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

Equal Employment Opportunity Commission

Aug 17, 2022

Appeal No. 2021003205 (E.E.O.C. Aug. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Virgina K.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003205 Hearing No. 410-2020-00244X Agency No. DON 19-67004-02 DECISION 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 January 27, 2021, 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. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-13, at the Agency’s Logistics Management Support Contracting Division in Albany, Georgia. During that timeframe, there was no supervisor over Complainant’s section. Thus, employees were divided between two Supervisory Contract Specialists - SC1 and SC2. Complainant was assigned to two major projects: the Logistics Integrated Service (LIS), which was supervised by SC1 and the Consolidated Storage Program (CSP), which was supervised by SC2. On or about April 18, 2019, the CSP project was reassigned to another employee - Comparator 1 (C1). 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. 2021003205 2 On August 2, 2019, Complainant filed an EEO complaint alleging that the Agency harassed and discriminated against her on the bases of race (African American) and sex (female) when: a. During the period, August 2018 through March 2019, she was excluded from mandatory meetings and on March 24, 2019, SC2 told her third line supervisor (S3) and her coworkers that he could not work with her because she had an attitude problem (incidents 1,2)2; b. Between March 25, and April 5, 2019, S3 revoked Complainant’s Level II Warrant without justification, and during a meeting regarding her performance appraisal, SC1 told her that SC2 and S3 had a negative perception of her (incidents 3, 4); c. Between April 18, 2019, and June 6, 2019, S3 transferred one of Complainant’s requirements, the CSP contract, to her colleague C1; this required her to physically move to a cubicle close to SC1; a team was developed to assist C1 with the CSP; and C1 was allowed to take a week’s vacation in the middle of awarding the CSP (incidents 5, 6, 11, 13); d. On April 23, and April 25, 2019, Complainant’s computer and phoneline were moved without giving her prior notification, and while moving her belongings to the new cubicle, SC1 remarked in a hostile manner that she was moving into the wrong cubicle (incidents 7, 8); and e. Between May 7, and June 28, 2019, SC1 made a remark in a hostile manner to a coworker who was visiting her; management made negative comments about her; and a colleague told her about a meeting wherein her second line supervisor (S2) made a disparaging comment about SC2’s work (incidents 9, 10, 12, 14). 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). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on January 27, 2021. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant filed the instant appeal. 2 Complainant detailed 14 specific incidents of harassment in the formal complaint. These incidents were grouped by the EEOC Administrative Judge and consolidated into claims (a) - (e) for ease of adjudication. We have kept the claims in the same format here. 2021003205 3 ANALYSIS AND FINDINGS 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. 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 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. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted based on a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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. 2021003205 4 Where 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Title VII also prohibits employers from “discriminat[ing] against any of [its] employees ... because [such employees have] opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge . . . or participated in any manner in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As a general matter, the statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions or threats to take adverse actions such as reprimands, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004. (Aug. 25, 2016). In order 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 her 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). In order to meet the requirements of prong 4, 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). We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions. We also find that Complainant failed to show she was subjected to a discriminatory hostile work environment. Regarding claim (a), Complainant asserts that from September 2018 to April 2019, she did not participate in meetings regarding CSP with the client and management; she received all the information secondhand. She asserts that once the project was transferred to C1 - a White colleague - C1 was permitted to attend all meetings relevant to CSP. Complainant further alleges that SC2 told S3 that he could not work with her because she had an attitude problem. 