[Redacted], Marcelina Q., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency.

Equal Employment Opportunity Commission

Jan 25, 2022

Appeal No. 2020004296 (E.E.O.C. Jan. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcelina Q.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Office of the Secretary of Defense), Agency. Appeal No. 2020004296 Agency No. 2020-WHSPFPA-008 DECISION On July 23, 2020, 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 July 10, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an AD-0083-11 Supervisory Police Officer (Lieutenant) in the Agency’s Leased Facilities Branch (LFB), Pentagon Police Division, Law Enforcement Directorate, Pentagon Force Protection Agency at the Mark Center facility in Alexandria, Virginia. Complainant supervised the night shift at Mark Center. Complainant’s first-line supervisor was a Major (Major-1) who also supervised the day shift Lieutenant at Mark Center (Lieutenant-1) and the Lieutenant based at the United States Court of Appeals for the Armed Forces in Washington, D.C. (Lieutenant-2). Report of Investigation (ROI) at 7.1(a), 7.2(a), 7.2(b), 7.2(c). 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. 2020004296 2 According to Complainant, Lieutenant-1 repeatedly harassed her, spoke to her in a condescending manner, and challenged Complainant’s command decisions for her direct reports. Complainant is female, and she alleged that Lieutenant-1, who is also female, felt threatened by other female officers because Lieutenant-1 viewed them as her competition. Complainant stated that Lieutenant-1 wanted to make her look incompetent, so Complainant would be moved out of the LFB. Complainant stated that, on June 11, 2019, she heard Lieutenant-1 discussing the “beat sheets” with one of Complainant’s subordinates (Sergeant-1). According to Complainant, she tried to tell Lieutenant-1 that Sergeant-1 had been on leave and that Complainant had prepared them in his absence, but Lieutenant-1 threw her hand in Complainant’s face and said, “I’m talking here.” Complainant stated that she walked away from Lieutenant-1 before the situation escalated. Complainant averred that on July 29, August 5, and September 24, 2019, Lieutenant-1 superseded Complainant’s decisions on shift assignments. According to Complainant, as a result of Lieutenant-1’s changes, one of her subordinates (Sergeant-2) lost out on overtime hours on July 29, 2019, and the staffing level at the start of the shift on August 5, 2019, was below the minimum level. Complainant alleged that, between August and October 2019, Lieutenant-1 consistently left Complainant off emails concerning Complainant’s subordinates. According to Complainant, being left out of the loop impacted her ability to do her job. Complainant stated that, on August 30, 2019, she emailed the Unscheduled Leave Report to Major-1, Lieutenant-1, Lieutenant-2, and the Operations Lieutenant (Lieutenant-3). According to Complainant, Lieutenant-1 responded to the email using “reply-all” and questioned the accuracy of Complainant’s report. Complainant averred that Lieutenant-3 subsequently clarified the meaning of “unscheduled leave” by providing a memo from the Deputy Chief of the Police Technical Services Division (Deputy-1), and she stated that, based on the memo, she and Lieutenant-2 had been properly documenting unscheduled leave. Complainant stated that, in September 2019, Lieutenant-1 asked the day shift Sergeants how the night shift issued weapons instead of asking Complainant, undermining Complainant’s authority. Complainant averred that, in October 2019, she learned that Lieutenant-1 had removed the LFB master key from the armory, meaning Complainant did not have access to a master key for emergency after hours calls. According to Complainant, she was told she could sign out the master key from the Security Operations Center (SOC), but Lieutenant-1 was keeping the LFB master key in her office and was the only Lieutenant with access to the master key. ROI at 7.1(a). Complainant averred that she did not address the harassment directly with Lieutenant-1 because she was snide and confrontational. Complainant alleged that she reported the harassment to Major-1, but he ignored what she said. On October 4, 2019, Major-1 responded to an email in which Complainant stated that she had heard that Lieutenant-1 had been criticizing her to Major- 1 within earshot of the Sergeants and Officers, and Major-1 advised Complainant to “shake it off.” According to Complainant, this response told her that Major-1 was not going to address her issues. Complainant stated that, one time when she verbally raised Lieutenant-1’s tone with Major-1, Major-1 acknowledged that the way that Lieutenant-1 delivered her messages was not ideal, but he said that he could not write someone up for “their delivery.” ROI at 7.1(a). 