Caroline W.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 23, 2018

0120170319 (E.E.O.C. Oct. 23, 2018)

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

Caroline W.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120170319

Hearing No. 570-2013-00763X

Agency No. 12-67856-02940

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s
appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 8, 2016 final order
concerning an 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 Supervisory Education Specialist, GS-14 at
the Marine Corps University in Quantico Marine Corps Base, Virginia.

On August 15, 2012, Complainant filed a formal complaint. Complainant claimed that the Agency
discriminated against her based on sex (female), and in reprisal for prior EEO activity when:

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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a. In September 2011, while on Temporary Additional Duty at Camp Lejeune, Complainant’s
first-line supervisor, Director, Lejeune Leadership Institute “the director” (male, prior EEO
activity) shared intimate details of his personal sex life with her – although she told him
she was not comfortable with him sharing that information with her;

b. On September 23, 2011, the director talked about his personal sex life again while on a
smoke break outside – again, Complainant alleged she told him she was not comfortable
with him sharing that information with her and she was not the right person to be sharing
that information with;

c. In December 2011, the director stared at Complainant’s chest and made inappropriate
comments about her breasts;

d. From 2011 to March 2012, the director told Complainant his thoughts about other women
in the Marine Corps University and how they expose their breasts and how it was not going
to get them anything, unlike if Complainant exposed hers;

e. From February to March 2012, the director talked about a female contractor that was sitting
in an “un-lady-like” position with a dress or skirt on;

f. In March 2012, after Complainant told the director that he should not have those kinds of
conversations with his other employees, she alleged the director stated “Yeah, yeah, yeah,
I know. You are the only person that I can share this type of information with and know
that it’s not going to go anywhere;”

g. From January 2012 to April 2012, the director threatened Complainant’s job periodically,
took away roles and responsibilities, and said her position might be eliminated;

h. From January 2012 to April 2012, the director threatened to put Complainant on a
Performance Improvement Plan;

i. From March 2012 to April 2012, the director conducted an investigation of coworkers
about their professional relationship with Complainant and asked if they would testify
against her;

j. On April 5, 2012, the director accused Complainant of not completing assigned tasks, not
keeping him “in the loop” on matters (especially budget matters), and accused her of
intimidating employees;

k. From September 2011 to March 2012, the director marginalized Complainant's
professional role by directing her to report, justify management decisions and actions as
the Deputy Director, Lejeune Leadership Institute to her subordinates;

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l. On April 5 and 6, 2012, the director played “head-games” with Complainant by telling her
that 12 of the 15 Lejeune Leadership Institute employees disliked like her, and that 5 of
them had filed written complaints against her;

m. On April 24, 2012, the director came into her office and was tasking a project and once she
asked him if it had to be completed that day, the director yelled words to the effect of: “I
DON'T HAVE TIME FOR THIS [EXPLICATIVE]!”2 then slammed the door and walked
away. Within approximately 5 minutes when she tried to open the door to get help,
Complainant passed out and was taken the hospital and treated for an anxiety attack;

n. When Complainant was permanently removed from her Branch Chief position at the
Lejeune Leadership Institute, the Agency listed false reasons on her SF-50;

o. In May 2, 2012, the director treated Complainant in a disparate manner by excluding her
from the office move date provided to all other employees and by providing her less time
to execute the office move than other coworkers;

p. From May 2 to May 4, 2012, the director assigned Complainant tasks with unrealistic
deadlines despite being aware of the simultaneous date for moving her office he had
required of her;

q. In April 2012, Complainant’s third-line supervisor, then Vice President of Student Affairs
(male, unknown EEO activity), responded to Complainant’s request to reinstate her to her
previous position at Lejeune Leadership Institute, that “they would PIP” her; and

r. On April 5, 2012, the director gave Complainant a Marginal/Unacceptable Performance
Appraisal.

Following an investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. The AJ held a hearing on May 18 and May 19,
2016. On August 22, 2016, the AJ issued a decision finding no discrimination. On September 8,
2016, the Agency issued a final order adopting the AJ’s findings.

The instant appeal followed. On appeal, Complainant challenged the Agency’s final decision but
neither she nor her representative submitted an appellate brief.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings will be upheld if supported
by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence

