Elenore F.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 31, 2018

0120182316 (E.E.O.C. Oct. 31, 2018)

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

Elenore F.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120182316

Hearing No. 430-2015-00138X

Agency No. DON144215801924

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Agency decision finding no
discrimination. A May 9, 2018, decision issued by an EEOC Administrative Judge (AJ) became
the Agency’s final decision in the absence of a decision by the Agency. Complainant’s Equal
Employment Opportunity (EEO) complaint alleged 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, we AFFIRM the Agency’s decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Nuclear Engineer,
GS-0840-11, at the Agency’s Nuclear Facilities and Waste Engineering Division facility in
Portsmouth, Virginia. On July 18, 2014, Complainant filed an EEO complaint alleging that the
Agency discriminated against her on the basis of sex (female) which created a hostile work
environment when the following occurred:

1. On April 10, 2014, Complainant’s supervisor (S1), who was a Supervisor General
Engineer, GS-0840-13, treated her like a secretary and stated to her, in front of

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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others, that she was good enough to check for spelling, grammar, and
punctuation;
2. On a continuing basis in February, March, and April 2014, S1 asked her
coworkers about her whereabouts when he should have known her location and
told them that she did not call or show up for work, which caused them to call her
while she was on leave;
3. In January and February 2014, S1 repeatedly complained to her of colleagues
being at her desk but never complained to her male coworkers;
4. On October 10, 2013, S1 failed to give her work assignments that would
contribute to her success in passing the Oral Board Examination after she
expressed her concerns to him;
5. In October 2013, during a team meeting, S1 stated that she was getting the short
end of the stick and he requested she move out of her cubicle so he could occupy
it;
6. In August 2013, S1 denied her initial request to make a site visit to Pearl Harbor,
Hawaii, and improperly made travel arrangements for her at a time share for her
after she explained that she had made arrangements at a local hotel;
7. In June 2013, S1 wrongfully accused her of printing children’s material, required
her to watch the cleaning lady, asked her to clean the refrigerator, and open the
safe; and
8. Since June 2013, S1 has refused to assign her work commensurate with her
position and education.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On July 27, 2015, the Agency filed a Motion for Decision
Without a Hearing and Complainant filed a Response to the Motion and a Cross Motion for
Summary Judgment on August 6, 2015. On May 9, 2018, the AJ issued a decision without
holding a hearing, finding Complainant failed to present any evidence that she was subjected to a
hostile work environment based on sex. 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 harassment as alleged became the Agency’s final action
pursuant to 29 C.F.R. § 1614.109(i). Complainant appealed.

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.
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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.

In the instant case, the AJ incorporated the Agency’s Motion for Decision Without a Hearing and
found that Complainant failed to establish that she was subjected to a hostile work environment.
To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment." Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Regarding claim (1), it is undisputed by S1 that he stated Complainant would be able to check
the documents for spelling, grammar, and punctuation. As the newest general engineer to the
team, S1 believed Complainant did not have the experience to ensure all radiological
requirements adhered to their safety standards for their nuclear work. Witnesses stated they
believed this statement of S1 was based off his belief that Complainant did not have the technical
experience to review the documents for content. S1 also stated that Complainant should review
past technical documents that have already been issued to develop her technical knowledge. No
evidence was provided that this statement was based off Complainant’s sex, versus her technical
experience as a nuclear engineer in their division.

Regarding claim (2), S1 stated that the previous supervisor set a precedent for employees within
the unit to notify one another when they were out and that they rarely informed S1 when they
were stepping out of the office. S1’s office for a time was located further away from the rest of
the team so he relied on an employee informing coworkers of their whereabouts, as was the
system under the previous supervisor. Under the previous supervisor, employees would call each
other if they were running late or would be out sick. Complainant specifically cited a day when
she informed S1 in advance that she would be on leave for a court hearing, but on that day, she
received calls from coworkers that she was marked as a “no show.” Coworker One (C1), a
female Nuclear Engineer in Complainant’s division, stated she remembered that day. Contrary to
Complainant’s allegation, C1 informed S1 that Complainant was not in her office. The record
shows S1 was not inquiring about her whereabouts from her coworkers.
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C1 did not say S1 asked her to call Complainant. C1 called and texted Complainant many times
because she said she was concerned about Complainant’s well-being. We find the record does
not establish that S1 actions, if true, were motivated based on Complainant’s sex.

Regarding claim (3), S1 refutes that he complained to or about Complainant, or any other
coworkers, having conversations at their desks. However, S1 admitted he would inquire with
Complainant about the status of her assignments when conversations lasted more than 15
minutes. S1 noted he would do this when individuals from other branches were at Complainant’s
desk for an extended time, as none of her work assignments involved collaboration with other
branches. C1 admitted she never heard S1 complain to Complainant about coworkers being at
her desk but she did feel uncomfortable visiting Complainant in her office. C1 explained S1
would inquire about the status of her work assignments which made her feel like S1 did not want
her in Complainant’s office. Complainant alleged S1 did not check the status of male coworkers
when they engaged in conversation at their desks. S1 admitted he did not intervene in
conversations involving those specifically named individuals because the conversation was loud
enough for him to determine if it was work-related or a social visit. S1 said these social visits
were kept to less than 10 minutes.

