[Redacted], Clotilde D., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2021001814 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clotilde D.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021001814 Hearing No. 480-2020-00625X Agency No. DON-20-65369-00080 DECISION On January 21, 2021, 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 December 23, 2020, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Systems Division Director, GS-2210-14, for the Agency’s N6D/N66, Commander, Submarine Force US Pacific (COMSUBPAC) in Pearl Harbor, Hawaii. On December 4, 2019, Complainant filed an EEO complaint alleging that she was subjected to discrimination and harassment/hostile work environment on the bases of race (Asian), national origin (South Korea), and 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. 2021001814 2 a. From October 30, 2017, to September 30, 2019, Complainant was not given any opportunity to be acting Department Director (N6) or the acting Deputy Department Director (N6A); b. From October 30, 2017, to September 30, 2019, Complainant was not given any opportunity to attend or participate in command level briefings or meetings, including Commander's Update Briefs (CUBs), Maritime Update Briefs (MUBs), or Maritime Operation Center (MOC) meetings, to represent N6, but other male co-workers were always given the opportunity to attend the meetings; c. On November 13, 2018, Complainant’s Science Advisor application was denied by (N6) [Responsible Management Official-2 (“RMO-2”)] and (N6A) [“RMO- 1”]; d. In May 2019, Telecommunications Manager, N6 [Coworker-1 (CW-1”)] revised the N6 position description so that Complainant could not be qualified for the position; e. On June 26, 2019, [RMO-2] asked Complainant whether she would apply for the N6 Department Director position; when Complainant said yes, he threatened Complainant by telling her the reason he asked was because it was directed by the Chief of Staff, [RMO-3], who was afraid Complainant might file an EEO Complaint if the command hired [RMO-1]; he also told Complainant that she was not qualified for the position; f. On June 27, 2019, Complainant informed [RMO-2] that [CW-1] created a hostile work environment with the June 26 incident, but [RMO-2] did not take any action; g. In August 2019, [RMO-1] was offered the N6 position using the Cybersecurity Direct Hire Authority without a public notice, so Complainant was not given the opportunity to compete; h. On September 4, 2019, [RMO-2] told Complainant that he narrowed the qualification for the job so that he could prevent all cyber nerds like Complainant from applying; i. On September 5, 2019, [CW-1] told Complainant that [RMO-2] already started the paperwork to hire [RMO-1] without interviewing the candidates, and therefore Complainant would not have a chance to compete for the position; j. On September 5, 2019, after Complainant made the certificate list for the position, [RMO-2] asked her to withdraw her application so that he could hire [RMO-1], instead of Complainant; 2021001814 3 k. In or around September 2019 RMO2 asked Complainant to withdraw her application from consideration for the N6 Department Director position and [RMO-1] was hired using the Cybersecurity Direct Hiring Authority; l. On September 30, 2019, [RMO-2] retired and [CW-1] was appointed as the acting Deputy Department Director, instead of Complainant; and, m. On October 1, 2019, [RMO-3] informed Complainant that the command would hire [RMO-1] for the N6 Department Director position using the Cybersecurity Direct Hire Authority (DHA) instead of using the certificate list from the Job Announcement. The Agency accepted the complaint and conducted an investigation. According to Complainant, she was the only female director in the N6 department and the only female civilian employee working on the floor where the other N6 staff personnel were located. The N6 Deputy Director, RMO-1 (Caucasian, U.S.A., male), was her first level supervisor from October 2017 through August 2019. Complainant attested that RMO-1(a) (Caucasian, USA, male) became her first level supervisor in September 2019.2 The N6 Director, RMO-2 (unknown race/national origin, male, retired), served as Complainant’s second line supervisor from October 2017 through September 2019. Complainant’s third line supervisor, RMO-3 (unknown race/national origin, male), was the Chief of Staff. Complainant identified RMO-2 and CW-1 (Caucasian, American, male) as the individuals primarily responsible for the alleged discrimination and harassment. However, she asserted that RMO-1 and RMO-3 were also responsible because RMO1 did whatever he could to get the N6 position and in doing so, he committed wrongdoings that led to discrimination against Complainant. As the command leader and Chief of Staff, Complainant also believed that RMO-3 stood by his people, including RMO-2. Complainant described several comments that she believed illustrated discriminatory animus toward her race, sex, and national origin. For example, in early 2018, RMO-2 asked during a staff meeting “Who eats rice every day?” and Complainant replied that she believed all Asians do. In another instance, stated Complainant, RMO-2 joked about his Filipino daughter in law by saying that at his grandson’s birthday party “those Filipinos came out of nowhere and kept eating everything.” According to Complainant, RMO- 2 also tried to speak in broken English with a Filipino accent and CW-1 responded by laughed loudly. Complainant reported that around January 2018, RMO-2 explained that a previous comptroller was investigated due to reports of harassment by his female employee, resulting in his transfer, and this was why females do not serve on submarines. In early 2019, contended Complainant, RMO-1 asked her “You are Korean, right? Have you gone to this Korean chicken place? 