Katina R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 21, 20180120172582 (E.E.O.C. Nov. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Katina R.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120172582 Agency No. 16-63126-01428 DECISION On July 21, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 22, 2017 final decision concerning an 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. BACKGROUND During the period at issue, Complainant worked as a Human Resources Assistant, DG-0203-05, at the Agency’s Corporate Operations Group, Total Force Strategy & Management Department, Personnel Policy & Programs Division, Naval Air Weapons Division in Point Mugu, California. On April 14, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against her based on race (African-American) and in reprisal for prior EEO activity when: 1. on or around January 5, 2016, her first level supervisor (supervisor) informed her that she would be receiving a rating of “partially met” on one of her Science and Technology Reinvention Laboratory (STRL) objectives for FY15; 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. 0120172582 2 2. she was not selected for a Human Resources Specialist, DA-0201-03 position advertised under Merit Promotion Announcement No. NE60201-04- 1605208P0302583, for which she applied; 3. she was subjected to harassment and a hostile work environment on the bases of race and reprisal when: a. on or around January 5, 2016, the supervisor stated “you will never become a specialist within this department” and “it would be in your best interest to seek employment outside of this command if you are seeking upward mobility;” b. on or around January 11, 2016, she filed for reconsideration of her FY15 STRL rating and she was denied a reversal of rating; c. on or around February 19, 2016, she arrived at the selecting official’s office for an interview where the Human Resources Director was present as well, and she had not been informed that he would be sitting in on the interview; d. on or around April 4, 2016, the Branch Head/Supervisory Business Financial Manager (HR Specialist) spoke to her and treated her in a belittling manner during a new employee orientation session;2 e. on or around April 5, 2016, the HR Specialist spoke to her in a demeaning, hostile, intimidating and belittling manner concerning an email that she had sent to Office of Civilian Personnel and Human Resources (OCHR); f. on or around April 7, 2016, the supervisor approached her and asked what had occurred between her and the HR Specialist and he did not acknowledge her concerns but clearly defended the HR Specialist’s actions; g. on or around April 15, 2016, during a meeting with the supervisor and HR Specialist, the HR Specialist stated that since Complainant had filed an EEO complaint against her, Complainant had made the working environment hostile, and her demeanor was aggressive, hostile and unwarranted; and; h. on or around April 19, 2016, the supervisor denied her request for advanced sick leave. 2 The record reflects that Complainant identified the HR Specialist (Total Force Consultant) as the responsible employee relating to claims 3.e. – 3.g., not the Branch Head. 0120172582 3 After the investigation of the claims, 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. In accordance with Complainant’s request, the Agency issued a final decision on June 22, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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 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); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find that responsible management witnesses articulated legitimate, non-discriminatory reasons for the disputed actions. Regarding claim 1, Complainant asserted that on or around January 5, 2016, her supervisor informed her that she would be receiving a rating of “partially met” on one of her STRL objectives for FY15. The supervisor (Caucasian) stated that while Complainant had three job objectives, he rated her overall “as a three (mission successful) on her rating, which is her official rating of record. 0120172582 4 I rated her as a two (partial mission success) on objective number two – ‘Customer Service and Support.’” Specifically, the supervisor explained that Complainant’s primary responsibility is to process personnel actions and “this work requires a high degree of teamwork and collaboration, both internal (teammates) and external (customers).” Further, the supervisor stated that the feedback he received from other Human Resources (HR) Lead, HR advisor, and HR technicians was that Complainant “was not flexible, was non- cooperative and did not meet their needs, or provide the level of support she needed to, as a senior technician.” Complainant asserted that she merited a higher rating in the following element “Customer Service and Support” because she met all her requirements and was not told she was not meeting her requirements. The supervisor stated, however, that during the performance period, he had several discussions with Complainant about team work, being supportive and picking up some of the workload to assist other co-workers in the office. The supervisor further stated that these required actions are under Complainant’s position description and “when I met with Complainant during her mid-year assessment I stressed these points during the review.” The supervisor recalled one incident that in September 2015, the HR Specialist (Total Force Consultant) asked Complainant to make changes to the “New Hire List” in which she was responsible for putting together the bi-weekly list of new hires for orientation. The HR Specialist requested “some formal changes to improve our access to information during Orientation. Complainant was unwilling to update or reformat the list with the requested changes and she was not cooperative.” Regarding claims 2 and 3.c., Complainant alleged that she was not selected for a Human Resources Specialist, DA-0201-03 position advertised under Merit Promotion Announcement No. NE60201-04-1605208P0302583, for which she applied. Complainant alleged further that on or around February 19, 2016, she