2020004296 3 Major-1 stated that most Complainant’s issues with Lieutenant-1 were related to overtime and scheduling adjustments, and he added that these were well within Lieutenant-1’s scope of duty because she was the Administrative Duty Officer. Major-1 noted that Complainant was not working on July 29, 2019, and he stated that, on August 5, 2019, Lieutenant-1 asked about the need for overtime because the automated roster did not show a manpower shortage, which was an error that Major-1 subsequently corrected. He stated that he was unaware of Lieutenant-1 leaving Complainant off emails or questioning Complainant’s assignment on September 24, 2019. According to Major-1, Lieutenant-1’s question regarding the Unscheduled Leave Report was about the way the platoons reported unscheduled leave to Complainant, not related to any mistake made by Complainant in compiling the report. Major-1 averred that Complainant, Lieutenant-1, and Lieutenant-2 all raised work-related issues with him about the other lieutenants, and he denied that Lieutenant-1 was unprofessional during these conversations or that Lieutenant-1 ridiculed Complainant. Regarding his October 4, 2019, email to Complainant, Major-1 stated that Complainant expressed discontent with the way Lieutenant-1 asked her questions about manpower resources and overtime authorizations for the night shift and that he explained to Complainant that, although the Lieutenants have disagreements, they are all part of the same law enforcement family and should try to work together. According to Major-1, his philosophy is that all officers, regardless of rank, should accept suggestions for improvement from other officers, although an officer may choose to ignore a suggestion. ROI at 7.1(b). Lieutenant-1 denied harassing or ridiculing Complainant, and she denied that Complainant’s sex was a factor in her decisions. Lieutenant-1 stated that she handled the administrative matters for all LFB personnel, including some assignment decisions such as manpower for shifts and overtime. According to Lieutenant-1, when she selected officers to work overtime, she would email the officer, the officer’s first-line supervisor, and the supervisor for whom the officer would be working overtime. However, she would not email Complainant or other second-line supervisors when officers were assigned overtime. Regarding the Unscheduled Leave Report, Lieutenant-1 stated that her question was about how to count unscheduled leave, not about Complainant’s report. ROI at 7.1(e). Sergeant-1 stated that Lieutenant-1 asked him a question about the schedule during a time when he had been on leave. According to Sergeant-1, when Complainant asked if she could help Lieutenant-1, Lieutenant-1 swung her arm in Complainant’s direction with a “hand to the face” gesture and told Complainant, “I am speaking, I am speaking.” ROI at 127. Sergeant-1 stated that it was upsetting to see Lieutenant-1 disrespect Complainant, and he averred that Lieutenant- 1 seemed threatened by other female officers. ROI at 7.1(g). The record contains a series of emails between Complainant and Major-1. On October 4, 2019, Complainant stated that Lieutenant-1 was “in my lane and concerning herself with how I run my shift.” ROI at 324. Complainant also stated that Lieutenant-1 created a toxic environment and paid more attention to other officers’ assignments than her own. On October 5, 2019, Major-1 responded to Complainant that she should ignore Lieutenant-1’s emails. Major-1 stated that all of the officers did and said things that bothered their coworkers, and he recommended, “Do what I do when that happens to me-ignore it and just shake it off (I love that song!).” ROI at 323. 2020004296 4 On October 5, 2019, Complainant replied that Lieutenant-1’s behavior was hostile and beyond just “shaking it off.” ROI at 7.2(k). The record contains emails between Major-1 and the Deputy Chief of Police Operations (Deputy-2) regarding a meeting Complainant requested with Deputy-1. On December 17, 2019, Deputy-2 stated that Complainant felt that Lieutenant-1 was receiving preferential treatment and that she cited access to the master key as an example. On December 17, 2019, Major-1 responded that the master key had been moved to the SOC after someone had gone through Major-1’s office on multiple occasions, including one time when someone looked through Major-1’s “burn bag.” Major-1 stated that everyone had access to the master key, which could be signed out through the SOC, and he added that no one had gone through his office since the master key was moved to the SOC. ROI at 7.2(h). On November 18, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when: 1. On or about June 11, 2019, while Complainant was attempting to explain the shift details to Lieutenant-1, Lieutenant-1 threw her hand up in the direction of Complainant’s face and stated, “I’m talking here”; 2. On July 29, August 5, and September 24, 2019, Lieutenant-1 superseded Complainant’s decisions on assignments; 3. Between August and October 2019, Lieutenant-1 consistently left Complainant off email traffic concerning Complainant’s subordinates; 4. On August 30, 2019, Lieutenant-1 questioned the accuracy of Complainant’s Unscheduled Leave Report with a “reply all” email; 5. In or around September 2019, Lieutenant-1 asked the day shift Sergeants about how the night shift issued weapons, instead of asking Complainant; 6. On an unspecified date, in response to Complainant’s allegations regarding Lieutenant-1’s unprofessional conduct, Major-1 stated, “I know [Lieutenant-1’s] delivery isn’t the best, but you can’t write someone up for their delivery”; 7. On multiple dates, Lieutenant-1 ridiculed Complainant’s command decisions and decisions regarding her shift to Major-1; 8. On October 4, 2019, Major-1 advised Complainant by email to “shake it off” after she notified him of reports that Lieutenant-1 was criticizing Complainant to Major-1 and that Lieutenant-1 and others were instructed to ignore her; and 9. On October 16, 2019, Complainant learned that Lieutenant-1 was the only Lieutenant with an LFB master key after the group master key was relocated to the SOC. The Agency dismissed incidents (5) and (9) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Lieutenant-1 asking a procedural question did not cause Complainant to suffer a harm or loss with respect to a term or condition of Complainant’s employment for which there was a remedy. 