[Redacted], Mamie T., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Feb 28, 2023

Appeal No. 2021005084 (E.E.O.C. Feb. 28, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mamie T.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021005084 Hearing No. 410-2018-00029X Agency No. 16-44466-03568 DECISION On September 17, 2021, 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 18, 2021, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronics Integrated System Mechanic, WG-2610-12, at the Agency’s Trident Refit Facility (TRF) in Kings Bay, Georgia. From July 1, 2012, to August 6, 2016, Complainant was directly supervised by the Electronics Integrated Systems Mechanic Supervisor (Mechanic Supervisor-1). Beginning December 25, 2016, Mechanic Supervisor-2, who was Complainant’s coworker, became the first level supervisor. 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. 2021005084 2 On January 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), disability (blood clots and disfigurement due to pilonidal cysts), and reprisal (instant EEO activity) under Title VII and the Rehabilitation Act. The Agency framed her allegations in the following manner for investigation: a. Was Complainant discriminated against on the bases of sex, disability, and reprisal and subjected to harassment (sexual and nonsexual) when the following events occurred? 1. On August 19, 2016, during a work discussion with the Mechanic Supervisor-1 and other chain of command officials,2 Complainant felt bullied and intimidated. 2. On August 24, 2016, Complainant was subjected to sexual harassment by a coworker. 3. On September 1, 2016, during a work discussion with the Mechanic Supervisor-1, Complainant felt threatened when Mechanic Supervisor-1 made the comment, “I have always taken care of you.” 4. On September 27, 2016, Complainant was told she was going to be temporarily assigned to Shop 57B (Encapsulating). 5. On January 6, 2017, Complainant received a Letter of Direction, instructing her to report back to Shop 67A (Electronics) b. Was Complainant discriminated against on the bases of sex, disability, and reprisal, when on December 15, 2016, she became aware that she was not selected for the Electronics Integrated Systems Mechanic Supervisor, WS-2610-12, position? At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. In accordance with Complainant’s request, the Commission assigned an AJ to adjudicate the matter. On August 5, 2019, the Agency filed a motion for a decision without a hearing, urging the AJ to rule in its favor. In its motion, the Agency first addressed Complainant’s allegations of harassment. While the Agency denied the occurrence of the underlying allegations in claims a(1) and a(3), the Agency conceded that the underlying incidents in claim a(2) occurred. In this regard, the Agency explained that on that date, a male employee in Complainant’s office hand drew images of phalluses on the hardhat and shoe of two of Complainant’s female coworkers. He also allegedly said the word, “cunt” repeatedly in Complainant’s presence. 2 In her opposition to the Agency’s motion for a decision without a hearing, Complainant clarified that she did not allege that other chain command officials had bullied or intimidated her. See Complainant’ Response at 3. 2021005084 3 Though the Agency acknowledged that Complainant may have felt sexually harassed by her coworker’s actions, the Agency argued that the actions at issue were insufficiently severe or pervasive to constitute sexual harassment given that the drawings and cursing were not directed towards her and were isolated in nature. The Agency then addressed claims a(4) and a(5) under the legal standard for harassment. While the Agency admitted that management reassigned Complainant on the alleged dates, the Agency ultimately argued that the reassignments did not constitute harassment because the evidence contained on pages 132-137 and 221 of the ROI showed that Complainant had specifically requested to be separated from the workplace clique. The Agency emphasized that the reassignments occurred only after Complainant and the Union agreed to the reassignments. As for claim b, the Agency vehemently denied Complainant’s allegation of discrimination and emphasized that the selection panel reviewed the candidates’ resumes without knowledge of their identities, as their resumes had been redacted prior to review. The Agency asserted that the selectee was ultimately selected based on his superior resume, experience, and interview scores. In contrast, Complainant scored fifth out of six candidates. The Agency maintained that Complainant failed to meet her burden of proving discrimination, as she failed to show how she was plainly superior to the selectee. Complainant, however, vehemently opposed the Agency’s motion and argued that a decision without a hearing was improper because that there were genuine issues of material fact in dispute. Given that all reasonable inferences must be drawn in her favor, Complainant urged the AJ to allow the matter to proceed to a hearing to resolve the disputes. As to claim a(1), Complainant clarified that she did not allege that other chain command officials had bullied or intimidated her. See Complainant’ Response at 3. Through her attorney, Complainant maintained that on August 19, 2016, Mechanic Supervisor-1 bullied her by standing in close proximity to her while loudly criticizing the way she performed her duties. Complainant also alleged that Mechanic Supervisor-1 rolled his eyes at her. She claimed that the discriminatory acts continued into the end of the month, when on August 24, 2016, her chain of command failed to take prompt and effective action to address her claim of sexual harassment when her male coworker drew images of phalluses on her female coworkers’ belongings and repeatedly said the word, “cunt,” in her presence. Citing to several federal court cases that addressed pornographic images and magazines in the workplace, Complainant argued that the phallic drawings and references to female genitalia, when viewed cumulatively, amounted to sexual harassment as they were pornographic in nature. Complainant further claimed that when she reported the harassment, she was shunned not only by the male coworker who drew the phalluses but also the female coworkers who had phalluses drawn on their belongings. Complainant claimed that management took no action to stop the sexual harassment and maintained that her coworkers continued to shun her until management decided to reassign her to another shop over her objection. 