Minda W.,1 Complainant,v.James N. Mattis, Secretary, U.S. Department of Defense, Agency.

Equal Employment Opportunity Commission

Oct 3, 2018

0120182037 (E.E.O.C. Oct. 3, 2018)

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

Minda W.,1
Complainant,

v.

James N. Mattis,
Secretary,
U.S. Department of Defense,
Agency.

Appeal No. 0120182037

Hearing No. 570-2016-00081X

Agency No. 2015MDA005

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated May 23, 2018, finding no discrimination with
regard to her complaint alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons,
we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Secretary of the
General Staff, NS-IV, at the Missile Defense Agency's (MDA) facility in Fort Belvoir, Virginia.
On May 21, 2015, Complainant filed her EEO complaint alleging discrimination based on sex
(female) when she was subjected to harassment sufficient to create a hostile work environment
on or about 2010 through March 2015, when:

1. On March 4, 2015, the Chief of Staff, who is Complainant’s immediate supervisor
(S1), engaged in tactics to undermine Complainant’s authority and credibility
when he reassigned duties from her to a Correspondence Management Analyst,
who is Complainant’s coworker (C1), which included: (1) providing responses to

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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Congressional requests; and (2) reviewing all Agency actions going to the
Executive Director for signature, even though that is what Complainant is
supposed to do.
2. During February-March 2015, S1 refused to investigate requests to investigate
and address C1’s conduct, increased C1’s authority, and gave her a staff to
supervise.
3. From fall 2011-March 2015, S1 routinely asked contractors to assign tasks to
Complainant’s employees rather than Complainant and told contractors not to
support Complainant.
4. In January 2015, S1 refused to sign Complainant’s telework agreement and
prohibited Complainant from attending a retirement seminar until Complainant
explained her retirement plans.
5. On or about July 30, 2013, S1 denied Complainant’s access to information she
needed to perform her job.
6. On or about July 30, 2013, S1 rewrote Complainant’s position description to
lessen the scope of her duties and routinely did not respond to Complainant’s
emails even though he was her supervisor.
7. On or about January 23, 2013 - March 4, 2013, and March 11, 2013-June 27,
2013, S1 did not contact Complainant during the grievance process even though
the Agency’s directives mandate Complainant have an opportunity to express her
views.
8. On or about fall 2011, S1 referred to Complainant as “fucking [Minda W.].”
9. From 2010-2011, S1 told colleagues that Complainant’s hiring at MDA was
illegal.
10. On or about February-March 2013, S1 assigned C1 to his supervision rather than
Complainant, even though C1 had worked for the previous Secretary of the
General Staff.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On December 12, 2016, the Agency filed a Motion for
Summary Judgment. Complainant filed his response on January 3, 2017. On April 21, 2018, the
AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final
order implemented the AJ’s decision. Complainant appealed.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
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evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ incorporated the Agency’s Motion for Summary Judgment and found
that Complainant failed to establish that she was subjected to a hostile work environment. To
establish a prima facie case of hostile work environment, Complainant must show the existence
of four elements: (1) she is a member of 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 the 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 work environment and/or creating an intimidating, hostile, or
offensive work environment. Complainant v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993),
the Supreme Court reaffirmed the holding of Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67
(1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions
of a complainant's employment.

Regarding claim (1), the report of investigation establishes the strained working relationship of
C1 and Complainant over a period of time with each believing the other was responsible for the
discord. In early March 2015, S1 noted a conflict between C1 and Complainant hindered the
Agency’s ability to rapidly respond to Congressional inquiries. S1 admitted that due to this
conflict he recognized a need to clearly delineate duties between Complainant and C1’s work
groups. S1 stated this delineation of how Congressional inquiries were handled was not based on
Complainant’s or C1’s sex but on processing inquiries without conflict or inefficiency.

Regarding claim (2), the conflict between C1 and Complainant reached a tipping point on
February 11, 2015, when an altercation between the two of them occurred. In response to
complaints regarding the altercation, S1 contacted Human Resources for guidance. Thereafter,
contrary to Complainant’s allegation, S1 gave C1 a letter of counseling and required her to take
anger management training. S1 did not condone C1’s conduct, did not increase her authority, or
provide C1 additional staff to supervise as a result of this altercation or Complainant’s sex.

Regarding claims (3), (4), (5), and (7), even assuming Complainant’s allegations were true, over
S1’s direct rebuttal, Complainant has not provided any evidence to support the claim that any
actions taken by S1 was based on Complainant’s sex. S1 directly refuted that he instructed
individuals not to work with Complainant because of her sex. S1 stated he has always approved
Complainant’s telework prior to 2014. When her telework agreement was due to be revalidated
in October 2014, Complainant admitted she had not submitted it but it was “somewhere on her
desk.”
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S1 detailed that per the rules information regarding the need for outside training such as the
retirement seminar is required. Additionally, S1 denied the claim that he denied her access to
information to hinder her job. Specifically, regarding the Director’s End-of-Week Reports, S1
explained that only two other people on his staff have need to know requirement for access to the
full report. Complainant still receives the report in its sanitized version. Moreover, Complainant
failed to provide any evidence that any delay in the grievance process by S1 was due to her sex.

Regarding claims (6) and (10), it is within S1’s supervisory duties to reorganize his staff and
position descriptions. S1 detailed that he rewrote Complainant’s position description to update
changes from Complainant’s predecessor and changes in leadership at a higher level.
Complainant provided no evidence to support that the revision or reassignment of C1 was based
on her sex. Moreover, S1 directly refuted that he had failed to respond to Complainant’s email
and provided emails to support this rebuttal. S1 detailed many of his responses were face to face
with Complainant. He also detailed he did not respond to combative emails or requests involving
organizational inquiries as he reports to senior leadership for those matters.

Regarding claims (8) and (9), assuming arguendo to be true, we find that Complainant failed to
show how S1’s comments were based on her sex or severe enough to alter a condition of her
employment. The comment in fall 2011 was refuted by S1 and Complainant’s alleged witness.
From Complainant’s affidavit, we determined Complainant did not actually hear the comment.
Regarding the claims that Complainant’s hiring was illegal, Complainant did not detail if she
heard the comment or how she was affected by the comments.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s Motion.
Upon review, the AJ found and we agree that Complainant was not subjected to harassment.
Complainant failed to establish that any of the incidents, assuming they occurred, were related to
any protected basis of discrimination. Based on the foregoing, we find that Complainant failed
to show that the Agency’s actions were motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact
or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil action,
you must name as the defendant in the complaint the person who is the official Agency head or
department head, identifying that person by his or her full name and official title. Failure to do
so may result in the dismissal of your case in court. “Agency” or “department” means the
national organization, and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil action will terminate the
administrative processing of your complaint.
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RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests. Such requests do not alter
the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to
File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

October 3, 2018
Date