2020004296 5 Regarding incident (9), the Agency found that Complainant was not denied access to the LFB master key because she still had access to the master key in the SOC, so she was not aggrieved. At the conclusion of the investigation into the accepted claims, 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). In accordance with Complainant’s request, 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. The instant appeal followed. Neither party submitted a statement on appeal. 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”). As a preliminary matter, we find that the Agency acted improperly by treating matters raised in Complainant’s complaint in a piecemeal manner. See Meaney v. Dep’t of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994) (an agency should not ignore the “pattern aspect” of a complainant’s claims and define the issues in a piecemeal manner where an analogous theme unites the matter complained of). Consequently, when incidents (5) and (9) are viewed in the context of Complainant’s complaint of harassment, they state a claim and the Agency’s dismissal of those claims for failure to state a claim was improper. However, we find that there is enough information in the investigative record to adjudicate these matters and will address them below. To establish a claim of harassment a complainant must show that: (1) she belongs to 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 her statutorily protected class; (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; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2020004296 6 The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Anti-discrimination statutes are not general civility codes designed to protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dep’t of the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between an alleged harasser and a complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). What this means in practical terms is that routine work assignments, instructions, and admonishments are by definition neither severe nor pervasive enough to rise to a level of abuse on par with a racial epithet or otherwise engender a hostile work environment. Complainant v. Dep’t of State, EEOC Appeal No. 0120123299 (Feb. 25, 2015). Complainant is a member of a protected class by virtue of her sex. However, we find that she has not established that the instances of alleged harassment were based on her sex and/or that the incidents were sufficiently severe or pervasive to constitute harassment. Although Sergeant-1 witnessed Lieutenant-1 put her hand in Complainant’s face and rudely tell Complainant that she was speaking, we find that this incident is insufficiently severe or pervasive to constitute a hostile work environment. While Complainant alleged that Lieutenant-1 harassed her by superseding her assignment decisions, the preponderance of the evidence in the record establishes that Lieutenant-1 was the Operations Lieutenant and responsible for manpower and overtime assignments for LFB. Moreover, Lieutenant-1 stated that she left Complainant off overtime emails because she did not include second-line supervisors on such messages, and there is no evidence in the record tending to show that Lieutenant-1 did so based on Complainant’s sex. We find that Lieutenant-1 asking a question about counting unscheduled leave in response to Complainant’s Unscheduled Leave Report is insufficiently severe or pervasive to constitute harassment. Further, there is no evidence in the record establishing that Lieutenant-1 asked someone other than Complainant about night shift weapon assignments based on sex. The preponderance of the evidence in the record reflects that Major-1 had the master key moved to the SOC after someone went through his office, and the preponderance of the evidence does not establish that the master key was moved to the SOC based on Complainant’s sex. Regarding Major-1 telling Complainant to “shake it off” in response to her concerns, the record reflects that Complainant reported that Lieutenant-1 was interfering in Complainant’s decisions and needed to “stay in her lane.” Major-1 did not dismiss Complainant’s concerns, but he suggested she ignore the email from Lieutenant-1 that bothered her and remember that the officers need to work together. Although the record reflects a personality conflict between Complainant and Lieutenant-1, we find that Complainant has not established that she was subjected to discriminatory harassment based on sex. 2020004296 7 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2020004296 8 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 January 25, 2022 Date