arrived at the Selecting Official’s office for an interview where the HR Director was present as well, and she had not been informed that he would be sitting in on the interview. The HR Director, also Complainant’s second level supervisor, stated that he sat in on all the interviews for the position of HR Specialist because there was a likelihood of him having to cover the former supervisor’s position when she departed and he would be covering her position until a replacement came onboard. The HR Director stated that following the interviews, there was no selection because the applicants, including Complainant, did not fit the requirements of work for the subject position. Moreover, the HR Director stated that all of the applicants, including Complainant, were aware of his participation in the interview when they arrived for their interviews. The HR Director further stated that he sat in on the interviews “for continuity since [former supervisor] would be retiring soon.” 0120172582 5 After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that management’s explanations for the disputed actions were a pretext for discrimination or motivated by discriminatory or retaliatory animus. Hostile Work Environment With regard to Complainant’s hostile work environment claim, to establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases – in this case, her race or prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Regarding claim 3.a., Complainant alleged that on or around January 5, 2016, the supervisor stated, “you will never become a specialist within this department” and “it would be in your best interest to seek employment outside of this command if you are seeking upward mobility.” The supervisor denied making the statements to Complainant. The supervisor stated that the January 5, 2016 meeting was related to Complainant’s performance rating for the year and his reasons for giving her his rating. The supervisor stated that during the discussion, Complainant asked about upward mobility opportunities in the organization and the supervisor explained to her that management did not have a formal upward mobility opportunities but “if she was interested in advancement, the path forward was through merit promotion opportunity because our organization did not have a lot of turnover and we generally fill position from outside.” The supervisor stated that despite his explanation, Complainant kept returning to the subject of upward mobility opportunities and indicated that it would be better for the Agency to hire personnel within the organization. The supervisor stated that he encouraged Complainant “to look for opportunities, inside, outside and external to our organization to case a wide net for success. We talked for about an hour to an hour and a half. I never made this statement to Complainant, and there was never a negative connotation to anything in this conversation.” Regarding claim 3.b., Complainant asserted that on or around January 11, 2016, she filed for reconsideration of her FY15 STRL rating and she was denied a reversal of rating. 0120172582 6 The Branch Head/Supervisory Business Financial Manager (Caucasian) stated at that time, she was asked to do a STRL reconsideration review requested by Complainant and was given guidance on how to process with the reconsideration and how to write up for the decision which was part of the STRL policy. The Branch Head stated that she received Complainant’s claim for reconsideration, self-assessment on stated STRL Objectives where she provided feedback on how she performed, position description for her pay grade and “benchmarks for the same which addressed how someone meets mission success.” The Branch Head further stated that she conducted interviews with Complainant, the supervisor and a HR Specialist as part of her assessment. The Branch Head stated that following the reconsideration review, she determined that the rating “based on the benchmark and interviews I conducted, was appropriate, and I recommended that the rating not be changed.” The Branch Head stated that as a senior technician, Complainant “should be anticipating and overcoming difficult obstacles; adjusting easily to changing workload; organization and prioritizing tasking; and performing her duties effectively and efficiently. She had difficulty dealing with changing workload and adjusting to supporting changing customers.” The supervisor acknowledged that in mid-February 2016, he was interviewed by the recommending official, the Branch Head over the telephone and provided feedback on his reasoning for his recommendation which was based on Complainant’s performance. The supervisor explained that the recommending official was responsible for providing a recommendation to the Weapons Division Director “on whether the recommendation was correct or not on Complainant’s rating.” Regarding claim 3.d., Complainant asserted that on or around April 4, 2016, the HR Specialist spoke to her and treated her in a belittling manner during a new employee orientation session.3 The HR Specialist (Caucasian) stated that during the relevant period, Complainant assisted her as a Total Force Consultant, but was not her supervisor. The HR Specialist denied Complainant’s allegation that she spoke to Complainant in a belittling manner. Specifically, the HR Specialist stated “I have never spoken to the Complainant in a belittling or unprofessional manner. I don’t have a specific recollection of this day, but what I can say is that there have been a number of different problems with [Complainant’s] involvement with employee orientation related to her failure to complete tasking and work as a team to make events successful.” Regarding claim 3.e., Complainant asserted that on or around April 5, 2016, the HR Specialist spoke to her in a demeaning, hostile, intimidating and belittling manner concerning an email that she had sent to the OCHR. 3 The record reflects that it was the HR Specialist (Total Force Consultant) was the responsible employee concerning claims 3.d. – 3.g., not the Branch Head. 0120172582 7 The HR Specialist again denied Complainant’s allegation relating to the April 5, 2016 incident. The