[Redacted], Angella F., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 6, 2021

Appeal No. 2021004095 (E.E.O.C. Oct. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angella F.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004095 Hearing No. 520-2020-00164X Agency No. 19-39040-02498 DECISION 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 June 3, 2021, final 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. 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 Supervisory Contract Specialist, GS-13 under a two-year probationary period at the Agency’s Contracting and Logistics Department, Contracting Division, Strategic IT Support Branch facility in Portsmouth Naval Shipyard in New Hampshire. Complainant was promoted to the supervisory position in May 2018. In January or February 2019, Complainant informed her first line supervisor (S1) that she had recently had a contentious break-up with her boyfriend who was a Deputy Project Superintendent on a project Complainant was responsible for. 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. 2021004095 2 She asserted that her ex-boyfriend was bullying her and attempting to frustrate her ability to effectively meet her responsibilities with respect to the project. She requested to be removed from the project, but S1 told her that she was strong enough to handle the situation professionally. In March 2019, Complainant filed a complaint against her ex-boyfriend with the encouragement of S1. After an EEO consultation, she ultimately filed a request for an Administrative Investigation with the Shipyard Commander, Code 1100 Dept. Head and Shipyard Legal against her ex-boyfriend. On June 27, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female), retaliated against her for protected EEO activity, and subjected her to a hostile work environment under Title VII of the Civil Rights Act of 1964 when: 1. On March 29, 2019, Complainant’s first-level supervisor (S1) asked her to sign a Letter of Expectations. 2. In April 2019, S1 and Complainant’s second-line supervisor (S2) stopped inviting her to management meetings, thereby keeping her isolated from the team. 3. On April 17, 2019, S1 gave Complainant an unsatisfactory performance appraisal rating in three of six critical elements. 4. On April 29, 2019, S2 gave Complainant a Notice to Terminate Supervisory Appointment During Probationary Period. 5. On an unspecified date, the Agency was unresponsive to Complainant’s repeated requests for the status of her ongoing Administrative Investigation against her ex- boyfriend.2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. 2 The Agency dismissed claim 5 for failure to state a claim. Complainant has not challenged the dismissal; thus, the Commission will not address it further herein. 2021004095 3 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), 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 Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). Disparate Treatment In the present case, assuming Complainant has established a prima facie case of discrimination based on sex, the Agency articulated legitimate, nondiscriminatory reasons for terminating 2021004095 4 Complainant’s supervisory appointment and the events leading up to it. Complainant has not shown by a preponderance of the evidence that the Agency’s asserted reasons were a pretext for sex discrimination. Regarding claims 1 and 2, the Agency asserts that Complainant was asked to sign the Letter of Expectations - along with all the first level supervisors in her department - to streamline business functions and ensure management understood the expectations for their role. In addition, the Agency asserted that she stopped receiving meeting invitations so that she could focus on managing her workload. Regarding claims 3 and 4, Complainant was given an unsatisfactory rating in the areas of supervision, leadership, and personal development. Her unsatisfactory rating led to the termination of her supervisory appointment. Several witnesses stated Complainant struggled to manage her workload, assign work to subordinates in a timely fashion, and hold employees accountable for missed deadlines. In addition, with respect to the unsatisfactory rating in the personal development category, Complainant acknowledged that she failed to meet the mandatory 80 hours of training over two years to maintain her certification in contracting. Complainant cites one Comparator (C) - a male supervisor who reportedly failed to evaluate his employees within the required timeframe and failed to discipline his employees but did not receive an unsatisfactory performance appraisal. To be considered “similarly situated,” the comparator must be similar in substantially all aspects, so that it would be expected that they would be treated in the same manner. See Complainant v. Dep't of the Navy, EEOC No. 01A10667 (Sept. 7, 2001), req. for recon. denied, EEOC Request No. 05A20020 (Jan. 28, 2002) (citations omitted). S1 and S2 indicated that all the other supervisors were managing their workloads successfully and were meeting expectations. The evidence also suggests that C was not in the probationary phase for his position. Thus, Complainant failed to establish that a similarly situated employee was treated more favorably. Complainant failed to show by a preponderance of the evidence that the asserted reasons are pretext for discrimination based on sex. Reprisal Complainant has not shown by a preponderance of the evidence that the Agency’s actions were in retaliation for protected EEO activity. She asserts that the temporal proximity between her EEO activity and the Agency’s actions suggests retaliation. Specifically, Complainant asserts that three weeks after the EEO consultation that resulted in filing the request for an Administrative Investigation against her ex-boyfriend, she was asked to sign the Letter of Expectations. Although the temporal proximity between the disputed actions and the Complainant’s protected activity are sufficient to establish a prima facie case of reprisal, Complainant has not presented any evidence to show the Agency’s asserted reasons for the disputed actions - her inability to adequately manage her workload and subordinates - were pretextual. 2021004095 5 Pretext requires more than a belief, assertion, or suspicion that the Agency was motivated by retaliation. See Kathy D. v. Environmental Protection Agency, EEOC Appeal No. 0120171318 at p.5 (Aug. 14, 2019). Complainant generally asserts that she believes that the EEO consultation that resulted in her request for the Administrative Investigation into her ex-boyfriend made “a more senior manager than [S1 and S2] tell one or both of them to somehow get rid of me.” As there is no evidence to support Complainant’s suspicions, she has failed to show that the Agency’s actions were retaliatory. Hostile Work Environment The evidence is insufficient to establish that Complainant was subjected to a hostile work environment. A hostile work environment claim generally requires a showing of a pattern of offensive conduct. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). A single incident or isolated incidents of offensive conduct or remarks generally do no create an abusive environment. Here, there is no persuasive evidence that any of the incidents at issue were motivated by discrimination. Therefore, we find Complainant has not shown she was subjected to a discriminatory hostile work environment. CONCLUSION The Agency’s decision finding no discrimination is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. 2021004095 6 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2021004095 7 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 6, 2021 Date