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

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal No. 2020003396 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mari R.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003396 Hearing No. 480-2016-00039X Agency No. DON 15-63285-00235 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 April 11, 2020, final order 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. At the time of events giving rise to this complaint, Complainant worked as a Psychologist (GS- 15) at the Agency’s Naval Criminal Investigative Service Pacific Operations in San Diego, California. On February 2, 2015, Complainant filed an EEO complaint alleging that the Agency subjected her to discrimination and harassment based on her sex (female) and in reprisal for prior protected EEO activity, when: 1. Complainant’s revised position description referred to a previous EEO settlement agreement and management did not remove the reference as requested; 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. 2020003396 2 2. Complainant was not approved to attend the 2014 Psychological and Anthropological Assessments in Security, Intelligence and Law Enforcement (PASILE) conference in Washington, D.C. from August 18-22; 3. on October 17, 2014, Complainant met one-on-one with her first line supervisor (S1) to discuss her fiscal year 2015 (FY15) performance plan, and S1: a. was intimidating and bullying during the meeting; b. refused to discuss the apparent removal and/or denial of work assignments; c. denied Complainant an opportunity to discuss and understand her FY15 performance plan; d. subjected Complainant to verbal reprimands and failed to address her concerns about her FY15 plan; and e. told Complainant not to “open discovery” regarding the 2014 PASILE conference; 4. on December 23, 2014, Complainant met with S1 to discuss her FY15 performance plan. The Staff Judge Advocate observed the meeting and: a. S1 denied Complainant an opportunity to discuss and understand her FY15 performance plan; b. S1 subjected Complainant to verbal reprimands and failed to address her concerns about her FY15 plan; and c. on December 24, 2014, S1 sent Complainant an email summarizing the topics discussed during the meeting; 5. on April 29, 2015, S1 made a negative comment in Complainant’s mid-term progress review; and 6. the Executive Assistant Director (EAD) failed to take action to address Complainant’s complaints. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Complainant filed a motion for sanctions and a partial motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ denied Complainant’s motion for sanctions against the Agency. The AJ then found that the record was adequately developed; and that there were no genuine disputes of material fact, nor a need for credibility determinations. For claim 1, the AJ found that, pursuant to the prior settlement agreement, Complainant’s duties could not be altered and that her supervisory chain had a legitimate need to know to ensure that the Agency continued to honor the settlement agreement. 2020003396 3 The AJ noted that there was only a reference to a “settlement agreement,” that there was no mention of the EEO process, and that disclosure of the agreement did not open Complainant to EEO-based retaliation. The AJ also found that the Agency’s action would not deter a reasonable person from engaging in the EEO process. Regarding claim 2, the AJ determined that S1 supported Complainant’s attendance at the 2014 PASILE conference, but that her application for travel was untimely. The AJ noted that Complainant’s named comparator, who was also female, was based in the Washington, D.C. area and had no travel costs associated with her attendance. For incident 3, the AJ assumed Complainant’s version of events as true, but found that S1’s “overbearing manner” did not implicate Complainant’s protected activity, and that Complainant’s speculation that S1’s comment about “discovery” referred to her 2011 EEO complaint was not a reasonable inference. The AJ noted that S1 explained that he stated that they needed to move forward and that Complainant needed to stop interrupting him; and the AJ found that there was insufficient evidence that S1’s explanation was unworthy of belief, or otherwise masked a retaliatory motive. Further, the AJ found that, even if there was a retaliatory motive, S1’s behavior would not have dissuaded a reasonable person from making or supporting a charge of discrimination. Regarding incident 4, the AJ found that it was undisputed that S1 informed Complainant that she had failed to properly “spin” the lock on her door; instructed Complainant to stop using her personal email account for work-related matters; noted that Complainant was late the day before and advised her to be on time; discussed Complainant’s use of sick leave for dependent care; and instructed Complainant to request EEO official time in advance. Even assuming a retaliatory motive, the AJ determined that S1 addressed a series of ordinary workplace situations, and that taken as a whole, would not deter a reasonable person from engaging in protected activity. For incident 5, the AJ found that S1 noted a security violation, namely when Complainant failed to spin her lock, in her progress report. The AJ determined that, while Complainant asserted that she had spun her lock, she produced insufficient evidence that S1’s subjective belief was untrue or masked a retaliatory motive. Regarding incident 6, the AJ found that Complainant reported S1’s conduct to EAD, who then offered to mediate the issues between them, and Complainant declined the offer. The AJ found that Complainant alleged that S1 treated men differently, but her allegations were vague and conclusory, and she appeared to argue that S1’s “bad acts” in and of themselves establish a discriminatory motive. The AJ determined that, even when viewing the evidence in the light most favorable to Complainant, no reasonable factfinder could conclude that the alleged acts of harassment, taken together, constituted a discriminatory or retaliatory hostile work environment, and they would not deter a reasonable person from engaging in protected activity. The AJ concluded that the Agency was entitled to summary judgment as a matter of law on all claims. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2020003396 4 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 she 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. On appeal, Complainant argues that Agency officials engaged in “criminal billeting fraud,” which was the underlying motive for the discrimination and harassment directed against her. Complainant asserts that she raised the criminal fraud with the AJ on November 15, 2016, and that the AJ did not object to Complainant’s presentation of this fact. Complainant states that she was demoted to a GS-13 billet in 2010, and restored to a GS-15 in 2017, and that she informed the AJ of the billeting evidence. However, we note that the Commission does not have jurisdiction over allegations of criminal wrongdoing. See Josiah M. v. U.S. Postal Serv., EEOC Appeal No. 2019003865 (Feb. 14, 2020) (affirming Administrative Judge’s denial to amend the complaint to include allegations of criminal activity because they are beyond the Commission’s jurisdiction); Smith v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120131759 (June 20, 2013) (affirming the agency’s dismissal of claims related to criminal activity); Schultz v. U.S. Postal Serv., EEOC Appeal No. 0120080873 (Feb. 14, 2008) (finding that the Commission has no jurisdiction to deal with criminal proceedings). In addition, to the extent that Complainant argues that the “criminal billeting fraud” was the actual motivation for the Agency’s actions, we note that this contradicts her claims that she was discriminated against and harassed based on her sex, and in reprisal for prior protected EEO activity. Complainant also argues that the AJ ignored the 53 material facts in dispute, as described in her opposition to the Agency’s motion for a decision without a hearing. However, Complainant did not provide any supporting evidence of material facts in dispute. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. 2020003396 5 See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Regarding Complainant’s assertion of AJ bias, Complainant must make a substantial showing of personal bias by the AJ in order to prevail on her contention that the AJ displayed bias. Such bias must be shown to have prejudiced her in this matter. Complainant must establish that the alleged bias demonstrated, so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that she did not receive a fair and impartial hearing. See Smith v. Dep’t of the Army, EEOC Appeal No. 01880866, (May 11, 1988) (citing, Roberts v. Morton, 549 F.2d 158 (10th Cir), cert. denied); see also Roberts v. Andrus, 434 U.S. 834 (1977). In this case, there is no evidence that the AJ was biased in favor of the Agency such that Complainant did not receive a fair evaluation of her case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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. 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). 2020003396 6 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. The court has the sole discretion to grant or deny these types of requests. 2020003396 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, Director Office of Federal Operations August 24, 2021 Date