Janiece H.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 2, 2019

0120180265 (E.E.O.C. Aug. 2, 2019)

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

Janiece H.,1
Complainant,

v.

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

Appeal No. 0120180265

Hearing No. 420-2015-00196X

Agency No. DON 15-63093-004722

DECISION

On September 29, 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
August 8, 2017 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. For the reasons which follow, the Commission
AFFIRMS, as modified, the Agency’s decision.

ISSUES PRESENTED

1. Was the Agency’s procedural dismissal of two claims proper?
2. Has Complainant shown by a preponderance of the evidence that the Agency subjected her
to a discriminatorily hostile work environment, suspended her, and assessed her
performance improperly?

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.
2 Complainant’s two complaints, DON 15-63093-00815 and DON 15-63093-00472, were
consolidated under this Agency number.
0120180265

2
BACKGROUND

At the time relevant to her consolidated complaints, Complainant worked as a grade level, GS-6
Supervisory Training Technician at the Agency’s Naval Air Training Center (NATC), Naval Air
Station (NAS) in Pensacola, Florida. From March 2012 to October 2014 Complainant’s first level
supervisor (S1) was the Personnel Management Division Officer, Lieutenant. From October 16,
2014 through March 3, 2015, Complainant reported directly to the Training Support Direction
Head (S2). Complainant’s second level supervisor during this time frame was the Executive
Officer, Commander (S3). Complainant has engaged in prior protected activity.

In her consolidated complaints, filed on January 5, 2015 and February 3, 2015, Complainant
alleged that the Agency discriminated against her on the bases of sex (female), age (58), and
reprisal for prior protected EEO activity when:

1. On October 15, 2014, Complainant was subjected to harassment and disparate
treatment when she was issued a Decision on Proposed Suspension for
insubordination and unprofessional conduct resulting in a five-day suspension
effective October 20, 2014.
2. On December 9, 2014, Complainant received her fiscal year 2014 Performance
Award Review Board (PARB) Notification and learned her overall performance
rating was changed from 4 to unknown and her Performance Award Review Board
recommended award level was lowered from 2.33 in 2013 to 1.33 in 2014, resulting
in a decreased monetary award payment.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation (ROI) and notice of her right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ
subsequently remanded the matter to the Agency for issuance of a decision.3 The Agency issued
its decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant
failed to prove that the Agency had subjected her to discrimination as alleged.

3 In an Order, dated August 18, 2016, the AJ remanded the complaint on the grounds that
Complainant had failed to comply fully with the AJ’s orders. The Agency is reminded that the ROI
should clearly identify all documents in its index so that documents can be located readily and
efficiently. For example, the AJ’s Order followed the indexed and properly identified the
Agency’s decision. However, the AJ’s Order was neither indexed nor identified in a voluminous
record.
0120180265

3
Agency Decision

1. Procedural dismissals

In its decision, the Agency noted that on February 4, 2015, it procedurally dismissed claim 1, the
proposed suspension, because it was a proposal to take a personnel action or other preliminary step
to taking a personnel action.

The Agency also noted that on February 15, 2015, the Agency dismissed another claim, i.e., denial
of Complainant’s right to know the results of the PARB. The Agency dismissed the claim on the
grounds that the allegation failed to state a claim because she had not suffered a loss or harm for
which there was a remedy. The Agency reasoned that because Complainant was notified of her
PARB results and, also, because her request for documentation of her PARB results had been
provided to her, she failed to show that she was aggrieved.

2. Merits of the claims

The Agency concluded that Complainant was suspended based on her unprofessional conduct and
insubordination. The Agency detailed the evidence on which it relied to so conclude. The Agency
noted that Complainant failed to perform the duties and responsibilities required of her position
and that her deliberate insubordination and unprofessional conduct had created an environment
that diminished productivity and destroyed morale and, also, was prejudicial to the efficient and
effective functioning of the office. The Agency found that Complainant had disregarded overtime
and compensatory procedures by failing to request approval in advance, refused to perform her
supervisory duties to certify time and attendance for an employee, failed to respond to an
employee’s request for a temporary promotion, and sent disrespectful and insubordinate emails.

