[Redacted], Deena B., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020002258 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deena B.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020002258 Hearing No. 430-2018-00426X Agency No. 17-65236-02836 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403, from the Agency’s December 26, 2019 final order concerning 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, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Administrative Specialist, NO-0080-04, subject to a three-year probationary period, with Space and Naval Warfare Systems Center Atlantic, 8.7 Competency Directorate, in North Charleston, South Carolina. Complainant began her employment at the Agency on August 8, 2016. 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. 2020002258 2 On October 5, 2017, Complainant filed an EEO complaint alleging harassment and discrimination by the Agency on the bases of race (African American), color (unspecified), sex (female), and in reprisal for reported discrimination and contact with EEO Office when: a. Beginning August 8, 2016, and continuing, Complainant felt threatened and intimidated by the Competency Manager when he made inappropriate comments to her regarding the physical appearance of various employees; and he told her that she was lucky to have this position because he would not have hired her, he does not take counter offers and he hopes he gets his money’s worth; b. From September 2016, through May 2017, Complainant was treated in an aggressive and unprofessional manner by a coworker; her requests to take custody of classified material from a coworker were ignored; she was yelled at, and spoken ill of by a coworker; a coworker told another coworker that she only got the job because she was Black, and that she is bringing in all her “Black friends” with her; and two coworkers told other coworkers not to talk to or have lunch with Complainant; c. From September 2016, through May 2017, management failed to take appropriate action when Complainant reported her coworker’s unprofessional conduct and harassing behavior described in allegation b, above; d. On July 17, 2017, Complainant was issued a Letter of Counseling (LOC) for offensive language, disruptive behavior, and for allowing her spouse to enter into a secured area. The LOC was issued by the Special Security Officer when she met with him to inform him of her intent to file an EEO complaint; e. On July 20, 2017, Complainant’s access to Sensitive Compartmented Information and Collateral Classified Information was suspended; and f. On July 28, 2017, Complainant’s employment was terminated from employment during her probationary period. Complainant does not challenge the framing of the claims. After its investigation into the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision without a hearing in favor of the Agency. The AJ found that regarding claims a through c, Complainant failed to establish that she was subjected to harassment as alleged because the incidents were not sufficiently severe or pervasive to alter the conditions of her employment or create an abusive working environment. Specifically, the comments described in claim b were not made to Complainant directly; rather she heard those through another coworker. 2020002258 3 Regarding claim d, Complainant’s supervisor issued Complainant the LOC because: she used profanity, the word “fuck,” in an altercation with her coworker on June 29, 2017; she brought in her husband in a secure area without an approval on July 14, 2017; and on July 17, 2017, she disrupted the workplace in that after she overheard Coworker A’s comment how Coworker B was mishandling Coworker B’s program, she told Coworker B about Coworker A’s comment which led to a disagreement between them. Regarding claim f, Complainant’s manager terminated Complainant from her employment at the Agency during her probationary period because on July 11, 2017, she dialed into a supervisor meeting she was not asked to participate in; and on July 14, 2017, she had her husband in an unauthorized area. The AJ dismissed claim e for lack of jurisdiction. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 2 The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. 2 Upon review, we find that the Agency’s dismissal of claim e for lack of jurisdiction was proper since the subject claim involved a security clearance and access to sensitive information of which we have no jurisdiction. 29 C.F.R. § 1614.107(a)(1). The AJ, dismissing the same, noted that given the nature of the accusations against Complainant set forth in the LOC, she could not demonstrate the Agency’s reasons for suspending her credentials was pretext for discrimination. Even if we consider on the merits, we find no discrimination. 2020002258 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 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. 2020002258 5 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. 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 July 19, 2021 Date