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

Equal Employment Opportunity Commission

Jun 6, 2022

Appeal No. 2021001315 (E.E.O.C. Jun. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mercedez A.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021001315 Agency No. DON-18-00024-01925 DECISION On December 16, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 30, 2020 final decision concerning her equal employment opportunity (EEO) complaint claiming 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 During the period at issue, Complainant worked as a Mail Clerk at the Agency’s Naval Sea Systems Command in Washington D.C. On May 11, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and a hostile work environment based on her race (African American), color (Black), sex (female), and in reprisal for prior protected EEO activity when: 1(a). On February 23, 2018, her new first-level supervisor (Responsible Management Official (RMO1), yelled at her in his initial meeting with her, telling her that he heard bad things about her from her third-level supervisor (RMO2), specifically that Complainant was trying to set RMO1 up for failure, and that he (RMO1) could “see how [Complainant] was going to be.” 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. 2021001315 2 1(b). On March 1, 2018, RMO1 changed Complainant’s work schedule and denied her request to come in earlier due to her commute. 1(c). Sometime after returning from an Expo on April 9, 2018, Complainant’s second-level supervisor (RMO2) stated to Complainant that, had she now sent RMO1 an email when she attended notifying him of her whereabouts, he (RMO2) would have written her up. 1(d). From February 2018 to the present, RMO1 has yelled at Complainant after her daily mail run and has given her tasks during her lunch hour and before it is time to depart for the day. 1(e). On April 17, 2018, RMO1 called Complainant dumb several times and indicated that he hated talking to her. 1(f). On April 17, 2018, Complainant met with RMO2 to discuss her situation with RMO1, and in response to her note-taking during the meeting, RMO2 became agitated with her and said, “I don’t give a shit, write it all down, I don’t care what you do, there’s a new sheriff in town.” 1(g). On April 19, 2018, Complainant again met with RMO2 to discuss how RMO1 was treating her and asked him to talk to her co-workers and confirm her account, but he never did. 1(h). On May 2, 2018, RMO3 informed Complainant that she (RMO3) and RMO1 were going to issue a violation against her (Complainant) for losing a classified package that she had signed for, but which the customer to whom it had been delivered was later found. 1(i). On two unspecified dates, Complainant requested to meet with her fourth-level supervisor (S4) in the Activity’s front office to discuss the ongoing harassment in her own office, but she was not allowed to get on S4’s calendar. 1(j). On an unspecified date to the present, RMO1 yelled at Complainant for not going to the restroom she usually used and has continued to follow her into the cafeteria repeatedly. 2. Complainant further alleged that, in addition to the instances referenced above, the Agency disparately treated her based on race (African American), color (Black), sex (female), and reprisal (prior EEO activity 18-00024-01428/informal counseling) when on June 19, 2018, she received a Notice of Decision to Suspend Without Pay for three days. On September 30, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no unlawful discrimination or retaliatory was established. The instant appeal followed. 2021001315 3 ANALYSIS AND FINDINGS Claim 1: Harassment/Hostile Work Environment To prove her discriminatory harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, her race, color, sex or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Regarding claim 1(a), Complainant asserted that on February 23, 2018, her new first-level supervisor (“RMO1”) (African American, Black, male) yelled at her in his initial meeting with her, telling her that he heard bad things about her from other management, who told him that Complainant was trying to set RMO1 up for failure, and that he (RMO1) could “see how [Complainant] was going to be.” RMO1 denied Complainant’s allegations and said that the meeting on February 23, 2018, related to instructions for completing a specific task. He said he was simply telling Complainant what he expected of her. The Director of Command Administrative Services (“RMO3”) (African American, Black, female) explained that as a new supervisor, she gave RMO1 an overview of all the employees in his office and personnel matters which included points which needed improvement and past practices. Regarding claim 1(b), Complainant alleged that on March 1, 2018, RMO1 changed Complainant’s work schedule and denied her request to come in earlier due to Complainant’s commute. RMO1 stated that everyone in his department, with the exception of two employees, came to work at the same time. He explained that one of the two employee drives for an Admiral and, therefore, needs the flexibility. As for the second employee, RMO1 stated that he has been permitted to come in to work at 0700 and leave at 1500 hours. RMO1 stated that the same offer was been made to Complainant. However, Complainant instead, wanted to come in late and leave early which was not possible. RMO1 stated that that such a schedule would hinder Complainant from working a 40-hour week, but she has agreed to come in early if she wants to leave work early. Regarding claim 1(c), Complainant alleged sometime after returning from an Expo on April 9, 2018, RMO2 stated to Complainant that had Complainant not sent RMO1 an email when she attended the Expo, notifying him of her whereabouts, [ROM2] would have written her up.2 2 The record reflects that the Notice of Acceptance originally showed that RMO1 was the one that threatened Complainant. However, it was RMO2 who had confronted Complainant after the Expo. 2021001315 4 RMO1 stated that Complainant was aware of this event in advance and was undecided if she wanted to attend. He noted that on the day of the event, Complainant sent him an email stating that she decided to go to the Expo. RMO1 and RMO2 had a discussion with Complainant when she returned to the office. He informed Complainant that she cannot decide the day of an event and then take off for the Expo. The Deputy Director of Command Administrative Services (“ROM2”) (African American, Black, male) stated that Complainant attempted to notify RM01 via email approximately 3 minutes before she left for the Expo and without prior permission. He stated that RMO1 asked him if he knew where Complainant was, and he told RMO1 to call Complainant upon her return to discuss this matter. During the meeting with Complainant, RMO2 asked Complainant when she had registered for the Expo. Complainant replied that she had done so in December 2017, under a previous supervisor. RMO2 informed Complainant that if Complainant had not sent the email, she would have been written up. Moreover, RMO2 stated that he could still have written Complainant up. However, RMO2 decided he would give Complainant the benefit of doubt because she sent the email to RMO1. Regarding claim 1(d), Complainant stated that from February 