Belkis D,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

May 6, 2016

0120140059 (E.E.O.C. May. 6, 2016)

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

Belkis D,1
Complainant,

v.

Deborah Lee James,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120140059
Hearing No. 480-2011-00019X
Agency No. 6Z1M10002

DECISION

Complainant filed an appeal from the U.S. Equal Employment Opportunity Commission
(EEOC or Commission) Administrative Judge’s (AJ’s) decision, which effectively became the
Agency’s final decision, finding no discrimination with regard to her 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. For the following reasons, the Commission AFFIRMS
the finding of no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Powered Support
Systems Mechanic assigned to the Agency's Edwards Air Force Base located in Palmdale,
California. On February 22, 2010, Complainant filed a EEO complaint alleging discrimination
on the bases of her sex (female) and reprisal (prior EEO activity)2 when: (1) from 2002 to
January 23, 2010, management allowed male coworkers to harass her by being disrespectful,
not inspecting her work timely, and sabotaging her equipment, including: (a) in 2002, while in
the break room, a male co-worker (C1) approached her and embarrassed her by yelling at her
about wearing eye glasses; (b) in 2002,3 a male co-worker (C2) sent her an email, which had a
video of a naked woman attached to it; (c) in 2009, while logged on the computer, a male
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.
2 Complainant raises the basis of reprisal with respect to claims 5 and 6 only.
3 The record shows that this incident actually occurred in 2004.

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coworker (C3) shut-off the computer that she was working on without saying anything to her;
(d) in 2009, while in the break room, she overheard C1 having a conversation with two other
coworkers about sex; (e) in 2002, C1 was the only person “seven-leveling” her work, it was
not being done timely, and that he stopped leveling her work in 2004; (f) C2 failed to inspect
her work in a timely manner; (g) she believes her work was sabotaged in 2010 when she
completed an EM-08 and C3 annotated inaccurate information on her inspection form; (2) on
November 24, 2009, she informed management that she was missing 1.5 hours of overtime
which she finally received on her leave and earning statement dated December 11, 20094; (3)
on November 17, 2009, she was denied the opportunity for training; (4) in November 2009,
her request to report to work and then take her children to school on a daily basis, as a male
employee was allowed to do, was denied; (5) on April 27, 2010, she received a Record of
Counseling from the supervisor of Powered Support (S1); and (6) on May 4, 2010, a male co-
worker (C4) grazed her back side.

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 EEOC AJ.
Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to
the case granted the Agency’s May 6, 2011, motion for a decision without a hearing and issued
a decision without a hearing on August 8, 2013. When the Agency failed to issue a final order
within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant
failed to prove that the Agency subjected her to discrimination as alleged became the Agency’s
final action pursuant to 29 C.F.R. § 1614.109(i).

UNDISPUTED FACTS

The AJ noted the following undisputed facts in his decision.

Harassment Claim

Complainant alleges that in November of 2002 she was confronted by C1 (the unit safety
officer) who yelled at and belittled her about not wearing appropriate protective eyewear.
Complainant also states that her work and equipment were subjected to untimely inspections
and more examinations and scrutiny than the work and equipment of her co-workers.
Complainant also alleges that in 2004, C2 sent her an e-mail of a naked woman. Complainant
did not report these incidents to management.

The undisputed evidence reflects that Complainant initiated the action by contacting an EEO
Counselor on December 11, 2009. Complainant also initiated EEO complaints in 2004 and on
December 4, 2007, in which she raised several of the same matters (i.e., the allegations that
she was rebuked for safety violations, inappropriate e-mail correspondence and the like, which
occurred through 2007). These EEO complaints were settled and the claims dismissed.

4 Complainant withdrew this claim during the investigation of her complaint.

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Complainant alleges that in 2009, C3 shut off her computer without advising her beforehand.
It is undisputed that C3 was unaware that Complainant was using the particular computer at the
time; she was away from the desk working on a piece of equipment. C3 logged in and
unintentionally deleted or did not save matters created by Complainant. Complainant also
avers that she overheard a conversation in the break room in 2009, where C1 and two other
co-works (C5 and C6) were talking about anal sex. The conversation was not directed to her
and she was located several feet away. Complainant did not report the incident and, upon
being deposed, testified that she did not find this conversation to be offensive.

Complainant also alleged that C2 failed to timely inspect her work and that her work was
sabotaged in 2010, when C3 annotated inaccurate information on an inspection form. It is
undisputed that such notations are not disciplinary measures and are used by the Agency as a
reminder of proper procedures to be followed in handling and maintaining equipment.
Complainant also asserts that in December of 2010, equipment that she used "exploded."
Complainant alleges that she believed that the accident occurred because C3 replaced good
fuses with bad fuses. Complainant further asserts that sometime in 2011, C3 waited until a
Monday to inspect a piece of equipment which she had made ready for inspection the previous
Friday.