2 RMO1(a) testified he became N6 Deputy Director on July 9, 2019 and he supervised Complainant from July 2019 to October 2019. 2021001814 4 Our watch standers go there all the time. It is really good.” On another occasion, CW1 saw her rating a rice cracker and purportedly asked her “Why are you people eating that nasty stuff?” Complainant stated that CW-1 also made comments, during a staff meeting, about a previous female employee with a Hawaiian name who he asserted did not do any work, filed either a complaint or a disability case, and used the system to not have to work again. He said they needed to watch out for females that would use the systems to their benefit. Claims (a), (b), and (l) - Acting Positions and Command Level Briefings Complainant testified there were several instances, when RMO-2 and RMO-1 were both out of the office, that CW-1 was named as the acting N6 Director or acting N6 Deputy Director in their absence. According to Complainant, in January 2018 she expressed her interest in performing the acting duty to both RMO-1 and RMO-2. However, despite her efforts, CW-1 continued to be exclusively chosen to fill these roles. When Complainant asked why she was not chosen to perform the acting duties, she attested tat RMO-1 and RMO-2 failed to provide specific reasons. Complainant believed she should have been selected or given an opportunity to rotate with CW-1 because she was equally qualified.3 In fact, Complainant noted that while she has worked as a GS-14 or NH-04 (GS-15 equivalent) since 2009, CW-1 was a GS-13 only serving in a temporary capacity as a GS-14. Moreover, according to Complainant, when she requested to attend command level briefings or meetings, RMO-2 told her that that CW-1 was being sent. Complainant stated RMO1 also told her that traditionally the N6 Director or Deputy Director (or their designated attendee) attended the person. She contends that since she was never given the opportunity to serve as the acting N6 Director or acting N6 Deputy Director, she was not afforded an opportunity to attend these meetings or briefings, whereas CW1 was. Complainant believed these actions were discriminatory because the typical person serving on a submarine is a White male, not an Asian female. She also noted that, since it is only recently that women have been allowed to work on submarines, she and other females were unable to acquire the same level of submariner experience as her male counterparts. Complainant stated because she is not a White male like RMO2, RMO1, and CW1, she was not afforded the same opportunity to act as N6 Director or N6 Deputy Director and attend command level briefings. RMO-1 disputed Complainant’s assertion that she had expressed her desire to perform in an acting capacity, for the N6 Director or N6 Deputy Director, or attend command level meeting. According to RMO-1, Complainant was not asked to serve as acting N6 Director or acting N6 3 Complainant stated that RMO1(a) did ask her to be acting N6 Director and acting N6 Deputy Director from November 3-8, 2019 during his temporary duty after both RMO2 and RMO1 retired. Complainant indicated she did not recall the reason, but she declined the offer and suggested another employee be the acting N6 Director. However, starting in December 2019, she had been offered the opportunity to work as the acting N6 Director and accepted. She stated that only RMO1(a) ever offered her the opportunity to be the acting N6 Director. 2021001814 5 Deputy Director because she did not have the operational Nuclear Command, Control, Communications experience to run the majority of the N6 Directorate. Rather, he explained that as Cyber Director Complainant was responsible for twenty percent of the Directorate. The remainder of the Directorate ran communications and broadcast support for the Pacific Submarine Force nuclear submarines, which Complainant had no operational experience with. RMO1 also stated that on two occasions, when both he and RMO2 attended a conference together, Complainant accompanied them to the conference and, therefore, she could not have served in an acting capacity. Complainant participated in multiple command level briefings, attested RMO-1, for various Cyber exercises and Fleet meetings. He noted that for some command level meetings only one N6 individual would attend, either the N6 Director or the N6 Deputy Director. He denied that Complainant’s sex, race, or national origin were factors in these actions. Similarly, RMO1(a) testified that when he met with Complainant after his arrival in July 2019, she never expressed interest in acting temporarily as the N6 Director or N6 Deputy Director. Upon RMO’s retirement in September 2019, RMO-1(a) explained, no one was officially appointed acting N6 Deputy Director. However, because CW1 had previously acted in the role, RMO-1(a) asked CW1 to