HR Specialist stated that at that time she and Complainant discussed a release date for an employee and Complainant was trying to get a release date and “I informed her that I would talk to the Administrative Officer to get a release date. They emailed me a release date that had Department Head approval from [Department Head], who is over both the losing and gaining supervisor. I provided the email to Complainant and requested she sent the release to OCHR, no name was mention, the Complainant expressed concern the email from [supervisor] was not related to the email strings of the supervisor (name I do not recall).” Further, the HR Specialist stated that she explained to Complainant that the Department Head was over the supervisor and that it would be fine to send an email to OCHR with the release date. The HR Specialist stated, however, Complainant did not want to use the release date and wanted to wait and get a date from the individual’s supervisor. The HR Specialist stated that when she asked Complainant why she sent an additional email after she gave her the release date, she responded saying she was not comfortable taking direction from her. The supervisor stated that she told Complainant she would be willing to speak with the supervisor “at that very moment and [Complainant] said go ahead, so I left her area. We were never loud during this conversation and we were both seated at the entire time….so I informed [supervisor] of what had happened and he said he wanted to meet with both of us.” Regarding claim 3.f., Complainant claimed that on or around April 7, 2016, the supervisor approached her and asked what had occurred between her and the HR Specialist and he did not acknowledge her concerns but clearly defended the HR Specialist’s actions. The supervisor stated that he approached Complainant and “spoke with her to get an understanding of what happened during her discussion with [HR Specialist] regarding the release date. The supervisor stated that according to Complainant, the HR Specialist was rude and unprofessional. The supervisor stated that he attempted to ascertain the reason that Complainant did not want to use the release date, Complainant could not explain why there was an issue using the release date. Furthermore, the supervisor stated “this should have been a very simple and routine issue for Complainant to handle and I could not understand why it was a source of disagreement between the two. Quite frankly, it seemed like the Complainant was just disagreeing to disagree.” Regarding claim 3.g., Complainant alleged that on or around April 15, 2016, during a meeting with the supervisor and HR Specialist, the HR Specialist stated that since Complainant had filed an EEO complaint against her, Complainant had made the working environment hostile, and her demeanor was aggressive, hostile and unwarranted. The HR Specialist denied Complainant’s allegation relating to the April 15, 2016 meeting. The HR Specialist stated that the supervisor provided her and Complainant an opportunity to express their concerns and “I was very open and forthcoming about what I believed would help better the situation. I expressed an open and honest desire to develop a more collaborative relationship. 0120172582 8 I told [Complainant] that I would l really like for us to have a good working relationship and that I am willing to work to achieve it. [Complainant’s] response never really changed.” Further, the HR Specialist stated that she was surprised that Complainant would show up to a meeting were the purpose was to try and get the issues she raised resolved and “then assert nothing was wrong and not participate…the meeting didn’t really accomplish anything because of [Complainant’s] failure to engage or even acknowledge the issues, much less try to resolve them.” The supervisor stated that during the meeting which lasted an hour and half, Complainant’s only response was that she knew what her job was and “she could do her job. Complainant was not willing to engage in the discussion. This was quite frustrating because it was clear that the Complainant had raised an issue, but then refused to engage to find a remedy. [HR Specialist] engaged in the conversation and explained what she felt would make the working relationship better…I believe [HR Specialist] was frustrated and upset because while [HR Specialist] was a genuine attempt to discuss these issues the Complainant was clearly unwilling to participate or contribute to the discussion.” Regarding claim 3.h., Complainant asserted that on or around April 19, 2016, the supervisor denied her request for advanced sick leave. The supervisor stated that on April 19, 2016, Complainant gave him a slip from her doctor stated that Complainant needed to be off work until May 2, 2016. The supervisor explained to Complainant that he could not approve her request, “because the treatment slip from her doctor did not provide any information that would warrant advanced sick leave.” The supervisor stated that he asked Complainant to get more specific information related to her medical condition so he would have justification “such as the condition, treatment, prognosis or the fact that she was incapacitated or restricted from working.” The supervisor acknowledged that Complainant brought another slip from her doctor but “still did not have the required information necessary for me to justify approving her request for advanced sick leave.” After careful consideration of the evidence of record, we conclude Complainant simply failed to prove that her treatment in the above-described incidents was the result of her race or prior EEO activity. 0120172582 9 CONCLUSION We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence of record does not establish that discrimination occurred.4 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) 4 On appeal, Complainant does not challenge the May 11, 2016 partial dismissal issued by the agency regarding four other claims. Therefore, we have not addressed these issues in our decision. 0120172582 10 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 November 21, 2018 Date Copy with citationCopy as parenthetical citation