Shaniqua W.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 20180120180463 (E.E.O.C. Feb. 2, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shaniqua W.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120180463 Hearing No. 430-2015-00285X Agency No. 14-41112-03811 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated November 2, 2017, finding no discrimination regarding her 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND In her complaint, filed on October 20, 2014, Complainant alleged discrimination based on disability (hearing impairment), color (brown) and race (Black) when since May 2014, she had been harassed (non-sexual) by her first level supervisor (S1) and her second level supervisor (S2) when she did not want to create a position description (PD) for the Classification Department which created a hostile work environment. Some incidents in support of her claim were: (1) On May 1, 2014, she was instructed by S1 to create a PD for the Classification Department with 50% classification duties, 25% human resources duties and 25% information technology support services duties. She did not want to create this PD 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. 0120180463 2 because it would be difficult to hire a Classification Specialist with these requirements; (2) On May 6, 2014, she was told that she needed to work with customers by S1; (3) On June 25, 2014, her employee (E1) was placed on telework due to illness. She was directed by S1 to forward some advisories to E1; (4) On August 11, 2014, she was referred to as a “bulldog” by S1 due to her communication style with customers. She stated that S1 said she needed to be more submissive; (5) On August 12, 2014, she was offended by the way S2 spoke to her. S2 spoke to her as if S2 was speaking to a person with a hearing impairment. Also on this date, she was overruled in her position as a Classification Director when S2 yelled at her about a Diversity PD that she knew nothing about; (6) On August 19, 2014, S2 entered her office and Complainant lowered the volume on her radio. S2 referenced the fact that Complainant had done so and Complainant took that as a reference to her hearing impairment; and (7) On August 19, 2014, she received a compilation of various emails that were cut and pasted into a word document by S1 who was referencing email communication between her and various customers. On the emails, S1 wrote in capital letters that S1 felt she should communicate with the customers. Upon completion of the investigation of the complaint, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On September 25, 2015, the Agency filed a Motion for Summary Judgment and Complainant filed a response opposing the Agency’s motion on September 28, 2015. On November 1, 2017, the AJ issued a decision without holding a hearing, finding no discrimination.2 The Agency’s final order implemented the AJ’s decision. Complainant appeals the Agency’s final order. 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 2 The November 1, 2017 AJ’s decision superseded the AJ’s September 28, 2017 decision. 0120180463 3 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. Here, 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 Summary Judgment. The AJ, assuming arguendo that Complainant had established a prima facie case of discrimination, determined that the Agency articulated legitimate, nondiscriminatory reasons for its action. At the relevant time, Complainant was employed by the Agency as a Supervisory Human Resources (HR) Specialist, GS-0201-13, in the Classification and Special Department for the Fleet HR Office, Norfolk Naval Shipyard in Portsmouth, Virginia. Complainant began working with the Fleet HR Office since May 5, 2013. S1, white, a Deputy HR Officer, had been Complainant’s first level supervisor since April 2014; and prior to that, S1 was Complainant’s subordinate. S2, white, HR Officer, had been Complainant’s second level supervisor since June 2014. During the relevant time at issue, Complainant supervised four employees. Complainant indicated that she was diagnosed with a hearing impairment in both ears when she retired from the military in 2000. She had an implant in her left ear that was not externally visible. She indicated that it was difficult to hear when her tinnitus flared up and when there were noises or sounds in the vicinity. She claimed that she previously told everyone in her office about her hearing issues. Regarding claim (1), S1 acknowledged that S1 initially asked Complainant to create the PD at issue for a Classification Specialist. S1 denied her action was to promote an identified individual to that position as Complainant claimed. S1 indicated that adding basic information technology support services duties to the PD would enable the office to have someone on staff who could serve as a “go-to” person for computer issues. Complainant claimed that she disagreed with the PD at issue because it would be too difficult to hire a Classification Specialist with those qualifications. The Agency indicated that although upper management initially authorized S1 to create the PD at issue, they decided not to follow through with that and the PD at issue was never created. Complainant acknowledges this. Regarding claim (2), S1 indicated that a month after she became Complainant’s supervisor, she received complaints from customers about Complainant’s email communication. Thus, when S1 had meeting with Complainant, stated S1, S1 merely told her that she was doing a great job but she needed to respond in a gentler fashion. Regarding claim (3), S1 indicated that at the relevant time, E1 was ill, exhausted her sick leave, and was medically restricted from driving to work. Since E1 was not restricted from performing work and since there was work that needed to be done in the office, S1 stated that S1 initially 0120180463 4 permitted E1 to work at home thinking it would be a win-win situation. However, indicated S1, S1 stopped E1’s teleworking because Complainant disagreed and because E1 demonstrated that E1 could not perform her assigned tasks at home and E1 was not reliable. Complainant does not dispute this. Regarding claim (4), Complainant claimed that she was offended when S1 referred to her as a “bulldog.” S1 acknowledged calling Complainant a bulldog but, stated S1, S1 used the word in a positive way to describe Complainant’s tenacity and her positive nature. S1 stated that Complainant never objected to S1 using that word. Complainant does not dispute this. S1 denied using the word to offend Complainant and denied telling her to be submissive. Regarding claim (5), S2 denied yelling at Complainant as alleged. On that day in question, stated S2, she might have raised her voice, not because of Complainant’s hearing impairment, but because they had a back and forth conversation in which Complainant did not know what file S2 was talking about and S2 in frustration might have enunciated the title of the PD. Regarding claim (6), Complainant claimed that on that day in question, S2 walked into her office and when she lowered the volume on her radio so she could focus on what S2 was saying, S2 stated, “There you go lowing your radio.” S2 stated that she made a joking comment about Complainant’s radio on that one occasion because Complainant turned her radio off whenever S2 came into her office. Regarding claim (7), S1 stated that S1 previously received a complaint from a customer concerning Complainant’s stern email. During a meeting with Complainant, S1 told her about the importance of tone and packaging of her email response. S1 also provided Complainant the customer’s email and added therein S1’s suggested responses (using “please” and “thank you”) in capital letters to delineate the suggested response from Complainant’s response. It is noted that we do not address in this decision whether Complainant is a qualified individual with a disability. We note that Complainant does not allege that she was required to perform her duties beyond her medical restrictions; nor does she allege that she was denied a reasonable accommodation. Regarding her claim of harassment, we find that Complainant failed to establish the severity of the conduct in question or that it was related to any protected basis of discrimination. There is no evidence that Complainant was subsequently subjected to any disciplinary action. 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 statement of undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the Agency’s articulated reasons were untrue or otherwise indicative of pretext. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. 0120180463 5 CONCLUSION Accordingly, the Agency’s final order 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. 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). 0120180463 6 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 February 2, 2018 Date Copy with citationCopy as parenthetical citation