assist while they were short staffed. RMO-2 stated that once Complainant raised concerns about CW1, he immediately informed CW1 to continue in his normal duties and he would not act as Deputy. According to RMO-2, CW-1 acted as N6 Deputy Director for no more than a day. Further, RMO-2 testified that he asked Complainant in late October 2019 to act in his place during a November 2019 temporary duty assignment, and she declined. Complainant accompanied him to brief the Admiral on an exercise in her area of responsibility, stated RMO-2, and he could not think of a time she was not afforded an opportunity to attend any meeting or brief. CW-1 testified he was asked to act as N6 Director and N6 Deputy Director by RMO-2 and RMO-1 on at least ten occasions, but he was not appointed as the acting N6 Deputy Director in late September 2019. Instead, he was moved to a different building due to Complainant’s allegations of harassment against him. CW-1 noted that he later returned after he was cleared by a command inquiry. Claim (c) - Denial of Complainant’s Science Advisor Application Complainant stated she expressed interest in applying for a Science Advisor, GS-15, temporary rotational assignment with the Department of the Navy. The application process required she obtain supervisor approval to obtain a command endorsement. When she met with RMO-2, on November 13, 2018, he told Complainant the assignment might help her grow, but it would not be beneficial for the department. She asserted RMO-2 would not approve her request and threatened that she would not be able to return to her current position once the rotational assignment was over. 2021001814 6 Complainant noted that RMO-2 had previously approved a rotational assignment for RMO-1, in 2018, and that CW1 was on a temporary assignment to COMSUBPAC. Complainant believed the only difference was that CW1 and RMO1 are White males and she is not. RMO-1 testified he did not recall Complainant’s request. RMO-2 did not provide testimony since he retired. The Commission observes the record includes an announcement for a temporary Science Advisor, GS-15, position, requiring a command endorsement letter. The instant record also contains a November 9, 2018 email Complainant sent to RMO-2 and the Program Manager for the position (CW2), asking that they review an endorsement letter she wished to have routed to the Chief of Staff for her application. RMO-1 responded on November 13, 2018, asking Complainant to meet with RMO-2 to discuss the matter. Complainant confirmed she would attend a scheduled meeting with RMO2 later that day to discuss her application and requested endorsement for the position. Claims (d), (e), and (f) - Claims involving Harassment by CW-1 Complainant asserted that CW-1 told her that he revised the N6 Director position description (PD) to contain only 25% cyber work, so she would not be qualified to apply for the position. However, despite CW1’s comments, Complainant applied for the position, was rated as qualified, and referred. Complainant testified that on June 26, 2019, both RMO-2 and CW-1 asked her, separately, if she was going to apply for the N6 Director position. She asserted CW-1 appeared visibly upset by her affirmative response, telling her that she had “muddied the water”, was not a team player, was not qualified for the position, and the only reasons RMO-2 had asked her about applying was because RMO-3 wanted to ensure there would not be an EEO complaint if RMO-1 was selected. Complainant viewed CW-1’s actions and tone of voice as intimidating and threatening. She reported the conversation to RMO-2, stating that CW-1 was creating a hostile work environment. According to Complainant, RMO-2 replied that CW1’s conduct was unprofessional and unacceptable, but “[CW1] was just being [CW1].” Complainant did not know if RMO2 ever took any action in response to her concerns. Complainant testified she believed her sex, national origin, and race were factors in CW1 changing the position description because CW1 does not like Complainant, Koreans or Korea,. nor the idea of having a female supervisor. Complainant asserted that RMO2 took no action on her complaints regarding CW-1 creating a hostile environment because RMO2 believed females were creating problems, as evidenced by his earlier comments about the previous comptroller’s transfer following allegations of sexual harassment by an Asian female. 2021001814 7 CW-1 denied revising the PD so that Complainant would not qualify. Rather, RMO-2 directed him to update the PD to a Chief Information Office PD, due to an increase in the importance of information assurance and other computer support functions that were part of the N6 Director Duties. CW-1 stated he had no memory of telling Complainant she was not qualified for the position or that RMO-3 was worried she might file an EEO complaint. He testified that to the best of his knowledge, Complainant’s harassment complaints about him were made to RMO-3. In response, he was moved to another building and a command investigation was conducted by an appointed GS-15. When the command investigation found no wrongdoing on his part, he was allowed to return to his prior office. According to RMO-1(a), Complainant did complain to him about the alleged hostile work environment created by CW-1, but she did not mention RMO-1, RMO-2, or RMO-3, nor