Emerson S.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 5, 2019

2018000034 (E.E.O.C. Nov. 5, 2019)

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.
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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.

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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.
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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).

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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.

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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.
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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