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

Equal Employment Opportunity Commission

Feb 14, 2023

Appeal No. 2022002404 (E.E.O.C. Feb. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jillian B.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022002404 Hearing No. 510-2019-00331X Agency No. 13-00052-02043 DECISION On March 29, 2022, 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 March 25, 2022, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a GS- 0501-11 Financial Management Analyst in the Naval Installation Command, Workforce Development Branch in Norfolk, Virginia. Complainant’s first-line supervisor was a Supervisory Financial Management Analyst (Supervisor). Complainant initiated contact with an EEO counselor on May 1, 2013. On August 6, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and reprisal for prior protected EEO activity (current 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. 2022002404 2 1. On or about April 26, 2013, Supervisor failed to provide Complainant with the training she provided a white coworker (Coworker)2; 2. On or about April 26, 2013, Supervisor had another supervisor attend Complainant’s performance review, wrote untrue and negative statements in her review, and threatened Complainant, yelling and demanding that she sign her performance review; 3. On or about May 23, 2013, Complainant was charged 16 hours of sick leave, even though she had not requested it; 4. On or about June 11, 2013, Supervisor yelled and screamed and would not listen to Complainant or allow her to ask questions but did not treat Coworker the same way; 5. On or about July 1, 2013, Supervisor bullied Complainant by saying “Get in my office now” and demanding that Complainant “sit down now,” and, when Complainant refused to sit, Supervisor refused to continue the meeting; 6. On or about July 10, 2013, Supervisor assigned Complainant the entire employment development training to complete; and 7. On or about July 24, 2013, Complainant was denied promotion to GS-12. On April 25, 2014, when the Agency had not yet completed the investigation of her complaint within 180 days of the date she filed her complaint, Complainant requested a hearing with an EEOC Administrative Judge (AJ) in accordance with 29 C.F.R. § 1614.108(h). Effective March 11, 2014, Complainant was removed for unacceptable performance, and Complainant timely appealed her removal to the Merit Systems Protection Board (MSPB) and raised race discrimination as an affirmative defense. On November 12, 2015, the EEOC AJ issued an order holding Complainant’s EEO complaint in abeyance pending the MSPB decision concerning Complainant’s removal. On January 6, 2018, an MSPB AJ upheld Complainant’s removal and found that Supervisor did not act out of a discriminatory motive in placing Complainant on a performance improvement plan (PIP) in August 2013 or in proposing Complainant’s removal. The MSPB AJ’s initial decision became final on February 12, 2016. On August 26, 2016, the EEOC AJ dismissed Complainant’s EEO complaint, finding that the issues were fully litigated before the MSPB. Complainant appealed the Agency’s final order fully implementing the EEOC AJ’s dismissal. On appeal, the Commission found that the MSPB AJ did not expressly or implicitly assume jurisdiction of the harassment claim at issue in the instant EEO complaint and that incidents (1) through (7) were not litigated or addressed by the MSPB AJ and remanded the matter to the EEOC Hearings Unit for a decision by an EEOC AJ. Jillian B. v. Dep’t of the Navy, EEOC Appeal No. 0120170532 (Apr. 30, 2019). 2 Although Complainant identified Coworker as white, Coworker identified her race as American Indian. Report of Investigation (ROI) at 350. 2022002404 3 On June 3, 2020, Complainant filed a motion to amend her claim to add the following instances of alleged harassment: (1) on or about August 23, 2013, the Agency placed Complainant on a PIP; (2) on or about August 23, 2013, the Agency placed Complainant on administrative leave; and (3) on or about August 23, 2013, Supervisor called the police on Complainant to remove her from the building. The EEOC AJ denied Complainant’s motion to amend, finding Complainant had ample time to raise these allegations during the investigative process. Complainant filed a motion to reconsider denial of the motion to amend. The EEOC AJ denied the motion for reconsideration, finding Complainant failed to raise any novel arguments. On September 25, 2020, Complainant filed a motion to compel the deposition of Supervisor. Complainant had deposed Supervisor on April 27, 2016, but Complainant argued that she previously deposed Supervisor on only a few instances of harassment. The EEOC AJ denied the motion to compel, reasoning that there had already been extensive discovery and that Complainant should have addressed the full harassment claim in 2016. The Agency submitted a motion for a decision without a hearing. Complainant filed a response to the Agency’s motion. The EEOC AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant failed to establish a prima facie case of reprisal. The AJ also determined that