Tabitha M.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 19, 2018

0120150807 (E.E.O.C. Jan. 19, 2018)

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

Tabitha M.,1
Complainant,

v.

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

Appeal No. 0120150807

Hearing No. 570-2010-00805X

Agency No. DON 05-62826-02346

DECISION

On December 19, 2014, 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 17, 2014, 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. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Education
Technician, GS-4, at the Agency’s Child Development Center (CDC) in the Morale, Welfare and
Recreation Department, U.S. Naval Station in Rota, Spain. The record reflects that Complainant
initiated contact with an EEO Counselor on October 4, 2004.

On May 11, 2005, Complainant filed an EEO complaint wherein she claimed that the Agency
discriminated against her on the bases of her national origin (Spanish), sex (female), and in
reprisal for her prior protected EEO activity under Title VII when:

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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1. On September 26, 2002, Complainant was not selected for a Child Development
Program Assistant position from Merit Promotion Certificate No. LR-30-02 (two
selections).

2. On July 25, 2003, Complainant was not selected for an Education Technician position
from Merit Staffing Certificate No. LR-36-03 (two selections).

3. On June 7, 2004, Complainant was not selected for a Lead Education Technician
position from Merit Staffing Certificate No. LR-26-04.

4. Complainant claimed that she was subjected to continuous harassment by the Child
Development Center Director, the Training and Curriculum Specialist, and her
coworkers.

(a) During monthly training, the Director and the Training and Curriculum Specialist
assigned seating to ensure that Spanish employees would not sit together.

(b) On December 17, 2004, Complainant attended the CDC holiday party and the
Training and Curriculum Specialist stated to her, “You know [Complainant],
[Director] said you have a big ass.”

(c) On December 23, 2004, Complainant requested time out of the classroom to
complete her lesson and her request was denied.

(d) On January 12, 2005, three coworkers were offered and received cardiopulmonary
resuscitation training and Complainant was not.

(e) On January 27, 2005, Complainant did not receive a performance certificate for
volunteering and providing training to the Spanish cooks on classroom dining.

(f) On February 1 and 3, 2005, Complainant was informed by a former Lead
Education Technician that she was prohibited from speaking Spanish.

(g) On February 4, 2005, during a private conversation between Complainant and
another caregiver, Complainant was interrupted and told not to speak Spanish.

(h) On February 9, 2005, the Training and Curriculum Specialist came into
Complainant’s classroom and touched Complainant’s hair and rubbed her back.

(i) On February 9, 2005, a cabinet door fell on Complainant’s foot, and the Training
and Curriculum Specialist called Complainant’s husband to take her to the
hospital instead of providing her with a ride; the Injury Compensation forms that
were provided to her were in Spanish, not English; and when she was leaving the
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CDC, the Training and Curriculum Specialist allegedly said, “It’s a good thing it
didn’t land on your head.”

(j) On February 15, 2005, Complainant was interrupted by the Administrative
Assistant during a conversation she was having with two Caregivers and the
Administrative Assistant told her, “[Complainant], you don’t want to start another
complaint issue.”

The Agency initially dismissed the complaint on the grounds of failure to state a claim and
mootness. Complainant filed an appeal with the Commission. In Complainant v. Department of
the Navy, EEOC Appeal No. 01A60426 (July 18, 2006), the Commission reversed the Agency’s
dismissal and remanded the complaint for further processing.

At the conclusion of 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). The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing and, on May 9, 2007, issued a Notice of Intent to Issue
Decision Without a Hearing and requested that the parties submit their responses. After
receiving responses from both parties and over Complainant’s objections, the AJ issued a
decision without a hearing on July 18, 2007, in favor of the Agency. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that she was
subjected to discrimination. Complainant filed an appeal with the Commission. In Complainant
v. Department of the Navy, EEOC Appeal No. 0120080154 (May 3, 2010), the Commission
found that genuine issues of material fact were in dispute and the record was inadequately
developed. The Commission vacated the final order and remanded the complaint for a hearing.

