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

Equal Employment Opportunity Commission

Oct 12, 2021

Appeal No. 2020003556 (E.E.O.C. Oct. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeannie T.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003556 Agency No. 18-00024-00387 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 22, 2020, 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. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected her to discrimination or harassment based on her sex, or in reprisal for protected EEO activity. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a contractor Visitor Control Center (VCC) Lead Technician at the Agency’s Security Operations Division in Washington, D.C.2 Complainant stated that in May 2017, a Security Specialist (SS) (male) 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. 2 The Agency noted that the record lacked sufficient information to conduct an analysis on whether Complainant had standing to file a complaint as an Agency employee, but nevertheless proceeded by assuming that Complainant did so. 2020003556 2 repeatedly requested dates and sent her non-work-related text messages.3 In January 2018, stated Complainant, SS touched her legs and/or knee on two or three occasions. He looked at her like she “was nothing” and moved on as if nothing happened. According to Complainant, although she told various coworkers of the harassment, she tried to ignore the harassment until she realized that it was “very serious” and reported the matter to another Security Specialist and the Director of Security Programs (DSP) (male). Report of Investigation (ROI) at 7, 12. An internal investigation was started. On June 7, 2018, Complainant’s first-line supervisor (S1) (female) issued Complainant a notice regarding a violation of her probation, based on her late arrival eight times in the past two weeks and dress code violation. S1 informed Complainant that she would no longer be a supervisor and her new title would be Access Control Technician. ROI at 144. On June 21, 2018, DSP informed his managers that on June 20, 2018, Complainant instigated the harassment of one of her coworkers (CW1), who became “emotionally distressed.” DSP stated that Complainant’s employer dismissed her an hour and a half early to defuse the situation. According to DSP, Complainant’s employment was expected to be terminated on June 22, 2018, but the issuance of the termination was accelerated by one day. ROI at 135-6. S1 issued Complainant a Termination Notice for failing to conduct herself in a professional and courteous manner and for issues with customer service. Additionally, S1 noted Complainant’s tardiness, which led to her removal as a Lead Technician, and the Agency’s request that she be removed from her position. ROI at 47. On July 3, 2018, DSP issued a Management Inquiry Report regarding Complainant’s harassment allegation. Following in-person interviews of eight witnesses, DSP determined that it was not likely that the conduct occurred as alleged by Complainant. ROI at 130-4. On November 2, 2018, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on sex (female), and in reprisal for protected EEO activity (instant EEO complaint), when: 1. from January 2017 to June 2018, she received multiple non-work-related text messages; 2. from February 2017 to June 2018, she was constantly asked to go out on dates; 3. from February 2017 to June 2018, she was subjected to inappropriate looks; 4. in January 2018, she was subjected to unwelcome touching on her legs and knees; 3 The EEO Investigator repeatedly attempted to contact Complainant via telephone, email, and mail, but Complainant never responded. ROI at 201. As such, Complainant’s statements are taken from her formal EEO complaint and the EEO Counselor’s Report. 2020003556 3 5. on or about June 6, 2018, she was demoted from Lead Technician to Technician; 6. on June 20, 2018, she was issued a one-day suspension; and 7. on June 21, 2018, she was terminated from her position as a VCC Technician. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of her right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant did not establish a prima facie case of reprisal because Complainant did not initiate her EEO complaint until after the incidents at issue and there was no indication that Complainant engaged in any other protected EEO activity. The Agency noted that claims 5-7 were timely discrete events, and that management officials presented legitimate, nondiscriminatory reasons for these actions. Noting that Complainant failed to provide an affidavit in support of her complaint, the Agency found no evidence in the case file that Complainant even raised the issue of pretext. The Agency determined that Complainant provided no documentary evidence, witness statements, or any other evidence in support of her assertion that her sex or prior protected EEO activity motivated the Agency’s actions. Regarding the allegation of harassment, the Agency found that the record did not support Complainant’s claim that the four separate incidents she identified were sexual in nature. Again, in light of Complainant’s failure to provide an affidavit, the Agency found that she did not support her claims and establish that the alleged incidents occurred. The Agency noted that, while there were some non-work-related text messages, the majority of the text messages were related to Complainant’s tardiness or absence from work. The Agency determined that Complainant did not establish that she was subjected to sexual harassment, or non-sexual harassment based on her sex or in reprisal for protected EEO activity. Complainant filed the instant appeal but did not provide any arguments in support of her appeal. The Agency did not submit a response to Complainant’s appeal. STANDARD OF REVIEW 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 Chap. 