, we agree that Claim 1(a) is a discrete act which was untimely raised with an EEO Counselor, see 29 C.F.R. § 1614.107(a)(2), given that Complainant did not contact an EEO Counselor until August 2, 2018, about her nonselection that she discovered months beforehand (well beyond the 45-day time limit for contacting an EEO Counselor). Complainant did not offer a justification for her untimely EEO Counselor contact.2 We also find that Complainant did not establish that she suffered an adverse action with regard to claim 1(f); therefore, we find no prima facie case of discrimination based on sex regarding the incident in claim 1(f). The record indicates that Complainant did telework that day. Complainant requested telework from TS1 because she needed to attend to a sump pump water overflow emergency at her home. TS1 approved the request and she returned home to telework the rest of the day. Subsequently, S2 stated that he felt she should take a day of leave for the period she was at home. S2 stated that he ultimately referred the matter to TS1, and they had some discussion on the matter but that he ultimately left the decision up to TS1 and A4 since he was not her supervisor. TS1 stated that he disagreed with S2 and felt that the situation was an appropriate reason to telework. S2, according to TS1, “[a]ctively discourages telework and personally despises it for all employees regardless of sex.” With regard to Complainant’s hostile work environment claim, including Claim 1(a), we do not find that she established that these matters were based on her sex or protected EEO activity; nor do we find these matters were severe or pervasive enough to have subjected Complainant to unlawful harassment.3 The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June 16, 2017). Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. 2 Complainant’s nonselection is, however, analyzed as part of her hostile work environment claim. 3 Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must also fail with regard to Claim 1(f). See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that this matter was motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). 2020001105 5 CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. Accordingly, we AFFIRM the Agency’s final decision. 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. 2020001105 6 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). 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 July 12, 2021 Date