Madelaine E.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120170584 (E.E.O.C. Nov. 30, 2018)

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

Madelaine E.,1
Complainant,

v.

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

Appeal No. 0120170584

Hearing No. 480-2013-00599X

Agency No. 12-00259-02687

DECISION

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 November 4, 2016, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

ISSUES PRESENTED

The issue presented is whether the EEOC Administrative Judge (AJ) properly issued a decision
without a hearing, and whether the AJ properly found that Complainant did not prove she was
subjected to harassment or discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist,
GS-9, at the Agency’s Navy Medical Center in San Diego, California.

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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On November 1, 2012, Complainant filed an EEO complaint in which she alleged that the Agency
discriminated against her on the bases of race (African-American), sex (female), disability, and in
reprisal for prior protected EEO activity when:

1. On May 3, 2012, Complainant’s supervisors failed to take appropriate action when
Complainant reported threatening behavior by a coworker (C1); and

2. On May 7, 2012, Complainant’s supervisor (S1) sent her a disciplinary action via email.

In an investigative statement, Complainant stated that in 2008, she filed an EEO complaint
involving her previous supervisor.2 Regarding claim 1, Complainant stated that in an email dated
May 3, 2012, she reported that on that morning, C1 was “aggressive” toward her and called her a
“bully.” Complainant stated that C1 came to work and gave her a “dirty look,” and when she
asked her if everything was okay, C1 began to yell at her. Complainant further stated that C1 later
came to Complainant’s cubicle and said, “You are not going to bully me. I am going to turn you
into [S2, Complainant’s second-level supervisor].” She stated that she believed that C1 might
physically harm her because her behavior was “violent and aggressive and unwarranted.”

Regarding claim 2, Complainant stated S1 sent her a disciplinary action via email on May 7, 2012.
Complainant stated that she believed the email was a disciplinary action because it gave her a
direct order and because of the “directive nature of the email.” Complainant also stated that the
email made her feel like she was not welcome in the organization and was being told to “just show
up, shut up, and just know that you are different.” Regarding the underlying subject of the email,
Complainant stated that she did not recall being unprofessional or sticking her tongue out during
the training session on May 7, 2012. Complainant stated that S1 could have pulled her into an
office and spoken to her about the allegations, but that did not happen.

After 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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing. Both parties submitted motions for summary
judgement. The AJ issued summary judgment in favor of the Agency, finding that Complainant
had not proven that she was subjected to unlawful harassment or discrimination. The Agency
subsequently issued a final order adopting the AJ’s finding.

CONTENTIONS ON APPEAL

On appeal, Complainant reiterates her assertion that she reported C1’s threatening behavior in a
May 3, 2012 email, but S1 never did anything about the matter. Complainant further reiterates her
claim that she was counseled about the May 3, 2012 meeting without any opportunity to refute
allegations lodged against her. The Agency requests that we affirm its final order.

2 The record reveals that Complainant also filed EEO complaints in 2009, 2010, and 2012.
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ANALYSIS AND FINDINGS

We must first determine whether it was appropriate for the AJ to have issued a decision without a
hearing on this record. 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 103, 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, issuing a decision without holding
a hearing is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a decision without holding a hearing only upon a determination that the record
has been adequately developed for summary disposition. See Petty v. Dep’t of Defense, EEOC
Appeal No. 01A24206 (July 11, 2003). According to the Supreme Court, Rule 56 itself precludes
summary judgment “where the [party opposing summary judgment] has not had the opportunity
to discover information that is essential to his opposition.” Anderson, 477 U.S. at 250. In the
hearing context, this means that the administrative judge must enable the parties to engage in the
amount of discovery necessary to properly respond to any motion for a decision without a hearing.
Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order discovery, if
necessary, after receiving an opposition to a motion for a decision without a hearing).

After a careful review of the record we find that there was no genuine issue of material fact or
credibility that warrants a hearing. The AJ found that the undisputed record, including the
complaint, sworn testimony, Report of Investigation, and all submissions of the parties, was
comprehensive, complete, impartial, and constituted an appropriate basis upon which to render a
decision without a hearing in favor of the Agency. We agree, and therefore find that a decision
without a hearing was appropriate.

Disparate Treatment and Harassment

Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated
in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Foundation for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976).

