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

Equal Employment Opportunity Commission

Jun 6, 2019

0120180987 (E.E.O.C. Jun. 6, 2019)

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

Shameka M.,1
Complainant,

v.

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

Appeal No. 0120180987

Hearing No. 430-2017-00285X

Agency No. DON-16-42158-03623

DECISION

On January 27, 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
December 27, 2017 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Welder, WG-3703-
10, in the Agency’s Production Resources Department at the Norfolk Naval Shipyard in Newport
News, Virginia.

On October 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against her and subjected her to a hostile work environment on the bases of race (African-
American), sex (female), color (Black), disability (mental), and in reprisal for prior protected EEO
activity when:

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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1. on September 10, 2016, Complainant’s second shift supervisor (2SS1) informed
her that she was being reassigned from the job she volunteered for on the second
shift while a white co-worker (CW1) remained on the job;

2. on September 14, 2016, Complainant’s work leader (WL) and 2SS1 did not report
her on-the-job injury and did not return the appropriate documents; and

3. in October 2016, WL accused Complainant of refusing to perform a job.

With regard to claim (1), management solicited daytime volunteers to go on second shift for
upcoming work. Complainant claimed that she told her first shift supervisor (1SS1) that she would
only volunteer for second shift if she could perform the welding operations in Shop 31 working
the shaft/rudder. Complainant stated that she worked that job for only three days with overtime
each day before 2SS1 reassigned her back to Building 163 to perform welding duties on canning
plates. However, despite Complainant’s reassignment, CW1 continued to weld the shaft/rudder.
Complainant argued that she should not have been reassigned away from the shaft/rudder.
Complainant claimed that the Agency favors white men for jobs that carry overtime, “especially
when it’s a not so dirty job.”

2SS1 responded that Complainant volunteered and was assigned to work the second shift, not any
particular job. Complainant’s third-level supervisor corroborated 2SS1’s remarks.

In claim (2), Complainant alleged that she was denied workers’ compensation because 2SS1 and
WL did not fill out her workers’ compensation form. Complainant claimed that she was informed
that the time period in which to file the injury documents had lapsed. Complainant asserted that
she attempted to explain to the workers’ compensation officials what happened but was told that
there was nothing that could be done.

WL explained that Complainant did not initially report the injury to him and that he only learned
about the injury two weeks after the incident occurred. WL added that unless a supervisor asks
him, it was not usually his responsibility to complete paperwork related to on-the-job injuries.
2SS1 said that he was on leave at the time of Complainant’s injury and did not know about the
injury until he returned. 2SS1 said that Complainant should have notified the supervisor on duty.

As to claim (3), Complainant explained that when she was assigned to weld canning plates, WL
instructed her that she had to use the gaseous metal arc welding process. Complainant asked to
use the shielded metal arc welding process “because that is what I have been using the entire time
that I was on the job.” Complainant claimed that the shielded welding process was lighter and
easier to use, but if the weld repair procedure required to use the gaseous process, Complainant
would use that process. WL refused to allow Complainant to see the weld repair procedure and
directed her to use the gaseous process because he was the boss. Complainant also said “that’s
how [WL] is. He curses and yells and screams all the time and demands respect in the same
breath. . . . And everyone has allowed this for so many years.”
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WL denied the allegation as stated. WL affirmed that he did not accuse Complainant of refusing
to perform her job; rather, she refused to perform the duties as instructed. WL said that work
leaders tell mechanics how to do jobs and they are supposed to follow instructions.

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 timely requested a hearing but
subsequently withdrew her request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b).

In the decision, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was no
evidence that the conduct at issue was based on discriminatory or retaliatory animus. As a result,
the Agency concluded that Complainant had not been subjected to discrimination, reprisal, or a
hostile work environment as alleged.

Complainant filed the instant appeal without submitting any arguments or contentions in support

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”).

Hostile Work Environment

To establish a claim of discriminatory hostile environment harassment, 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; and (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 Agency. Henson v. City of Dundee, 682 F.2d 897 (11th
Cir. 1982).

In short, to prove her harassment claim, Complainant must establish that she 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
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the conduct was taken because of a protected basis. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself.

In this case, Complainant has not established a hostile work environment as alleged.
Complainant’s allegations consist of her dissatisfaction with an assignment and with a directive
regarding the welding process, along with the processing of a workers’ compensation claim. We
note that not every unpleasant or undesirable action which occurs in the workplace constitutes an
EEO violation. See Shealey v. EEOC, EEOC Appeal No. 0120070356 (Apr. 18, 2011) (citing
Epps v. Dep't of Transp., EEOC Appeal No. 0120093688 (Dec. 19, 2009).

Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile
work environment, we find that Complainant has not shown that any of the alleged incidents were
motivated by discriminatory or retaliatory animus. The record reflects that the alleged incidents
were more likely the result of routine supervision, personality conflicts, and general workplace
disputes and tribulations. More specifically, as to claim (1), management officials explained that
the second shift supervisors decided what work needed to be performed on second shift and what
mechanics performed the work. Complainant volunteered to perform work on second shift and
she was assigned to work on second shift, not a specific job.

Regarding claim (2), we note that this claim consists mostly of Complainant’s dissatisfaction with
the workers’ compensation process, which does not fall within the Commission’s jurisdiction
absent discrimination. Nonetheless, regarding management’s actions following her on-the-job
injury, WL explained that while it was not his responsibility to complete injury paperwork,
Complainant did not inform him about her injury until approximately two weeks after the incident.
2SS1 affirmed that he was on leave at the time of the incident, but Complainant should have
brought the matter to the attention of the supervisor taking his place. There is no evidence
indicating that Complainant reported her injury to a management official at the time it occurred.
Further, record evidence reveals that Complainant did not file a written claim for her injury until
well after 30 days of the date of her injury.

Finally, with respect to claim (3), WL noted that he did not accuse Complainant of refusing to do
her job; rather, she refused to perform the duties as he instructed her. In a statement describing
the incident, WL stated that he was instructed to select mechanics that were qualified to use the
pulse process, and selected Complainant and another co-worker to assist her with setting up her
equipment. WL stated that Complainant then approached him with an “aggressive posture and
loud voice” and said, “I will not weld with the pulse process. I can do better and weld faster with
stick.” WL responded that he was instructed to place all pulse welders on the job and that the
pulse process would need to be used. Complainant again refused and left the area and told WL
she would speak with 1SS1. According to WL, Complainant did not return to the work area until
almost two hours later.

The Commission finds that Complainant has not established that she was subjected to a hostile
work environment. Moreover, to the extent Complainant claims that she was subjected to disparate
treatment, the Commission finds that, as discussed above, Complainant has not proffered any
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evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its
actions was pretext for discrimination or reprisal. As a result, the Commission finds that
Complainant was not subjected to discrimination, reprisal, or a hostile work environment as
alleged.

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.

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.
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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. 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

June 6, 2019
Date