2018 to the present, RMO1 has yelled at Complainant after her daily mail run and has given her tasks during her lunch hour and before it is time to depart for the day. RM01 denied yelling at Complainant. RMO1 acknowledged he has a deep voice so he speculated that Complainant may have thought she was being yelled at. RMO1 asserted that he does not bother Complainant during her lunch. However, RMO1 stated that because Complainant was taking long lunches, he decided to document her lunch time. Regarding claim 1(e), Complainant alleged that on April 17, 2018, RMO1 called Complainant “dumb” several times and indicated that he hated talking to her. RMO1 denied calling Complainant “dumb.” RMO1 noted, however, that Complainant sometimes acts as if she does not understand his instructions. Further, he stated that Complainant has worked for the Agency for eighteen years and after such a length of employment, she should understand how to do her job. Regarding claim 1(f), Complainant claimed that on April 17, 2018, she met with RMO2 to discuss her situation with RMO1 In response to Complainant’s note-taking during the meeting, RMO2 acknowledged that he became agitated with her and said, “I don’t give a shit, write it all down, I don’t care what you do, there’s a new sheriff in town.” RMO2 stated that during the April 17, 2018 meeting regarding Take a Child to Work Day that Complainant wanted to bring her child for the entire work day. He explained to Complainant that she can have her child for a couple of hours but not the entire workday. He noted that Complainant was not satisfied. Regarding claim 1(g), Complainant asserted that on April 19, 2018, Complainant again met with RMO2 to discuss how RMO1 was treating her and asked him to talk to her co-workers and confirm her account, but RMO2 never did. RMO2 stated that he asked Complainant if anyone heard RMO1 yelling at her and Complainant said that the yelling had been heard by others. 2021001315 5 However, after Complainant provided the names of her co-workers, RMO2 asked both co- workers if they have ever witnessed such an incident and both said that they had not. He also asked RMO1 about this incident and he also indicated it had not happened. RMO2 said he informed Complainant that he was unable to corroborate her allegation that RMO1 yelled at her and called her names. Regarding claim 1(h) Complainant claimed that on May 2, 2018, RMO3 informed Complainant that she (RMO3) and RMO1 were going to issue a violation against her (Complainant) for losing a classified package that she had signed for, but which the customer purportedly later found. RMO3 stated that when she was informed the package containing classified material was missing, she asked Complainant if she signed off on the package and she replied yes. RMO3 then asked Complainant if she knew of the whereabouts of the package and she replied no. Thereafter, RMO3 had RMO2 to investigate the missing package. According to management, approximately two weeks later, the package was found in a separate department, and not with the customer as Complainant alleged. RMO2 stated that he was the deciding official to suspend Complainant for three days for actions in the mailroom and the missing package. The record contains a copy of Notice of Decision to Suspend Without Pay dated June 19, 2018 in which RMO2 placed Complainant on notice that she would be suspend for three days without pay for failure to safeguard classified material, absence without leave, failure to follow instructions, and failure to follow leave procedures. RMO2 determined that Complainant’ actions had a negative impact upon the reputation of the mail room regarding the safeguarding of classified materials. Regarding 1(i), Complainant claimed that on two unspecified dates, she requested to meet her fourth-level supervisor (“S4”) in the Activity’s front office to discuss the ongoing harassment in her own office, but she was not allowed to get on S4’s calendar. Regarding claim 1(j) Complainant asserted that on an unspecified date to the present, RMO1 yelled at Complainant for not going to the restroom she usually used and has continued to follow her into the cafeteria repeatedly. Regarding both claims 1(i) and 1(j), the Agency determined that there was no evidence to indicates that these matters occurred as alleged. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style and demeanor that left Complainant feeling aggrieved. Nevertheless, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). 2021001315 6 Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that Complainant’s supervisors were motivated by discrimination toward her race, color, sex and prior protected activity. Complainant’s claim of harassment is precluded based on our findings that she failed to establish that any of the actions taken by the Agency were motivated by her protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Claim 2: Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or 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. See 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, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the 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. See St. Mary's Honor Center 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, 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding claim 2, Complainant alleged that on the Agency disparately treated her based on race (African-American), color (Black), sex (female), and reprisal (prior EEO activity 18-00024- 01428/informal counseling) when on June 19, 2018, she received a Notice of Decision to Suspend Without Pay for three days. The record reflects that on April 10, 2018, the Acquisition Manager (RESC) notified the mailroom that he had not received some classified mail. He asserted that he reported the missing classified mail to security on April 13, 2018. He stated that he was notified on April 18, 2018 that the classified document had been located in the Front Office where he worked. 2021001315 7 The record includes the delivery accountability report which showed the classified package was delivered at 8:00 a.m. on April 6, 2020 and signed by Complainant. A series of emails between various stakeholders reflects that the package was ultimately located on April 18, 2018. RMO2 stated that he was the deciding official to suspend Complainant for three days for actions in the mailroom and the missing package. The record contains a copy of Notice of Decision to Suspend Without Pay dated June 19, 2018 in which RMO2 placed Complainant on notice that she would be suspended for three days without pay for failure to safeguard classified material, being absent without leave, failure to follow instructions, and failure to follow leave procedures. Complainant has failed to prove, by a preponderance of the evidence, that the legitimate reasons proffered by Agency management for the suspension were actually pretext designed to mask a discriminatory or retaliatory motivation. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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 2021001315 8 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. 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. 2021001315 9 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 June 6, 2022 Date