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

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2021003434 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Yun C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003434 Hearing No. 570-2020-01265X Agency No. 19-00124-04780 DECISION On May 28, 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 May 3, 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. 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 worked for the Agency as a tenured AD-1701-07 Professor in the National Security Affairs Department (NSAD) at the U.S. Naval War College (NWC) in Newport, Rhode Island. On January 3, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (62 years old) when: 1. On February 12, 2019, the Provost made a false claim that Complainant accused a colleague (Professor) of plagiarism in an email; 2. From February to June 2019, the Provost directed an investigation into a claim made by Professor against Complainant about her “Lack of Collegiality”; 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. 2021003434 2 3. From May 5-29, 2019, the Provost demanded to review Complainant’s doctor’s note that justified her sick leave during this time and denied her request to have legal representation; 4. On June 6, 2019, the Provost denied Complainant’s request to have legal representation present and denied her a copy of the findings; 5. On June 6, 2019, the Provost told Complainant not to make disparaging statements about Professor and not to actively critique her work; 6. On July 22, 2019, the NSAD Chair issued Complainant a letter of reprimand; 7. On August 5, 2019, the Associate Provost did not allow Complainant to read a prepared statement and demanded that she sign the decision on her grievance of her reprimand; 8. On August 22, 2019, the Provost and the NSAD Chair removed Complainant as the Swanee Hunt Academic Chair of Women, Peace and Security (WPS) and directed her to turn in all chair networks and materials from the past 10 years; 9. From August 23 to September 4, 2019, the Provost directed an investigation into Complainant for sending out emails to colleagues asking that they delete her from their distribution list, denied an extension for Complainant’s interview, and denied her legal representation during the interview; 10. On October 1, 2019, the NSAD Chair questioned Complainant’s request for medical leave; and 11. From November 5 to December 9, 2019, the Associate Provost posted a sexist cartoon on his office door directed at Complainant. 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 timely requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that, assuming arguendo that Complainant could establish a prima facie case of disparate treatment for claims (6) and (8), the Agency articulated legitimate, nondiscriminatory explanations for its actions, and Complainant could not establish pretext for discrimination. The NSAD Chair stated that he issued the letter of reprimand because of emails Complainant exchanged with an officer on the Joint Staff in the Pentagon (Member) after Member’s boss contacted the NWC Vice President to complain about Complainant’s lack of collegiality and noted that Complainant had been verbally counseled for similar behavior on June 6, 2019, and that similar conduct had been addressed with Complainant in 2017. As evidence of pretext, Complainant generally stated that she had never seen the NWC use this type of approach with male professors and that senior tenured women have to fight harder every day compared with senior tenured men, but the Agency determined that this generalized assertion is insufficient to establish pretext. Complainant also accused the Provost of attempting to establish a rift between two talented senior female professors, but the Agency found that this argument was unsubstantiated and concluded that Complainant failed to establish pretext. 2021003434 3 Regarding claim (8), the Provost explained that Complainant was removed as the WPS Chair because the Chair was in charge of organizing the WPS annual conference, that individuals from the Joint Staff and a professor from another university wanted to collaborate with the NWC for the conference, but Complainant had emailed these individuals, asking to be removed from their email lists and not responding to follow-up emails. The NWC President stated that Complainant, as Chair, was expected to maintain close relationships and correspondence with Department of Defense (DOD) entities, yet Complainant took several deliberate actions to cut NWC ties with the DOD WPS community, even after she was counseled by the Provost and received the letter of reprimand from the NSAD Chair. Complainant argued that she should not have been removed as the WPS Chair, characterizing the emails in question as “boundary-setting” of who would and would not have information about WPS Chair activities. However, the Agency found that Complainant sent terse, threatening emails to Member on June 10, 2019, only four days after she was counseled, which led to the letter of reprimand, and she sent terse emails on August 5, 2019, to Joint Staff officials by asking them to delete her from their email lists and cutting off further communication. The Agency determined that Complainant did not establish by preponderant evidence that the Agency’s legitimate, nondiscriminatory reason for removing her as WPS Chair was pretextual. Examining Complainant’s harassment claim, the Agency noted that Complainant established that she is a member of a protected class. The Agency found that the preponderance of the evidence