Summer F.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Dec 19, 2018

0120172800 (E.E.O.C. Dec. 19, 2018)

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

Summer F.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120172800

Agency No. 54-2017-00045

DECISION

On August 18, 2017, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s July 20, 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.

BACKGROUND

During the period at issue, Complainant worked as an Administrative Specialist at the Agency’s
Executive Affairs Division, Office of Marine and Aviation Operations (OMAO) in Washington,
D.C.

On December 13, 2016, Complainant filed the instant formal complaint. Complainant claimed
that she was subjected to harassment/hostile work environment based on race (African-American),
sex (female), and color (black) as evidenced by the following incidents:

1. on October 3, 2016, the Deputy Assistant Administrator (“D1”) responded to a
statement she made by asking in a “loud, offensive and demeaning” tone “what did you
say?;”

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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2. on multiple occasions, D1 has passed by her desk without acknowledging her and
directed requests to a white male Staff Lieutenant which should have been directed to
her;

3. on multiple occasions, D1 questioned her in a demeaning manner, making such
statements as “better late than never” when she stayed late at the office to complete a
task;

4. on one occasion, D1 insinuated that there was “something going on” between her and
a man she had just met due to a racial or cultural bias;

5. on one occasion, D1 told her that if she saw or heard anything relating to him (D1), she
should tell him, which Complainant interpreted to mean that he wanted her to be a
“snitch;”

6. on an ongoing basis, D1 stares at her in a demeaning and intimidating manner as if he
is “disgusted with her;” and

7. on multiple occasions, she reported D1’s harassment to Agency managers, but D1 has
not been disciplined and his behavior has not changed.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative Judge.
In accordance with Complainant’s request, the Agency issued a final decision on July 20, 2017,
pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant, on appeal, challenges the Agency’s January 4, 2017
partial dismissal of one claim for failure to state a claim.

ANALYSIS AND FINDINGS

Partial Dismissal

As an initial matter, we note that in its January 4, 2017 partial dismissal, the Agency dismissed
Complainant’s allegation that D1 engaged in similarly harassing behavior toward other employees
for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant, on appeal, argues
that the matters raised as part of her formal complaint which involved other co-workers were to
show a pattern of D1 creating a hostile work environment and provide witnesses to the EEO
investigator.

Upon review, we find that the Agency properly dismissed Complainant’s allegations relating
solely to alleged harassment of other employees by D1. With regard to these allegations,
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of
her own employment and, therefore, would not be entitled to a remedy if discrimination were
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found. However, the treatment of other employees by the same management officials alleged to
have harassed Complainant can be used as evidence in support of her claim that she was personally
harassed regarding the other incidents raised in her complaint. We note that the record indicates
that the EEO investigation interviewed several coworker witnesses as part of the Agency’s
investigation into Complainant’s claim of harassment, and those witness statements were included
in the Agency’s analysis of her claim. We will also consider this evidence.

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; (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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).

In other words, 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
the conduct was taken because of her protected bases – in this case, her race, sex or color. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, Complainant simply has provided no evidence to support her
claim that her treatment was the result of her race, sex or color.

The evidence developed during the investigation shows that Complainant provided administrative
support to D1 (Caucasian, white male) between his arrival in the office in April 2016 and his
departure in January 2017.

In allegation 1, Complainant asserted that on October 3, 2016, D1 responded to a statement she
made by asking in a “loud, offensive and demeaning” tone “what did you say?”

D1 explained that on October 3, 2016, he was scheduled to have a meeting with the newly
appointed EEO staff member. D1 further stated that when he came out of his office, the EEO staff
member was standing in front of Complainant’s desk and he asked the EEO staff member to come
in his office. D1 stated at that time, Complainant “interjected aggressively that the meeting has
been cancelled. I reiterated that I wanted to meet with [the EEO staff member].”

Further, D1 stated that Complainant “then, loudly, [said] ‘you need to get your act together’ or
words to that effect and quickly walked across the front office towards [Captain’s] office. I said
something like, ‘What did you say? Would you like to discuss this in my office?’ or words to that
effect. The Complainant continued to walk away and did not acknowledge my offer. I did not
make the comment and request in an offensive and demeaning tone.
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I did speak with enough volume so that she could hear me as she was about twenty-feet and
walking further away from me at the time.”

In allegation 2, Complainant alleged that on multiple occasions, D1 passed by her desk without
acknowledging her and directed requests to a white male Staff Lieutenant which should have been
directed to her.

D1 acknowledged that from April 2016 to September 15, 2016, he occasionally asked the
Lieutenant for administrative support when Complainant was busy with other tasks and “wanted
to be respectful of her workload.” D1 also stated that on several occasions, he approached the
Lieutenant for [the Real Admiral] since he served as [the Rear Admiral’s] Flag Lieutenant.”
Furthermore, D1 stated that during the relevant period, the “vast majority of support I requested
was for appointment scheduling. These requests were usually made by e-mail directly to the
Complainant unless the schedule involved [the Real Admiral] in which case they would be directed
to the Flag Lieutenant.”