Complainant failed to establish an evidentiary nexus between the instances of alleged harassment and her race. The AJ also found that the alleged harassment was insufficiently severe or pervasive to constitute a hostile work environment. The AJ concluded that Complainant failed to establish that she was subjected to discrimination based on race and/or reprisal as alleged. The Agency subsequently issued a final order adopting the EEOC AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the EEOC AJ’s finding that summary judgment was appropriate because there were no disputed issues of material fact was clearly erroneous. According to Complainant, the EEOC AJ failed to acknowledge the material evidence in dispute, made improper credibility assessments, and applied the wrong standard for analyzing Complainant’s harassment claim. Complainant asserts that the AJ improperly applied a “but for” standard, stating that Complainant needed to establish that the harassment would not have occurred “but for” her membership in a protected class when Complainant only needed to show that there were disputed material facts with respect to the existence of an unlawful motivation, even if the unlawful motivation was not the only motivation. Complainant challenges the Agency’s legitimate, nondiscriminatory reasons for not promoting her as based upon disputed material facts. Complainant also argues that the EEOC AJ abused their discretion in denying Complainant’s motion to amend and her motion to compel. 2022002404 4 Complainant contends that she timely raised the new claims to the Agency’s EEO office in writing on August 26, 2013, but the EEO office failed to acknowledge her request to amend her complaint. Regarding the motion to compel Supervisor’s deposition, Complainant argues that she showed that deposing Supervisor would have produced relevant evidence and that the EEOC AJ denying the motion to compel effectively precluded Complainant from being able to show genuine issues of material fact. Complainant requests that the Commission reverse the Agency’s final order and remand the matter for a hearing. In response to Complainant’s appeal, the Agency contends that the EEOC AJ properly found that there were no genuine issues of material fact that necessitated a hearing. The Agency argues that the AJ used the appropriate standard for Complainant’s harassment claim, finding that Complainant presented insufficient evidence to establish that the harassment was based on her race and/or prior protected activity. According to the Agency, the EEOC AJ properly denied Complainant’s motion to amend, noting that Complainant did not send the August 26, 2013, letter requesting to amend her complaint to the correct address. Moreover, the Agency contends that Complainant should have been on notice when the requested amendments were not included in the Agency’s Notice of Acceptance or the investigative report, and Complainant neither provided evidence of follow up attempts with the Agency regarding the amendment nor did she request to amend her complaint when the EEOC AJ’s November 12, 2015, Order on Initial Conference did not include the requested amendments. The Agency asserts that the EEOC AJ also did not abuse their discretion in denying Complainant’s motion to compel the second deposition of supervisor. The Agency requests that its final order be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the EEOC AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the EEOC AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). 2022002404 5 On appeal, Complainant contends that the AJ erred in denying her motion to amend her complaint and her motion to compel. EEOC Administrative Judges have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). Given the EEOC AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused their discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). Here, we find that it was not an abuse of discretion for the AJ to deny Complainant’s motions to amend her complaint and to compel another deposition of Supervisor. Although Complainant contends that she timely requested to amend her complaint on August 26, 2013, it appears her attorney did not send the request to the correct address. According to the record, the July 25, 2013, Notice of Right to File a Formal Discrimination Complaint, the August 22, 2013, Notice of Acknowledgement, and the March 6, 2014, Notice of Acceptance provided Complainant with the following address for the Agency EEO office: “Human Resources EEO Office, 1411 Parsons Avenue SE, Suite 300, Washington Navy Yard, DC 20374-5033.” ROI at 34-36, 38-39, 41-44. The Agency’s Notice of Acceptance also provided the following address for the Agency’s representative: “716 Picard Street SE, STE 1000, Washington, DC 20374.” ROI at 44. Complainant’s attorney3 sent the August 26, 2013, letter requesting to amend Complainant’s EEO complaint to the following address: “Office of Equal Employment Opportunity, Diversity and Special Programs, U.S. Department of the Navy, 655 15th Street NW, Room 840, Washington, DC 20005.” Complainant Motion to Amend Exhibit 1. The source of this incorrect