2021005084 4 She emphasized that the affidavit from her former supervisor clearly showed that she objected to the reassignment. ROI at 182. Complainant argued that the Agency’s decision to reassign her in response to her complaint about harassment was discriminatory, as the Commission has long held cautioned agencies against reassigning individuals who report harassment. As for her non-selection, Complainant vigorously disputed the Agency’s contention that the selectee, Mechanic Supervisor-2, was the best qualified candidate. Complainant initially noted that she had graduate level apprentice experience in Shop 67A that totaled 5.5 years of experience, whereas Mechanic Supervisor-2, in contrast, was new to the office and only had outside experience. She further emphasized her experience by noting that in the previous year, Mechanic Supervisor-1 had strongly recommended her for accelerated advancement to the journeyman level because she had demonstrated exceptional ability and trade proficiency. As for her interview scores, Complainant strongly disputed the Agency’s characterization of her performance during the interview and maintained that she “scored equally or higher than the selectee on all but one of the interview questions.” Complainant argued that the Agency’s failure “to provide any justification for why this question should be the determining factor” meant that the Agency failed to meet its burden of articulating a legitimate, nondiscriminatory reason for her non-selection. As such, Complainant urged the AJ to deny the Agency’s motion and allow the matter to proceed to a hearing. The Agency subsequently filed a reply, addressing Complainant’s response. In its reply, the Agency initially addressed claims a(1) and a(3) and argued that even if Mechanic Supervisor-1 bullied her in the manner alleged, the alleged bullying was insufficiently severe or pervasive to constitute a hostile work environment. Furthermore, the Agency noted that since the underlying incidents in claims a(1) and a(3) occurred prior to Complainant’s initial EEO contact, her allegations of reprisal with regard to these incidents must fail. As for her claims of sexual harassment, the Agency disputed Complainant’s contention that management took no action to stop the harassment. To the contrary, the Agency noted that management conducted an internal investigation and ultimately took corrective action against the three individuals (i.e., Complainant’s male coworker and two female coworkers) and provided EEO training to the entire shop. The Agency also reiterated that it did not unilaterally reassign Complainant and emphasized that Complainant was the one who requested the separation. Finally, the Agency addressed Complainant’s non-selection claim. While the Agency noted that Complainant had argued that she and Mechanic Supervisor-2 scored roughly the same on the interview portion of the selection process, the Agency argued that Complainant’s argument completely ignored the resume portion of the selection process. In this regard, the Agency maintained that while Mechanic Supervisor-2 and Complainant ranked first and third, respectively, on the interview portion, Complainant received the lowest score possible on the resume portion. The Agency explained that due to Complainant’s low resume scores, she scored second to last overall. As such, she was not selected. Given the lack of genuine issues of material fact in dispute, the Agency urged the AJ to issue a decision without a hearing in its favor. 2021005084 5 Over Complainant’s objections, the AJ assigned to the case granted the Agency’s August 5, 2019, motion for a decision without a hearing and issued a decision without a hearing on July 12, 2021, largely on the grounds asserted by the Agency. 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. This appeal followed. On appeal, Complainant vehemently disputes the AJ’s finding of no discrimination. Through her attorney, Complainant largely recites in her appellate brief the same facts and arguments that she previously raised and expresses her disagreement with the AJ’s findings. In particular, she reiterates her belief that the drawings and comments made by her male coworker were pornographic and sex based. She also emphasizes that following her report of harassment, she was subjected to reprisal in the form of involuntary reassignments, denial of assignments, overtime, and non-selection for the position raised in claim b.3 The Agency, however, opposes the appeal. In its opposition, the Agency again reiterates that the underlying allegations in claims a(1) and a(3) were not sufficiently severe or pervasive to constitute a harassment. As for her claim of sexual harassment, the Agency asserts that management was not initially aware of the harassment because Complainant reported the harassment either anonymously or through the Union and/or EEO Office. However, once her chain of command became aware of the harassment, they took prompt and effective action to address Complainant’s allegations of harassment. The Agency also claims that Complainant misrepresented the circumstances surrounding her reassignment and reiterates that the record shows Complainant was the one who requested the reassignment. We note that the Agency did not address Complainant’s claim regarding the non-selection. