Matilda C.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 11, 2018

0120160854 (E.E.O.C. Sep. 11, 2018)

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

Matilda C.,1
Complainant,

v.

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

Appeal No. 0120160854

Agency No. 15-68967-00306

DECISION

On December 18, 2015, 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
November 12, 2015, final decision concerning her equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo.
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 Program Analyst
(Installation Navy Gold Star Coordinator) at the Agency’s Fleet and Family Support Center in
Everett, Washington.

On November 29, 2014, Complainant filed an EEO complaint wherein she claimed that the
Agency discriminated against her on the bases of her age (58) and reprisal when on September 16,
2014, she was terminated from her position as an Installation Navy Gold Star Coordinator.

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 EEOC Administrative Judge

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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(AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected her to discrimination as
alleged. The record reveals that Complainant was appointed to the Gold Star Coordinator position
effective August 7, 2014, and she was required to serve a one year probationary period. Prior to
being selected for this position, Complainant worked at the same Agency facility as a Life Skills
Educator in a contractor capacity for a private corporation from July 1, 2008 to August 17, 2014.
Upon being selected for the Gold Star Coordinator position, Complainant believed that her
supervisor would be the Supervisory Work and Family Life Specialist. Shortly after being
selected, Complainant was sent for training. During her training, Complainant was informed that
her direct supervisor would instead be the Supervisory Family Support Site Manager. The
Supervisory Program Manager was her second level supervisor.

Subsequent to her training, on August 26, 2014, Complainant met with her direct supervisor. The
Agency noted that Complainant told her supervisor that she was unhappy about her being her
supervisor based on past issues between them, and that she informed the supervisor she would not
have applied for or accepted the position had she known that she was going to be her supervisor.
The supervisor notified Complainant that she had received unfavorable feedback about her conduct
during training. The supervisor told Complainant that she heard that Complainant had not been
social; she did not take notes; and she was distant. The Agency stated that Complainant responded
that there was little time to socialize other than during lunch; she did decline to go out for drinks
at night; and the training information was provided using Power Point presentations and they were
given the slides, so notetaking was not important.

The Agency noted that Complainant stated that in response to the meeting with her supervisor, she
requested a meeting with the Supervisory Program Manager, and that she met with him on August
28, 2014. According to Complainant, she presented her concerns during that meeting and the
Supervisory Program Manager told her he would look into it and get back to her. On September
16, 2014, the Supervisory Program Manager issued Complainant a Notice of Separation During
Probationary Period. The Notice stated that Complainant failed to meet the minimum job
expectation of the position. The Notice further stated that Complainant failed to demonstrate
enthusiasm for the program and trust in the management team; that Complainant expressed her
unwillingness to work with her supervisor; and that Complainant would rather resign than continue
working with her supervisor. Additionally, the Notice indicated that Complainant had expressed
dissatisfaction with her supervisor, work assignment, office, other working conditions and that it
did not appear to be a mutually beneficial working relationship.

The Agency determined that Complainant failed to establish a prima facie case of reprisal. The
Agency stated that Complainant had not previously engaged in EEO activity. According to the
Agency, in 2011, an incident occurred that was raised by Complainant in conjunction with the
supervisor, but that it was a non-EEO related matter. The Agency stated that Complainant
acknowledged she had not engaged in prior EEO activity. The Agency reasoned that there could
be no causal connection of any prior EEO activity to Complainant’s termination.
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In terms of alleged disparate treatment based on age, the Agency determined that Complainant
failed to set forth a prima facie case. The Agency stated that Complainant failed to identify
similarly situated individuals outside of her protected class who received more favorable treatment.
The Agency observed that Complainant claimed that a coworker who was in her thirties had
infractions during the training but was not terminated. The coworker was a Regional Gold Star
Coordinator at the regional level in Keyport, Washington and Complainant was a Gold Star
Coordinator at the installation level. The Agency reasoned that the coworker was not similarly
situated to Complainant because she did not have the same supervisors, she worked at a different
location and she held a different position. Further, the Agency stated that there is no indication
that the coworker engaged in the same or similar conduct as Complainant such as failing to
demonstrate enthusiasm for the program and trust in the management team; unwillingness to work
with her supervisor; and a desire to resign rather than continue working with her supervisor.