2 Some witnesses and records demurred in describing the director’s explicative. However, overall,
witnesses confirmed that the director used profanity when emoting frustration.
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as a reasonable mind might accept as adequate to support a conclusion.” See Universal Camera
Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding
regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard
Co. v. Swint, 456 U.S. 273, 293 (1982). An EEOC AJ’s conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held. An AJ’s credibility determination
based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless
documents or other objective evidence so contradicts the testimony or the testimony so lacks in
credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110,
Ch. 9, at § VI.B. (Aug. 5, 2015).
Sexual Harassment — Claims a. through f.
To establish a claim of sexual harassment, a complainant must show that: (1) she belongs to a
statutorily protected class; (2) she was subjected to unwelcome conduct related to her sex,
including sexual advances, requests for favors, or other verbal or physical conduct of a sexual
nature; (3) the harassment complained of was based on sex; (4) the harassment had the purpose or
effect of unreasonably interfering with her work performance and/or creating an intimidating,
hostile, or offensive work environment; and (5) there is a basis for imputing liability to the
employer, in other words, did an agency know or have reason to know of the sexual harassment
and fail to take prompt remedial action. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). The harassing
conduct should be evaluated from the objective viewpoint of a reasonable person in the
complainant’s circumstances. See Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994). An agency may be subject to strict liability for sexual
harassment committed by a supervisor with immediate authority over a complainant that results in
tangible employment actions. See Vance v. Ball State Univ., 570 U.S. 421, 431-432 (2013);
Burlington Indus., Inc., v. Ellerth, 524 U.S. 742 at 762-63 (1998); Faragher v. City of Boca Raton,
524 U.S. 775 (1998).
In the instant case, we note that only Complainant and the director were present for the incidents
described in the first six claims. The AJ concluded that Complainant’s testimony on this issue
“lacked any indicia of credibility” relating to the sexual harassment accusations, whereas the AJ
determined credible the director’s denials. Only one other former employee of the Lejeune
Leadership Institute gave a sworn statement expressing disapproval about the director’s
comportment toward female employees in general and made a comment to him about
Complainant’s tight-fitting boots. During the hearing, many more male and female coworkers
attested to the director’s professionalism and integrity. Taken together, these conflicting
testimonies were in equipoise. See Complainant v. Dep’t of Health and Human Servs., EEOC
Appeal No. 0120122134 (Sep. 24, 2014). As a result, we find that Complainant failed to carry her
burden of to prove that the director subjected her to sexual harassment discrimination. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Additionally, we concur with the AJ that
there was no basis to impute liability to the Agency.
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Disparate Treatment — Claims g. through r.

We analyzed the latter group of twelve claims under the burden-shifting framework that the
Supreme Court of the United States established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). The initial burden is for a complainant to establish a prima facie case of
discrimination. Next, the burden shifts to the agency to articulate a legitimate, nondiscriminatory
reason for the employment action. Then, it is a complainant’s burden to prove by a preponderance
of the evidence that the agency’s proffered reasons were a pretext for discrimination. See Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). However, the prima facie case is
not necessary when an agency has articulated legitimate, nondiscriminatory reasons for its
conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-717 (1983). To
prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s
explanations were pretexts intended to mask unlawful discrimination. See Reeves v. Sanderson
Plumbing Prod., Inc., 530 U.S. 133 (2000).

Here, the Agency has provided legitimate and nondiscriminatory reasons for its decisions
regarding Complainant’s appraisals, supervisory authority, assignment, position description and
other the record reveals that the director fully supported Complainant’s initial hire as his deputy
director for the Lejeune Leadership Institute. The record supports a finding that Complainant
performed adequately at best, but ultimately did not meet the director’s expectations. Specifically,
Complainant struggled with managing her duties while deputy director for the Lejeune Leadership
Institute. For example, in April 2011, the director’s letter of concern stated that Complainant’s
budget plan and other critical deliverables were tardy or incomplete. In May 2011, the director
wrote a memorandum for record because Complainant had caused a fiscal law problem by
directing an improper payment on the organizational credit card. That same year, Complainant
antagonized the employees she supervised to such a degree that one lodged an informal complaint
against her for having an excessively negative management style. In 2012, three other subordinates
filed a union grievance alleging Complainant abused them physically, verbally, and by
withholding approval for leave. In sum, we see no reason to disturb the AJ’s finding no
discrimination in the Agency’s corrective actions that included removing her from management.
This record justified the Agency’s proffered motivations in reassigning Complainant out of the
Lejeune Leadership Institute’s deputy director and branch chief positions into Enlisted
Professional Military Education as a non-supervisory GS-14.

Finally, we note that, at a minimum, the director in the instant matter demonstrated permissiveness
toward “a somewhat vulgar work atmosphere.” For example, during an instructional presentation
on leadership, the director played an offensive video excerpt of a comedy routine wherein a
comedian joked about “shaved pussy.” The director stated that he had made a mistake and
apologized. Nevertheless, it was concerning that during that same instructional session, the
director suggested that one student had received better grades in college only because she was a
physically attractive woman. Moreover, it is undisputed, that the director sometimes emoted his
frustrations by yelling profanities at his employees. The Agency averred that the director routinely
commented on the physical appearance of employees ostensibly to enforce an “unofficial dress
code.”
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Although we found these incidents lacked sufficient severity or pervasiveness to substantiate
Complainant’s claims, the Agency is advised to discourage such conduct, especially from
leadership, though remedial counseling and EEO training.

CONCLUSION

We AFFIRM the Agency’s final order implementing the AJ’s decision finding no discrimination,
because the record fully supported the AJ’s finding that Complainant had failed to prove unlawful
employment discrimination to a preponderance of the evidence.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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).

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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

October 23, 2018
Date