Jed T.,1 Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 1, 2016

0120141804 (E.E.O.C. Nov. 1, 2016)

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

Jed T.,1
Complainant,

v.

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

Appeal No. 0120141804

Agency No. DON-12-00244-03585

DECISION

The Commission accepts Complainant’s appeal from the August 11, 2014 final Agency
decision (FAD) 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.2 The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Purchasing Agent
at the Agency’s Naval Supply Systems Command, Fleet Logistics Center in San Diego,
California. On September 26, 2012, Complainant claims that his supervisor (S1) came to his
desk and asked him to turn down his radio and turn his fan down. Complainant felt rebuked in
front of his co-worker (CW1) because he claims he had his radio and fan on for over five years
and had never been instructed by anyone to comply with turning down both devices.

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 The Commission notes that Complainant initially submitted correspondence to the
Commission on April 22, 2014, requesting to file an appeal prior to the Agency’s issuance of a
FAD. While the appeal was premature, the Commission finds that the appeal is now ripe for
adjudication as the Agency subsequently issued a FAD on August 11, 2014.
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In addition, on September 26, 2012, Complainant sent an email to his customers with the
subject “Management’s Failure to Notify Customers of My Status.” In the email, Complainant
stated that he had been on jury duty and he could not be held accountable for the status of his
work assignments while he was on leave for jury duty. Complainant further stated that his
supervisors were aware of his workload and wished to “impugn him with responsibility.”
Complainant’s second-level supervisor (S2) responded to the email informing Complainant that
the email was inappropriate, directed Complainant not to send any emails to customers, and to
direct any and all correspondence from his customers through S1.

On September 28, 2012, Complainant claims that he learned from a co-worker (CW2) that
another co-worker (CW3) told him that Complainant had threatened her. Additionally, On
October 19, 2012, Complainant reported to S1 that he felt harassed by CW1 and CW3.
Complainant alleged that he overheard a conversation between CW1 and CW3 where CW1
provided CW3 the name of an attorney. Complainant requested to be moved to another room.
S1 informed Complainant that she did not consider his co-workers’ conversation to be
threatening; however, she had an available office if he wished to move.

On October 26, 2012, Complainant notified S1 that someone had turned down his new fan and
that he believed CW1 was responsible. Additionally, Complainant claimed that he had
previously observed CW1 in his work area. Complainant asked S1 to instruct his co-workers
to not touch his fan and/or radio.

On October 30, 2012, Complainant filed a formal complaint 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 (63), and in reprisal for prior protected EEO
activity as evidenced by multiple incidents including, inter alia, his first level supervisor (S1)
rebuked him in front of a co-worker; S1 restricted him from sending emails to customers; he
learned from a co-worker that another co-worker claimed that he threatened her; he overheard
his co-workers having a conversation about his EEO complaint; and his co-worker entered his
work area and turned off his fan.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge. Complainant timely requested a
hearing, but subsequently withdrew his request. Consequently, the Agency issued a FAD
pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that
management articulated legitimate, nondiscriminatory reasons for its actions. For example,
regarding Complainant’s claim that S1 “rebuked” him, S1 explained that Complainant and
CW1 sat in separate cubicles separated by a walkway in the same room. S1 went to CW1’s
cubicle to discuss a contract file and Complainant was playing his radio loudly and his large
stand fan was oscillating loudly at the highest speed. S1 confirmed that she walked over to
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Complainant’s cubicle and asked him to turn down his radio and fan because she could not
hear what CW1 was saying to her. Complainant initially told S1 that he would not turn down
his fan, and then he told her that he would. S1 asserted that Complainant told her that he
would file a grievance and she told him that it was his right to do so. S1 denied that she
instructed Complainant to turn down his fan and radio in front of CW1; rather, she did so in
Complainant’s cubicle away from other employees. CW1 and CW3 corroborated that
Complainant played his radio and had his fan on all day, and that they frequently asked him to
lower the volume on his devices because they were distracting.

With respect to customer emails, S1 clarified that S2 restricted Complainant from sending
emails to customers. S1 stated that she did not receive a copy of the email Complainant had
sent to the customers and was unaware of it until S2 informed her. S2 then sent out an
apologetic email to the customers as a result of the aforementioned email. S2 corroborated
S1’s recount of events adding that after she read Complainant’s email to his customers, she
advised Complainant that the email was inappropriate and to direct any and all correspondence
through S1. S2 stated that she later called S1 and told her to ensure Complainant did not send
any more emails to customers and to direct him to go through S1 to send out emails to
customers. S2 confirmed that she emailed the customers apologizing for Complainant’s email
and referred them to S1. Complainant was not disciplined for the incident.

