Emmanuel L.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120171398 (E.E.O.C. Nov. 21, 2018)

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

Emmanuel L.,1
Complainant,

v.

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

Appeal No. 0120171398

Agency No. DON-16-39040-01-01750

DECISION

On March 6, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
February 6, 2017, 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.

ISSUES PRESENTED

Whether the Agency discriminated against, and subjected Complainant to harassment, based on
his age, and race, when it allegedly informed him that he could not work overtime unless he
provided his social security and driver’s license numbers; allegedly denied him Future Use
Material training; allegedly assigned overtime in a disproportionate manner in favor of another
employee; a coworker allegedly played a video game that repeatedly used the n-word; a coworker
asked him when he would retire; and his supervisor stated that a coworker was going to take his
job.

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.
0120171398

2
BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Logistics Management
Specialist at the Agency’s Portsmouth Naval Shipyard Detachment in San Diego, California.

On an undisclosed date, Complainant alleged that his then first-line supervisor (S1) (age 54,
Caucasian) requested that Complainant, and other employees, provide their Social Security and
driver’s license numbers, prior to being placed on the overtime roster. Complainant did not provide
them to S1. Complainant also stated that when he requested Future Use Material (FUM) training,
S1 responded that he only had money to pay for the training for a coworker (CW1) (age unknown,
White). Complainant alleged that since June 2013, CW1 has worked the most overtime hours. ROI
at pgs. 193-194.

On March 14, 2016, Complainant stated that another coworker (CW2) (age 46, White) played a
game on his cell phone, which repeatedly used the n-word. Complainant stated that S1 quickly
stated to CW2, “Don’t play that in here. You must do that somewhere else.” ROI at pg. 195. On
or about April 11, 2016, Complainant met with his second-line supervisor (S2) (age 40, Filipino),
and third-line supervisor (S3) (age 55, Caucasian) to discuss his concerns regarding the overtime
and CW2’s game. S3 asked S1 about the cell phone game, who responded that he did not recall
the incident. S1 and S3 decided to look into the overtime allegation, and pulled the overtime data
from 2013-2016. ROI at pg. 220. S3 sent CW2’s cell phone to an IT Specialist, who determined
that no additional applications or services were installed on his phone. ROI at pg. 132.

On May 15, 2016, another coworker (CW3) (age 52, White) allegedly stated to Complainant, “I
am going to take your job because you are too old to still be working,” and asked him, “when are
you going to retire?” Later that day, Complainant stated that S1 stood and yelled over a partition
at him, “[CW3] is going to take your job,” and the witnesses laughed. ROI at pgs. 195-196.

On June 6, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African-American), and age (66) when:

1. Since June 2013, S1 told him that he would not be assigned overtime unless he
provided his social security and driver’s license numbers;

2. Since June 2013, S1 denied him FUM training;

3. Since June 2013, S1 disproportionally assigned overtime, giving CW1 more
overtime hours;

4. On March 14, 2016, CW2 allegedly played a game on his cell phone, that repeatedly
used the n-word;

5. On or about May 15, 2016, CW3 stated that he would take Complainant’s job
because he was too old, and asked him when he planned to retire; and
0120171398

3

6. On or about May 15, 2016, S1 yelled that CW3 was going to take Complainant’s
job, and that witnesses laughed at the comment.

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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R.
§ 1614.108(f), 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.

The Agency did not provide a prima facie case analysis on Complainant’s discrimination claims
based on age and race, because the management officials articulated legitimate, nondiscriminatory
reasons for their actions. For claim 1, S1 denied that he required Complainant provide him with
his Social Security and driver’s license numbers before assigning him overtime. S1 noted that
Complainant worked over 600 hours during the relevant time period. S2 added that Complainant
was asked for his Social Security and driver’s license numbers to obtain an access badge for a
restricted part of the facility.