Assuming arguendo that Complainant established a prima facie case of discrimination, the Agency
determined that it articulated legitimate, nondiscriminatory reasons for its actions. The Agency
stated that the Family Readiness Regional Program Director (FRRPD) asserted that Complainant
during her training did not make a positive impression on the CNIC Headquarters Program
Director because Complainant did not take notes during the training and complained about her
supervisor. The FRRPD stated that she informed the supervisor of these issues after Complainant
returned from training. The Agency noted that the supervisor was the selecting official for the
Gold Star Coordinator position. According to the supervisor, when the position was recruited, she
believed the Supervisory and Work Family Life Specialist would be Complainant’s supervisor.
However, the position description for this new Gold Star Coordinator position indicated that the
position would report to her, and the FRRPD stated they were not going to deviate from the
position description. The supervisor stated that during the August 26, 2014, meeting, Complainant
stated that if she had known she would be her supervisor, she would not have applied for the
position. The Supervisory Program Manager asserted that Complainant also made this remark in
writing prior to their meeting on August 28, 2014.

According to the Supervisory Program Manager, the supervisor informed him that the trainers
were concerned that Complainant was not outgoing, did not show enthusiasm and did not take
notes. The Supervisory Program Manager asserted that Complainant also did not want to assist at
the front desk and help others in their programs. Further, the Supervisory Program Manager stated
that Complainant did not notify management when she went on leave and that she sent emails to
incorrect email addresses. The Supervisory Program Manager noted that he conferred with the
FRRPD, who agreed it was not a good working relationship with Complainant, and supported his
decision to terminate her. The Supervisory Program Manager asserted that Complainant was only
concerned about her compensatory time, did not trust or want to work with her supervisor, did not
like her office, and was not happy.

The Agency stated that Complainant attempted to establish pretext by arguing that her age was a
factor because her supervisor preferred to surround herself with others who had less experience
and were dependent on her for guidance. Complainant maintained that she did not need nurturing
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and guidance and that a younger employee, the Regional Gold Star Coordinator, had violations
during training and was not terminated. The Agency stated that Complainant believed that the
incident in 2011 precipitated a decline in her relationship with the Supervisor, and that the
Supervisor was seeking an opportunity to get rid of her. The Agency, however, determined that
Complainant did not present evidence to support her contentions. Complainant claimed that she
had limited contact with the Supervisory Program Manger prior to her termination. Complainant
also denied saying that she wanted to resign. The Agency determined that Complainant failed to
show by a preponderance of the evidence that its legitimate reasons for her termination were a
pretext for discrimination.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the Agency failed to conduct an adequate investigation.
Complainant argues that the Agency failed to verify what if anything the trainer told the supervisor
concerning her. Complainant challenges the change in her supervisor as she states that it needs to
be determined who changed the position description, why, and how it was changed. Complainant
insinuates that her supervisor had a role in the change so that she could retaliate against her because
she disliked her since the 2011 incident. Complainant maintains that the final decision utilized the
wrong standard in determining similarly situated employees. Complainant states that the focus
should be on the similarity of the jobs as to tasks, skill, effort, responsibility and working
conditions.

With regard to her claim of reprisal, Complainant states that in 2011, at the Fleet and Family
Support Center, there was an incident where a male employee was threatening the Supervisory
Work and Family Specialist. Complainant claims that she notified her contracting agency of all
the womens’ concerns and fear of the male employee. According to Complainant, the contracting
agency contacted the supervisor about the gender harassment complaint and afterwards, the
supervisor’s behavior and attitude toward her changed as it became abrupt, dismissive and hostile.
Complainant states that although she did not file an EEO complaint, the complaint that she raised
concerned gender-based harassment.