The AJ held a hearing on June 24, 2014, and issued a decision on September 16, 2014. The AJ
granted the Agency’s Motion to Dismiss the five nonselection claims based on untimely EEO
Counselor contact. The AJ found that no discrimination occurred with regard to Complainant’s
harassment claim. With respect to the first incident at issue, the AJ stated on several occasions,
the Director and the Training and Curriculum Specialist assigned seats for employees during
monthly training sessions for CDC child care providers in such a manner as to try to make
training more fun, interactive, motivating, and to provide an opportunity for employees to get to
know each other, and build teamwork among all employees, including Spanish local national
employees and American employees. The management officials maintained that they treated all
CDC employees equally when issuing the seat assignments as sex, national origin, or prior EEO
activity were not factors. The management officials asserted that they utilized a random, neutral
method to assign seats based on color, number, type of classroom being cared for, and mixed
age-group.

As for the remark allegedly made to Complainant at the CDC holiday party, the Director stated
that she spoke to the Training and Curriculum Specialist about the comment and told her it was
unacceptable. The Training and Curriculum Specialist claimed that she did not recall making the
comment at issue as she was drunk at the time. The AJ noted that the Director stated that she
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informed her that she would have to write her up if anything like this happened again.
According to the Director, she discussed the matter with Complainant and assured her she did
not make the comment, and she apologized to Complainant for the remark made by the Training
and Curriculum Specialist.

With respect to the denial of Complainant’s request for an hour out of the classroom to complete
her lesson plan, the Lead Education Technician asserted that she denied the request because the
CDC was short-staffed in the period shortly before the Christmas break. The AJ noted that
Complainant claimed that two coworkers were afforded time each day to complete their lesson
plans and she was never offered the time. The AJ observed that the record reflected that the
CDC, before Christmas break, is a period normally with reduced staff and working hours, and
that staffing can be difficult due to vacations and the holiday period. The Agency asserted that
child care giver to children ratios must be maintained and that time out of the classroom would
be denied if there was inadequate staff coverage.

In terms of the CPR training, there was training for all CDC staff and also training for employees
who then become CPR trainers. The AJ stated that the Training and Curriculum Specialist made
the selections for the CPR trainer session. According to the Training and Curriculum Specialist,
she selected three individuals based on scheduling purposes; that the CDC had Spanish CPR
instructors on staff for continuity; and there were only three openings. These three employees
were American/female, national origin unavailable/female, and American/Spanish origin/
female. With respect to the latter employee, the AJ noted that like Complainant, she was an
American citizen who was born in Spain and spoke Spanish. The AJ stated that an American
female was also denied CPR instructor training due to there being no more room in the
classroom. The AJ observed at the time of the selections, Complainant was a GS-4 employee,
whereas the American citizen who was born in Spain who was selected was a GS-5.

As for the incident concerning Complainant not receiving a training certificate, the Training and
Curriculum Specialist stated that she asked Complainant to provide family-style dining training
to the cooks because of Complainant’s fluency in Spanish. The Training and Curriculum
Specialist asserted that she gave Complainant training hour credits for the training. The Training
and Curriculum Specialist testified that she did not issue certificates for every training event.
The AJ noted that the Director testified that there was no right to receive a training certificate.
According to the Director, other Spanish employees received certificates when they conducted
training for the entire center lasting two hours in the evening.

With regard to the alleged prohibition on speaking Spanish, the AJ stated an English-only
speaking rule was in effect at the CDC when children were in the care of the child care provider.
The Director explained that the concept is that CDC employees speak English to the children in
their care so as to model English to them. The Director testified that she did not develop the
requirement to speak English but rather the rule existed when she became CDC director in
January 2002. According to the Director, she published the rule in January 2005 due to a
complaint about two CDC employees speaking Tagalog. The Administrative Assistant testified
that the only classrooms that were to speak Spanish in front of the children were the Spanish
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immersion, the Parte preschool. However, the Administrative Assistant stated that the child care
providers when not in the company of children, during their own time or in the break room,
could speak whatever language they chose. As for Complainant being interrupted during a
conversation with another caregiver and informed not to speak Spanish, the Administrative
Assistant maintained that she interrupted the conversation because it was occurring in front of
parents and children rather than in private.

