Zenia M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 21, 2019

0120181922 (E.E.O.C. Aug. 21, 2019)

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

Zenia M.,1
Complainant,

v.

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

Appeal No. 0120181922

Agency No. DON-17-66001-01957

DECISION

On June 24, 2018, 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
April 30, 2018, 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.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected her to discrimination and a hostile work environment based on her protected
classes.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Administrative
Specialist at the Agency’s Business and Financial Management Department in San Diego,
California.

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.
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On April 26, 2017, Complainant contacted the EEO Counselor. Informal efforts to resolve her
concerns were unsuccessful.

On July 26, 2017, Complainant filed an EEO complaint alleging that the Agency subjected her to
a hostile work environment and discriminated against her on the bases of her race (Asian), national
origin (Philippines), and age (59), when:

1. in August 2016, Complainant’s supervisor (S1) threatened to lower her Science and
Technology Reinvention Laboratory (STLR) rating for time management and
communication;

2. on September 14, 2016, S1 gave Complainant a lower STRL rating;

3. in September 2016, Complainant’s request to be reassigned to the 32nd Street
location was denied;

4. on February 14, 2017, S1 harassed her in connection with a medical emergency;

5. sometime in March 2017, S1 told Complainant not to send so many emails;

6. on April 26, 2017, S1 issued her a Letter of Caution; and,

7. on July 14, 2017, and on July 17, 2017, S1 changed the date and time of her STLR
annual review and informed her there was no rating for the Leadership element.

On August 10, 2017, the Agency dismissed claims 2 and 3 on the grounds of untimely EEO
Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that claims 2
and 3 were discrete acts and Complainant had failed to demonstrate why the 45-day time frame
should be extended. Nonetheless, the Agency stated the claims would be investigated as part of
the overall harassment claim.

On November 28, 2017, Complainant requested that her complaint be amended to add the
following claim, that the Agency subjected her to a hostile work environment and discriminated
against her on the bases of race (Asian), national origin (Philippines), and age (59) when:

8. on September 8, 2017, S1 gave Complainant a lower STRL rating.

On December 21, 2017, the Agency dismissed claim 8 on the grounds of untimely EEO Counselor
contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted again that while claims 2, 3,
and 8 were dismissed, they were still investigated as part of Complainant’s hostile work
environment claim.

The investigative record reflects the following pertinent matters relating to the subject claims.
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During Complainant’s annual 2016 appraisal review, Complainant was informed that she needed
to improve upon her communication and time management. Complainant requested examples of
when she had failed in those regards, but was allegedly given none. Complainant asserted that
upon asking for additional information, she was threatened with discipline.

Complainant’s acting first line supervisor (Acting S1) (Filipina, Philippines, over 40) stated that
she wrote the majority of the 2016 appraisal, and presented it to Complainant along with S1. The
Acting S1 denied ever threatening Complainant. The Acting S1 stated that Complainant had
trouble with effective communication and technical ability in certain tasks. For example,
Complainant missed meetings with little to no communication. The Acting S1 also noted that
Complainant frequently failed to apply critical analysis when reviewing funding documents.

The Supervisor (S1) (Caucasian, American, over 40) denied ever threatening Complainant with
discipline. S1 noted that Complainant was marked at a 6.5 during the 2016 appraisal, which meant
that she was performing at standard. Regarding time management, she reminded Complainant that
she had missed meetings due to conflicting priorities on three different occasions in late 2016. S1
stated that instead of accepting responsibility, Complainant often deflected responsibility.

On February 13, 2017, Complainant experienced what she believed to be a possible stroke at work.
Complainant told her coworker, left a voicemail for S1, submitted a leave request, and then left
for the hospital. The next day, she received an email from S1, which directed her to follow a five-
step process when requesting leave. S1 stated that the email was sent to the entire staff, and it was
meant to clarify expectations as she was a new supervisor. S1 stated that at the time of her email,
she was unaware that Complainant had left the day prior as she had not received the voicemail at
the time.

In March 2017, Complainant sent S1 an email informing her that she had completed a work task.
Complainant felt required to keep S1 updated due to S1’s prior statements regarding her
communication. S1 stated that she had messaged Complainant, and two other staff members,
reminding them that she did not need to be copied on every internal correspondence. S1 noted that
when she had first arrived, she had informed the staff that she should only be copied if action was
required on her part.

On April 26, 2017, S1 issued Complainant a Letter of Caution (LOC) for not attending a meeting
on April 10, 2017. Complainant concedes she missed the meeting, but explains she was reviewing
work with a colleague. Complainant believed the LOC was unnecessary as she had never missed
a meeting prior. S1 stated that she had issued the LOC because Complainant missed a meeting
without coordinating with her in advance. S1 noted that she had previously counseled Complainant
about this, and it was a recurring problem.

On July 14, 2017, and on July 17, 2017, S1 allegedly changed the date and time of Complainant’s
STLR annual review and informed her there was no rating for the Leadership element. After
Complainant consulted with another supervisor, she was able to be rated on the Leadership
element.
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Overall, Complainant was given a lower rating than the year prior and was therefore not given a
salary increase. S1 stated that she never threatened to take away Complainant’s rating on
Leadership and had only informed her that she was having a hard time saving her input on the
Leadership portion. S1 stated that she had rated Complainant lower because Complainant did not
provide accurate information during data calls, missed meetings, and did not complete the Crucial
Conversation course as she directed during Complainant’s interim review.

