Willa B.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 27, 2018

0120162050 (E.E.O.C. Apr. 27, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Willa B.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120162050

Hearing No. 480-2015-00535X

Agency No. 14-35949-03730

DECISION

On June 4, 2016, 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
May 5, 2016, 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. and 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Financial Technician,
GS-0503-07, Resource Management Office (RMO) with the Naval Hospital in twenty-nine Palms,
California. On October 25, 2014, Complainant filed an EEO complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), color (light skin),
age (54), and reprisal (prior protected EEO activity) when:

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.
0120162050

2
(1) from October 15, 2012 forward, her first-level supervisor (S1) did not evenly distribute
her workload; and from July 9, 2013 forward, her second-level supervisor (S2) did not
evenly distribute her workload;

(2) from July 2013 to April 2014, S1 and S2 allowed her coworker (CW) to approve and
disapprove her leave;

(3) during August 2013 to June 2014, S2 refused to provide her an office key;

(4) in or around March 2014, the Human Resources Specialist refused to conduct a desk
audit on her position;

(5) in or around April 2014, S2 openly discussed her work performance with CW;

(6) on or about April 7, 2014, S2, CW, S1, and another co-worker (CW1) intimidated her,
stating, “If you wanted to argue a point, you needed to argue like a man,” and CW1 accused
her of being an idiot;

(7) on or about May 16, 2014 through November 2014, S2 continually threatened to replace
her;

(8) in or around July 2014, S2 continued to humiliate, embarrass, and disrespect her by
referencing her coworkers by name but referring to Complainant as “she” and “her;”

(9) on or about July 2, 2014 and August 7, 2014, CW1 repeatedly told her that she is an
“A__hole;”

(10) on July 21, 2014 and in August 2014, S2 assigned her duties from other departments;

(11) on or about July 21, 2014, S2 directed her to serve as secretary, while other staff
members were not directed to serve as secretaries for their customers;

(12) on August 11, 2014, S2 and S1 coerced, threatened, intimidated, and harassed her for
taking two weeks of leave, threatening to reassign her to a payroll position and replace her
with others in her travel program;

(13) on or about August 13, 2014, S1 and S2 allowed CW1 to yell, threaten, and harass
her;

(14) on or about August 13, 2014, S1 denied her request to meet with the Executive Officer;

(15) on or about August 21, 2014, S2 harshly questioned her knowledge of her position in
the presence of customers and office staff;

0120162050

3
(16) on October 3, 2014, S2 delayed processing her October 6-9, 2014, leave request and
only approved 2 days; and

(17) on October 23, 2014, S2 belittled her by printing out single questions in bold letters
on a cover page to discuss with her.

After the investigation, the Agency provided Complainant with a copy of the report of
investigation and notice of her right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew her request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The
decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged. This appeal followed. Complainant did not submit any statement or
brief in support of her 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”).

To prevail in a disparate treatment claim such as this, 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. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie
case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802
n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's
explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Workload Distribution – Claims 1, 10, & 11

S1 was a Supervisory Financial Analyst, GS-0501-12 and served as the Deputy Comptroller. He
supervised six to nine employees, but only two were considered Complainant’s peers. S1 explains
that Complainant was assigned as the Defense Travel System (DTS) Coordinator. CW trained
Complainant through June 2014. CW1 was available to assist Complainant from April 2014
forward. S1 denies that it required more than one person to complete Complainant’s work.
0120162050

4
However, he asserts that there were other employees available to assist Complainant with her travel
duties, if necessary. S1 further notes that in July 2014, a program change decentralized the travel
process and reduced Complainant’s workload by almost 50 percent. He further asserts that during
numerous travel meetings, it was discussed whether Complainant was receiving sufficient help
with the travel program. According to S1, Complainant was asked if she wanted to continue as
travel coordinator, or if it was too much for her, and she replied that it was not too much for her;
that she did not want a reassignment.