In allegation 3, Complainant alleged on multiple occasions, D1 questioned her in a demeaning
manner, making such statements as “better late than never” when she stayed late at the office to
complete a task. D1 stated that he does not recall making the statements “it’s about time” or “better
late than never” as claimed by Complainant. D1 stated, however, he recalled that during the
relevant period, he was working late almost every day so would have interacted with Complainant
if she was also working late.

In allegation 4, Complainant claimed that on one occasion, D1 insinuated that there was
“something going on” between her and a man she had just met. Complainant alleged that in late
August 2017 she went downstairs to escort two Agency officials (both African American), the new
leaders of the security office who she had never met before, to the front office to meet with D1.
She said that after the meeting was over, D1 said he would escort them back downstairs, but one
of the officials stated he wanted Complainant to escort them. However, D1 escorted them anyway
and when he returned said to her, “I didn’t mean to infringe,” using a tone that Complainant
believed insinuated there was “something going on” between her and the official.

In allegation 5, Complainant asserted that on one occasion, D1 told her that if she saw or heard
anything relating to him, she should tell him which she interpreted to mean that he wanted her to
be a “snitch.” D1 denied asking Complainant to serve as his “snitch.” Specifically, D1 explained
that on September 15, 2016, he met with Complainant to discuss concerns raised by the Real
Admiral about D1’s relationship with the front office team, including allegations that he was
intimidating to some staff members. Further, D1 stated, “I wanted to end the conversation on a
positive note and to avoid future concerns by addressing them in near real time as soon as
identified. To do that I asked the Complainant to let me know if she had any further concerns or
if she was aware of others with concerns. To the best of my recollection she responded positively.”

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In claim 6, Complainant asserted that on an ongoing basis, D1 stares at her in a demeaning and
intimidating manner as if he is “disgusted with her.” D1 denied staring at Complainant during the
relevant period, and stated he did not have any communication with her “about staring,
intimidation, or disgust.”

In sum, Complainant alleged that on multiple occasions she has been treated in an offensive or
harassing manner by D1, and reported D1’s harassment to Agency managers but D1 has not been
disciplined and his behavior has not changed.

D1 denied subjecting Complainant to harassment, but conceded that Complainant had told him
“that I was not as engaging with the front office team as she felt was appropriate, noting that I
seemed arrogant.” He indicated that the Real Admiral had counseled him on several occasions
regarding improving his relationships with front office staff. D1 stated that he was not an ongoing
individual and “that I tend to be very work focused,” but told Complainant he “would make an
effort to be more outgoing. [Complainant] commented something to the effect, ‘it’s good that you
know that about yourself.’”

The Chief of Staff (Caucasian, white female), also Complainant’s supervisor, stated she had
expressed some concerns to the Rear Admiral regarding employee complaints about D1’s
treatment of them. The Chief of Staff stated that several employees “of color and female employees
expressed to me that [D1] did not acknowledge them.” The Chief of Staff stated that she was
aware of at least two occasions in which the Rear Admiral counseled D1 about his behavior toward
employees. As a result, she said she, “noticed [D1] made an effort to alter his behavior.”

The Rear Admiral (Caucasian, white male) acknowledged receiving complaints about D1’s
behavior to which he responded accordingly. He said he spoke with D1 on several occasions
“counseling him on making a concerted effort to improve upon his interactions with other
employees, and to be cognizant of his actions and how others perceived him. [D1] appeared to be
open and responsive to remedying the issues, and I believed he was making an effort to build the
trust and respect of other employees.” The Rear Admiral stated that based on his follow-ups with
a named employee, the EEO Manager, and the Chief of Staff, that their interactions with D1 had
improved and, “I did not believe there was a need to take further action to remedy [D1’s]
behavior.”

The evidence of record indicates that it is more likely than not that D1 interacted with Complainant
and other front office staff in a sometimes arrogant, dismissive or socially awkward manner. The
Chief of Staff noted that she had received some complaints from staff concerning D1, an issue she
discussed with the Rear Admiral. The Rear Admiral counseled D1 on several occasions about
improving his relationships with staff members, and some improvement was observed. However,
Complainant has not presented sufficient credible evidence demonstrating that her treatment by
D1 was based on her race, sex or color. Moreover, the incidents Complainant alleged were not
sufficiently severe or pervasive to create a hostile work environment in violation of Title VII. The
incidents alleged by Complainant are of a type that typically arise out of common workplace
conflicts or poor communications.
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However, Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive
as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998). Based on the evidence developed during the investigation, we conclude
Complainant failed to establish an essential element of her claim of harassment/hostile work
environment – that her race, sex or color played a role in the incidents she alleged as part of her
claim.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred. We also AFFIRM the Agency’s
dismissal of a separate claim that was the subject of a partial dismissal.

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

December 19, 2018
Date