Zenobia K.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 31, 2020

0120182180 (E.E.O.C. Jan. 31, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zenobia K.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120182180 Hearing No. 410-2017-00397X Agency No. 15-67008-03101 DECISION On June 15, 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 May 14, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to sexual harassment, discrimination, or a hostile work environment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist, GS-9 at the Agency’s Public Affairs Office in Albany, Georgia. On March 23, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), disability (Major Depression and 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. 0120182180 2 neurosarcoidosis), and reprisal for prior protected EEO activity with respect to the following incidents: 1. Based on her sex (female) she was subjected to verbal sexual harassment by the Public Affairs Officer (S1), which lead to a hostile work environment beginning approximately July 2013, with the latest incident occurring on or about August 6, 2015, when S1 stated that a prior subordinate employee offered to do whatever it takes to make things right between them explaining that the employee was willing to get on her knees to make their working relationship better suggesting that she would provide him sexual favors; a. she routinely suffered sexual harassment when S1 called her into his office to talk about nothing then tell her to get her “sexy (profanity)” out of his office; 2. Complainant alleged she was subjected to discrimination based on her race, color, sex, disability, reprisal, when on August 25, 2015, S1 issued her a Letter of Caution (LOC) and later that same day attempted to bully and intimidate her into signing the LOC and to include the following incidents of harassment: a. On June 8, 2015, S1 requested a status report of everything Complainant was working on, but did not request the same for anyone else in the office; b. On June 12, 2015, S1 inquired if Complainant wanted to attend training, when she responded yes that she wanted to go, he denied the training; c. During the week of July 27, 2015, S1 allowed coworker-1 (CW1) and coworker-2 (CW2) to accompany him to North Carolina to receive an award and did not allow Complainant to attend; d. On August 5, 2015, S1 gave Complainant a LOC; e. On August 6, 2015, S1 refused to name Complainant as Acting Public Affairs Officer although he was aware she was the only staff member in the office that day; S1 sent an email that week to staff and senior leadership ensuring the position title was given to each person according to seniority except for her; f. On August 25, 2015, Complainant received an amended LOC; g. On September 10, 2015, the Captain refused to allow Complainant to attend a training session; h. Complainant was stripped of her ability to perform her duties without strict supervision when all other employees are allowed to perform similar tasks without the same scrutiny; i. On October 8, 2015, CW1 posted Complainant’s story “Leaving for Life” without photographs; j. On October 13, 2015, CW1 posted Complainant’s story “Mandatory Fun” without photographs; k. On October 16, 2015, Complainant was instructed to cover a story in the afternoon and have the story completed the same day by close of business; l. On October 27, 2015, CW1 posted Complainant’s story “Red Ribbon Week” without photographs; and m. Complainant was required to complete two stories each week. 0120182180 3 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing, but the AJ subsequently dismissed the hearing request and remanded the complaint to the Agency. 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 and harassment as alleged. The Agency determined that Complainant established that she was an individual with a disability. Next, the Agency found that it articulated legitimate, nondiscriminatory reasons for its actions regarding claims 2, 2d, 2f, and 2g, as these claims were discrete acts. With regard to claims 2, 2d, and 2f, the incidents regarding the Letter of Caution, S1 maintained that he issued the LOC because Complainant was not performing her duties because she was upset with a coworker. S1 indicated that he knew Complainant as someone who was able to perform her job well, but she was not doing so because of personal disputes with another employee. S1 noted that Complainant worked for the whole week and did not write any stories. S1 explained that the LOC was rewritten because Management Employee Relations originally wrote the original LOC and Complainant pointed out that some of what was written did not apply to her and could be misinterpreted, so he rewrote it to reflect his own words. Regarding claim 2g, the Agency explained that an email dated September 10, 2015, from the Captain indicated that because he had a Specialist out, he could not facilitate a training request. He indicated that should training become available at a later date, he would be happy to consider it. The Agency’s FAD found that other than Complainant’s conclusory opinion, she provided no evidence which showed that the Agency’s legitimate, nondiscriminatory reasons were pretext for discrimination. With regard to Complainant’s claim of harassment, the Agency found that while Complainant demonstrated that she was a member of a protected group, she did not show that she was subjected to unwelcome verbal or physical conduct based on her protected bases. Regarding her claims, S1 denied making the comments that an employee offered to get on her knees to make their relationship better. Moreover, S1 maintained that he never made any comments of a sexual nature to Complainant. Further, with regard to asking Complainant for a status report, 2a, denying her training, 2b, and not allowing her to go to North Carolina for an award, 2c, S1 explained that he asked Complainant for a status of her work because she was out of the office for a few days. He did not recall denying her training but maintained that if he did, it was due to a funding issue. He also stated that CW1 and CW2 went to the award ceremony because CW2 compiled the package and CW1 was the editor. S1 explained that the only reason that he went to the award ceremony was because the Captain had a conflict. 