express that she believed CW1’s actions were motivated by her protected classes. Following her complaints to him about CW-1 in July 2019, RMO-1(a) stated he informed RMO-2 of Complainant’s concerns. RMO-1(a) believed that RMO-2 counseled CW-1. Additionally, RMO- 1(a) corroborated that Complainant reported the October 2019 incident with CW-1, allegedly stating in a threatening tone that she was not qualified for the N6 Director position, to him. Consequently, RMO-1(a) stated he removed CW-1 from all supervisory functions and ordered that he not contact Complainant until a command inquiry could be conducted. The record contains a copy of the inquiry report, reflecting a general inquiry was conducted without a focus on specific events or persons. No opinions or recommendations were given as part of the report. The report is partially redacted but states that “Mr. [Redacted], is currently an employee in the N6. This employee is perceived by some employees as a difficult supervisor to work for and has been temporarily removed from supervisor duties. In addition, the employee has been directed not to interact with certain other employees/military members.” (ROI, p. 609). This likely refers to CW1. Regarding the N6 Director position description, the record shows it was changed from the official title and series of Force Communications Director, GS-0301-15, to Supervisory IT Cyber Security Specialist, GS-2210-15, effective August 15, 2019. RMO-3 approved the modified PD on July 2, 2019. The record also contains a June 26, 2019 email from RMO2 to RMO3, and others, stating he spoke with Complainant and CW-1 about the N6 position. CW-1 was not interested because he was considering retirement and Complainant was interested but felt RMO- 1 was more qualified. RMO-2 therefore surmised that Complainant would be not be upset if they hired RMO-1 for the N6 Director position. Claims (g), (h), (i), (j), (k), (m) - Improper Hiring Practices/Nonselection Claims Complainant made a number of allegations regarding the hiring of a new N6 Director (RMO-2’s position). In sum, she alleged that RMO-2 and CW-1 changed the PD for the N6 Director position in an effort to make it more difficult for her to qualify; RMO-1 was offered the position using Direct Hiring Authority (DHA) so Complainant was not given the opportunity to compete; when the position was advertised competitively, Complainant made the certification list but was 2021001814 8 asked by RMO-2 to withdraw her application so RMO-1 could have the position; and she was told by RMO-3, RMO-2, and CW-1 that they intended to hire RMO1 for the position. Complainant argued this was improper preselection motivated by discrimination. The record contains a Memorandum dated December 12, 2019 that purports to be a timeline of the N6 Director hiring process. According to the Memorandum, on June 26, 2019, RMO3 met with RMO2, CW6, and SME/CPPA to discuss two options for hiring: competitive announcement or DHA. RMO2 was directed to gather additional information, and following RMO-2’s meetings with Complainant and CW-1, RMO2 recommended using DHA to hire RMO-1. The Memorandum stated that, following RMO-3, CW6, and SME/CPPA concurrence, RMO-1 was tentatively offered, and accepted the job offer on July 30, 2019. However, because RMO-1 was a recent military retiree, a 180-day waiver was needed under the DHA process which required Human Resources to generate a new, separate, USAJobs announcement and certificate. From August 30, 2019 through September 4, 2019, the position was posted on USAJobs. On September 5, 2019 the resulting certificate of eligible contained two applicants: Complainant and RMO-1. Complainant withdrew her application. In late September, Complainant began the EEO process and also informed CW6, SME/CPPA, and others about potential prohibited personally practice violations. Thereafter, it was recommended that RMO-3 re-advertise the position to a wide applicant pool and appoint a selection panel to review potential candidates. On October 24, 2019, RMO-3, as the selecting official, requested re-advertisement of the position and he appointed a GS-15 to lead a hiring panel with membership external to COMSUBPAC to include a review of the process and the interview questions by an EEM subject matter expert. The record reflects the position was then advertised under a new vacancy announcement from November 1-7, 2019. Thereafter, both Complainant and RMO-1 were interviewed by a panel. The panel recommended RMO1 for the position and listed Complainant as an alternate. Corroborating much of the information in the Memorandum, Complainant testified that in late June 2019, RMO-2 asked her if she would be applying to the N6 Director position. She responded that she would because she wanted her chain of command to see that she was interested in moving up in responsibility to a GS-15. Further, Complainant acknowledged telling RMO-2 that, since the PD had been revised to include only 25% cybersecurity work and mostly BCA work which was RMO-1’s expertise, RMO-1 would more than likely be qualified. According to Complainant, she also advised RMO-2 that a competitive job announcement might lead to people who were better and more qualified than both she and RMO-1, and therefore if RMO2 wanted to ensure the job went to RMO1, he should use DHA. She attested she learned RMO-1 was offered the N6 position through DNA, when RMO-1 told her NCIS was interviewing staff because he had accepted the offer and his security clearance needed to be verified. This was before the position was advertised competitively. When the job was then advertised competitively, Complainant stated that RMO-2 informed her that he had narrowed the qualifications for the position so he could prevent “cybernerds”, like Complainant, from applying. 