Shameka M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionJun 6, 20190120180987 (E.E.O.C. Jun. 6, 2019) Copy Citation 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. 0120180987 2 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.” 0120180987 3 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 0120180987 4 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 0120180987 5 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. 0120180987 6 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 Copy with citationCopy as parenthetical citation