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

Equal Employment Opportunity Commission

Jan 26, 2021

Appeal No. 2019005396 (E.E.O.C. Jan. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Toni M.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2019005396 Hearing No. 480-2019-00269X Agency No. 16-00244-02034 DECISION On August 17, 2019, 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 18, 2019 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supply Technician, GS-2005-06, with the Naval Supply Systems Command (NAVSUP) at Naval Base Point Loma in San Diego, California. On August 1, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of age (63) and in reprisal for prior protected EEO activity when: 1. On December 18, 2014, Complainant was issued a Letter of Reprimand for a violation that was cited as prior discipline in a Letter of Suspension issued to her on April 27, 2016, which she believes has no relevance; 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. 2019005396 2 2. On April 27, 2016, Complainant submitted a retirement application (constructive discharge) in lieu of receiving a Letter of Suspension for AWOL, Failure to Follow Proper Call-In Procedures, and Failure to Follow Direct Orders; 3. On May 2, 2016, Complainant’s request to rescind her retirement application and fulfill the terms of the Letter of Suspension of April 27, 2016 was denied; 4. In January 2016, on Complainant’s birthday, [a supervisor] asked Complainant when she was going to retire; 5. After Complainant was transferred to Naval Base Point Loma in April 2015, [a supervisor] repeatedly berated Complainant in the presence of co-workers and customers; 6. On about June 27, 2015, Complainant was injured on the job but was not allowed to file a workers’ compensation claim, and she was charged with 48.25 hours of AWOL; 7. In April 2015, [a supervisor] re-assigned Complainant to Naval Base Point Loma with no opportunity for promotion from a GS-6 to GS-7 Purchase Agent, whereas other Purchase Agents were re-assigned and promoted from a GS-6 to a GS-7; 8. On November 18, 2015, Complainant received a Letter of Reprimand for improper call-in procedures; and 9. On February 9, 2016, Complainant received a Two-Day Letter of Suspension for failure to follow call-in procedures.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 12, 2019 motion for summary judgment and issued a decision without a hearing on July 3, 2019, finding that Complainant failed to show that she was subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. ANALYSIS AND FINDINGS 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 2 The Agency initially dismissed claims (4) - (9); however, the EEOC Administrative Judge assigned to the matter reinstated the claims. 2019005396 3 determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment (Claims 1, 3 and 6 - 9) To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She must generally establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No, 05950351 (Dec. 14, 1995). Claim 1 (Letter of Reprimand) Complainant alleges that a letter of reprimand she received on December 18, 2014 was improperly used as evidence of prior discipline when she received a subsequent 10-day suspension on April 27, 2016. Complainant was issued the April 2016 discipline after numerous instances of tardiness, failure to adhere to the proper call-in procedures, failing to complete required training as directed by her supervisor, and taking a physical fitness break after her supervisor directed her not to until she caught up on mandatory training. The Agency explains that the 2014 letter was used in consideration of the April 2016 discipline because the letter explicitly warned Complainant that “if you engage in further misconduct of any type within a two-year period, this letter of reprimand may be counted as a prior offense in determining future corrective action.” As discussed below, Complainant informed management that she would be retiring when she received the suspension, and the retirement was effective May 2, 2016. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not dispute the factual basis for the Agency’s explanation. Complainant has failed to adduce any evidence to support a finding that the Agency’s explanation was a pretext designed to conceal discriminatory or retaliatory animus. 2019005396 4 Claim 3 (Request to Rescind Retirement Application Denied) Complainant subsequently requested to rescind her retirement paperwork believing she could do so because it had not been fully processed. The Agency explains that, according to its procedures, an employee who submits an application for retirement may withdraw that application prior to the effective date of the application but not after the effective date. Complainant did not make the request to withdraw her retirement application until after the effective date had passed. ROI at 124, 325. This is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not dispute the factual basis for the Agency’s explanation. Complainant has failed to adduce any evidence to support a finding that the Agency’s explanation was a pretext designed to conceal discriminatory animus. Claim 6 (Denied Workers’ Compensation Claim, Charged with AWOL) According to the Agency, Complainant was charged AWOL because she failed to provide medical documentation to support six days of sick leave she claimed. Agency policy requires employees who are on sick leave for more than three days to provide medical documentation to support the sick leave. ROI at 313. In July 2015, Complainant was charged AWOL when her supervisor mistakenly believed Complainant had failed to follow check-in procedures. The AWOL charge was