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

Equal Employment Opportunity Commission

Dec 12, 2022

Appeal No. 2022000411 (E.E.O.C. Dec. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shawnta A.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000411 Hearing No. 480-2021-00216X Agency No. 20-68098-02030 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 30, 2021, final order concerning an 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Executive Secretary, GS-0318-09, with the Navy Medicine Readiness and Training Command at Camp Pendleton in California. On August 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race (Filipina), national origin (Philippines), age (51), and reprisal (prior protected EEO activity) when: 1. On July 25, 2019, Complainant was given an English grammar book; 2. On August 6, 2019, Complainant received a Letter of Caution; 3. On December 17, 2019, Complainant received a negative mid-year progress review; 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. 2022000411 2 4. From January 31, 2020 through April 17, 2020, Complainant was detailed to an unclassified set of duties; 5. On April 30, 2020, Complainant received an unacceptable rating on her 2020 Performance Appraisal; 6. On June 25, 2020, Complainant received a Notice of Unacceptable Performance; and 7. On August 24, 2020, Complainant was suspended for five calendar days. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. For example, regarding claim (1), Complainant sent several emails to officials which contained numerous grammatical errors. Complainant’s supervisor (S1-1) discussed the issue with the Associate Director for Administration, and she reviewed emails Complainant sent out on behalf of the command. Complainant was subsequently provided a business writing reference by a Human Resources Specialist (HRS) who had previously borrowed the same book from a co-worker for his own use. As to claim (2), on July 31, 2019, Complainant told her co-worker that she was going to lunch. Complainant spoke so loudly that S1-1 heard her. Both S1-1 and the co-worker believed that Complainant’s tone was rude and disrespectful. On August 6, 2019, S1-1 issued Complainant a Letter of Caution regarding the incident. With respect to claims (3), (5), and (6), in or around November 2019, S1-1 met with Complainant to provide her with her mid-year progress review. The review indicated that Complainant needed to improve her performance on all four performance elements: (1) Internal and External Client Focus; (2) Scheduling Leaders’ Meetings and Events; (3) Official Correspondence and Incoming Mail; and (4) Planning and Coordination. The mid-year review provided examples of Complainant’s performance deficiencies. On April 30, 2020, S1-1 presented Complainant with her annual appraisal which rated Complainant’s performance as “Unacceptable” for each element and “Unacceptable” overall. Complainant challenged the performance appraisal in a grievance and provided information and explanations in support. Ultimately, Complainant’s second-level supervisor (S2) affirmed the overall “Unacceptable” rating. On June 17, 2020, Complainant’s new supervisor (S1-2) entered duty. On June 25, 2020, S1-2 and HRS presented to Complainant a Notice of Unacceptable Performance. The Notice stated that the basis was Complainant’s “Unacceptable” performance rating. The Notice further stated that Complainant would be placed on a performance improvement plan for 30 days and, if she did not demonstrate improvement in her performance, she could be reassigned, placed in a lower-graded position, or terminated. 2022000411 3 As to claim (4), an inspection of the Human Resources Department’s (HRD) Records Management Program revealed several program deficiencies that needed immediate correction. The HRD Assistant Department Head requested that Complainant be detailed to HRD to assist with the corrective actions. Complainant was requested because the HRD Records Manager was a GS-09 position, as was Complainant’s Executive Assistant position and officials believed that Complainant would be best able to provide the necessary assistance. S2 also considered the tension between Complainant and her coworkers and her supervisors and believed that the detail would provide the opportunity for Complainant to work in a less tense work environment. As a result, Complainant was detailed to HRD effective February 3, 2020 until April 17, 2020. Finally, regarding claim (7), S1-1 issued Complainant a Notice of Proposed Suspension for 14 days based on several acts of misconduct. The Notice identified three acts of disrespectful conduct, two of which were discussed in Complainant’s mid-year progress review and her 2020 annual appraisal. The third incident occurred in April 2020 when Complainant created a calendar for S1-1, but then argued with S1-1 when she asked Complainant to make changes. The Notice also identified five acts of careless workmanship. Four of the five incidents were previously cited in Complainant’s 2020 annual appraisal and the fifth incident described additional instances of errors Complainant made in recording minutes of meetings. Additionally, the Notice identified three acts of failure to follow a work order. One of the acts was previously cited in Complainant’s 2020 annual appraisal; a second act addressed an incident where S2 asked Complainant to obtain a document, and Complainant suggested that S2 obtain it from the Public Affairs Office; and a third act described an incident in April 2020 when Complainant asked S1-1 if she wanted to take a telephone call, but was not able to provide S1-1 with additional information about the caller or the nature of the call. Complainant submitted a written response to the Notice. On August 17, 2020, S2 issued a Notification of Decision on Proposed 14-Day Suspension finding that a suspension was warranted but mitigating the disciplinary action to a five-day suspension. The AJ determined that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence, is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 2022000411 4 In rendering this appellate decision, we must scrutinize the 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory or retaliatory 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 factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s 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. 2022000411 5 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. 2022000411 6 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 December 12, 2022 Date