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

Equal Employment Opportunity Commission

Jun 21, 2021

Appeal No. 2020002842 (E.E.O.C. Jun. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tiffani G.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020002842 Agency No. 18-67865-00237 DECISION On March 23, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 28, 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 BACKGROUND During the relevant period, Complainant worked as a Community Planner, GS-0020-12, at the Public Works Division, United States Marine Corps MCAS Miramar in San Diego California for a two-year term. On September 26, 2018, Complainant filed a formal EEO complaint alleging she was subjected to harassment/a hostile work environment based on national origin (Hispanic), color (black), and sex (female) when: 1.a. in or around December 2016/January 2017, Complainant’s supervisor (S1) reprimanded Complainant for “laughing and talking during project deadlines” and for speaking to an engineering technician; accused her of excessive cell phone use during office hours and having “crumbs on the floor of [her] workstation;” and informed her she did not like it when she “leaned back in [her] chair;” 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. 2020002842 2 1.b. during January 2017, S1 informed Complainant that she would be delaying her promotion to GS-12 despite the “improvement in [her] behavior;” 1.c. from December 2017 through January 2018, S1 accused Complainant during a performance appraisal of talking to the engineers too much regarding projects, and stated she should be mindful of their time; awarded her a smaller annual reward/bonus incentive than co-workers; accused her via phone texts of purposely taking leave without notifying her; denied her training and made a verbal threat against her after she asked the Public Works Officer (S2) for funding for the denied training stating. “If [she does] it again there is going to be an issue; 1.d. during February 2018, S1 sent another employee to a Traffic Engineering Working Group, instead of sending Complainant; 1.e. from March 2018 through April 2018, S1 assigned several projects in Complainant’s area of responsibility to other employees; 1.f. during April 2018, S1 approached a contractor and offered him a job and said she would select him using Expedited Hiring Authority, but did not let Complainant compete for the position, allowing her term employment to expire; S1 informed Complainant with the door to her office open that she would not be able to hire her as a permanent employee; and S1 tried to humiliate Complainant in front of other employees; and 1.g. during May 2018, S1 forced Complainant to take annual leave for permanent change of station related duties to include visiting to the Joint Reception Office to book her flight overseas and making arrangements to ship household goods; and 2. on October 11, 2018, when called as a reference for a job for which Complainant was applying, S2 stated “[Complainant] is not GS-13 ready.”2 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. In accordance with Complainant’s request, the Agency issued a final decision on February 28, 2020, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS To establish a claim of discriminatory hostile environment harassment, 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 2 Claim 2 was later amended to the instant formal complaint. 2020002842 3 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In other words, to prove her harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of her protected bases - in this case, her national origin, color and/or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Here, as discussed below, Complainant simply has provided inadequate evidence to support her claim that her treatment was the result of her national origin, color or sex. Regarding claim 1.a., Complainant asserted that in or around December 2016/January 2017, Complainant’s supervisor (S1) reprimanded Complainant for “laughing and talking during project deadlines” and for speaking to an engineering technician; accused her of excessive cell phone use during office hours and having “crumbs on the floor of [her] workstation;” and informed her she did not like it when she “leaned back in [her] chair.” The S1 (American, white, female) asserted that she did not reprimand Complainant, and that they had a discussion regarding these issues and Complainant’s office conduct. S1 noted that Complainant consistently demonstrated a lack of work ethic and integrity. Specifically, S1 found that Complainant could not complete her projects and/or meet her deadlines because of her ethic/conduct issues. S1 also noted that Complainant had a time management issue and instead of working and she was observed talking and laughing on the day when there was an urgent deadline. S1 admitted completing more than half of Complainant’s projects that particular day. S1 further noted that Complainant’s workstation was so bad that she had to call pest control due to the ants that came in and trailed directly to her cubicle because of the clutter. In addition, S1 stated that a named Engineer Technician who works for Facilities Maintenance and his position had no bearing on the work that we did in Assessment Management. She would find the Engineer Technician in Complainant’s cubicle for 30 minutes at a time. Subsequently, S1 asked Complainant to tell the Engineer Technician not to do so. Regarding claim 1.b., Complainant alleged that during January 2017, S1 informed Complainant that she would be delaying her promotion to GS-12 despite the “improvement in [her] behavior.” S1 acknowledged that she does not recall saying “despite” improvements, there will still improvements to