Complainant contends that the Regional Gold Star Coordinator who was recently selected also did
not take many notes and did not go out with the group after classes. Complainant argues that this
behavior was acceptable for this comparison but was not considered acceptable for her.
Complainant states that the only differences are that the comparison had a supervisory function
and a different work location. Complainant further argues that the temporal causal connection
with her termination should be based starting when she became a federal employee under the
supervisor rather than from her anti-discrimination activity in 2011. Complainant states that she
worked under her supervisor for only five days before she was terminated and that the Supervisory
Program Manager used the supervisor’s information and characterizations as the basis for her
termination.

Complainant challenges the Agency’s assertion that she failed to exhibit behavior that
demonstrates enthusiasm for the program, dedication to the Family Services team and trust in the
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management team. Complainant points out that she had been a contract employee working at the
Fleet and Family Support Center since 2008. Complainant states that she received an award for
Customer Service and Professionalism, numerous letters of appreciation and appreciation awards
from commanders, and she had served as a volunteer for the IA Coordinator.

Complainant maintains that although she expressed dissatisfaction concerning her supervisor, she
never stated that she was unwilling to work with the supervisor. Complainant points out that she
had an excellent working relationship with the Supervisory Work and Family Specialist and that
the Agency created a negative situation by changing the position description so that the
Supervisory Work and Family Specialist would not be her supervisor. Complainant argues that
she was misled as to whom the supervisor would be in the new position, but she maintains that she
never stated or implied that she would rather resign than work for the supervisor.

According to Complainant, it is untrue that she expressed dissatisfaction with her work assignment.
Complainant maintains that she was looking forward to assisting the families in the program.
Complainant disputes the assertion that she expressed dissatisfaction with her temporary office.
Rather, Complainant claims that she expressed concern because her files and records were in the
other office, and therefore she could not do everything she was supposed to do in the temporary
office.

In response, the Agency asserts that it did conduct an adequate investigation. The Agency states
regarding the 2011 incident that Complainant’s contemporaneous notes document her displeasure
concerning how management handled the employee’s continued presence in the workplace, but
the notes do not contain any allegations of a discriminatory employment practice committed by
the supervisor, or any reference that the incident involved gender harassment. The Agency
maintains that Complainant did not engage in a statutory complaint process either with the Agency
or with her contract employer. The Agency states that the supervisor was not aware of any claim
of discrimination raised related to the 2011 incident.

As for Complainant’s criticism of the investigation for not obtaining the Trainer’s testimony, the
Agency states that the Family Readiness Regional Program Director asserted that she heard from
the Regional Gold Star Coordinator of concerns about Complainant’s participation in the training.
According to the Family Readiness Regional Program Director, the Regional Gold Star
Coordinator relayed a conversation she had with the CNIC Headquarters Program Director
concerning Complainant’s behavior at the training, as well as her complaints regarding her
supervisor.

With respect to the claim that supervisory responsibilities were changed in the position description,
the Agency states that the position description was created by Commander Navy Installations
Command Headquarters and not at the local level. According to the Agency, when the hiring
actions occurred, the position description had not yet been finalized and it was believed at the
installation level that the position would report to the Supervisory Work and Family Specialist.
However, the Agency states that when the position description was issued, it identified that the
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position would report to the supervisor. The Agency points out that the Supervisory Work and
Family Specialist is responsible for supervising the Work and Family Life Program employees,
including contract employees. The Agency states in contrast the Gold Star Coordinator does not
perform those functions and reports directly to the Installation Program Manager.

The Agency maintains that it utilized the correct standard in determining that Complainant was
not similarly situated to the Regional Gold Star Coordinator. The Agency also argues that
assuming arguendo Complainant’s activities in 2011 can be considered prior protected activity,
there nevertheless is a lack of temporal proximity to her termination. The Agency rejects
Complainant’s attempt to identify the beginning of the supervisor’s supervisory responsibilities
over Complainant as a substitute event for prior protected activity in determining a causal
connection.