in the record did not establish that some of the instances of harassment occurred as alleged. Although Complainant stated that the Provost falsely accused a colleague of plagiarism, the Agency found that Complainant did accuse a colleague of plagiarism and that, although the PDF stated that Complainant raised concerns about unattributed contributions and unethical appropriation of intellectual work, he did not specifically use the word “plagiarism.” The Agency found that, while the Provost emailed Complainant on June 4, 2019, about a meeting scheduled for June 6, 2019, he told her he would not approve annual leave for that date and that any sick leave request would require a doctor’s note. Complainant attended the meeting and the PDF did not demand a doctor’s note for June 6, 2019, or for any date in May 2019. Moreover, although the NSAD Deputy Chair asked Complainant on September 24, 2019, if she would be able to reschedule her October 1, 2019, medical appointment to attend a department meeting; the Deputy Chair indicated it would be alright if Complainant could not change her appointment, and the Agency found that no one questioned Complainant’s request for sick leave. Regarding August 5, 2019, the Agency determined that, although Complainant wanted to read a statement to open the meeting, the Associate Provost expressed willingness to discuss her statement after discussion the reprimand and the grievance and asked her to sign the disposition of the grievance to indicate receipt. The Provost stated that he directed an investigation into Complainant’s emails based on complaints that Complainant appeared to be cutting off communications, which was contrary to the expectations for the WPS Chair. Regarding the cartoon, the Agency determined that it was not “sexist” on its face and that Complainant failed to show that sex or age were factors in the Associate Provost posting it on his door, noting that he stated he posted the cartoon because he found it funny and denied that it was directed at Complainant or anyone else. Finally, the Agency found that Complainant failed to establish that the alleged harassment was severe or pervasive, observing that all of management’s actions were within its scope of authority. 2021003434 4 The Agency further found that the alleged harassment was not based on Complainant’s sex and/or age. The record established that, after Professor complained that Complainant was bullying her, the Provost attempted to informally resolve the matter and, when he could not, opened a formal inquiry into the bullying claims as well as Complainant’s allegations of plagiarism. The Provost explained that Complainant was not permitted to have legal representation at the June 6, 2019, meeting to discuss the findings because it was not a disciplinary or punitive meeting and that he did not provide Complainant a copy of the inquiry’s findings, as some findings dealt solely with Professor. The Agency determined that the Provost asked Complainant not to make disparaging statements about Professor or to actively critique her work because it was an expectation of all faculty members, noting that the Provost gave a similar directive to Professor. The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. The instant appeal followed. On appeal, Complainant contends that she established that she was subjected to a hostile work environment. Complainant characterizes the cartoon on the Associate Provost’s door as an image of “a female that has been ‘killed off’ by an authoritarian figure,” a clear reference to Complainant because she was “the only woman” that management “was trying to annihilate” at the time. According to Complainant, she was targeted with unwarranted charges and harassed while on sick leave. 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”). Concerning her allegations of disparate treatment, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Concerning her allegation of a hostile work environment, we note that Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993) is controlling. Upon careful review of the Agency’s decision, the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish that the Agency subjected her to discrimination or harassment as alleged. For example, the Agency properly determined that Complainant failed to establish that the cartoon posted on the Associate Provost’s office door constituted harassment based on sex or that it was posted in reference to Complainant. 2021003434 5 The cartoon in question is a newspaper clipping of a single frame “Mother Goose & Grimm” comic strip from the Sunday, September 15, 2019, edition of the Providence Journal. Report of Investigation (ROI) at 151. In the comic strip, two men are standing near an enclosed container and one man, who is shorter than the other, tells the other man, “You’re too late, we had her cremated.” Id. The taller man has a crown on his head and has a sword. Id. The Associate Provost described the shorter man as a dwarf and called the taller man Prince Charming, an apparent reference to Snow White. ROI at 732-34. Further, the record reflects that, when the Associate Provost learned that Complainant was offended by the comic strip, he took it down from where it was posted on the inside of his office door. ROI at 732. Complainant has not established by preponderant evidence that she was subjected to disparate treatment or harassment based on sex and/or age. Accordingly, we AFFIRM the Agency’s final 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. 2021003434 6 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 September 20, 2022 Date