be even made if Complainant had made some progress. S1 noted that she and Complainant had a discussion regarding her conduct and work ethic issues, and S1 told her that Complainant still had improvements to make. Furthermore, S1 would “constantly” disappear from her desk for significant lengths of time and S1did not know where she was. 2020002842 4 Regarding claim 1.c, Complainant alleged that from December 2017 through January 2018, S1 accused Complainant during a performance appraisal of talking to the engineers too much regarding projects and stated she should be mindful of their time; awarded her a smaller annual reward/bonus incentive than co-workers; accused her via phone texts of purposely taking leave without notifying her; denied her training , and made a verbal threat against her after she asked the Public Works Officer (S2) for funding for the denied training stating “if [she does] it again there is going to be an issue.” S1 stated that she received feedback from the engineers that they did not like Complainant “hanging around” constantly, and they felt she did not know her job and was trying to get them to do it for her. Regarding training, S1 notified her staff during a department meeting that they were welcome to sign up for training but take any training that was offered locally, as she cannot guarantee they would be able to send them out of the local area due to consistent lack of funds. She noted that Complainant signed up for trainings that were all out of state, and one particular training was traffic engineering training which was not relevant to her position. Regarding claim 1.d, Complainant claimed that during February 2018, S1 sent another employee to a Traffic Engineering Working Group instead of Complainant. S1 explained that she had the Lieutenant attend a Traffic Engineering Working Group because she is an engineer while Complainant is not an engineer. She further stated as a supervisor, she has the right to distribute work tasks and that the Lieutenant was a better fit to take on the task. Regarding claim 1.e., Complainant asserted that from March 2018 through April 2018, S1 assigned several projects in Complainant’s area of responsibility to other employees. S1 noted that the base is divided into different zones. Each planner has several zones that the planner is responsible for. In this case, she stated that the Marine Corps Community Services (MCCS) program was in Complainant’s co-worker’s program area but in Complainant’s zone. Regarding claim 1.f., Complainant claimed that during April 2018, S1 approached a contractor and offered him a job and said she would select him using Expedited Hiring Authority and did not let Complainant compete for the position, allowing her term employment to expire; S1 informed Complainant, with the door to her office open, that she would not be able to hire her as a permanent employee; and S1 tried to humiliate Complainant in front of other employees. S1 stated that she did not offer the contractor a job because she does not have the authority to do and that putting forth offers is a Human Resources function. S1 stated that she merely notified the contractor regarding a position that could potentially become available mid-June 2018, and encouraged him to apply for it. The record reflects that the contractor was not hired. Meanwhile, S1 stated that Complainant’s term was for two years and it would have expired, but she found another position in Bahrain. 2020002842 5 S1 stated that at that time of her discussion with Complainant, she told Complainant that she would be competing against veterans and federal employees and that her chances were slim. Moreover, she asserted that her voice was not loud and did not purposely try to humiliate Complainant. Regarding claim 1.g., Complainant alleged that during May 2018, S1 forced Complainant to take annual leave for permanent change of station related duties to include visiting to the Joint Reception Office to book her flight overseas and making arrangements to ship household goods. S1 stated that Human Resources originally advised her that Complainant would have to take leave in order to handle to duties related to her permanent change of station. She noted that after Complainant had requested leave, she received a memorandum from Personnel stated that Complainant did not have to take leave for this purpose. Subsequently, S1 cancelled Complainant’s leave request. Regarding claim 2, Complainant alleged on October 11, 2018, when called as a reference for a job Complainant was applying for, S2 stated “[Complainant] is not GS-13 ready.” The Public Works Officer (American, white, male), also Complainant’s second-line supervisor, stated that he was asked by the command to give a reference for Complainant. He acknowledged that he did not feel Complainant was ready to work independently and the position required a lot of independent operations. Furthermore, the Public Works Officer felt that Complainant needs more experience before working with that much independence. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. There is no evidence of any other similarly situated employee who was treated more favorably. Complainant simply has provided no evidence to support her claim that her treatment was the result of her national origin, color, and/or sex. Significantly, we again note that Complainant did not submit a brief on appeal. In sum, Complainant’s claim of ongoing harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by her protected bases. 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. 2020002842 6 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. 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). 2020002842 7 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 June 21, 2021 Date