2021001814 9 She believed RMO-2 made the cybernerd comment because of her protected bases since she was the only cyber person in the room and was an Asian/Korean female. On September 5, 2019, explained Complainant, CW-1 informed her that she and RMO-1 made the certification list, but that RMO-2 had already started the paperwork to hire RMO-1. She believed CW-1 made the comment because of his dislike of Koreans/Asians and females. Shortly after her conversation with CW-1, Complainant states that RMO-2 called her to his office and informed her that she and RMO-1 were on the certificate of eligible. Complainant attested that felt compelled to withdraw because it seemed she did not have a chance of being selected and she did not want to risk RMO-1 being upset with her, for competing for the position, if he became her new supervisor. According to Complainant, RMO-2 then asked her to inform SME/CPPA that she would withdraw, which she did immediately during a speakerphone call RMO-2 placed to SME/CPPA. Following the phone, per RMO-2’s request, Complainant also sent an email confirming her withdrawal. RMO-1 testified he received a tentative job offer for the N6 position in late July 2019, but it was not executed because the job was later offered competitively via USAJobs. He stated he did apply for the job announcement via USAJobs. RMO1 testified he later was hired into the position of N6 Director, which he started on March 2, 2020, but he did not believe he was hired under DHA because he interviewed in a fully competitive selection and received a second tentative job offer. CW-6 testified that on October 24, 2019, RMO-3 requested re-advertisement of the N6 Director position and appointed a GS-15 to lead a hiring panel with membership external to COMSUBPAC, to include a review of the process and the interview questions by an EEO subject matter expert. Two candidates made the certification list, RMO-1 and Complainant. After interviews, the panel recommended RMO-1 for the position. RMO1 was offered the position on or about January 9, 2020. According to CW-6, Direct Hiring Authority was never used. SME/CPPA also attested that neither DHA nor the original job posting were used to hire for the position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew her request. Consequently, 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. The Agency found that although Complainant had established a prima facie case of disparate treatment based on race, national origin, and sex, the Agency articulate legitimate nondiscriminatory reasons for its actions and Complainant did not show these reasons were pretext to mask discriminatory animus. 2021001814 10 As to Complainant’s harassment and hostile work environment claim, the Agency determined Complainant did not present a prima facie case because she failed to show the alleged conduct was sufficiently severe or pervasive to create a hostile, abusive, or offensive work environment, or that it unreasonable interfered with her work performance. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency erred in finding that the actions at issue were not sufficiently severe and pervasive to create a hostile work environment, and that they were not due to her race, national origin, and sex. Further, Complainant disputes the Agency’s assertion that the majority of her claims related to the hiring decision. She reasons that the Agency improperly found her claims simply involved work-related conduct as opposed to discrimination and harassment. Regarding the derogatory comments made to her, Complainant contends they were not isolated incidents and there did rise to the level of severity and pervasiveness needed to establish a hostile work environment. She asserts the Agency’s decision is based on lies made by management, who falsely denied making or recalling the comments. In response, the Agency maintains its decision correctly found no discrimination or harassment. It argues that Complainant herself admits she was offered the opportunity to serve as N6 Deputy Director and she admits she attended meetings and briefings. Further, the Agency asserts its decision also considered older allegations, which were untimely raised, and found them to be non-discriminatory. It contends these claims are largely moot and unsupported by the record since Complainant withdrew her Science Advisor application and acknowledged the Agency could not leave her position vacant, she was found qualified even though the PD was changed, the Agency took immediate and appropriate corrective action following Complainant’s claims of harassment/hostile work environment, and Complainant competitively applied for the N6 Director position, was found qualified, and interviewed for the position. The Agency contends Complainant has not introduced any evidence of pretext or shown that a prima facie case of harassment. ANALYSIS AND FINDINGS Standard of Review 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”). 