[Redacted], Shameka M., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 2021Appeal No. 2020003422 (E.E.O.C. Mar. 29, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shameka M.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003422 Hearing No. 430-2017-00319X Agency No. DON 16-42158-03129 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 March 23, 2020, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a Machinist Supervisor I at the Agency’s Norfolk Naval Shipyard in Portsmouth, Virginia. On October 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and age (47) when: 1. Complainant was subjected to non-sexual harassment when: a. on June 9, 2016, the Management and Program Analyst disapproved her leave request; 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. 2020003422 2 b. on June 13, 2016, the Non-Nuclear Mechanic Assessment Coordinator charged Complainant leave, instead of leave without pay; c. on or about May 14, 2016; April 30, 2016; and January 23, 2016, the Mechanic Internal Shop Supervisor charged Complainant leave in error; d. on May 9, 2016, Complainant’s supervisory duties and responsibilities were taken away; e. since April 2016, Complainant has not received any training; f. on March 1, 2016, the Mechanic Internal Shop Supervisor belittled Complainant during a meeting; g. in March/April 2016, the Mechanic Internal Shop Supervisor would not allow Complainant to participate in the hiring process for a Planner; h. since January 2016, Complainant has not been allowed to perform overtime; i. since May 3, 2015, Complainant has been placed on “medical probation”; and j. in October 2014, management continuously disregarded Complainant’s position as supervisory. 2. on July 1, 2016, Complainant became aware that she was not selected for the position of Supervisory Mechanical Internal Shop Manager, GS-1601-12; and 3. from October 2014 until May 2016, Complainant did not receive an award, and on July 9, 2016, she became aware that she received a lower monetary award than her subordinates. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed.2 The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 2 The AJ noted that Complainant did not submit her response to the Agency’s Motion for a Decision Without a Hearing by her deadline, which Complainant disputed on appeal. 2020003422 3 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 rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and she must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. As an initial matter, we note that Complainant provided attachments with her appeal brief, and she noted that some of the evidence was new. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. For the sake of argument, we find that even if this evidence is considered on appeal, the evidence does not alter our final disposition that Complainant failed to prove by a preponderance of the evidence that she was subjected to discrimination or harassment based on her age or sex. Complainant also expressed concerns with the EEO process, such as a “one-sided” investigation and only being given 2-3 days to submit rebuttal statements. However, the proper forum to raise such allegations would have been with the Agency official responsible for complaint processing and/or processed as part of the original complaint, rather than on appeal. See Samuel C. v. Dep’t of Justice, EEOC Appeal No. 0120182823 (Nov. 15, 2018), request for reconsideration denied, EEOC Request No. 2019002748 (June 19, 2019); Denis M. v. U.S. Postal Serv., EEOC Appeal No. 0120181126 (May 2, 2018). On appeal, Complainant argued that her harassment claim was fragmented and that the Agency refused to provide requested documents. However, we find that Complainant’s allegations are not supported. The AJ found that Complainant did not prevail on her harassment claim because she did not show that the allegedly harassing incidents were motivated by prohibited discrimination. 2020003422 4 Specifically, the AJ noted that when Complainant was asked why she believed these various incidents were because of her sex and/or age, she repeatedly answered, “I don’t know” or that she did “not understand why,” and the AJ found that there was no other evidence to show that the actions were due to her protected classes. The AJ further found that no reasonable person would find these incidents, “individually or collectively,” so objectively offensive as to alter the work environment. As such, we find that Complainant’s harassment claim was not improperly fragmented. Regarding Complainant’s allegation that the Agency refused to provide documents, we note that Complainant did not specify the documents, nor provide any evidence showing that the Agency refused to provide documents. Complainant provided many other arguments on appeal; however, we find that she offered general allegations, without any details or evidence to support the allegations. For example, Complainant stated that the “Agency harassed and discriminated against her for taking leave, using leave without pay and denied her the use of benefits available but not disclosed such as court leave and [Family and Medical Leave Act].” The Commission has held that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Request No. 0520110581 (Jan. 12, 2012) (citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 19, 2001)). To the extent that Complainant specified any Agency actions, a review of the record does not reveal evidence to establish that they were discriminatorily based on Complainant’s age or sex. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020003422 5 A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003422 6 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 March 29, 2021 Date Copy with citationCopy as parenthetical citation