With respect to Claim 10, S2 explains that Complainant was directed to process Tri-Care travel
claims, which were previously assigned to a different directorate. However, due to personnel
reductions in the other department, and since it was a DTS task, the RMO assumed the processing
of those claims. S2 also explains that the beneficiaries of Tri-Care travel were not Department of
Defense (DOD) employees and did not have access to the DTS to create the authorizations and
voucher. S2 further explains that while performing this data entry created an increase in
Complainant's workload it streamlined the process, because entry and review were performed by
the same person in his department. S1 asserts that the total number of Tri-Care travel claims was
minimal, and Complainant was relieved of this duty in December 2014. S1 corroborates S2’s
testimony with respect to this issue.

With respect to Claim 11, S2 denies that Complainant was directed to serve as secretary. He
explains that the DD Form 577 was part of Complainant’s travel duties, and she had the
responsibility to complete them. S2 also asserts that this was an audit readiness requirement in
preparation for the DOD financial audit and that the other program managers had the same
requirement. In addition, S2 notes that Complainant was relieved of this DD Form 577
responsibility when another employee was assigned as travel program manager on December 1,
2014. S1 corroborates S2’s testimony with respect to this claim.

Leave – Claims 2, 12, & 16

S1 denies Complainant’s claims with respect to Claim 2. He explains that because CW and
Complainant were the two main travel employees, he checked both of their availability when one
or the other requested leave. He states that when Complainant requests leave, he would ask CW
if he was going to be at work to ensure someone was available to handle the travel program. S1
further asserts that he was the approving official for Complainant and S2 served as the approving
official in his absence. CW corroborates S1’s testimony and denies having authority to approve
or disapprove Complainant’s leave requests. He asserts that he was required to clear his leave
plans with Complainant and vice versa, before their leave was approved.

With respect to Claim 12, S1 denies coercing, threatening, intimidating, or harassing Complainant
about her two-week leave. He explains that while she was out on leave, he discovered that she
had left with uncompleted reviews. Upon her return, he asked her how she planned to catch up on
the remaining reviews. S1 denies threatening to reassign Complainant but merely asked her if she
wanted to remain the travel coordinator or move to payroll or the Uniform Business Office. S2
corroborates S1’s testimony and denies that Complainant was threatened, intimidated, or harassed
0120162050

5
for taking leave. He states that he discussed the travel program and frustrations with her
performance. According to S2, Complainant indicated that she was not properly trained and was
overloaded which is why he offered her the timekeeper position, which was vacant at the time and
equivalent in grade and series to her position. S2 asserts that this was not a threat but an offer of
alternate employment.

With respect to Claim 16, S1 acknowledges that he delayed approving Complainant’s leave
request. He notes that the request was for October 6-8, not October 6-9, 2014. He also states that
the delay was caused by Complainant’s workload, which she was required to complete by October
6th. He further states that he ultimately approved the remaining two days (October 7th and 8th).
S1 also notes that he had denied or delayed leave for other office personnel because of reports due,
noting that most sections were staffed by one person, making it difficult to get work completed.

Office Key – Claim 3

S2 admits that he denied Complainant’s request for an office key, because of security and key
control concerns. He explains that Complainant had no need for a key. S2 further notes that only
three employees had keys, one of whom arrived and opened the office at 6:00 a.m. (i.e., two hours
before Complainant’s scheduled arrival each day). In addition, S2 asserts that he had not issued
any keys since assuming his position as Comptroller. S1 corroborates S2’s testimony with respect
to this issue.

Desk Audit – Claim 4

Complainant acknowledges that when she requested the desk audit, the Human Resources
Specialist (HRS) asked her to write down everything that she did. However, she states that she
did not have time during the work day to complete the request. Complainant further states that she
had no further discussion with the HRS about the desk audit. HRS asserts that she does not recall
the conversation during which Complainant requested a desk audit. However, she states that she
would typically ask the individual to list all duties performed outside the position description. She
would then discuss the matter with the supervisor to determine whether a desk audit was necessary.

