Simonne J.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Dec 7, 2018

0120172295 (E.E.O.C. Dec. 7, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Simonne J.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120172295

Agency No. HHSHIS01792015

DECISION

On June 9, 2017, 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, 2017, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory Store
Associate, GS-1101-06, in the Parris Island Commissary, located in Port Royal, South Carolina.
On October 5, 2016, 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 (Caucasian) and
sex (female) when, on July 8 and August 3, 2016, the Store Administrator (S1) chose to protect
one of Complainant’s subordinates (SUB) who threatened her.

After 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 EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29

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.
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C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency
subjected her to discrimination as alleged.

FACTUAL BACKGROUND

Complainant received an envelope at her workplace on June 30, 2016, that contained printouts of
Facebook posts written by SUB. Complainant asserts that SUB was out on leave when she
received the Facebook printout showing that SUB had posted: “When you work for a clown for a
supervisor and it stresses you out, it is not good…I want to smash her real bad. Really want to
hurt her…Fortunately I know the root of the stress and it will be dealt with.”

Complainant brought the Facebook post to the attention of S1, the Store Director (S2), and the Port
Royal Police Department. Complainant also asserted that she petitioned for a restraining order.
Complainant stated that S1 removed SUB from her supervision and her direct work area as of July
8, 2016, when SUB returned from leave. Complainant alleged that while S1 removed SUB from
Complainant’s supervision and direct work area, he did not discipline SUB. Because no further
action was taken against SUB, Complainant believed there was preferential treatment and that
management failed to protect her from a hostile work environment.

Complainant further asserted that SUB’s presence at the workplace continued to create a threat.
Although, the record is devoid of evidence that any inappropriate conduct took place after June
30, 2016. The undisputed record shows that Complainant’s doctor removed her from work for 45
days due to the impact of the threat she perceived. During her leave, on August 3, 2016,
Complainant came into the Commissary to provide medical documentation regarding her absence.
Complainant claimed that when she arrived, she found SUB working at the store. Complainant
alleged that SUB’s continued presence created a continuation of the hostile work environment.
Complainant believed that S1 favored SUB because they are both Black males.

S1 asserted that he conducted an investigative inquiry and removed SUB from Complainant’s
supervision, assigned him to a different section of the Commissary, and scheduled him with as few
overlapping hours as possible. S1 affirmed that he discussed the matter with the Zone Manager
(ZM)2 who informed S1 that Complainant filed a restraining order, and that he should hold on
further action.

S1 asserted that he proposed a Letter of Reprimand against SUB, which he forwarded to the Human
Resources Specialist (HRS) on July 28, 2016. HRS informed him that the action needed to be
suspended because Complainant had escalated the issue up the Agency chain of command. S1
noted that another Agency investigation into the matter was conducted, although he was not aware
of its findings. S1 asserted that HRS did not recommend administrative leave or removal, nor
could SUB be reassigned to the night crew because of work limitations for which SUB has a
reasonable accommodation. In addition, S1 claimed that he had no advance notice that
Complainant planned to come to the Commissary on August 3, 2016.

2 ZM was stationed at the Fort Brach South in Fayetteville, North Carolina.
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S1 noted that there was no allegation that SUB and Complainant interacted on that day. S1 refuted
Complainant’s allegation that he protected SUB over her, stating he took her allegations seriously
and acted accordingly. S1 further asserted that he and SUB did not have a relationship beyond a
supervisor-employee work relationship. S2 corroborated S1’s account and noted that management
followed the advice given by the Human Resources department (HRD)

ZM indicated that appropriate action was taken per Agency protocols and Security Police and HRD
were alerted. ZM explained that the Security Police did not consider the Facebook post to be a
threat, but rather poor judgment on the part of SUB. Through consultation with HRD, SUB was
scheduled to a different department as Complainant. Alternate measures were considered, but
SUB could not be assigned to another position in the Commissary as he was the lowest grade
employee, and all other positions require higher-grade work. Similarly, ZM stated that there were
no alternate commissary locations within 50 miles of his current post, so SUB could not be
assigned to another site. ZM also stated that while Complainant was calling for the removal of
SUB; neither Security Police, Store Managers, HRD, nor he considered the Facebook post to pose
an immediate threat. ZM also did not believe that S1 treated SUB more favorably in any manner.

The instant appeal followed. In support of her appeal, Complainant reiterates her contentions that
Agency officials ignored her concerns about SUB and his threatening behavior. Accordingly,
Complainant requests that the Commission reverse the Agency’s final decision

ANALYSIS AND FINDINGS

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 Chapter 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”).

Hostile Work Environment

To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily
protected class; (2) that 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).

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Complainant asserts that based on her race and sex, her supervisor and other managers failed to
take effective remedial action when a subordinate employee made threatening statements on
Facebook. Complainant also alleges that the Agency failed to prevent another incident about 30
days later when she encountered the subordinate during a brief visit to the store to fill out some
paper work related to her sick leave.3

We agree with the Agency that Complainant has not established unlawful harassment.
Complainant has not demonstrated that the alleged conduct at issue was sufficiently severe or
pervasive to establish a hostile work environment. Further, Complainant not shown how the
actions by either her subordinate or her managers were related to her protected classes. When
asked why she believed the actions at issue were motivated by her race and sex, Complainant's
response was to state that both S1 and SUB are Black males. We find this assertion insufficient to
show discriminatory animus in any of the activities described herein. While the record establishes
a conflict between Complainant and SUB, we agree with the Agency that the conflict appears
rooted in the supervisor-subordinate relationship rather than discriminatory animus. We also note
that the posts on Facebook were not made directly by SUB to Complainant and that they did not
include any discussion of race or sex.4

Further, the undisputed record also shows that management officials followed HRS’s advice and
took preventive action prior to SUB’s return to work from sick leave. Although management’s
actions fell short of Complainant's suggested remedies of removing SUB from Federal service,
reassigning him to a different commissary or placing him on administrative leave, management
provided reasonable explanations as to why these remedies were not appropriate. Complainant
has presented no evidence that any similar alleged conduct recurred.

Based upon the record above, we find insufficient evidence that Complainant was subjected to
hostile conduct that unreasonably interfered with Complainant’s work environment or created an
intimidating, hostile, or offensive work environment. We also find insufficient evidence to
establish that management’s actions or the Facebook post were motivated by Complainant’s race
or sex. As a result, we find that Complainant was not subjected to a discriminatory hostile work
environment.

CONCLUSION

Accordingly, 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 decision finding
insufficient evidence establishing discrimination or harassment as alleged.

3 Complainant does not allege that any interaction with SUB took place on that day.

4 It is unclear from the record who gave Complainant the envelope with the Facebook post.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

December 7, 2018
Date