0120182180 4 With regard to Complainant’s claims that she was not named Acting Public Affairs Officer in S1’s absence, 2e, that she was stripped of her ability to perform her duties without strict supervision, 2h, and her stories were posted without photos 2i, 2j, 2k, and 2l, S1 maintained that because Complainant was the only employee there at that time, she was the de facto acting Public Affairs Officer. Further S1 explained that after Complainant posted an unflattering photo of the Colonel on Facebook, S1 was instructed to have a second pair of eyes see things that Complainant posted on social media. Finally, S1 maintained that not all stories were required to be posted with pictures. Additionally, with respect to Complainant being instructed to cover a story in the afternoon and have the story completed the same day, and being required to complete two stories each week, 2m, S1 explained that the general rule was that if you started a story before noon, it had to be on the website the same day. If the story was covered in the afternoon, it should be on the website the next day. Finally, S1 maintained that two stories a week was the general requirement. This, however, was dependent on what other duties were assigned, and as Complainant and coworker three (CW3), were the newest employees, they did not have as many duties as CW1 and CW2. As such, Complainant was advised of the two story a week requirement. The Agency’s FAD found that the incidents Complainant complained of were routine work assignments, instructions, and admonishments, which did not rise to the level of severe or pervasive. The Agency acknowledged that even if claim one occurred exactly like Complainant indicated, there was no basis for imputing liability because as soon as she reported the incident, S1 was moved away from Complainant and an investigation was initiated. The investigation did not substantiate Complainant’s claims. The Agency’s FAD found that Complainant did not demonstrate that she was subjected to discrimination or harassment as she alleged. CONTENTIONS ON APPEAL On appeal, Complainant, among other things, argues in detail that she was subjected to reprisal after she filed her EEO complaint. Complainant contends that coworkers were given leeway and were not required to follow the rules like she was. Complainant explains that she was unable to finish all her assignments in a timely manner because she was ordered by S1 to strictly adhere to her arrival, departure, and lunch times. Complainant contends that S1 had a problem with her to the point that she suggested that they needed someone to mediate between them, but he declined. Complainant explained that S1 wanted to always know what she was working on, where she was always, and had her monitored by a coworker. Complainant also contends that contrary to S1’s claims she did not turn in a story after working a full day, she explained that she was working on credit card issues and they took precedence over stories. Finally, Complainant maintains that training was denied to only her and the other black Public Affairs Specialist. 0120182180 5 In response, the Agency contends that Complainant did not show that the Agency’s nondiscriminatory reasons were pretext for discrimination. Moreover, Complainant did not demonstrate that she was subjected to severe or pervasive conduct which rose to the level of harassment. 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”). Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to the Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). It is well-settled that harassment based on an individual's race, sex, and/or prior protected activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, Complainant must show that: (1) she belongs to the statutorily protected classes and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct related to his membership in those classes and his prior EEO activity; (3) the harassment complained of was based on race, sex and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with his/her 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). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). 0120182180 6 Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, with respect to claims 2, 2d, 2f, and 2g, we find that assuming, arguendo, Complainant established a prima facie case of discrimination with regard to all of her bases, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as was discussed above. We find that other than disagreeing with the Agency’s reasons, Complainant did not show that the Agency’s explanations were pretext for discrimination or that discriminatory animus played a role. With regard to Complainant’s claims of sexual harassment, i.e., claims 1 and 1a, we find that Complainant has not provided evidence which establishes that she was subjected to conduct which had the purpose or effect of unreasonably interfering with her work performance, and/or created an intimidating, hostile, or offensive work environment. We find, in light of the standards set forth in Harris, no persuasive evidence that these comments, which allegedly took place over a two-year period, were sufficiently severe or pervasive enough to have unreasonably interfered with her work performance and/or created an intimidating, hostile, or offensive work environment - even if accurately described by Complainant. Although S1 denies that he made the comment about an employee getting on her knees to improve their relationship, we find that it is more believable than not that he made the comment as CW3 also reported hearing the same story. The Commission notes that Title VII is not a civility code. Rather, it forbids “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). We also concur with the Agency’s findings that the remaining incidents complained of where routine work-related incidents that were not severe or pervasive enough to establish hostile work environment. Based on the evidence in the record and information submitted on appeal, we find that Complainant has not demonstrated that she was subjected to discrimination or harassment. On appeal, Complainant essentially disagrees with all the Agency’s positions. We find, however, that other than Complainant’s conclusory statements, she, apart from claims 1 and 1a, has not provided any evidence which suggests that her protected bases were a factor with respect to the Agency’s actions. While it is clear from the record that Complainant and S1 had difficulties communicating with each other, this in and of itself is not discrimination. We note that employers have broad discretion to set policies and carry out personnel decisions and should not be second- guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). CONCLUSION Accordingly, we AFFIRM the Agency’s final decision which found that Complainant did not prove that she was subjected to discrimination or harassment. 0120182180 7 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 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. 0120182180 8 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 31, 2020 Date