reversed when the supervisor discovered that Complainant had attempted to call in before her absence. ROI at 259. These are legitimate, nondiscriminatory reason for the Agency’s action. Complainant does not dispute the factual basis for the Agency’s explanation. Complainant has failed to adduce any evidence to support a finding that the Agency’s explanation was a pretext designed to conceal discriminatory animus. Claim 7 (Denied Promotion Opportunity) Complainant contends that she was discriminatorily not promoted from GS-6 to GS-7 while others were promoted. Complainant has failed to establish a prima facie case for this claim. Where nonselection or non-promotion is at issue, a complainant may establish a prima facie case of discrimination with a showing that she is a member of a protected group, that she applied for a position for which she was qualified, that she was not selected, and that the selectee was outside of her protected group. Silva v. U.S. Postal Service, EEOC Request No. 05931164 (May 12, 1994); Keyes v. Secretary of the Navy, 853 F.2d 1016, 1023 (1st Cir. 1988). Here, Complainant has not shown that she ever sought a promotion that was denied. Nor has she identified others outside her protected groups who were similarly situated. Without evidence of this nature or some other basis to support an inference of discrimination, this claim fails. Claim 8 (Letter of Reprimand) and Claim 9 (2-Day Suspension) According to the Agency, on November 18, 2015, Complainant received a Letter of Reprimand and on February 9, 2016, a Letter of Suspension (ROI at 129-131) because she failed to follow call-in procedures required in the event employees are unable to report for scheduled duty. This is a legitimate, nondiscriminatory reason for the Agency’s action. 2019005396 5 Complainant does not dispute the factual basis for the Agency’s explanation. Complainant has failed to adduce any evidence to support a finding that the Agency’s explanation was a pretext designed to conceal discriminatory animus. Hostile Work Environment Among her other claims, Complainant has alleged that she was subjected to a hostile work environment which culminated in her forced retirement or constructive discharge. It is well-settled that harassment based on an individual's statutorily protected bases is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with his 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 Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Here, the AJ found that conduct shown by Complainant’s evidence “does not rise to the level of the kinds of abusiveness or offensiveness that would be sufficient to state a claim under federal law.” We agree. Complainant alleges harassment by her supervisor including the following incidents: her supervisor once asked her when she planned to retire and regularly raised his voice to her and otherwise treated her harshly in their business interactions. These allegations, even if proven, are insufficient to establish a claim of hostile workplace harassment. As the Commission has repeatedly held, the discrimination laws are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Here, Complainant failed to adduce evidence of any severe or pervasive conduct that would constitute a work environment so unbearable that the terms and conditions of his employment were altered or otherwise negatively impacted. The incidents evidenced here appear to be normal work-related interactions actions found in the workplace and there is no evidence that the conduct was based on Complainant’s protected classes. As a result, the Commission finds that Complainant was not subjected to a hostile work environment as alleged. 2019005396 6 Constructive Discharge3 The central question in a constructive discharge claim is whether the employer, through its unlawful discriminatory behavior, made the employee's working conditions so difficult that any reasonable person in the employee's position would feel compelled to resign. Carmon-Coleman v. Dep't of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep't of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). As noted above, we find that the Agency had legitimate, nondiscriminatory reasons for its actions and Complainant has not established that a reasonable person in her position would have found these working conditions intolerable. Furthermore, the record is devoid of evidence that any responsible management official was motivated by discriminatory animus with respect to the working conditions at issue. Accordingly, we agree with the AJ’s decision in favor of the Agency and find that Complainant failed to prove her constructive discharge claim as alleged. 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 order. 3 In ruling on the Agency’s motion for summary judgment, the EEOC AJ addressed the merits of the constructive discharge claim. Typically, the Merit Systems Protection Board would have initial jurisdiction of a constructive discharge claim; however, under the circumstances of this case, we find it appropriate for the AJ to have addressed the constructive discharge claim as it had become so firmly enmeshed in the EEO process that it better served the interests of administrative economy to do so. See Vargas v. U.S. Postal Serv., EEOC Appeal No. 0120102773 (Dec. 10, 2010); Cullors v. Dep't of Veterans Affairs, EEOC Appeal No. 01A41560 (June 27, 2006); Richardson v. Dep't of Veterans Affairs, EEOC Appeal Nos. 01982915 and 01984977 (Nov. 5, 2001); Hose v. Dep't of Veterans Affairs, EEOC Appeal No. 0120093173 (Mar. 25, 2011). 2019005396 7 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2019005396 8 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 26, 2021 Date