Reuben D.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 24, 2019

0120181969 (E.E.O.C. Sep. 24, 2019)

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

Reuben D.,1
Complainant,

v.

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

Appeal No. 0120181969

Agency No. DON-17-63042-47553

DECISION

On May 23, 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 21, 2018, final decision concerning his 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. 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 him to discrimination and a hostile work environment based on his protected
class and in reprisal for his protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle
Operator at the Recycling Center, Integrated Solid Waste Program, Naval Facilities Engineering
Command Southwest, at the Naval Air Station in Lemoore, 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.
0120181969

2
On September 23, 2017, Complainant filed an EEO complaint alleging that the Agency subjected
him to a hostile work environment and discriminated against him on the bases of sex (male) and
in reprisal for prior protected EEO activity when:

1. since December 2, 2013, Complainant’s first line supervisor, the Recycling Site
Manager (male) (S1) has only provided Complainant with one work evaluation
report2;

2. since June 22, 2016, Complainant has continuously reported inappropriate behavior
by S1 to the Human Resources (HR) Department and to the Regional Sales
Manager (male), however, management and HR failed to take appropriate action;

3. from March 14, 2016, to August 22, 2017, S1 repeatedly harassed Complainant
with demeaning and inappropriate behaviors including, but not limited to, yelling
at Complainant and telling him, “I don’t give a fuck if I yell at you or not;”
intimidating Complainant by rushing at Complainant during an argument; and
asking questions in front of other employees about Complainant’s meeting with HR
regarding his August 11, 2017 Congressional Inquiry;

4. from February 2017 to April 24, 2017, S1 continued to ask Complainant why he
needed surgery and why the dates of the surgery kept getting rescheduled; S1 would
also delay signing any of Complainant’s leave requests, but would immediately
sign leave requests for his coworker, the Lead Motor Vehicle Operator (female)
(CW);

5. on or about February 24, 2017, the HR Assistant (female) advised Complainant that
he can no longer bring any issues to HR and must go through Complainant's chain
of command; and on March 30, 2017, by request from the HR Assistant,
Complainant had to rewrite a statement that was previously turned in;

6. on April 29, 2017, S1 did not submit the receipt Complainant turned in for
reimbursement of his work boots and instead, falsified Complainant’s receipt from
the prior year by changing the date to the current year and submitted the false
receipt for reimbursement, resulting in Complainant not being fully reimbursed;

7. on May 23, 2017, Complainant’s third line supervisor, the Services Program
Manager (male) (S3) issued Complainant a Letter of Reprimand for walking away
from S1 on March 24, 2017;

2 During the EEO Investigation, Complainant acknowledged that the conduct referenced in Claim
1 was not motivated by sex or retaliation. The Agency, nonetheless, conducted an investigation on
the matter, but chose not to address the claim in its final decision based on Complainant’s
statement.
0120181969

3
8. on May 25, 2017, Complainant filed an administrative grievance disputing the May
23, 2017 Letter of Reprimand, and in response, on June 6, 2017, S3 issued a
decision to Complainant indicating that the Letter of Reprimand would continue to
stand;

9. on June 9, 2017, Complainant appealed the June 6, 2017, decision and in response,
on July 27, 2017, S3 issued a decision to Complainant that the Letter of Reprimand
would continue to stand; and,

10. on August 31, 2017, S1 reminded Complainant that the mediation process was not
to be discussed even though Complainant never said anything to trigger that
comment; and Complainant replied to S1 and said, “We’ve both signed a legal
document of confidentiality.”

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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

In reaching its final decision, the Agency determined that Claims 8 and 9 challenged grievance
decisions issued by upper management. The Agency stated that the Commission has held that a
complainant’s dispute in the EEO process with a grievance decision constitutes an impermissible
collateral attack on the administrative grievance forum, and therefore fails to state a claim. Therein,
the April 21, 2018 final decision procedurally dismissed Claims 8 and 9 for failure to state a claim,
pursuant to 29 C.F.R. § 1614.107(a)(1). Nevertheless, in the interests of fully adjudicating the
complaint, Claims 8 and 9 were still examined. Ultimately, the decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant respectfully requested the Commission to reconsider the Agency’s decision finding
no discrimination. Complainant did not provide any new contentions on appeal.

The Agency did not provide any statement or brief in opposition to Complainant’s appeal.

ANALYSIS AND FINDINGS

As a preliminary matter, we acknowledge the Agency’s procedural dismissal of Claims 8, and 9.
Based on the record and the Agency’s analysis, we do not find it necessary to disturb the procedural
dismissal.

0120181969

4
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

Complainant alleges that he 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, he 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 he 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).
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) 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 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
0120181969

5
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).

Reprisal

Complainant also alleges that the Agency retaliated against him. In accordance with the burdens
set forth in McDonnell Douglas, and Coffman v. Dep't of Veteran Affairs, EEOC Request No.
05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing
that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between
the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal
No. 01A00340 (Sept. 25, 2000).