Regarding the performance award, the Agency explained that the recommended award was lower
in fiscal year 2014 than fiscal year 2013 because there were instances in which Complainant failed
in her supervisory duties and engaged in unprofessional conduct during the last quarter of the
performance year. That accounted for her level of performance being lower. S1 and S2
recommended a rating of 1 for Critical Element 1 of Complainant’s evaluation because she had
repeated failures of her supervisory duties and exhibited unprofessional conduct. S1 and S2
recommended a rating of 2 for Critical Elements 2 and 3 because she was performing her work
effectively and she met those standards. S2 also explained that the difference in the recommended
award levels of 2.33 for fiscal year 2013 and 1.33 for fiscal year 2014 was attributable to
Complainant’s pattern of unprofessional conduct in fiscal year 2014, as well as numerous failures
to properly supervise her employees. The PARB, however, awarded Complainant a score of 1
instead of a 2 for Critical Element 3.

0120180265

4

CONTENTIONS ON APPEAL

Complainant contends that the Agency has subjected her to a blatant pattern of unlawful
harassment and retaliation from 2009 when she filed her first discrimination complaint and has
colluded to hide and cover-up and to build a case against her in order to fire her. She asserts that
immediately after she sought assistance for her GS-4 employees who were forced to perform the
workload of GS-5 employees, the most recent attack on her began. Complainant also asserts that
she was verbally assaulted, blamed for overtime her subordinates worked, yelled at by S2 for filing
EEO complaints against him and accused of being an ineffective supervisor. Complainant also
challenges the issuance of her suspension as mostly false and exaggerated. She maintains that the
lower award rating was discriminatory and that the Agency harassed her continuously.

The Agency did not file a brief on appeal.

ANALYSIS AND FINDINGS

Standard of Review

This is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b).
Accordingly, 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). 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.” Id.

Applicable Law

Complainant alleged that she was subjected to discriminatory harassment, disparate treatment, and
reprisal.

1. Harassment

A claim of harassment is examined under the standards set forth in Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC
Notice No. 915.002 (Mar. 8, 1994).

To establish a claim of a discriminatory hostile work environment, 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 his statutorily protected class; and (4) the harassment affected a term
or condition of employment and/or had the purpose or effect of unreasonably interfering with the
0120180265

5
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the agency.

The Court in Harris explained that an “objectively hostile or abusive work environment [is created
when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively
perceives it as such. Harris, 510 U.S. at 21-22. An abusive or hostile working environment exists
“when the workplace is permeated with discriminatory intimidation, ridicule and insult that is
sufficiently severe or pervasive to alter the condition of the victim's employment.” Meritor
Savings Bank v. Vinson, 477 U.S. 57, 65 (1986); see also Oncale v. Sundowner Offshore Services,
Inc., 23 U.S. 75 (1998). Usually, unless the conduct is pervasive and severe, a single incident, or
group of isolated incidents, will not be regarded as discriminatory harassment. Walker v. Ford
Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982); Frye v. Dep't of Labor, EEOC Request No.
05950152 (Feb. 8, 1996); Backo v. U.S. Postal Serv., EEOC Request No. 05960227 (June 10,
1996).

2. Disparate Treatment

Complainant has also alleged that she was subjected to disparate treatment. Where, as here, there
is no direct evidence of discrimination, the adjudication of a complaint of discrimination alleging
disparate treatment follows a three-step evidentiary analysis enunciated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). First, the burden is on the complainant to establish a prima
facie case. Second, the agency has the burden of production to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981).4 Third, in order to prevail once the agency has articulated a legitimate,
nondiscriminatory reason for its actions, the complainant must establish by a preponderance of the
evidence that the agency's stated reason is pretext for discrimination. See Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147.

Pretext can be established either, directly, by a showing that a discriminatory reason more likely
motivated the Agency or, indirectly, by a showing that the proffered explanation is unworthy of
credence. It can be demonstrated by “showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a
reasonable fact finder could rationally find them unworthy of credence.” Dalesandro v. U.S. Postal
Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006), citing Morgan v Hilti, Inc., 108 F.3d 1319,
1323 (10th Cir. 1997).

4 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. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas analysis to 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).
0120180265

6
3. Reprisal

Complainant has alleged that she was subjected to reprisal. She can establish a prima facie case
of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of
discrimination. Specifically, in a reprisal claim, a complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the
protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4)
a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the
Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000).

Analysis

Upon our de novo review, we find that Complainant has failed to show by a preponderance of the
evidence that the Agency subjected her to unlawful harassment, treated her disparately or retaliated
against her. Complainant has failed to show that the reasons advanced by the Agency were
pretextual, that is, they were more likely than not to have been motivated by prohibited
discrimination.

