Emerson S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 5, 20192018000034 (E.E.O.C. Nov. 5, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emerson S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2018000034 Hearing No. 510-2017-00131X Agency No. DON-16-69450-01701 DECISION On September 19, 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 August 15, 2018, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. ISSUES PRESENTED The issues presented herein are whether the Agency properly issued its final decision and whether Complainant established he was subjected to unlawful discrimination and/or harassment. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electrician, WG- 2805-10 at the Agency’s Boca Chica Base in Key West, Florida. 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. 2018000034 2 On June 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of disability (bulging and torn discs in lower back and in cervical spine, fibromyalgia, depression, and anxiety) and in reprisal for prior protected EEO activity arising under the Rehabilitation Act when: 1. On March 7, 2016, Complainant had been assigned to the Trumbo Point Base, however, he was returned to work at the Boca Chica Base; 2. On August 25, 2015, while in a meeting with his supervisor (Supervisor), he looked at Complainant and stated, “Whoever made a complaint to the Union can go fuck themselves.”; 3. On August 25, 2015, a poster of a chicken with its eyes poked out was placed on the wall behind a chair where he was sitting; 4. On June 15, 2015, he was directed to perform duties in a warehouse on Trumbo Point Base with 95 degree temperatures. He was also told he could not leave; 5. In 2015, he was not allowed to attend the High Voltage Wiring Training along with other Electricians; 6. In 2015, a coworker yelled at Complainant, “Just go ahead, go away or die will you.”; and 7. On May 3, 2016, the Supervisor allegedly falsified records on a CA-7 form resulting in the denial of his worker’s compensation claim. The Agency dismissed claim 7 pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency determined that claim 7 constituted a collateral attack on the Office of Workers’ Compensation Programs (OWCP). As such, the Agency concluded that the EEO complaint process was not the appropriate venue to raise such a claim. The Agency noted that in claim 1, Complainant alleged a timely claim of disparate treatment. The Agency found that Complainant alleged harassment with respect to claims 1 – 6. The Agency accepted claims 1 - 6 for investigation. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. However, the AJ denied the hearing request. By decision dated June 28, 2018, the AJ cancelled the hearing 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 him to discrimination or harassment as alleged. 2018000034 3 CONTENTIONS ON APPEAL On October 19, 2018, Complainant through his attorney (Attorney) filed a brief in support of the instant appeal. The Attorney asserted that the Agency did not have the authority to issue a final decision. The Attorney argued that the matter was still pending before the AJ. Therefore, he asked that the Commission remanded the matter back to the AJ. The Agency asked that the Commission affirm its final decision finding no discrimination. ANALYSIS AND FINDINGS As an initial matter, we note that Complainant alleged that the Agency did not have jurisdiction to issue its final decision. We find that Complainant was mistaken. The record indicates that the AJ dismissed the hearing by decision dated June 28, 2018. The AJ remanded the EEO complaint to the Agency to issue a final decision. As such, we conclude that the EEO complaint was properly before the Agency when it issued its final decision on August 15, 2018. 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 (EEO MD-110), 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 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or 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 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 Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 Ctr. 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. 2018000034 4 Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For the purposes of analysis, we assume, without deciding such, that Complainant is an individual with a disability. In claim 1, Complainant asserted that he was subjected to disparate treatment when he was reassigned from the Trumbo Base to the Boca Chica Base. The Supervisor stated that Complainant’s facility of record was the Boca Chica Base. Complainant was provided with light duty at the Trumbo Base as a Material Expeditor. At Trumbo, Complainant was asked to inventory the facility in order to prepare it for a new Material Expeditor. Once the inventory was complete and the new Material Expeditor began working at the Trumbo Base, the Supervisor returned Complainant back to the Boca Chica Base. The Supervisor asserted that Complainant’s assignment at Trumbo had been completed. Upon review, we find that the Agency articulated legitimate, nondiscriminatory reasons for its action. We now turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Complainant merely asserted that he did not wish to return to the hostile work environment he experienced at the Boca Chica Base. Upon review, we find that Complainant failed to demonstrate that the Agency’s reason constituted pretext for discrimination. As such, we conclude that Complainant failed to demonstrate that he was subjected to disparate treatment with respect to claim 1. Harassment To establish a claim of harassment Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 his statutorily protected classes; (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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2018000034 5 In his harassment claim, in addition to the incident discussed above, Complainant alleged that the Supervisor stated while looking at him, “Whoever made a complaint to the Union can go fuck themselves;” a poster of a chicken was posted behind where he was sitting; he was asked to perform duties in a warehouse which was 95 degrees; he was not allowed to attend training; and a co-worker yelled at him, “Just go ahead, go away or die will you.” To prove his harassment claim, Complainant must establish that he 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 a protected basis – in this case, his presumed disability and/or retaliatory animus. Only if Complainant establishes both of those elements – hostility and motive – will the question of Agency liability present itself. Here, as already concluded above, there is no evidence to support a finding that Complainant’s disability or prior protected activity played any role whatsoever in the decision related to the reassignment to the Boca Chica Base alleged in claim 1. Further, as to claim 4, Complainant asserted that he was denied training. The Supervisor averred that Complainant did not ask about and did not show up for the training despite being informed of the training opportunity. Further, as to claim 5, the Supervisor declared that Complainant did not report that he was informed by management that he could not leave the warehouse. Complainant’s Second Level Supervisor denied ordering Complainant not to leave any warehouse. They asserted that if Complainant needed a break, he could take a break. Therefore, we find that the responsible management officials provided a legitimate, non-discriminatory explanations for claims 4 and 5. As to the events raised in claims 2, 3, and 6, we find that Complainant failed to show that these events were severe or pervasive or that they occurred because of his protected bases. In sum, Complainant failed to prove that his disability or retaliatory animus played any role in the incidents he proffered as evidence of his harassment claim. 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 decision finding that Complainant did not establish that he was discriminated against or harassed as alleged. 2018000034 6 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. 2018000034 7 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 November 5, 2019 Date Copy with citationCopy as parenthetical citation