Regarding claims (4) and (8), S1 directly refutes these allegations. In October 2013, S1 provided
Complainant a list of topics to study for her GS-12 oral board examination and requested she
give a weekly presentation on one topic to S1 and a Senior Nuclear Engineer on their team. S1
reported Complainant only presented on these topics on two occasions. S1 also assigned
Complainant a task involving updating an inventory list to the unit’s website. Approximately six
months after S1 assigned the task, the website had not been updated and the inventory list was
lost. Another task assigned to Complainant was to revise a chapter of a Naval Sea Systems
Command (NAVSEA) manual. S1 stated this chapter was listed on her GS-12 examination
assigned reading list. S1 stated he included Complainant in the task, not out of efficiency, but to
broaden her understanding of the NAVSEA manual and why changes had to be made.

Additionally, Complainant alleged S1 failed to allow her to work on technical assignments such
as Liaison Action Requests (LARs). Contrary to this allegation, S1 stated around April or May
2014, she was assigned several LARs related to a large technical problem that required the
support of the entire unit. Specifically, S1 tasked Complainant with calculating the length of a
piping system related to this problem. S1 reiterated this project needed to be completed but did
not give her a deadline as he knew she may not have handled projects of this substance before. In
June 2014, Complainant completed the piping project. However, S1 noted certain piping
information he had requested was missing from the calculations and the project was submitted
with a lot of scratch work on the back of various sheets of paper. S1 stated the tasks of revising
the NAVSEA manual and calculating a new piping system was more technical work than most
of the LARs their unit receives. Moreover, S1 stated Complainant was provided training and
granted travel requests for work projects when opportunities were available. Complainant
provided no evidence to establish that she was denied or given assignments based on her sex.

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Regarding claim (5), S1 admits he stated Complainant was getting “the short end of the stick”
when he requested she move back to her original cubicle so S1 could join the rest of the team.
Before this, all members of the team except for S1 were located in the same area. S1 explained
that he felt it was necessary to sit with the team to facilitate accurate technical discussions and
improve performance. Of the six cubicles for the unit, Complainant was occupying one of two of
the larger cubicles. S1 also explained that the cubicle was directly across from a Senior Nuclear
Engineer who worked in an area S1 did not have a strong understanding of. Moreover, S1
explained Complainant had relocated from a smaller cubicle without S1’s permission when it
was vacated in August 2013, and requested she move back two months later.

Regarding claim (6), S1 admitted he initially did not approve Complainant for a work trip to
Pearl Harbor, Hawaii, but after speaking with his supervisor, he authorized her attendance. S1
stated Complainant was less experienced than other employees by a significant margin. S1
stated he was hesitant to send his most junior nuclear engineer with him because the Head
Nuclear Manager at the shipyard in Pearl Harbor expressed deep dissatisfaction the year before
regarding their unit’s support of dual media discharges (DMDs) at their shipyard. Moreover, S1
explained that this shipyard was the only shipyard that requests their division limit their travel.
Complainant asserts she was treated differently than her male counterparts but fails to provide
any evidence to support this assertion. Assuming, arguendo, S1’s failure to select Complainant
for the shipyard visit was based on sex, S1’s supervisor took immediate and appropriate action to
ensure Complainant was selected for and participated in the visit.

Complainant also alleged her hostile work environment was evidenced by S1 improperly making
travel arrangements for her. S1 and witnesses explained it was customary in the unit when
travelling with others to book arrangements for others or have others book for you. Each person
was responsible for paying for their own travel regardless. S1 stated he has made travel or
lodging arrangements for male employees within Complainant’s unit before. S1 explained he and
Complainant had difficulty finding lodging within the government rate but when he found a
condominium/apartment within the government rate, he booked for Complainant as well as
himself. A third individual traveling with Complainant and S1 was also staying at this rental. S1
explained often the unit members stay in the same rental to ease travel or rental car expenses to
the work site. S1 explained there is no requirement to stay in the same location and Complainant
was free to make her own hotel arrangements, which he informed her. Complainant was able to
make her own lodging arrangements for the trip.

Regarding claim (7), Complainant alleged S1 wrongfully accused her of printing children’s
material, required her to watch the cleaning lady, asked her to clean the refrigerator, and open the
safe. S1 admitted he did inquire with Complainant if the printed materials belonged to her.
However, after she stated the materials did not belong to her, he inquired with other unit
employees who were present at the time. S1 also admitted he asked Complainant to escort the
cleaning lady through the building, just as he had done to multiple other employees. Witnesses
state it is common practice for the unit employees to alternate escorting the cleaning lady for
security purposes.
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Complainant’s male coworkers stated they have been asked and share the task of escorting the
cleaning lady every week. The record shows this was not a task specifically assigned to
Complainant and was assigned on a volunteer basis.

Similarly, the record shows that cleaning out the fridge was not a task specifically assigned to
Complainant and was a task taken on a volunteer basis. Regarding the task of opening the safe,
S1 admits that he asked Complainant to open the safe twice, but refutes any other times or that
this was a task specifically assigned to her. S1 and witnesses explained the safe is in a shared
space and accessed by all with the code, sometimes daily. S1 explained he requested
Complainant’s assistance on two occasions as the safe would not open for him and too many
attempts would permanently lock the safe. Assuming arguendo, Complainant’s allegations were
true, Complainant has not established how these events were related to her sex or that S1’s action
was sufficiently severe or pervasive to alter the conditions of her employment.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s Motion.
Upon review, the AJ found and we agree that Complainant was not subjected to harassment.
Complainant failed to establish that any of the incidents were related to any protected basis of
discrimination. Based on the foregoing, we find that Complainant failed to show that the
Agency’s action was motivated by discrimination as she alleged.

CONCLUSION

Accordingly, the AJ’s decision finding no discrimination is AFFIRMED.

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.
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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.
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.
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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

October 31, 2018
Date