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

Equal Employment Opportunity Commission

Jan 30, 2013

0120112591 (E.E.O.C. Jan. 30, 2013)

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. 0120112591

Agency No. 10-002-440-1959

DECISION

On April 15, 2011, Complainant filed an appeal from the Agency’s March 29, 2011, final
decision concerning his 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 decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Purchasing
Agent, GS-1105-08, at the Agency’s Fleet Industrial Support Center (FISC), Detachment Seal
Beach, in Seal Beach, California. Complainant’s first-level supervisor was S1, a Supervisory
Contract Specialist, GS-1102-14.

Complainant filed an EEO complaint dated June 29, 2010, alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of
race (Caucasian), sex (male), color (white), age (over 40), and in reprisal for prior protected
EEO activity when:

1. On April 28, 2010, S1 failed to respond to Complainant’s request to provide him a
key to the office building where he worked.

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2. Since 2009, and continuing, Complainant had been tasked with the majority of the
household move requirements assignments.1

3. On June 11, 2010, Sl chastised Complainant in front of other employees regarding a
call she had allegedly received from a customer. Subsequently, Complainant had to
ask Sl to take the issue into her office.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a
final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614, at Chapter 9, § VI.A. (November 9, 1999) (explaining that the de novo
standard of review “requires that the Commission examine the record without regard to the
factual and legal determinations of the previous decision maker,” and that EEOC “review the
documents, statements, and testimony of record, including any timely and relevant submissions
of the parties, and . . . issue its decision based on the Commission’s own assessment of the
record and its interpretation of the law”).

To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he
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).
The prima facie inquiry may be dispensed with in this case, however, since the agency has
articulated legitimate and nondiscriminatory reasons for its actions. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans
Affairs, EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the agency's explanation is a
pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 134
(2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep’t of
Community Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Dep’t of Veterans

1 While the final decision describes issue (2) as occurring from March 2010, and continuing, in
his complaint Complainant stated the issue began in 2009. The Agency’s acceptance letter
listed the issue as beginning in 2009. Moreover, the record reveals that the investigator
investigated the incident as beginning in 2009.
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Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Dep’t of the Navy,
EEOC Request No. 05950351 (December 14, 1995).

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, or religion is unlawful. McKinney v. Dole, 765 F.2d 1129,
1138-1139 (D.C. Cir. 1985). A single incident or group of isolated incidents will not be
regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor
Co., 684 F.2d 1355, 1358 (11th Cir. 1582). Whether the harassment is sufficiently severe to
trigger a violation of Title VII must be determined by looking at all the circumstances,
including the frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether it unreasonably
interferes with an employee's work performance. Harris v. Forklift Systems, 510 U.S. 17
(1993).

With regard to issue (1), the record reveals that on April 16, 2010, Complainant sent S1 an
electronic mail message to S1 indicating that he could not get into the building that morning
because it was locked. In his message, Complainant noted he previously asked S1 for a key to
the building in 2007, and he reiterated his request for a key on April 16, 2010. In her
affidavit, S1 noted that at the time Complainant requested a key, only she, CWl, and CW3 had
keys. S1 noted that CWl and CW3 normally came to work at 6:30 a.m. and that they both
spent a great deal of time working overtime on weekends. S1 stated that there were three other
divisions in the building and that they normally had a person who reported to work at 6:00
a.m. and opened the building. S1 maintained that CW2 and CW6 also had keys to the building
because CW6 was the senior contract specialist who also served as S1's deputy, and that both
CW2 and CW6 worked late. S1 noted that Complainant had indicated he was unable to work
overtime and she did not see the need for him to have a key to the office at that time. S1
explained that Complainant was not the only employee in her division without a key, and she
named CW4, CW7, CW8, and CW9 who a1so did not have keys. S1 stated she did not
address with Complainant the matter about his not having a key, but she worked with the
building manager to provide a list of individuals who were authorized to check-out a key to the
building. We note that the record contains an August 13, 2010 electronic mail message in
which S1 changed the procedure for key requests and listed the individuals authorized to
check-out a key to the building. This new list included Complainant’s name.

With regard to issue (2), Complainant claimed that since 2009, he had been tasked with the
majority of the household move requirements assignments. In his affidavit, Complainant
admitted that he knew how many household duties his co-workers were provided as indicated
in the WIP Reports that the Agency provided. The record reveals that S1 was responsible for
assigning the workload within her section. S1 noted that her section consisted of Purchasing
Agents who are responsible for making purchases up to $100,000 and Contracting Specialists
who are responsible for making purchases over $100,000. Sl stated that the household goods
work assignments normally did not require anything but paying the movers, entering the
actions into the system, and releasing the work.

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S1 noted that in 2009, there were three Purchasing Agents (Complainant, CW1, and CW4);
however, when CW1 was promoted to Contract Specialist in December 2009, S1 had to
distribute the household goods assignments between Complainant and CW4. S1 stated that in
October 2009, Complainant went on LWOP through March 2010, to care for his wife. S1
stated that when Complainant returned she tried to provide him with less complex workload
assignments and as a result, she assigned him more household goods assignments. However,
S1 stated that at no time was Complainant assigned a greater number of assignments than any
of his peers, including CW1 and CW4.

The record contains a May 25, 2010 electronic mail in which Complainant informed S1 that he
stated that he continues to receive the bulk of move requirements which he feels have shorter
lead times. The record contains a June 4, 2010 electronic mail in which S1 stated that upon
Complainant’s return in March 2010, she had intentionally assigned more of the household
moves to him because they were non-complex (no requirements for market surveys,
solicitations, or clauses) so as not to place Complainant in an overload situation. S1 stated in
response to Complainant’s concerns that assigning him more household move assignments than
his peers had a negative impact on him, S1 stated that the assignments would be evenly
distributed between Complainant and his peers without regard to type or complexity.

With regard to issue (3), Complainant claimed that on June 11, 2010, Sl chastised him in front
of other employees regarding a call she had allegedly received from a customer. In his
affidavit, Complainant admitted that S1 did not raise her voice to him while she was addressing
him in front of another employee (CW5). Complainant stated that he asked Sl to take the issue
into her office. In her affidavit, S1 stated that on June 11, 2010, she received a telephone call
from a customer who inquired as to what he needed to submit on a sole source procurement.
S1 stated she went to talk to Complainant who was handling the matter and she asked him why
he took the action he did pertaining to the customer. S1 maintained that Complainant
repeatedly responded that he did not think S1 would accept the "sole source" justification that
had been provided for the action. S1 contended that Complainant “jumped up” and accused
her of polarizing him with respect to his co-worker. S1 stated she responded that she was not
polarizing him with his co-workers, and she stated they took the matter into her office. S1
stated that after going into her office, Complainant kept repeating that he thought she would
not accept the justification the customer had given. She stated that she may have raised her
voice to some degree, but not in a loud or screaming manner and she denied chastising
Complainant.

Upon review, we find the Agency articulated legitimate, non-discriminatory reasons for its
actions which Complainant failed to show were a pretext for discrimination. Moreover with
regard to his overall harassment claim, we find Complainant failed to show by a preponderance
of evidence that he was subjected to harassment. Specifically, we find Complainant has not
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established that the conduct to which he was subjected rose to the level of harassment, or was
motivated by discrimination on the bases of race, sex, color, age, or reprisal.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination 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.

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
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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
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

January 30, 2013
Date