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For a complainant to prevail, she 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). Once a
complainant has established a prima facie case, the burden of production then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community
Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts to
the 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, the complainant retains the burden of
persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency
acted on the basis of a prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133, 143 (2000); St. Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 715-716 (1983).

In order to establish a claim of hostile-environment harassment, 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).

Regarding incident 1, the record reveals that in an email to management dated May 3, 2012,
Complainant reported that C1 exhibited the “poise” of “an aggressive, angry person” toward her
and threatened to report Complainant. Complainant further stated that she was concerned that C1
would lash out in an aggressive manner again. We note that Complainant did not report that C1’s
conduct was based on a protected EEO basis, such as race, color, religion, national origin, sex,
disability, age, genetic information, or reprisal for previous EEO activity. Moreover, there is no
evidence that C1’s conduct was motivated by any such discriminatory bias. Therefore, we cannot
find that C1’s conduct was unlawful harassment under EEO regulations.

Further, we note that antidiscrimination statutes are not general civility codes designed to protect
against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332 (Oct. 10,
2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances
between an alleged harasser and a Complainant do not rise to the level of harassment). Instead,
EEO laws address discriminatory conduct that alters the work environment. See Oncale v.
Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). While C1’s alleged conduct may have
been unprofessional or rude, it is not the type of conduct that would render the workplace legally
hostile for a reasonable person.

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Regarding incident 2, the record reveals that in an email dated May 3, 2012, S1 directed
Complainant to “act professionally at all times with” her coworkers, customers, and anyone else
she encountered as an employee of the Agency. S1 stated that Complainant’s disrespectful
behavior was disruptive to the Agency’s mission and could cause coworkers mental anguish. S1
concluded the letter by advising Complainant to contact the Employee Assistance Program (EAP)
if she had any personal problems that were causing her to behave in such manner. Upon review,
we find that this email was akin to a Letter of Counseling. Additionally, there is no evidence that
it led to any formal discipline against Complainant or that it was placed in personnel records. As
such, we do not find that incidents 1 and 2 are severe or pervasive enough to constitute a hostile
work environment.

Additionally, we note that the Agency provided legitimate, nondiscriminatory explanations for its
actions. Specifically, regarding claim 1, S1 stated Complainant sent him and S2 an email in which
she reported that that on May 3, 2012, C1 was aggressive, assumed a threatening posture, and
called her a bully. He further stated that he thought that this email concerned the training incident
later that same day, and the Lieutenant Commander (LCDR) advised him to send the email to S2.
S1 stated that three employees came to him and reported that Complainant had made rude remarks
and stuck out her tongue toward C1 during training on May 3, 2012, and he believed he had
sufficient information based on their reports about what happened on May 7, 2012. S1 stated that
he found the witnesses’ accounts very credible because they all said the same thing and came to
him at different times. He stated that he did not talk to Complainant about her email because he
believed that her email referenced the training incident.

Regarding claim 2, S1 stated that he sent Complainant an email as a reminder to act professionally.
He stated that he told Complainant that it had come to his attention that she exhibited a negative
and disrespectful attitude when she stuck her tongue out toward C1. S2 stated that after the training
meeting, an employee came to him and reported that Complainant made faces and acted very rude.

In an attempt to prove pretext, Complainant contends that she reported C1’s threatening behavior
during the meeting to management in a May 3, 2012 email, but S1 never did anything about the
matter. However, S1 explained that he mistakenly thought that Complainant was reporting on a
matter that occurred later that day at a meeting, which we find reasonable in light of the fact that
both incidents occurred on the same day. S1 further explained that he relied on witness accounts
of Complainant’s behavior to counsel her about her conduct during the meeting. We note that the
record contains statements from two employees dated May 5 and 7, 2012, in which they reported
that during the May 3, 2012 training, Complainant made faces and stuck out her tongue at C1.
Upon review, we note that it would have been a better investigatory practice to interview
Complainant about the events at the training/meeting. However, under these circumstances, we
do not find that the Agency’s actions were so unreasonable that they likely reflect a discriminatory
motive. Consequently, we find that the AJ properly found that Complainant did not prove that she
was subjected to unlawful discrimination or harassment.

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CONCLUSION

Accordingly, based on a thorough review of the record and the contentions on appeal, including
those not specifically addressed herein, we AFFIRM the Agency’s final order for the reasons set
forth in this decision.

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).

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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 30, 2018
Date