Regarding the claim that the threat to another co-worker, CW3 recalled that she had a
conversation with S2 and she relayed her experiences with Complainant. CW3 told CW2 that
shortly after Complainant began working at the Activity, he stood on his desk and loudly
accused her of being treated more favorably. CW3 told CW2 that she felt threatened by that
incident, and she did not trust Complainant. CW3 stated that she asked CW2 not to share the
conversation with anyone and that she only shared the information with CW2 because he asked
her why she did not talk with Complainant. CW2 corroborated CW3’s account and added that
he told Complainant about her comments. CW2 commented that it was clear that Complainant
and CW3 did not get along.

With respect to his claim that CW1 and CW3 talked about his EEO complaint, CW1 stated that
she and CW3 were interviewed by EEO Counselor on October 17, 201, about this matters in
this EEO complaint, and she observed CW3 was emotional after her interview. CW1 affirmed
that she went to CW3’s office and may have suggested that she contact an attorney, but based
on her knowledge of some issues CW3 had encountered with her elderly mother not
Complainant’s discrimination allegations. CW1 denied knowing that Complainant overheard
their conversation. CW3 confirmed CW1’s statement. CW3 added that she had just put both
her parents in a nursing home and told CW1 that she needed a lawyer to handle the situation.
CW3 denied mentioning that she needed an attorney because of anything related to
Complainant. CW3 added that Complainant must have been eavesdropping because they were
not speaking loudly enough for him to hear the conversation. S1 affirmed that she interviewed
all individuals involved after Complainant reported that he felt threatened. Additionally, S1
offered to move Complainant’s office to the other side of the building based on his allegations,
but he ultimately declined.
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Finally, as to his claim that CW1 entered his desk area and turned off his fan, CW1 denied
entering Complainant’s work area, but confirmed that she turned off his fan. CW1 stated that
she had previously turned off his fan on several occasions after he had forgotten to do so and
left for the day. CW1 noted that his fan was located outside of his cubicle.

The Agency concluded that Complainant failed to show that the alleged incidents were based
on discriminatory animus. As a result, the Agency found that Complainant had not been
subjected to discrimination or a hostile work environment as alleged. The instant appeal
followed.

On appeal, Complainant simply notes that the FAD was not issued timely. Accordingly,
Complainant requests that the Commission reverse the FAD.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a complainant must show that: (1) he belongs to a
statutorily protected class; (2) he 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 his 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).

Therefore, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected basis. Only if Complainant establishes both
of those elements, hostility and motive, will the question of Agency liability present itself.

As Complainant chose to withdraw his request for a hearing, the Commission does not have
the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore,
the Commission can only evaluate the facts based on the weight of the evidence presented.
Here, Complainant asserted that based on his protected classes, management and his co-
workers subjected him to a hostile work environment based on several incidents where Agency
officials took actions that seemed adverse or disruptive to him. The Commission concludes
that the conduct alleged was insufficiently severe or pervasive to establish a hostile work
environment.

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Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, there is no persuasive evidence in the record that discriminatory or
retaliatory animus played a role in any of the Agency's actions. The record reflects that the
alleged incidents were more likely the result of routine supervision, managerial discipline, and
general workplace disputes and tribulations. Finally, to the extent that Complainant claims that
he was subjected to disparate treatment, the Commission finds that Complainant has not
proffered any evidence showing that the Agency's explanation was a pretext for discrimination.
As a result, the Commission finds that Complainant was not subjected to discrimination,
reprisal, or a hostile work environment as alleged.3

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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 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 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,

3 The Commission takes this opportunity to remind the Agency of its obligations under our
regulations. EEOC Regulation 29 C.F.R. § 1614.110(b) specifies that when the agency
receives a request for an immediate FAD or decides to issue a FAD due to a complainant's
failure to request a hearing, it must issue the FAD within 60 days. See, e.g., Vunder v. U.S.
Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006). Although the Agency failed to
issue a timely decision as required by regulation, in this instance, the Commission does not
find that the circumstances warrant the imposition of a sanction.
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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.

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 1, 2016
Date