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

Equal Employment Opportunity Commission

Mar 7, 2023

Appeal No. 2022000001 (E.E.O.C. Mar. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denise S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000001 Agency No. 21-61726-00254 DECISION On October 1, 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 September 17, 2021, 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 an Industrial Hygienist at the Agency’s Navy Medicine Training and Readiness Command in Groton, Connecticut. Lieutenant Commander (LCDR)1 and LCDR2 were Complainant’s first-level supervisors, at different times. Report of Investigation (ROI) at 482, 501. Director of Medical Services was Complainant’s second-level supervisor. ROI at 521. Commander was her third- level supervisor. ROI at 573-74. Manager was the technical director for Complainant’s program. ROI at 454. On February 10, 2021, Complainant filed an EEO complaint alleging that the Agency subjected her 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. 2022000001 2 1. On December 28, 2020, LCDR2 issued a Letter of Caution (LOC) for not following her October 26, 2020, Letter of Expectations (LOE) when she sent her an email on December 7, 2020; 2. On March 5, 2020, she emailed Manager stating that a co-worker (CW1) was not qualified for his position, and Manager replied with a nasty email and had not spoken to Complainant since; 3. On March 5, 2020, CW1 was interviewed and hired, despite Complainant not believing he was qualified for the position; 4. On March 11, 2020, Commander responded to Complainant’s March 5, 2020, email with a nasty and inflammatory email; 5. On July 14, 2020, CW1 made threatening remarks about Complainant to her (Complainant’s) husband (CW2); 6. On July 21, 2020, Commander cursed at Complainant during a department meeting and CW1 “bad-mouthed” Complainant to the department; 7. On August 14, 2020, LCDR2 issued her a Letter of Caution (LOC) for conduct and insubordination; 8. On various dates between August 20, 2020, and February 11, 2021, Complainant never received responses to emails she sent to leadership; 9. On October 19, 2020, LCDR1 told her the command was going to reduce her telework to one day per week; 10. On October 21, 2020, she emailed LCDR1 regarding errors on CW1’s report and was told the policy of reviewing the work of co-workers for errors was no longer permitted at their location; 11. On October 26, 2020, Complainant was issued a Letter of Expectations (LOE); 12. On October 30, 2020, CW1 was given a private office; 13. On December 7, 2020, Complainant emailed leadership with a complaint that Manager was refusing to discuss her work with her; 14. On January 8, 2021, Complainant put a sign on her shared office door asking entrants to knock before entering and CW1 refused; 2022000001 3 15. On January 19, 2021, CW1 emailed Complainant’s leadership accusing Complainant of “gun-checking” one of her reports from 2018; 16. On February 5, 2021, LCDR1 told Complainant to remove the door chime Complainant installed on Complainant’s shared office door; 17. On February 16, 2021, LCDR1 refused to answer Complainant’s questions regarding why a bell could not be placed on her office door; 18. On February 17, 2021, management denied her request to telework due to the weather; 19. On February 17, 2021, LCDR1 interrupted her when she tried to ask questions during a meeting; 20. On February 26, 2021, LCDR2 scolded her for not wearing a mask in her shared office.2 Claims 3, 12, 14, 16, 17, and 19 were procedurally dismissed in the Agency’s March 9, 2021, Notice of Partial Acceptance. Complainant does not challenge the dismissal of these claims. Therefore, the Commission shall not address these claim as we exercise our discretion to review only the issues specifically raised in Complainant’s appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at § IV.A (Aug. 5, 2015). 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, concerning claims 1 and 18 in which Complainant alleged she was subjected to disparate treatment, the Agency acted within its purview concerning both the Letter of Expectation and her telework request due to weather. Specifically, the Letter of Expectation was in response to Complainant’s failure to follow instructions and displays of unprofessional behavior. The Agency further found that Complainant had a situational telework arrangement in place dated March 19, 2020. However, on February 17, 2021, Complainant submitted an email request to telework based on expected snow. RMO1 responded to Complainant and thanked her for coming to work the next day. 2 The claims have been reordered from the original presentation in the Agency’s final decision for purposes of clarity. 2022000001 4 The Agency noted that Complainant may not have been happy with the response by LCDR2, however Complainant failed to show that the event constituted discrimination based on sex. Therefore, the Agency concluded that Complainant failed to show that she was subjected to disparate treatment as alleged. With regard to the remaining claims which Complainant provided in support of her claim of harassment, the Agency found that there was no evidence to show that the actions were based upon her sex. In addition, the Agency determined that the events were not severe or pervasive enough to create a hostile work environment. Although Complainant clearly had disagreements with management on a variety of issues from the hiring process to the letters of expectations and conduct, the Agency noted that these are all within the scope of managerial authority and did not create a hostile work environment. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination or harassment based on her sex as alleged. The instant appeal followed. Neither Complainant nor the Agency submitted briefs in support of their respective positions. 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 Chap. 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”). Disparate Treatment-Claims 1 and 18 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation 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; 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. Aff. 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). 2022000001 5 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, as here, the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28. 1990): Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). As alleged in claim 1, LCDR2 issued Complainant the December 28, 2020, Letter of Counseling because of Complainant’s “failure to follow instructions and unprofessional behavior.” ROI at 383. Specifically, the Letter of Counseling outlined that Complainant responded to an email and added as recipients, the Commanding Officer of Navy Medicine Readiness Training Command and leadership of Navy Medicine Training Unit who were not parties to the original email. ROI at 383. The Letter of Counseling outlined that Complainant failed to follow prior instruction regarding professionalism with communication. ROI at 383. LCDR2 also expressed that his opinion was that the tone of Complainant’s reply/forwarded email, as well as Complainant’s decision to forward it to her “entire chain of command” was “unprofessional and counter to a conducive work environment.” ROI at 383. Concerning claim 18, on February 17, 2021, Complainant emailed LCDR2, asking if she could telework or if she was needed in the office due to the snow. ROI at 409. LCDR2 responded: “Thank you for coming in to work tomorrow. Have a good evening.” ROI at 409. Complainant said that she did not know any other individual under LCDR2 who was approved for telework on February 17, 2021. ROI at 307. Complainant provided no evidence to establish that the alleged event was due to her protected bases. Based on the record with respect to claims 1 and 18, we find that Complainant has provided no evidence to show that the alleged events constituted unlawful discrimination based on sex. Harassment-Claims To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 2022000001 6 We find that Complainant has failed to establish discriminatory harassment. Upon review of the events alleged and the record, we find that Complainant failed to establish that the events occurred because of her protected bases or, if taken as a whole, created a hostile work environment. Based on the events alleged and our review of the record, we find that the claims raised by Complainant involve ordinary events in the workplace. The Supreme Court has held that the legal standards for assessing discrimination claims must ensure that the EEO laws do not become a “‘general civility code’ [and must be sufficiently rigorous to] … filter out complaints attacking ‘the ordinary tribulations of the workplace.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998). Furthermore, we note that Complainant has not presented any evidence to establish that the alleged event occurred because of her sex. In light of the above, we do not find that Complainant was harassed as alleged. 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. 2022000001 7 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. 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. 2022000001 8 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 March 7, 2023 Date