Harassment and Intimidation – Claims 5-9, 13-15 & 17

With respect to Claim 5, S2 explains that the discussion he had with CW was work-related and
appropriate. Both S2 and CW acknowledge discussing Complainant’s work performance because,
as certifier and approver of travel, CW was responsible for part of the travel program. S2 explained
that since Complainant was the program manager, S2 needed confirmation that Complainant
would be able to carry on, once CW left the Agency. S2 denies that the discussions were open or
overheard by other employees.

With respect to Claim 6, S1, S2, CW and CW1 deny the allegations that Complainant was told to
argue like a man or that she was an idiot. S2 denies the incident alleged in Claim 7, noting that
the employee referenced by Complainant was not employed at the command at the time. S2
0120162050

6
acknowledges offering Complainant a job swap with the referenced employee, who also was not
satisfied with her position. While Complainant declined S2’s offer, he notes that she did not object
to his making the offer. S2 denies the allegation in Claim 8 and asserts that he always used names
when referring to another person, along with the title Mr. or Ms. CW1 denies the allegation in
Claim 9. Specifically, he asserts that he did not speak with Complainant. However, CW1 surmises
that Complainant overheard him speaking with another coworker, since employees often called
him an “asshole” because he went by the book. He notes that Complainant uses more profanity in
the office than anyone else.

With respect to Claim 13, CW1 acknowledges sending Complainant an email requesting budget
information. CW1 explains that Complainant told him it was not her job and to get the information
himself. According to CW1, he told Complainant he did not have access to the DTS, and
Complainant told him she did not care. CW1 acknowledges that he raised his voice but denied
yelling. S1 denies allowing CW1 to harass Complainant. He asserts that he intervened and stopped
the incident when it occurred. S1 asserts that CW1 did not threaten or harass Complainant but
only told her to do her job. S1 further asserts that he counseled CW1 and gave him a verbal
warning. S2 denies being present or having knowledge of this incident. However, he asserts that
he did not allow employees to behave in such a manner, though he noted that Complainant was
the one who tended to yell during disagreements.

With respect to Claim 14, S1 denies the allegation that he did not permit Complainant to meet with
the Executive Officer. He said after the argument between Complainant and CW1, he initially
tried to diffuse the incident, but Complainant refused to discuss it, so he let her go. With respect
to Claim 15, S2 asserts that he asked Complainant a routine travel question, but Complainant
indicated that she had not looked it up. S1 asserts that the conversation was calm and the question
being asked was not contentious or harsh. With respect to Claim 17, S2 denies belittling
Complainant. He asserts that he wrote down six or more travel claim questions and provided a
copy to Complainant. He also asserts that the use of bold print was not to belittle Complainant but
to distinguish one question from the other and make the questions more understandable.

Aside from Complainant’s bare, uncorroborated assertions, the record is devoid of evidence that
the alleged conduct took place or took place in the manner described by Complainant. We find
insufficient evidence in the record to establish that that the Agency’s articulated legitimate, non-
discriminatory reasons for its employment actions were a pretext for discrimination.

With respect to Complainant’s allegations of harassment, we find insufficient evidence to establish
that the alleged conduct was sufficiently severe or pervasive to alter the conditions of the
complainant's employment. Additionally, a finding of a hostile work environment is precluded by
our determination that Complainant failed to establish that any of the actions taken by the Agency
were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sept. 21, 2000). We also conclude that contrary to Complainant’s bare, uncorroborated
assertions, the record is devoid of evidence to support the conclusion that any of Complainant’s
supervisors or co-workers held discriminatory/retaliatory animus toward Complainant with respect
to these issues.
0120162050

7

CONCLUSION

Accordingly, based on a thorough review of the record, we AFFIRM the Agency’s final decision
finding that Complainant failed to present sufficient evidence of discrimination or retaliation, as
alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
0120162050

8
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

April 27, 2018
Date