With regard to the Training and Curriculum Specialist touching Complainant’s hair and rubbing
her back, the AJ noted that the Director asserted that she recalled only one occasion and that was
when the Training and Curriculum Specialist rather than Complainant told her that she had
touched Complainant’s hair and back. The AJ observed that the Training and Curriculum
Specialist informed the Director about the incident after she had spoken to the EEO Counselor.
According to the Training and Curriculum Specialist, once she learned that Complainant
objected, she stopped touching Complainant and informed the Director that she would respect
Complainant’s wishes not to be touched. The AJ stated that the record established that the
Training and Curriculum Specialist touched many of the CDC employees including Americans
and other females.

An incident occurred where a cabinet door fell on Complainant’s foot and Complainant claimed
that the Training and Curriculum Specialist stated, “It’s a good thing it didn’t land on your
head.” The Training and Curriculum Specialist acknowledged making the remark but stated she
made it seriously rather than sarcastically. According to the Training and Curriculum Specialist,
she called Complainant’s husband after the accident as Complainant could be treated at the
hospital on the base, and she acknowledged she could have handed out Spanish compensation
forms to Complainant.

With regard to the final incident at issue, the Administrative Assistant asserted that she said to
Complainant “You don’t want to start another complaint issue” because she believed
Complainant should not complain about an employee being late for work given she is late for
work on a regular basis. The Administrative Assistant denied that she was referring to another
EEO complaint.

The AJ found that Complainant failed to present sufficient evidence to show that she was
subjected to a hostile work environment. With respect to the seating assignments, the AJ
observed that Complainant did not report mixed seating assignments as harassment to either the
Director or the Training and Curriculum Specialist. The AJ stated that seating assignments for
CDC employees at monthly training occurred infrequently and were made randomly by color,
number, mixed age groups, etc. The AJ found that Complainant failed to provide any credible
evidence that she perceived the infrequent mixed seating assignments as unwelcome conduct
based on her national origin or sex. The AJ stated that Complainant did not show that CDC
employees outside of her protected classes were treated more favorably and Complainant
acknowledged in her testimony that this incident was not related to her prior EEO activity.

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With respect to the Christmas party comment, the AJ found that Complainant failed to establish
that this inappropriate and unprofessional remark by the Training and Curriculum Specialist
while in an inebriated state was connected to Complainant’s sex, national origin, or prior EEO
activity. The AJ noted that the Training and Curriculum Specialist apologized to Complainant
about the incident and was counseled concerning the matter by the Director.

As for the Lead Education Technician’s December 23, 2004 denial of Complainant’s request for
out of classroom time, the AJ rejected Complainant’s argument that she complained about the
matter as harassment to the Director or the Training and Curriculum Specialist. The AJ also
reasoned that Complainant presented no evidence that the Lead Education Technician treated her
differently than CDC employees outside of her protected classes and she failed to present
evidence that the Lead Education Technician knew of her prior EEO activity. The AJ considered
the Agency’s explanation credible that child care giver to children ratios needed to be maintained
and that the holiday period typically includes reduced staff and hours of service.

With respect to Complainant not being selected to attend CPR instructor training in January
2005, the AJ found that this was not linked to Complainant’s sex, national origin, or prior EEO
activity. The AJ noted that all three selectees were female and one selectee had the same
Spanish national origin status as Complainant. The AJ observed another GS female employee
who is American was denied the CPR instructor training and other Spanish national origin
employees had received the training. The AJ further found that Complainant presented no
evidence to suggest the denial was related to her prior EEO activity.

With regard to Complainant not receiving a certificate of achievement, the AJ pointed out that
Complainant did not establish that management had a responsibility to award her a certificate for
a minor training event based on any past practice. The AJ stated that the Training and
Curriculum Specialist provided Complainant with credit hours for the training she conducted for
the Spanish cooks. The AJ noted that Spanish nationals received training certificates and
Complainant was previously recognized with several certificates of achievement.

As for the prohibition on speaking Spanish, the AJ stated that all CDC employees were informed
during their training period of the English only rule when taking care of children. The AJ
observed there is no dispute that the limits on speaking Spanish at the CDC existed years before
Complainant engaged in EEO activity. The AJ noted that the Lead Education Technician and the
Administrative Assistant were not in Complainant’s chain of command and Complainant failed
to show that she complained about the rule to either the Director or the Training and Curriculum
Specialist. The AJ found that Complainant did not establish discriminatory animus among any
of the relevant personnel with regard to the application and enforcement of the long-standing
English-only rule when taking care of children in the workplace.