address is unclear. Moreover, Complainant did not raise her request to amend her complaint during the EEO investigation, upon receipt of the investigative record that did not contain the requested amendments, or at any point while her complaint was pending before the EEOC AJ from 2014 to 2016. We do not find it was an abuse of discretion for the EEOC AJ to deny Complainant’s June 8, 2020, motion to amend and the subsequent request for reconsideration. Concerning the motion to compel a second deposition of Supervisor, Complainant deposed Supervisor for her EEO complaint on April 27, 2016. Although Complainant asserts that the focus of the deposition of Supervisor was not on Complainant’s harassment claim, the claims at issue in 2016 were identical to those claims at issue in 2020. Although Complainant’s attorney may have limited the scope of the deposition to certain instances of harassment, this was a decision made by Complainant’s attorney. 3 Other than the August 26, 2013, letter requesting to amend her complaint, it is unclear when Complainant notified the Agency that she had a representative for her EEO complaint. According to the EEO Investigator, she was unaware Complainant was represented until May 14, 2014, when Complainant’s attorney emailed her and said that Complainant would not participate in the investigation. ROI at 383, 409. 2022002404 6 Further, Complainant did not provide the EEOC AJ with a persuasive explanation why she needs a second opportunity to depose Supervisor for the same EEO claim, nor has she provided such an explanation on appeal. We therefore find that the EEOC AJ did not abuse their discretion in denying Complainant’s motion to compel. We determine whether the EEOC AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); see also, Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. To ultimately prevail on a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016). 2022002404 7 Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). An EEOC AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. We find that the AJ applied the proper harassment standard and determined that, even drawing all inferences in Complainant’s favor for the purposes of summary judgment, a reasonable finder of fact could not find that Complainant established that she was subjected to a hostile work environment based on race and/or reprisal. We agree with the AJ’s determination that the alleged harassment was insufficiently severe or pervasive to constitute a hostile work environment. We also agree with the AJ’s findings that Complainant failed to establish an evidentiary nexus between the alleged harassment and her race and/or prior protected EEO activity. For example, Complainant alleged that Supervisor allowed a colleague from another department (Colleague) to train Coworker on Captivate 5 but did not allow Colleague to train Complainant, but the record shows that Coworker taught herself the program and, after learning how to use Captivate 5, Coworker exchanged tips and tricks with Colleague. Colleague stated that she spent more time sitting with Complainant to go over Captivate 5 than she did with Coworker. See ROI at 351-52, 369-70; Complainant Response to Motion for Summary Judgment at Exhibits 3, 13. Complainant asserts that Supervisor gave her no indication that she had performance issues prior to her FY 2013 mid-year review on April 26, 2013. However, while Supervisor rated Complainant’s performance as “Acceptable” for FY 2012, Supervisor noted multiple times in the narrative that Complainant needed to continue to work on her knowledge and analytical skills. ROI at 192-97. Similarly, although Complainant alleged that Supervisor had another supervisor sit in her April 26, 2013, mid-year review to harass her, the record reflects that Labor and Employee Relations advised Supervisor to ask another supervisor to sit in the meeting as a witness. ROI at 223-26. The record does not reflect that Complainant was charged with sick leave on May 23, 2013, as alleged. Instead, Supervisor erroneously input her own sick leave request in Complainant’s time and attendance, and she removed the request when she was notified of the issue. ROI at 299-303. Moreover, the record reflects that Supervisor similarly input a leave request under Coworker’s time and attendance, undercutting any inference that Supervisor’s mistake was based on Complainant’s race and/or protected EEO activity. 2022002404 8 Coworker stated that, in or around 2013, she received an email stating her leave request had been approved when she had not requested leave and learned that Supervisor had accidently input her own leave request under Coworker’s time and attendance. Complainant Response to Motion for Summary Judgment at Exhibit 3. Accordingly, we conclude that the EEOC AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination 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 order fully implementing the EEOC AJ’s summary judgment decision finding no discrimination. 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. 2022002404 9 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 February 14, 2023 Date