Judy S., Complainant,v.Sean J. Stackley, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 11, 2017

0120151693 (E.E.O.C. Aug. 11, 2017)

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

Judy S.,
Complainant,

v.

Sean J. Stackley,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 0120151693

Hearing Nos. 420-2014-00052X,
420-2014-00262X,
420-2013-00161X

Agency Nos. 11-63093-00784,
12-63093-00286,
14-63093-00489

DECISION

On April 9, 2015, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s February 24, 2015, final order 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following
reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Supervisory
Training Technician, GS-1702-06, at the Naval Aviation Training Center in Pensacola, Florida.
Complainant filed three EEO complaints alleging that the Agency discriminated against her on
the bases of sex (female), age (57), 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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Complaint 11-63093-00784

(1) a supervisor sent her an e-mail which directed her to go through her supervisor for
assignments “in light of all things going on with your grievances;”
(2) a supervisor sent her an e-mail stating, “I am directing that you notify me in those
instances where you cannot come to work due to illness, instead of calling on the
folks in STUCON;”
(3) a manager recommended that all correspondence be handled electronically and
any non-electronic requirements go through the appropriate higher level
supervisor, which was adopted by management;
(4) a manager recommended Complainant receive sexual harassment training, stating
“it is evident she does not know the definition of sexual harassment and did not
take care of this matter at the lowest level;” and
(5) a manager made unwarranted negative comments about the employees
Complainant supervised in an effort to cast doubt on her supervisory skills.

Complaint 12-63093-00286

(1) her supervisor removed her responsibility to hire;
(2) her supervisor changed her position description;
(3) her supervisor assigned her responsibility for creating “Essential Task
Documents” required for a new hiring system despite having removed her hiring
responsibilities;
(4) she was denied the ability to recruit for a vacant position in her department;
(5) she was required to conduct a Quarterly Student Control Status meeting for which
she was unprepared;
(6) management downgraded a Student Control Division position from a two
increment position to a one increment position to reduce the grade levels of the
personnel Complainant supervised;
(7) her supervisor began to occupy a desk in a cubicle directly behind her desk; and
(8) her supervisor directed her to stop the use of timekeeping sign-in/sign-out sheets,
but provided no alternate means of accountability.

Complaint 14-63093-00489

(1) she was denied compensatory time and required to work overtime without pay;
and
(2) she was sent an email that threatened to disable her access to the User
Management Form of Corporate Enterprise Training Activity Resource System.

At the conclusion of the investigations of the complaints, the Agency provided Complainant with
copies of the reports 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. The AJ held a hearing on the consolidated complaints on December 2, 2014,

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and issued a decision on December 17, 2014. The Agency subsequently issued a final order
adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to
discrimination as alleged.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

After holding a hearing, the AJ concluded that Complainant failed to prove she had been
discriminated against. In particular, the AJ held that Complainant had not proven that the
Agency subjected her to a hostile work environment.2 We agree. It is well-settled that
harassment based on an individual’s statutorily protected bases is actionable. See Meritor
Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment,
Complainant must show that: (1) she belongs to the statutorily protected classes or engaged in
prior EEO activity; (2) she was subjected to unwelcome conduct related to her membership in
those classes or her prior EEO activity; (3) the harassment complained of was based on those
classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering
with her work performance 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).

We have previously held that routine work assignments, instructions, and admonishments do not
rise to the level of harassment because they are common workplace occurrences. See Gray v.
United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is
reasonably established that the common workplace occurrence was somehow abusive or
offensive, and was taken in order to harass Complainant on the basis of any of her protected
classes, we do not find such common workplace occurrences sufficiently severe or pervasive to
rise to the level of a hostile work environment or harassment. See Complainant v. Dep't of
Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014). Here, the alleged
discriminatory acts, including for example, requiring Complainant to direct her sick leave
requests to a particular person, (Complaint 11-63093-00784, claim (2)) or to preside at a
particular meeting (Complaint 12-63093-00286, claim (5)) are not so severe or pervasive as to
alter the conditions of Complainant’s employment.

2 The AJ also correctly concluded that Complainant failed to prove discrimination in the form of
retaliation or disparate treatment.

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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 order implementing the AJ’s
finding following a hearing that Complainant was not discriminated against 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.

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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

August 11, 2017
Date