2021003205 5 Management asserts that Complainant was not intentionally excluded from CSP meetings and that initially S3 did not require everyone involved in the project to attend all meetings as meetings were sometimes called without all personnel being notified. However, once the CSP bridge contract was awarded in March 2019, the sense of urgency regarding the CSP program increased, and a more structured team approach was adopted for stakeholders. Furthermore, SC2 denies making any comments that Complainant had an attitude problem but asserts that that he stated that she lacked a sense of urgency when working on the bridge for the CSP program in March 2019. He asserts that a modification to the CSP was required by March 21, 2019, but Complainant took leave that day, which he felt was inappropriate. Regarding claim (b), S3 stated that he prepared a memorandum stating Complainant’s clearance was revoked because she took off work when the CSP contract needed to be renewed. As a result, other employees had to complete her work. He asserts he reinstituted her warrant shortly thereafter. Regarding Complainant’s allegation that SC1 said SC2 and S3 had a negative perception of her, SC1 denies ever discussing Complainant with SC2. However, SC1 stated that there was discussion with S3 about the need for Complainant to increase her efforts to ensure the CSP modification was completed. Regarding claim (c), management asserts that CSP was transferred to C1 because Complainant was handling the two largest contacts and in order to distribute the work more fairly, the projects needed to be split up. The organization was approaching a recompete for the CSP and the LIS project was very complex; management believed that because LIS was more complex, it would have been challenging to assign it to someone other than Complainant. Complainant alleges that her desk was moved closer to SC1 out of punishment for filing her EEO claim. Management asserts that Complainant was sitting 15 cubicles away from SC1 and she was moved closer to her to make it easier for SC1 to mentor her on her new GS-13 responsibilities and work with her on the LIS project. Management asserts other employees were not required to move close to their supervisors because they had been in their grade level for an extended time and did not need mentoring. In addition, although Complainant alleges that management created a team to assist C1 with the CSP while Complainant did not have assistance, management asserts that after CSP was transferred to C1, there were tight deadlines and additional people were involved to help meet those deadlines. Furthermore, after the CSP bridge, S3 did not want an additional bridge contract and placed more emphasis on making the project a team effort. Management further explained that vacation was approved for C1 because there was no imminent action needed on the contract during that period. Complainant has not alleged that she was denied assistance regarding the CSP project; nor has she alleged that she was prohibited from taking vacation. 2021003205 6 Regarding claim (d), management asserts that they told Complainant that she would be moving to the vacant cubicle closest to SC1, but they were not aware when that would occur. Management asserts they put in a move request with the Information Technology (IT) Help Desk. Management asserts it had no control over when the move would occur because it is based on the IT department workload. SC1 admits to admonishing Complainant for moving into the wrong cubicle. Regarding claim (e), Complainant asserts that CS1 made a hostile remark to Employee 1 (E1) - a Black male colleague - that was visiting her desk. Complainant further alleges that during a meeting, someone in management commented that there was a “dumb doctor” working in contracts; Complainant believes he was referring to her. Complainant further asserts that she heard from a colleague that S2 stated that SC2 was not competent in his role supervising the CSP project. She alleges these comments suggest she was treated less favorably than SC2 - a White male - because she has been punished for CSP’s lack of success while SC2 has not. CS1 asserts that E1 had a reputation for excessive socializing at work. She asserts she asked E1 to leave Complainant’s desk so that she could complete her assignment but when SC1 saw E1 back at Complainant’s desk later that same day, a verbal confrontation ensued that resulted in a meeting with E1, SC1, SC2, S2, and S3. SC1 apologized to E1 for not handling the interaction tactfully. Management denies referring to Complainant as “dumb” but asserts that Complainant had been criticized for not proofreading her work product. Although Complainant claimed that SC2 and C1 were treated more favorably than her, we find no such evidence in the record and no such evidence that such treatment, even if true, was motivated by discrimination. We note that S2 denies making disparaging comments about SC2’s work. Complainant has not provided any evidence other than her own opinion that management was motivated by race or sex. In addition, although Complainant generally alleges that some of management’s actions were punishment for filing an EEO claim, she has not identified any evidence to suggest that the Agency was motivated by retaliation. Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by discrimination. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 (Aug. 14, 2019). Lastly, Complainant failed to show that the Agency’s asserted legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. Thus, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021003205 7 CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. 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. 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. 2021003205 8 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 August 17, 2022 Date