Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 24, 2015

01-2013-0596-0500 (E.E.O.C. Jul. 24, 2015)

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

,
Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120130596

Hearing No. 480-2010-00249X

Agency No. DON 08-63394-02679

DECISION
On November 6, 2012, Complainant filed an appeal from the Agency’s October 9, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 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 finding no discrimination.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract
Specialist at the Agency’s facility in Port Hueneme, California. On November 10, 2008,
Complainant filed an EEO complaint alleging that the Agency discriminated against her on the
bases of race (Hispanic), national origin (Puerto Rican), sex (female), disability, age (69), and
in reprisal for prior protected EEO activity when:

1. On September 2, 2008, management reassigned Complainant to close-out duties;
2. On September 2, 2008, management removed files from Complainant’s
workplace;
3. Beginning September 3, 2008, management told staff they were not allowed to
speak to Complainant;
4. Management told Complainant not to combine line items for contracts in task
orders but allowed other employees to do this;
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5. On September 11, 2008, management told staff Complainant was an
“undesirable employee;”
6. In Fall 2008, management attempted to slap Complainant in the face;
7. On September 17, 2008, management sent customers an email regarding
Complainant’s reassignment;
8. Management did not select Complainant for any of three
administrative/technical specialist positions she applied for; and
9. Management subjected Complainant to a hostile work environment.

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.
On June 22, 2012, the AJ assigned to the case granted the Agency’s motion for a decision
without a hearing for all Complainant’s claims except claim (6). On August 24, 2012, over
Complainant’s objections, the AJ assigned to the case granted the Agency’s motion for a
decision without a hearing on the remaining claim. 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.

On appeal, Complainant argues that the AJ did not properly consider all the evidence in the
record and that the AJ did not review the evidence in a light most favorable to Complainant.
Complainant also argues the AJ improperly made a ruling that was outside the scope of the
Notice of Proposed Partial Decision and improperly excluded the testimony of certain
individuals. Finally, Complainant contends the AJ erred in finding no discrimination.

ANALYSIS AND FINDINGS
As an initial matter, we note that, as this is an appeal from a final 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). 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 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to
affect the outcome of the case. If a case can only be resolved by weighing conflicting evidence,
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it is not appropriate for an AJ to issue a decision without a hearing. In the context of an
administrative proceeding, an AJ may properly issue a decision without a hearing only upon a
determination that the record has been adequately developed for summary disposition. Petty v.
Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dept. of
the Army

, EEOC Appeal No. 01A04099 (July 11, 2003).
After a careful review of the record, the Commission finds that a decision without a hearing
was appropriate, as no genuine dispute of material fact exists. As an initial matter, we address
the procedural aspects of the AJ’s decisions without a hearing. The regulations allow for an AJ
to issue a decision without a hearing on a motion from one of the parties to the case or if the
AJ determines on his or her own initiative that some or all facts are not in dispute. 29 C.F.R.
§1614.109(g). On June 22, 2012, the AJ in this case issued a Partial Decision Without a
Hearing and Scheduling Order in which the AJ informed both parties of her intention to issue a
decision without a hearing on all of Complainant’s claims except for claim (6) because the AJ
found a dispute of fact as to the existence of the assault alleged in this claim and the motivation
for it. Therefore, the AJ scheduled a hearing on this claim. However, prior to the hearing, the
parties notified the AJ that the evidence in the record as to the date of the alleged assault was
incorrect and that the incident had not occurred in October 2008, as alleged, but instead
allegedly occurred more than six months prior. The Agency filed a Motion to Dismiss because
this claim was untimely. Complainant opposed the Motion based on the argument that there
were “continuous actions” taken by management against Complainant after this alleged assault.
The AJ found that since no actions were alleged to have occurred in the six months between
the alleged assault and Complainant’s next claim, the alleged assault was not part of
“continuous actions.” Initial EEO Counselor contact was made on September 3, 2008, which
was well after the 45-day time limit for contacting an EEO Counselor. The AJ therefore
properly granted the Agency’s Motion to Dismiss because the claim was untimely raised with
an EEO Counselor. We concur with the AJ’s decision to dismiss this claim for untimeliness
pursuant to 29 C.F.R. §1614.107(a)(2).