Analysis

Upon our review of the voluminous evidentiary record which consists of numerous affidavits and
exhibits and having fully considered and analyzed the Agency’s decision which recites and
addresses each claim and identifies the evidentiary support on which it relied for its alleged actions,
we conclude that the preponderant evidence does not establish discriminatory animus.3

3 The record in this case is exhaustive and details numerous incidents in support of the claim. We
will not individually address each incident of alleged discrimination. Although the claims will
not be individually addressed, all matters which Complainant raised have been considered and
viewed in the context of all bases and in the context of disparate treatment and a hostile work
environment.
0120181969

6
Complainant’s allegations concern inappropriate and hostile behavior by a coworker, and his
supervisor; chain of command concerns; preferential receipt reimbursements; issuance of
discipline; and general concerns regarding the mediation and grievance processes. The record
contains detailed and numerous documents concerning Complainant’s claims. However, despite
the documentation, Complainant has failed to show that the claims raised were causally connected
to unlawful discrimination on any basis or motivated by discriminatory or retaliatory animus.

Even if the claims occurred as alleged, Complainant failed to show that the Agency officials were
in any way motivated by discriminatory animus. In addition, many of the actions taken by the
alleged discriminating officials were routine managerial actions, such as issuing discipline, and
chain of command concerns, which, absent discriminatory animus, will not be second-guessed by
the Commission. 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 Complainant’s disparate treatment claims, if we assume, arguendo, that Complainant
established a prima facie case of discrimination based on his protected class of sex and reprisal,
we find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For
example, Complainant asserted that S1 treated him differently by intentionally delaying his receipt
reimbursements and, in one incident, falsifying a submitted receipt. Complainant stated that in the
April 2017 incident, S1 clearly altered his receipt to prevent him from obtaining a full
reimbursement. Complainant also asserted that S1 routinely delayed his reimbursements in
comparison to his female colleague, CW. The record demonstrated that S1 faxed a copy of a
receipt for work boots in the amount of $89.99, as provided by Complainant, to the Automation
Clerk (female) in San Diego, California. However, at some point, an incorrect version of the receipt
made its way to the Automation Clerk instead. When management realized a mistake had been
made, Complainant’s second-line supervisor, the Operations & Sales Manager (male) (S2) looked
into the matter. While the mishandled receipt appeared to be a mystery to the involved parties,
there is no evidence that S1 intentionally altered a receipt in attempt to bar Complainant from
receiving a full reimbursement. Additionally, S1 denied ever approving CW’s receipts faster than
Complainant’s, and there is no recorded pattern of S1 intentionally delaying Complainant’s
reimbursements. If there were differences in reimbursement times, a myriad of factors could have
impacted that, from when a receipt was submitted, to when the finance department was able to
issue the reimbursement, and we find Complainant has not demonstrated that his protected bases
were the reason for any delay.

In another claim, the record demonstrated that on May 23, 2017, S3 issued Complainant a Letter
of Reprimand (LOR). The LOR characterized Complainant’s behavior as abrupt and discourteous.
Complainant acknowledged that portions of the incident occurred as described by S3, but that the
LOR was not completely accurate as well. The record includes detailed statements from the
involved parties, and the essence of the incident, that Complainant abruptly walked away from S1,
was corroborated by witnesses. In that incident, the HR Assistant, who was present, recommended
that either a letter of reprimand, or letter of caution, be issued to Complainant. Based on the
Agency’s Table of Penalties, a letter of reprimand is appropriate for disrespectful conduct.
0120181969

7
Complainant himself acknowledged that that he walked away, and while he might have
subjectively felt the LOR was an overreach, there is no evidence to support his contention that it
was discriminatory. Given the record, Complainant has failed to show that the claims raised were
causally connected to unlawful discrimination on any basis or motivated by discriminatory or
retaliatory animus.

Regarding Complainant’s various claims supporting his hostile work environment claim, we find
that none of the examples provided, alone or all together, provide evidence of a pervasively hostile
work environment. For example, Complainant argued that management failed to appropriately
respond to his complaints regarding his harassing coworker, CW. Here, there was a key incident
that occurred on March 15, 2016. Complainant alleged that on that date, CW made two offensive
comments regarding his personal life. The record demonstrates that when Complainant brought
his concerns to management, a meeting was held between the HR Assistant, CW, S1, and himself.
During this meeting, CW stated her intentions were not meant to be harmful, but acknowledged
her statements as having that affect, apologized, and stated that she would be mindful of future
comments. At the time, Complainant accepted the apology. The parties signed a document
acknowledging the meeting. There is no indication from the record that the Agency failed to act
accordingly when Complainant brought the matter to management’s attention.

Complainant also asserted that S1 repeatedly harassed him as well. In one incident, dated June 7,
2016, Complainant explained that S1 had yelled and swore at him in front of his colleagues. Upper
management looked into the matter, but witnesses present provided conflicting information
regarding the incident. In a second incident, dated August 22, 2017, S1 asked Complainant to make
sure he was ready to meet with the HR Assistant for a scheduled meeting. An altercation ensued,
wherein S1 was allegedly hostile towards Complainant. Based on the record, and even in viewing
the incidents in favor of Complainant, neither incident could objectively be deemed to be
pervasively adverse enough to create a hostile work environment. While it certainly is
unprofessional for management to yell, and curse, at a subordinate, 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 had a contentious relationship with
his superiors, particularly with S1. However, the incidents do not demonstrate that Complainant
was subjected to a hostile work environment, discrimination, or retaliation. In sum, the evidence
does not support a finding of discrimination on any basis, the presence of discriminatory animus,
or the existence of a hostile work environment.

The Commission notes that 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).
0120181969

8

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.
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.
0120181969

9
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. 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
Carlton M. Hadden, Director
Office of Federal Operations

September 24, 2019
Date