The Agency detailed, at length in its decision, Complainant’s version of the events supporting her
allegations, as well as the statements of Agency witnesses. Therefore, we will not reiterate their
statements here, although the versions of the parties have been fully reviewed and considered. In
addition, we will assume without finding that Complainant has established a prima facie claim as
to each protected basis.

1. Procedural dismissals

The Agency dismissed claim 1, the proposal to suspend, on the grounds that it was a proposed
personnel action.

EEOC Regulation § 1614.107 provides that an Agency can dismiss a complaint that is moot or
alleges that a proposal to take a personnel action is discriminatory, unless the complaint alleges
that the proposal is retaliatory. Here, Complainant alleged that she was subjected to reprisal. A
proposed action can be considered an act of unlawful retaliation. In addition, we note that the
Commission has a policy of considering reprisal claims with “a broad view of coverage.” See
Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Adverse actions need
not qualify as “ultimate employment actions” or materially affect the terms and conditions of
employment to constitute retaliation. See EEOC Compliance Manual Section 8, “Retaliation;”
No. 915.003 (May 20, 1998). See Lindsey v. U.S. States Postal Serv., EEOC Request No.
05980410 (Nov. 4, 1999).

0120180265

7
Likewise, a harassment/hostile work environment allegation does not require an adverse action to
a specific term, condition, or privilege of a complainant's employment to state a claim. In Harris
v. Forklift Systems, Inc., infra, the Supreme Court found that harassment is actionable, even absent
a claim that an agency's action harmed complainant in a specific term, condition, or privilege of
employment, so long as the complainant can otherwise demonstrate that the conduct was engaged
in with the purpose of creating a hostile work environment.

We therefore conclude that the Agency’s dismissal of claim 1 was error. When a complaint is
filed on a proposed action and the agency subsequently proceeds with the action, the action is
considered to have merged with the proposal. Charles v. Dep’t of the Treasury, EEOC Request
No. 05910190 (Feb. 25, 1991). Further, a proposed personnel action can be considered where, as
here, Complainant alleged that the proposed personnel action was retaliatory. However, because
the Agency acknowledged in its decision that the proposed suspension was carried out and
therefore merged with an actual suspension and because the Agency addressed the suspension in
its decision, the Agency’s dismissal was harmless error.

The other claim dismissed by the Agency was Complainant’s allegation that she was denied the
right to know the results of the PARB’s individual rating of the three critical elements on which
she was evaluated in her performance appraisal for the current and past two rating periods. The
Agency dismissed the claim on the grounds that Complainant was not aggrieved because she had
not suffered some harm or loss to a term, condition, or privilege of her employment for which
there was a remedy. The Agency explained that it had provided her with her PARB results in the
same manner as all employees and processed her special request for documentation of her PARB
criteria.

We find that the Agency improperly addressed the merits of the claim. Here, Complainant was
alleging that the Agency engaged in harassing and retaliatory behavior when it denied her the
results of the reduced rating. Therefore, the claim was part of her overall claim of harassment and
retaliation. Nonetheless, the Agency’s error was harmless because it investigated the claim and
included the evidence in support of the dismissed claim in its analysis of claim 2 in its decision.

2. Merits of the claims

Regarding the suspension, claim 1, the Agency articulated legitimate, nondiscriminatory reasons
for suspending Complainant, i.e., insubordination and unprofessional conduct. In June 2014,
Complainant was issued a Letter of Caution which placed her on notice that her conduct was
unprofessional and that further instances would result in disciplinary action.

Complainant was subsequently issued a Notice of Proposed Suspension (NPS), dated September
25, 2014. The NPS provided the reasons for the suspension, i.e., unprofessional conduct and
insubordination. It described disruptive conduct in which Complainant had engaged.

0120180265

8
Regarding the insubordination, the NPS described at length instances of Complainant’s
insubordination including failure to follow compensatory and overtime directives requiring prior
approval before work was performed; refusing to coordinate the temporary promotion requested
by one of her employees; refusing to make a time and attendance correction; and refusal to certify
time and attendance records for her employees.