Complainant also alleges that C4 brushed or grazed her backside, as he maneuvered past her
on May 4, 2010. It is undisputed that the passage involved was narrow and that Complainant
had herself moved in an effort to create more space when she saw C4 approaching.
Nonetheless, C4, a portly man in his mid-60s, managed to graze Complainant as he pressed to
get around her. Complainant immediately reported the incident to her second-level supervisor
(S2). S2 responded immediately, interviewed Complainant and convened a meeting with C4.
S2 concluded that the incident was an accident. C4 apologized to Complainant and, at the
time, Complainant accepted his apology. There is no evidence indicating that any further
incidents of a similar nature involving C4 occurred.

The undisputed record also shows that Complainant was overheard by co-worker C5 (female)
making a workplace threat to the following effect: "The next time a person grazes me, I am
going to hit them or knock them out and that is why I carry tools or wrenches in my pockets."
C5 felt threatened and reported this threat to S1. C5 and two other co-workers submitted
statements corroborating that Complainant made such a threatening statement. In turn, S1
conferred with the Human Resources Department and investigated the incident. Complainant
did not deny making the threat and, in accordance with the Agency's policy relating to the
prevention of workplace violence, S1 issued Complainant a formal Record of Counseling to
remind her that such acts and threats of violence in the workplace would not be tolerated.

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November 2009 Training

Complainant alleges that in November of 2009, she witnessed several co-workers having an
impromptu training session on a piece of equipment. She reported her exclusion from this
training opportunity to her supervisors. S1 responded that what Complainant witnessed was an
impromptu event where one mechanic was showing another mechanic how to operate a
generator while other mechanics joined in. It is undisputed that formal generator training was
thereafter scheduled for Complainant and all mechanics similarly situated to her. Fifteen
mechanics took the formal training. While Complainant was provided alternative times and
dates to attend this training, she elected not to attend any of the sessions.

November 2009 Children-in-the-Workplace Request

Complainant alleges that C1 and C2 were given special privileges allowing them to bring their
children to work in order to take them to school after they had checked in. In November
2009, she requested that she also be permitted to bring her children to the workplace on a daily
basis, check in, and leave in order to drop her children at their school or to have them come to
the workplace after school. The undisputed evidence of record reflects that for safety-related
reasons the Agency's general policy prohibited children from entering the workplace.
However, an exception to this policy was made in the case of C2, whose child suffered from a
disease or illness requiring the administration of medication on a rigorous schedule. This was
the only exception to the rule and C2's child remained in the workplace for about 20 minutes
during the day in order to allow C2 to temporarily maintain the child's medication schedule.
The exception ended in December of 2009, when C2 found an alternative way to maintain his
child's medication schedule. In the case of C1, the record reflects that he was permitted to
bring a grandchild to work on three occasions. In Complainant's case, she was permitted to
bring her children to work on at least one occasion. No employee was ever given the
opportunity to bring children to work on a permanent basis so that the employee could check in
and depart in order to drop the children at their school or for any other reason. There is no
evidence that a child of Complainant's suffered from a condition requiring the administration
of medication on a predetermined schedule.

AJ’S FINDINGS AND CONCLUSIONS

Untimely Claims

The AJ concluded that several incidents which occurred prior to 2008, including Complainant
being yelled at once in 2002 for not wearing protective eyewear, being subjected to "more"
detailed inspections than her mechanic colleagues during the period 2002 to 2004, and
receiving an e-mail of a naked woman from C2 in 2004 which she did not report to
management are time-barred. These matters were either raised and settled or not raised by
complainant in connection with her previous EEO actions, the last of which was settled in
December of 2007. No additional untoward incidents, exchanges or claims arose, thereafter,

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until November of 2009 (nearly two years after Complainant settled her previous EEO case).
Accordingly, the AJ noted that a period of at least two years elapsed between the last offensive
act cited by Complainant and the November 2009 incidents which led to Complainant's contact
with an EEO Counselor on December 11, 2009, giving rise to the pending action. The AJ
noted that such a span of time of well over two years between incidents precludes the
consideration of these matters as a part of one unlawful employment practice, in order to
support a claim of unlawful harassment.

Claims failing to Show that Complainant is Aggrieved

The AJ concluded that several of Complainant’s allegations failed to show that she suffered an
adverse employment action. Specifically, the AJ concluded that the incident where
Complainant overheard a conversation in the break room in 2009, where C1, C5 and C6 were
talking about anal sex is not actionable because (a) the conversation was not directed at or to
her; (b) she was located several feet away; (c) she did not report the incident to management;
and (d) she testified that she did not find this conversation to be offensive. The AJ noted that
under such circumstances, there is no basis upon which to impute liability to the Agency.