2021001814 11 Disparate Treatment Complainant’s allegations in Claims (a), (b), (j), (k), and (l) give rise to independent claims of disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, 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. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, 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. St. Mary's Honor Ctr. 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 the Agency has articulated a legitimate, nondiscriminatory reason for its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Here, the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, regarding Claim (a), RMO1 testified that Complainant was not asked to serve as acting N6 Director or N6 Deputy Director because she did not have the operational experience. He stated Complainant’s role as Cyber Director was responsible for 20% of the N6 Directorate and the remainder was focused on communications/broadcast support for the Pacific Submarine Force nuclear submarines, which was outside of Complainant’s area. He also testified that Complainant was allowed to participate in multiple command level briefings and he did not recall Complainant ever asking to attend any command level briefing or meeting (Claim (b)). He did acknowledge that some meetings were limited to a single N6 person and either the N6 Director or N6 Deputy Director attended those meetings. In regard to Claims (j) and (k), RMO-2 stated that Complainant herself acknowledged that RMO-1 was more qualified for the position and she offered to withdraw. In response to Claim (l), RMO-1(a) testified no one was officially appointed as acting N6 Deputy Director at that time. He explained that CW- 1 was asked to assist while they were short staffed, but RMO-1a told CW1 to return to his regular duties as soon as Complainant raised complaints. He stated CW-1 acted as Deputy for no more than a day at most. Complainant has not shown that these articulated reasons were in fact pretext to mask discrimination based on her race, national origin, or sex. Complainant made a number of arguments questioning the Agency’s decisions and whether they were in fact appropriate. However, the question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. See, e.g., Chavez v. U.S. Postal Serv., 2021001814 12 EEOC Appeal No. 0120055246 (Jan. 5, 2007); see also Carson v. Bethlehem Steel Corporation, 82 F.3d 157, 159 (7th Cir. 1982). Without proof of a demonstrably discriminatory motive, the wisdom of the Agency's business decisions may not be second-guessed. Mendez v. U.S. Postal Serv., EEOC Appeal No. 0120090593 (May 20, 2010). Additionally, Complainant’s assertions regarding RMO-1’s possible pre-selection could indicate favoritism, but she has not established a nexus to her protected bases. The Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. Anderson v. Dep’t. of Air Force, EEOC Appeal No. 0120120121 (April 18, 2013); see also Garrett W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (October 30, 2018) (“Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination.”); Sierra-Barber v. Dep't of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) (allegations of nepotism and favoritism do not violate EEO statutes). While Complainant points to a number of comments made by CW1, RMO2, and others about women, Korea/Koreans, and/or Asians, these do not prove that the Agency’s proffered explanations are unworthy of credence or that the actions in question were more likely motivated by discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). Complainant has not shown that the Agency was motivated by discriminatory animus. Harassment and Hostile Work Environment To establish a claim of hostile work environment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). In the instant case, we find that the totality of the conduct at issue was insufficiently 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, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. Rather, the record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. The record seems to indicate at least some tension within N6 regarding how much focus should be on cyber activities (Complainant’s area of expertise) versus BCA/broadcast activities (CW1, RMO1, and RMO2’s area of expertise). Ultimately, managers have the discretion to determine how to best manage their offices to meet their needs and goals and it is within their authority to make business decisions. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Burdine, at 249. 2021001814 13 While Complainant’s discomfort with some of the comments made by her coworkers and superiors is certainly understandable, EEO laws are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). We do not find that is the case here. Additionally, Complainant did not raise these comments in her complaint as acts of harassment. She provided them during the investigation to show evidence of bias. However, for the reasons stated above, we do not find that Complainant has shown the Agency actions were motivated by discriminatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, 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. 2021001814 14 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. 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 September 20, 2022 Date