With regards to claim 2, S1 stated that he never denied Complainant the FUM training, and that
Complainant never requested it. S1 stated that he encouraged Complainant to learn about FUM,
but that he never expressed interest. For claim 3, S1 stated that CW1 was not part of his chain of
command, and that in comparing their overtime hours, Complainant worked 642 hours over the
past three years, while CW1 worked 457 hours.

Regarding claim 4, S1 and CW2 denied that this incident occurred. S1 stated that due to security
issues, employees are not allowed to bring their personal cell phones, which are locked at the base
of the stairs in all of their buildings. CW2 had a government-issued phone, which was inspected
after Complainant raised his allegation. The IT employee confirmed that there was nothing found
on the phone except for text messages and records of phone calls.

For claim 5, CW3 stated that he jokingly asked Complainant when he was retiring, and they
laughed and shook hands afterwards. CW3 denied saying anything about Complainant being old.
With regards to claim 6, S1 denied making the alleged statement; and CW3 stated that he recalled
seeing S1 stand to speak, but did not recall S1 making the alleged statement or others laughing.
The Agency then determined that Complainant had not shown by a preponderance of the evidence
that the reasons were pretext for discrimination.

With regards to Complainant’s harassment allegation, the Agency found that Complainant worked
a significant amount of overtime; was not denied FUM training; and there was no evidence that
CW2 played an offensive game on his phone. Additionally, the Agency determined that CW3’s
inquiry about Complainant’s plans to retire did not rise to the level of unlawful harassment, and
that Complainant even admitted that he did not believe that the comment was made based on his
0120171398

4
age or race. The Agency concluded that Complainant had not shown evidence that he was
discriminated against, or harassed, based on his age or race.

Complainant filed the instant appeal, but did not file a brief in support of his appeal. The Agency
submitted an opposition brief on May 17, 2017, requesting that the Commission affirm its final
decision.

ANALYSIS AND FINDINGS

Standard of Review

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. (Aug. 5, 2015) (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”).

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
For Complainant to prevail, he must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
his age and race, we find that the management officials proffered legitimate, nondiscriminatory
reasons for their actions, as described above.

0120171398

5
We further find that Complainant has not provided evidence showing that the reasons were pretext
for discrimination. Complainant can establish pretext in two ways: “(1) indirectly, by showing that
the employer’s proffered explanation is unworthy of credence because it is internally inconsistent
or otherwise not believable, or (2) directly, by showing that unlawful discrimination more likely
motivated the employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th
Cir. 2000) (internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
In this case, Complainant only made bare assertions, which are insufficient to prove pretext. We
also note that Complainant did not make any arguments on appeal, and did not provide a rebuttal
during the investigation. ROI at pg. 287. Accordingly, we find that the Agency did not discriminate
against Complainant based on his age or race when S1 allegedly asked for his Social Security and
driver’s license numbers before he was allowed to work overtime; S1 allegedly denied FUM
training; S1 allegedly provided CW1 a disproportionate amount of overtime; CW3 asked
Complainant when he was planning to retire; and S1 allegedly stated that CW3 was going to take
Complainant’s job.

Harassment

Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of
the conditions of the Complainant’s employment. See EEOC Notice No. 915.002, Enforcement
Guidance on Harris v. Forklift Systems, Inc., at 3 (Mar. 8, 1994). To establish a claim of
harassment a Complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(Oct. 16, 1998).

In this case, the record shows that incidents 1-4 did not occur as alleged. Additionally, Complainant
stated that he did not believe that incident 5 occurred due to his protected classes. Even assuming
that incident 6 occurred as alleged, and was based on Complainant’s age and race, we find that this
single incident was not sufficiently severe to rise to the level of unlawful harassment. As such, we
find that the Agency did not subject Complainant to a hostile work environment based on his age
or race.

CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding that
Complainant was not discriminated against, or subjected to harassment, based on his age or race.

0120171398

6
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.
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.
0120171398

7
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

November 21, 2018
Date