The AJ also concluded that the allegation that C2 failed to timely inspect Complainant’s work
and that her work was sabotaged in 2010, when C2 annotated inaccurate information on an
inspection form are not adverse employment actions since: (a) such notations are not
disciplinary measures; (b) such notations are used by the agency as a reminder of proper
procedures in handling and maintaining equipment; and (c) Complainant was not disciplined or
the subject of an adverse performance appraisal as a result of the annotations or untimely
equipment inspections.

The AJ further found the record devoid of evidence establishing that C3 caused the accident
with Complainant’s equipment. Moreover, the AJ concluded that it is immaterial that
sometime in 2011, C3 waited until a Monday to inspect a piece of equipment which
Complainant had made ready for inspection the previous Friday and noted that there is no
evidence indicating that Complainant was disciplined or suffered any adverse actions of any
nature as a result of any of the inspection issues she has raised or that she was otherwise
aggrieved.

Similarly, the AJ concluded that the allegation that C3 shut off Complainant’s computer and
deleted her entry without advising her beforehand does not constitute a material adverse action.
Nor did he find evidence in the record indicating the act was intentional, that C3 was even
aware that Complainant was using the particular computer at the time, or that C3 had
otherwise targeted Complainant.

Accordingly, the AJ concluded that the record is devoid of evidence establishing that
Complainant was aggrieved or suffered any harm as a result of these incidents and none of the
allegations support a claim or cause of action.

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Remaining Harassment Claim

The AJ concluded that being brushed or grazed by C4 as he attempted to get around
Complainant in the narrow space available could be not characterized as abusive, severe or
pervasive. The AJ noted that Complainant's allegations regarding this incident reflect the
dynamics of interpersonal exchanges and encounters between employees and their coworkers
(the ordinary tribulations of the workplace) and did not alter the conditions of employment so
as to implicate Title VII. In addition, the AJ concluded that the record is devoid of evidence
which indicates that C4 was motivated by Complainant's protected status.

Disparate Treatment Claims

With respect to Complainant's claim involving training, the AJ concluded that the Agency
articulated neutral, non-discriminatory and legally sufficient reasons demonstrating that
Complainant did not receive the training in question. Specifically, the AJ noted that the
undisputed record shows that generator training had been scheduled for Complainant and all
mechanics similarly situated to her. The undisputed record establishes that while Complainant
was provided alternative times and dates to attend this training, she elected not to attend any of
the sessions.

With respect to Complainant's request to bring her children to work, the AJ noted that the
undisputed evidence of record reflects that (a) for safety-related reasons the Agency's general
policy prohibited children from entering the workplace, and (b) the only exception was made in
the case of C2, whose child suffered from a disease or illness requiring the administration of
medication on a rigorous schedule. This was the only exception to the rule and C2's child
remained in the workplace for about 20 minutes during the day for a period of a month or so in
order to allow C2 to temporarily maintain the child's rigorous medication schedule. The
exception ended in December of 2009, when C2 found an alternative way to maintain his
child's medication schedule. The AJ noted that there is no evidence in the record indicating
that a child of Complainant's suffered from a condition requiring the administration of
medication on a predetermined schedule or that Complainant sought this privilege other than
for her own personal convenience.

The AJ also noted that the undisputed record shows that Complainant was issued Official
Counseling in accordance with the Agency's policy relating to the prevention of workplace
violence. Upon investigation it was determined that Complainant had committed an act of
violence involving the threatened use of force with deadly weapons and was issued the Record
of Counseling to remind her that such acts and threats of violence in the workplace would not
be tolerated.

The AJ noted further that aside from Complainant’s bare uncorroborated assertions, there is no
contradictory evidence in the record or evidence that could amount to pretext.

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ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or
she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This
regulation is patterned after the summary judgment procedure set forth in Rule 56 of the
Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive legal and evidentiary
standards that apply to the case, there exists no genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court’s function is not to weigh the evidence but rather to determine whether there are
genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at
the summary judgment stage and all justifiable inferences must be drawn in the non-moving
party’s favor. Id. at 255. 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 this case, we
find that the AJ properly issued a decision without a hearing because no genuine dispute of
material fact exists.

We agree with the AJ’s findings and conclusions and note that aside from Complainant’s bare
uncorroborated and often times inconsistent statements, the record is devoid of evidence to
support a finding that any of the alleged employment actions were motivated by discriminatory
or retaliatory animus.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the AJ’s decision issued without a hearing.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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 tends to
establish that:

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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 request or opposition must also include proof of service on the other
party.

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.

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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

May 6, 2016
Date