Next, to prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). 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 Construction Co. v. Waters, 438 U.S. 567, 576
(1978). 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, non-discriminatory reason for its actions. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove,
by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc

., 530 U.S. 133 (2000).
With respect to claim (1), Complainant alleges management discriminated against her when
they reassigned her to close-out duties. Specifically, the record shows that Complainant’s first
line supervisor (S1) informed her she was being reassigned as a result of an email she sent to
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customers that management deemed inappropriate. In the email, Complainant stated, “[t]here
are new guidelines that [management] has implemented which has impacted the ability to
provide support which will accommodate urgent and unplanned issues. I have done battle just
to try to get this order out but have been over ruled…[one of the customers] needs to let me
know if there is any opening at NAVSEA which I can apply for, I don’t know how much
longer I can support any of my codes under these acquisition department upper management
unrealistic personal gain conditions.” This email was forwarded to management by one of the
customers who received the email. Although Complainant contends she should have received
counseling instead of being reassigned, the evidence of record does not support this contention.
Complainant’s second line supervisor (S2) stated that Human Resources approved the
reassignment. Further, S1 stated that this was not a formal personnel action as close-outs were
within Complainant’s scope of duties. Accordingly, we find that Complainant has not shown
that the Agency’s articulated reasons for its actions were a pretext for unlawful discrimination.

With respect to claim (2), Complainant alleges management removed files from her workplace.
She contends S1 did not tell her he was going to remove the files. The record shows S1 told
Complainant in writing, in advance, that he would pick up the files from her area. S1 stated
the files were reassigned to other contract specialists. Accordingly, we find that Complainant
has not shown that the Agency’s actions were motivated by discriminatory animus.

As to claim (3), Complainant alleges management told all of the technical codes to whom she
provided contractual support that they were not allowed to speak to her. S1 stated that the
technical customers often hung around Complainant’s cubicle for extended periods of time, and
that after she was reassigned he informed them that Complainant was now doing close-outs and
if they had questions on specific contract actions that they should talk to him or the employee
now assigned to those actions. S1 stated that he told them it was fine to stop by and say hello.
He stated he did not have a problem with people socializing every so often but that employees
needed to get their work done. We find that Complainant has not shown that the Agency’s
articulated reasons for its actions were pretextual.

As to claim (4), Complainant alleges her second line supervisor (S2) told her not to combine
line items in task orders. However, she alleges when another employee (CW1) was given this
contract after Complainant had been reassigned, he was allowed to issue task orders with
multiple line items. S2 stated this issue depends on the specific contract and task order, and the
task order CW1 was working on had a two-phase approach. Accordingly, we find that
Complainant has not shown that the Agency’s actions were motivated by discriminatory
animus. Even if for the sake of argument claim (4) was motivated by discrimination, this is
insufficient to constitute a hostile work environment and is not reasonably likely to deter
persons from engaging in EEO activity.

With respect to claim (5), Complainant alleges S1 told other employees that Complainant was
the most “undesirable employee in the department.” There is no evidence in the record to
support this claim. As to claim (7), Complainant alleges S2 sent an email notifying employees
and customers that she had been reassigned. S2 stated she notified the department managers
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that Complainant had been reassigned in order to facilitate the transition of work to the new
contract specialists. We find that Complainant has not shown that this legitimate,
nondiscriminatory reason is pretextual.

With respect to claim (8), Complainant alleges management discriminated against her when she
was not selected for any of three positions. S1 was the interviewing official for all the
positions. S1 stated the three individuals selected for the positions at issue had more pre-award
experience than Complainant which was especially important for these positions. The record
further shows that two of the selectees were defense acquisition workforce improvement act
(DAWIA) Level III certified, which Complainant was not, and that the third selectee had
completed an internship program and was working toward his DAWIA Level III certification.
In contrast, Complainant did not have this certification, nor was she in the process of receiving
it. Accordingly, we find that Complainant has not shown that her qualifications for the
positions at issue were plainly superior to those of the selectees, or that the Agency’s
articulated reasons for not selecting her were a pretext for unlawful discrimination.

Finally, insofar as Complainant is alleging that the claims addressed above constitute
harassment, the Commission finds that since she failed to refute the legitimate,
nondiscriminatory reasons proffered by the Agency for its actions, she necessarily also failed
to establish that such actions were taken on the basis of her membership in the protected
classes. Accordingly, Complainant failed to establish that she was subjected to a discriminatory
hostile work environment. See Bennett v. Department of the Navy

, EEOC Request No.
05980746 (September 19, 2000).

CONCLUSION
We find that viewing the record evidence in a light most favorable to Complainant, there are
no genuine issues of material fact. We further find that the AJ appropriately issued a decision
without a hearing finding no discrimination. Therefore, we discern no basis to disturb the AJ’s
decision and the Agency’s final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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.

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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 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
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the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
July 24, 2015