[Redacted], Detra W., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 4, 2021Appeal No. 2020003733 (E.E.O.C. Nov. 4, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Detra W.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003733 Agency No. DON-19-00030-03512 DECISION On June 10, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 8, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked as a Contract Specialist in the Agency’s Strategic Systems Programs (SSP), Plans and Programs Division (SP10), Office of Contracts (SPN), in Washington D.C. On May 30, 2019, Complainant initiated EEO counseling and on September 16, 2019, filed a formal EEO complaint. Complainant claimed that the Agency discriminated against her due to her race (African American), sex (female), religion (Born-Again Christian), age (over 40), and in reprisal for prior EEO activity (EEO complaint 16-00030-01550) when: 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. 2020003733 2 (1) When, on May 30, 2019, she learned that for the SP20 Technical Division Head (“S2”) had not selected her for participation in the Strategic Systems Programs (SSP) Mid-Level Institute (MLI). (2) She was subjected to harassment/hostile work environment when, in addition to the matter in claim (1), the following events occurred: a. On December 9, 2016, her first-line supervisor (“S1”) denied her request to work remotely; b. On June 26, 2018, she was notified that S1 had not selected her for a NH-04 Contract Specialist position (ST-10223095-18-ALS); c. On November 8, 2018, she was notified that S1 had not selected her for a NH-04 Contract Specialist position (ST-10286643-18ZLR);2 d. On July 18, 2019, S1 embarrassed and humiliated her in a staff meeting; and e. On August 21, 2019, S1 yelled at her in the workplace. 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. Complainant requested that the Agency issue a final decision. In accordance with Complainant’s request, the Agency issued a final decision on June 8, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. 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 a complainant to prevail, he or 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). 2 The events in allegations 2 (a), (b) and (c) were untimely raised with an EEO counselor as discrete incidents of discrimination and were correctly dismissed as such by the Agency. However, they were investigated and considered by the Agency as part of Complainant’s claim of ongoing harassment/hostile work environment. 2020003733 3 The burden then shifts to the agency to articulate a legitimate, non-discriminatory 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, as here, 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). Complainant stated the MLI is an internal program for professional development to prepare employees for potential promotions. She asserted she applied for the program in October 2017 and October 2018 and was denied both times. Complainant contended when she applied a third time, she again was not selected on May 28, 2019. She maintained she was continually passed over for developmental and promotional opportunities. Record evidence shows that the Selectee for the MLI program was a white female (YOB 1986, prior EEO activity). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. S2 stated he and the SP10 Plans and Programs Division Head (“R4”) (female, Asian, YOB 1961, Christian) made the final selections for the MLI program. He stated Complainant was not selected for the MLI program based on her supervisor’s responses in her nomination (that Complainant “needed another year or so to further develop”), her priority rating from her branch among other nominees, and the need to ensure a balanced class from headquarters and field activity participants. S4 averred Complainant was not selected for the MLI program based on Complainant’s supervisor’s recommendation that Complainant needed another year to further develop and Complainant’s branch head ranking other candidates as higher priority for the program. The record shows that Complainant was the branch leadership’s second choice of the two nominees from the Contracts Branch based on performance. The Selectee was the branch’s first choice. The Director of Contracts (“S3”) (Asian, male, Baptist) stated that during the relevant period, he was Complainant’s third-line supervisor. S3 stated that when Complainant shared her concerns with him about not being recognized and getting promoted, he met with Complainant and her supervisor. Following the meeting, S3 stated that he met with Labor Employee Relations and Legal and they developed a plan to address Complainant’s concerns. 2020003733 4 S3 stated that Agency management offered the following options to Complainant: (1) participating in the Broadened Horizons program, (2) maximizing her strengths by creating a Small Business Innovative Research (SBIR) billet with promotion potential, and (3) providing assistance in finding an applying for promotion opportunities. S3 stated, however, before Complainant could take advantage of these opportunities, she accepted a promotion outside of the command. After careful review of the record, we conclude that Complainant failed to prove, by a preponderance of the evidence, that the proffered reasons provided by the management witnesses for the disputed actions were a pretext masking discrimination on any of the bases alleged or retaliatory animus for her prior EEO activity. Harassment/Hostile Work Environment The Supervisory Contract Specialist was Complainant’s first-line supervisor (“S1”) (Caucasian, male, Christian, over 40) and stated that he has known Complainant since 2012, even prior to her employment at the Agency. S1 stated that he remained in contact with Complainant over the years providing her with requested information about SSP contracting opportunities. Further, S1 stated that he selected Complainant as an SSP Contract Specialist in April 2014. Concerning Complainant’s allegation that her request to work remotely was denied on December 9, 2016, S1 asserted that he never received a formal request from Complainant. S1 stated, however, that he communicated with Complainant, and indicated that he did not believe the command would support her request to work remotely. S1 stated that his belief was because, at the time, no one in the command was permitted to work remotely unless the employee was reporting to Strategic Systems Program Headquarters or one of its field activities or detachments. He also said that Complainant’s relative lack of experience and resulting need for more direct supervision would be a concern with her performance and would stunt her career development. With respect to Complainant’s claim that on June 26, 2018, S1 did not select her for a NH-04 Contract Specialist position, S1 explained the vacancy announcement expired and there was no selection made. He also noted that a follow-up announcement was developed and submitted to Office of Civilian Human Resources (OCHR) to be re-advertised with a wider area of consideration. Regarding Complainant’s claim that on November 8, 2018, S1 notified her that he had not selected her for NH-04 Contract Specialist position, he explained that Complainant was not selected because she had not yet demonstrated the required skills to perform tasks associated with a complex, billion-dollar annual procurement containing multiple contracts and a complex performance incentive structure. In addition, S1 stated that Complainant had demonstrated some incidents of poor judgment with her approach to handling issues associated with her assignments. 2020003733 5 S1 further denied that he embarrassed and humiliated Complainant during a staff meeting in July 2019. He also denied yelling at Complainant in the workplace in August 2019. There is no other evidence of record to support Complainant’s claim that S1 yelled at her or embarrassed her in front of others. In sum, to the extent that Complainant’s claims can also be construed as one of ongoing discriminatory harassment/hostile work environment, such a harassment claim is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated in any way by her protected bases or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred.3 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 3 On appeal, Complainant does not challenge the November 4, 2019 partial dismissal issued by the Agency regarding one other claim concerning the denial of a December 2018 desk audit. Therefore, we have not addressed this issue in our decision. 2020003733 6 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. The court has the sole discretion to grant or deny these types of requests. 2020003733 7 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 4, 2021 Date Copy with citationCopy as parenthetical citation