The Agency maintains that its reasons for Complainant’s termination were credible and not
pretextual. The Agency states that the termination was recommended based on Complainant’s
resistance to direction regarding her new job duties, her request for a change in supervisor, her
unhappiness with her office location, working conditions and compensation, and her resistance to
criticism. The Agency points to Complainant’s failure to create a positive impression during the
training period and her complaints about the supervisor. Further, the Agency states that
Complainant left for what she considered emergency leave without properly notifying her
supervisor, and instead contacted the timekeeper. According to the Agency, this resulted in a four-
day period of absence without leave and a two-week period of leave. Finally, the Agency asserts
that Complainant’s prior performance as a contract employee is not relevant to its decision to
terminate her during her probationary period. The Agency reasons that Complainant’s prior good
performance as a contractor does not negate her overwhelming resistance to her new supervisor or
to Agency rules.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) she engaged in
protected EEO 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 her protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
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evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The Agency stated that it decided to issue Complainant a termination notice during her
probationary period because Complainant did not trust or want to work with her supervisor, did
not like her office, was not happy with her working conditions, displayed questionable conduct
during her training period, did not follow proper leave procedures when she did not notify her
supervisor of her need to take leave, and she did not demonstrate enthusiasm for the program. We
find that the Agency has articulated legitimate, nondiscriminatory reasons for Complainant’s
termination.

Complainant attempts to establish pretext by challenging the quality of the Agency investigation,
her supervisor’s motivation for the way she was treated, an alleged change in the position
description and the reasons proffered by the Agency for her termination. Complainant challenges
the accuracy of the description of her conduct during the training period given that the Trainer was
not questioned during the investigation. However, upon review, Complainant acknowledges that
she did not take many notes, did not socialize much, and did not go out at night with others when
asked. Those actions, however, are not the crux of the reason Complainant was terminated. The
real reason for the termination, the evidence shows, stems from Complainant’s criticism of her
supervisor beginning during training after she learned that she would be under her supervision.
Given the fact that Complainant continued in that vein during the meeting of August 26, 2014, by
telling her supervisor that she would not have applied for the position or accepted it had she known
she would be her supervisor, it is certainly credible that Complainant spoke in a similar fashion as
reported during the training period. With regard to the alleged change in position description, the
record indicates that the supervisor had no involvement in the creation of the position description
and no influence in the determination that she would be Complainant’s supervisor in the new
position. The Agency stated that the position description was created by Commander Navy
Installations Command Headquarters and not at the local level. The supervisor stated that when
the position was recruited, she believed the Supervisory and Work Family Life Specialist would
be Complainant’s supervisor. However, the position description for this new Gold Star
Coordinator position indicated that the position would report to her, and the FRRPD stated they
were not going to deviate from the position description.

Complainant’s effort to secure a different supervisor is evidenced by her initial meeting with the
Supervisory Program Manager. Even if it is true that Complainant did not state or imply that she
would rather resign than work for her supervisor, her meeting with the Supervisory Program
Manager suggests a clear reduction in her enthusiasm for the program under the established chain
of command. It became apparent to the Supervisory Program Manager that this was an untenable
supervisor/employee situation. The situation as presented seemed rife for potential dissension,
tension and less enthusiasm than desired from Complainant for performing her duties within the
program mission. We find that it is clear that the primary reason for Complainant’s termination
was her attitude toward and lack of trust in her supervisor. We find that the Supervisory Program
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Manager and the FRRPD non-discriminatorily decided the interpersonal conflict presented too
great an obstacle for successful operation of the position and therefore Complainant was
terminated during her probationary status. We find that Complainant has failed to produce
sufficient argument or evidence to establish that the Agency’s reasons for her termination were
pretext intended to hide discriminatory motivation.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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.
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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.
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 11, 2018
Date