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”). 2020003556 4 ANALYSIS AND FINDINGS Disparate Treatment Generally, claims of disparate treatment are examined under the 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty 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 Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 5, S1 stated that the Lead Technician position comes with additional responsibilities, and Complainant was setting a “bad example” with her lateness, bad attitude, and attire. Specifically, S1 stated that Complainant would arrive to work one hour late, take hour-long walks throughout the building, and violate the dress code. ROI at 179. Regarding claims 6 and 7, S1 explained that Complainant was placed on probation in March 2018, when she did not report to work and S1 was unable to reach her until 3:00 p.m. S1 stated that they should have terminated Complainant then, but placed the action on hold due to concerns over manpower. Once they were informed that the operation could continue with just two people, explained S1, it issued Complainant her termination notice. ROI at 180. SS corroborated that Complainant’s demotion was due to her frequent tardiness and customer complaints that she was rude and unprofessional. According to SS, Complainant’s suspension was based on CW1’s claim that Complainant harassed her, which also accelerated the removal action. ROI at 166. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). 2020003556 5 In this case, Complainant did not provide any statement in support of her appeal or an affidavit during the investigation. She has not offered any arguments that the management officials’ reasons were unworthy of belief. Contrastingly, the Agency’s proffered legitimate reasons are well supported by the record. For example, CW1 stated they received several complaints from customers, describing Complainant as rude and unprofessional. At times, Complainant did not report to work or was three hours late, leaving CW1 to assume Complainant’s duties in her absence. ROI at 194. Another coworker (CW2) stated that Complainant was late every day, despite the warnings. CW2 also asserted that she and CW1 complained to S1 that Complainant was not an effective Lead. ROI at 197-8. The record also contains a complaint from a Business Financial Manager (BFM) regarding Complainant’s disrespectful and rude conduct. BFM stated that when she arrived at the service desk, Complainant was asleep and was awoken when another visitor arrived. Complainant then assisted the other visitor, and ignored BFM, because Complainant did not realize who had arrived first while she was sleeping. According to BFM, Complainant did not apologize for keeping her waiting. BFM was troubled by the optics of a sleeping and disrespectful employee. ROI at 69. The record also contains the warning notices issued to Complainant regarding her failure to report to work, tardiness, and failure to adhere to the dress code. ROI at 142-4. We find that the record contains no evidence showing that the reasons provided were pretext for discrimination. Accordingly, we find that Complainant did not establish that the Agency discriminated against her based on her sex, or in reprisal for protected EEO activity, when it demoted her from a Lead Technician to Technician; issued her a one-day suspension; and terminated her employment. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) she belongs to a statutorily protected class; (2) she was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to a protected class based on her sex, but not based on prior protected EEO activity. Complainant has only pointed to her EEO activity regarding the instant case. Her initial contact with the EEO Counselor was June 20, 2018, after the alleged harassment occurred. ROI at 7. Complainant has not shown that she was subjected to unwelcome conduct. 2020003556 6 While Complainant did not return a completed affidavit, she supplied copies of the text messages from SS. A review of the text messages shows that most were work related. For example, Complainant repeatedly texted SS that she would be out of the office or late to work. While SS sent Complainant some non-work-related messages, such as photos of the outside of a restaurant and an alcoholic beverage, there were no text messages showing that SS asked Complainant for dates. ROI at 52-7. SS denied asking Complainant out or touching her legs or knees, and he stated that he did not know what Complainant meant by “inappropriate looks.” ROI at 165-6. S1, CW1, and CW2 stated that SS was professional, and they did not witness any inappropriate conduct. Further, CW2 explained that the VCC Technicians share an office so when SS visits, they are all together. ROI at 179, 193, 197. As such, we find that Complainant did not meet her burden in showing by a preponderance of the evidence that she was subjected to harassment as alleged. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding that Complainant did not establish that the Agency subjected her to discrimination or harassment based on her sex, or in reprisal for prior protected EEO activity. 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 2020003556 7 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. 2020003556 8 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 12, 2021 Date