Complainant did not respond to the NPS. Subsequently, the agency issued a Decision on Proposed
Suspension (DPS), dated October 15, 2014. The DPS noted that the Letter of Caution was not
effective because Complainant’s unprofessional and insubordinate conduct continued unabated
and had escalated. The DPS also noted that the situation had deteriorated to the point where
Complainant’s leaders had to order her to execute the most basic supervisory functions of her
position, which she would refused to perform. The DPS disclosed that even after Complainant
received a directive from her supervisor, she continued to argue and delay implementation or
refused to carry out the directive. The DPS revealed that Complainant’s insubordination and
unprofessional conduct had a destructive effect on the operations and she set a “terrible example”
for other employees to follow. The DPS noted that much of Complainant’s conduct occurred either
in full view or with full knowledge of her staff. It also explained that by conducting herself as she
had, Complainant was communicating to others that it was acceptable to act unprofessionally and
to disregard the orders of Command supervisors. According to the DPS, if other employees were
to follow Complainant’s example and disregard the directives of the leadership, the effects on the
Command’s operations would be “catastrophic and the mission would fail.” Complainant’s
conduct was described as “poisonous” to employee morale and prejudicial to good order and
discipline. Her conduct, according to the DPS, also impaired the Command’s ability to conduct
business and, as such, could not and would not be tolerated.

Based on a review of the record concerning the suspension claim, Complainant has failed to show
that the suspension was part of an unlawful pattern of harassment and was motivated by
discriminatory animus. Absent discriminatory animus, we have held that we will not second-guess
an agency's personnel decisions or substitute our judgment for that of an agency. See Shapiro v.
Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Beyond bare assertions and beliefs
and disagreement regarding how actions should have proceeded in the workplace, Complainant
has failed to show discriminatory animus. The focus of pretext inquiry is whether an agency
actions were motivated by discriminatory animus. The preponderant evidence does not support a
finding that the Agency officials were dissembling to cover up a discriminatory motive.

What is clear from the record, considered as a whole, was Complainant’s continuing unacceptable
behavior and conduct. Complainant did not follow instructions and directives given to her,
proceeded with what she decided was a better course of action, and was belligerent when others,
including supervisors, did not do as she wanted, at the time that she wanted, or in the manner that
she wanted it done. There was certainly friction in the workplace, but it was not causally connected
to a prohibited basis.

0120180265

9
Because an employee has engaged in protected activity of which Agency managers and supervisors
were aware, protected activity does not immunize the employee from discipline, in the absence of
discriminatory animus. Edmond C. v. Dep’t of Housing and Urban Dev., EEOC Appeal No.
0120140517 (Oct. 21, 2016). We have observed that participation in the EEO process does not
shield employees from uniformly applied standards of conduct and performance; nor are the
statutory anti-retaliatory provisions a license for employees to engage in misconduct. Berkner v.
Dep’t of Commerce, EEOC Petition No. 0320110022 (June 23, 2011). The discrimination statutes
also do not shield a complainant from a myriad of petty slights and annoyances. Rizzo v U.S.
Postal Serv., EEOC Appeal No. 01A53970 (Aug. 29, 2005). Not every unpleasant or undesirable
act which occurs in the workplace constitutes an EEO violation. See Shealey v. EEOC, EEOC
Appeal No. 0120070356 (Apr. 18, 2011) (citing Epps v. Dep't of Transp., EEOC Appeal No.
0120093688 (Dec. 19. 2009). The Commission also recognizes that ordinary managerial and
supervisory duties include assuring compliance with agency policy and procedures, monitoring
subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-
related advice and counsel, taking action in the face of performance shortcomings, and to otherwise
manage the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (June
16, 2017).

We next turn to claim 2, the performance award claim and the lower award. We find no
discrimination.

S1, Complainant’s supervisor for the period October 2013 to December 2014, rated Complainant’s
performance as acceptable for the rating period October 1, 2013 to September 30, 2014. It was
the same rating that she had received in fiscal year 2013. Besides, there were only two ratings that
could be given – acceptable or unacceptable.

Complainant’s award level was rated lower because she had repeated failures of her supervisory
duties and exhibited unprofessional conduct during the last quarter in the performance year,
described in the NPS and the DPS which both evidenced that her level of performance was not the
same as in fiscal year 2013. While Complainant may disagree with the recommended award level,
she must connect the rating to a prohibited motive. This she has not done. As stated earlier, the
Commission will not second-guess the personnel decisions of agency officials and substitute its
judgment for that of an agency, absent the presence of discriminatory animus.

In summary, Complainant has not shown by preponderant evidence that she was subjected to a
discriminatorily hostile work environment. The Agency has articulated legitimate,
nondiscriminatory reasons for the actions in which it engaged for which Complainant failed to
establish pretext. Complainant has the ultimate burden of persuasion to show by a preponderance
of the evidence that the Agency discriminated against her. Complainant has failed in this regard.

0120180265

10
CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM, as modified, the Agency’s finding of no
discrimination.

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.
0120180265

11
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 2, 2019
Date