At the conclusion of 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The April
30, 2018 decision concluded that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant asserts that the Agency erroneously dismissed several of her claims, and as such
failed to properly investigate the extent of her hostile work environment and discrimination
complaint. Complainant asserts that despite always receiving positive performance ratings in the
past, performance grades inexplicably began to decline. Complainant also noted that her supervisor
also failed to provide her with any path to improvement and would continually berate her for no
reason.

On appeal, the Agency asserts that while Complainant’s appeal was timely sent on May 22, 2018,
her appellate brief was not submitted to the Agency until June 28, 2018. The Agency argues that
the appellate brief should therefore be deemed untimely and discarded. Should the Commission
accept the brief, the Agency noted that it disagreed with Complainant’s appellate contention that
the Agency failed to investigate her claims appropriately. It noted that while it had dismissed
discrete untimely acts, it had investigated all of Complainant’s claims, and treated dismissed ones
as evidence in her harassment claim. The Agency asserts that the final decision is fully supported
by the record, that Complainant did not provide any persuasive arguments below or on appeal.

ANALYSIS AND FINDINGS

As a preliminary matter, we note that the Agency argued that Complainant’s appeal brief was
untimely, and should therefore be discarded. Based on the record, and her timely appeal, we have
determined to accept the appellate brief for review.

Regarding Complainant’s contentions about the procedural dismissal of claims 2, 3, and 8. We
note that the Agency could have accepted such claims, even if initially untimely, since the record
reflects that at least one of the incidents, comprising the instant harassment/hostile work
environment claim, occurred with the 45-day period preceding Complainant’s initial EEO contact
on April 26, 2017.
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Bock v. Department of Homeland Security, EEOC Request No. 0120110975 (Dec. 16, 2011).
However, despite the dismissal, the Agency conducted a full investigation on all the claims, which
was submitted to the Commission as part of the report of investigation. Therefore, in the interest
of judicial efficiency, we do not find it necessary to disturb the Agency’s procedural dismissal on
claims 2, 3, and 8.

Standard of Review

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”).

Disparate Treatment

Complainant alleges that she was subjected to disparate treatment. A claim of disparate treatment
is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973). For a complainant to prevail, she must first establish a prima facie
case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference
of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438
U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory
reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to
persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally consists
of determining the existence of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry
can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that the agency’s actions were
motivated by discrimination. U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711,
713-714 (1983).

Unlawful Harassment

Complainant also alleged that she was subjected to unlawful harassment. A harassment claim is
examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).
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See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). To establish this claim, 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.

The Supreme Court in Harris explained that an “objectively hostile or abusive work environment
[is created when] a reasonable person would find [it] hostile or abusive” and the complainant
subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently
severe to trigger a violation must be determined by looking at all the circumstances, including “the
frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee's work performance.” Id. at 23.

A hostile work environment exists when the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the
complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Svcs., Inc.,
523 U.S. 75, 78 (1998).

With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for
harassment when it is created by a supervisor with immediate (or successively higher) authority
over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v.
City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful
Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999).

Analysis

Regarding Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination based on her protected classes, the Agency has
articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant argued
that she was discriminatorily issued a Letter of Caution (LOC) on April 26, 2017. Complainant
acknowledged that she had missed a meeting but asserted that the LOC was unnecessarily harsh
considering she had never intentionally missed a meeting. Here, the record demonstrates that the
missed April 2017 meeting was not a first, but part of an overall pattern by Complainant. The
Acting S1 and S1 had both previously discussed the need to be better at time management and
communication with Complainant. The record does not support Complainant’s contention that the
LOC was discriminatorily issued. Similarly, Complainant asserted that her 2017 appraisal rating
was discriminatorily lowered without reason. The record demonstrated that Complainant was on
notice that she had areas in need of improvement, and despite knowing this, did not make
significant efforts to improve.

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We note that agencies generally have broad discretion to carry out personnel decisions and exercise
business judgment. Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996).
Regarding the adverse actions, the Agency articulated legitimate, nondiscriminatory reasons for
its actions which Complainant has failed to show were pretext for discrimination. Pretext inquiry
is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of
Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether
the agency made the best, or even a sound, business decision; it is whether the real reason is
discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for
intentional discrimination is insufficient because subjective belief, however genuine, does not
constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were
motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion
remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was
motivated by prohibited discrimination. Complainant has failed in this regard.

Lastly, we note that the discrimination statutes are not a civility code. What is prohibited is
“behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale,
523 U.S. at 81. We are mindful that the discrimination statutes do not create a right to work in a
pleasant environment, merely one that is free from discrimination. As a result, employees may
experience unprofessional, inappropriate, and disrespectful treatment. In the instant matter, the
record demonstrates that Complainant was unhappy with her appraisal rating, and her relationship
with S1. At the time, S1 was a new supervisor and therefore it is not unusual that S1 would have
a different set of expectations from prior supervisors. For example, S1 had made it clear to the
staff that there were too many emails, and therefore had set expectations on what types of emails
to include her on. Based on the record, aside from common workplace matters, there were no
incident(s) that would demonstrate that Complainant was subjected to a hostile work environment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed or referenced herein, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant 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.
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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
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.

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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 21, 2019
Date