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 3 We decline to address Complainant claims of reprisal regarding the alleged denial of assignments and overtime as Complainant never requested to amend her complaint either during the EEO investigation or at the hearing stage. See Gilbert v. U.S. Postal Serv., EEOC Appeal No. 0120112285 (Mar. 13, 2012) (noting that new claims may not be raised for the first time on appeal). 2021005084 6 In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we find that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. We begin with Complainant’s allegations of harassment. To establish a claim of 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; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). For the purposes of our analysis, we will assume arguendo that the underlying incidents in claims a(1) and a(3) occurred in the manner alleged; however, we still find these incidents to be insufficient to constitute harassment. See Irene W. v. U.S. Postal Serv., EEOC Appeal No. 2022000228 (Feb. 24, 2022) (finding complainant’s allegations of bullying to be based on personality disputes and ordinary workplace tribulations). We will also assume arguendo that the underlying incident in claim a(2) occurred as alleged; however, even if Complainant’s male coworker drew phallic images on the belongings of Complainant’s female colleagues and repeatedly said the word, “cunt,” in Complainant’s presence on August 24, 2016, we are disinclined to find harassment, as we have long found similar incidents under similar circumstances to be insufficient to render the workplace hostile. Trovato v. U.S. Postal Serv., EEOC Appeal No. 01A52919 (Aug. 24, 2005) (rejecting complainant’s claim of harassment when he was shown a drawing of a penis); see also Wilson v. U.S. Postal Serv., EEOC Appeal No 0120090327 (Aug. 6, 2010) (even assuming arguendo that complainant’s supervisor called complainant a “fucking cunt,” the incident did not render the workplace hostile as it was isolated in nature). In reaching this conclusion, we considered the cumulative effects of the underlying incidents, but we are nevertheless disinclined to find actionable harassment. We turn now to claims a(4) and (5) and claim b, concerning Complainant’s claims of disparate treatment. To prevail Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). 2021005084 7 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981). Complainant must ultimately prove, by a preponderance of the evidence, that the agency’s explanation is pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. Having reviewed the record, we find that the Agency has articulated legitimate, nondiscriminatory reasons for taking the alleged actions. Specifically, with regard to the reassignments, the record shows the Agency argued that the reassignments occurred because Complainant had specifically requested reassignment and ultimately concurred with the Agency’s decision to reassign her. As for her non-selection, the record shows that the Agency attributed Complainant’s non-selection to its determination that Mechanic Supervisor-2 was more qualified than Complainant. While we certainly recognize that Complainant disagrees with the Agency’s articulated reasons, we find no persuasive evidence of pretext. Indeed, we note that Complainant’s assertion that the Agency reassigned her over her objection is directly contradicted by numerous individuals, including her former second level supervisor, who averred that while Complainant initially told him that she did not want to go to the paint shop, “following discussions with the Union, [Human Resources Office], EEO, [Complainant’s third level supervisor], and [Complainant], a joint decision was made to temporarily place [Complainant] in Shop 57B.” See ROI at 182-83 and 221. While we acknowledge that Complainant had concerns about her directed reassignment back to Shop 67A after management had investigated her allegations of harassment and implemented corrective actions, we ultimately do not find the Agency’s directive to be discriminatory. We also understand Complainant’s concerns regarding her non-selection. In non-selection cases such as this, Complainant can demonstrate pretext by showing that her qualifications for the position were plainly superior to those of the selectees. Hung P. v. Dep’t. of Vet. Affs., EEOC Appeal No. 0120141721 (Dec. 3, 2015). While we are mindful that Complainant believes that her qualifications were superior to Mechanic Supervisor-2 given that Mechanic Supervisor-2 only recently joined the office and had limited knowledge of the office’s internal processes, we note that Mechanic Supervisor-2 had relevant outside work experience. Complainant has not disputed Mechanic Supervisor-2’s qualifications to perform the duties of the Mechanic Supervisor position. Furthermore, we are not persuaded by Complainant’s attempts to dispute the weights to given to various factors used to assess the candidates, as the record shows that the candidates’ resumes were redacted. As such, we find that any issues with the weighting process affected all candidates equally. We agree that Complainant was qualified for the position; however, given the evidence before us, we cannot find that she was plainly superior to the selectee. Therefore, we conclude that Complainant has not established that the Agency’s reasons were pretext for discrimination based on her sex, disability, or in reprisal. 2021005084 8 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 2021005084 9 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 February 28, 2023 Date