With respect to the Training and Curriculum Specialist’s touching of Complainant, the AJ found
it not credible that Complainant told the Director on several occasions that she was offended by
the touching. Rather, the AJ observed that the Director heard about the touching once and that
was from the Training and Curriculum Specialist. The AJ found that the evidence established
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that the Training and Curriculum Specialist touched CDC employees and began to curb her
behavior when she realized that employees were uncomfortable. The AJ stated although the
behavior was inappropriate, Complainant failed to establish that her hair and back were touched
based on her sex, national origin, or in reprisal for prior EEO activity.

As for the matter related to a cabinet falling on Complainant’s foot, the AJ found that
Complainant failed to present evidence that the reasons the Training and Curriculum Specialist
cited for her actions, such as her assessment of the injury as minor; calling Complainant’s
husband to bring her to the hospital on base; handing her compensation forms in Spanish
knowing Complainant was fluent in Spanish; and making a serious comment about it being a
good thing the cabinet did not land on her head were pretext for unlawful discrimination.

With regard to the conversation between the Administrative Assistant and Complainant, the AJ
found that the incident did not occur as described by Complainant and was not related to
Complainant’s sex, national origin, or prior EEO activity. The AJ found that the Administrative
Assistant’s testimony was credible and noted that she was a timekeeper, and that the comment at
issue was unrelated to Complainant’s EEO complaint, but rather concerned a lateness issue.

The AJ further found that the incidents at issue, taken individually or as a group, did not rise to
the level of harassment. The AJ stated that Complainant failed to demonstrate that the actions
were sufficiently severe or pervasive to alter the conditions of her employment. In assessing
Complainant’s credibility, the AJ observed that Complainant was hired as an American
employee with the Agency in May 2001, and did not disclose her dual national status to the
Agency. The AJ stated that such status would have her rendered ineligible for appointment to
and employment in civilian positions with the United Stated Armed Forces in Rota, Spain. The
AJ found that Complainant knowingly misrepresented her dual citizenship in her application for
employment and ultimately admitted she was a dual national of the United States and Spain after
initially denying it under oath. The AJ stated that Complainant’s lack of credibility on this issue
was significant in its bearing on an assessment of her entire testimony.

The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed
to prove that it subjected her to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant states that she received the final order but had not received the AJ’s
Decision. Complainant requests an extension of the timeline deadlines on the instant appeal. In
response, the Agency notes that it sent Complainant a copy of the AJ’s Decision on December
19, 2014, that it alerted Complainant’s representative by e-mail dated September 24, 2014, that a
decision had been rendered by the AJ in Complainant’s case, and that the AJ certified on
September 16, 2014, that a copy of the decision had been mailed to the parties. The Agency
notes that on December 22, 2014, Complainant’s representative indicated that he received the
Agency’s December 19, 2014 e-mail, which included the AJ’s Decision. The Agency argues
against any extension of the filing deadline.
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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

Initially, we observe that Complainant sought an extension of the appeal filing deadlines because
she claims that she did not receive the AJ’s decision. Complainant’s appeal was timely filed and
the Agency e-mailed Complainant’s representative a copy of the AJ’s decision on December 19,
2014, the date the instant appeal was filed. Complainant at that point did not need an extension
of any filing deadline to submit a supporting brief after receiving the AJ’s decision. There is no
basis at this point to further extend the time for any type of submission.

We also affirm the AJ’s dismissal of Complainant’s claims of non-selection for the positions
alleged. The AJ found that Complainant’s EEO Counselor contact occurred on September 30,
2004. The dates alleged for the non-selections were September 26, 2002, July 25, 2003, and
June 7, 2004, all of which are more than 45 days before she contacted an EEO Counselor.

Complainant claims that she was subjected to harassment by both management officials and
coworkers. To establish this claim, 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. 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, in order to establish her harassment claim, Complainant must show that she 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
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establishes both of those elements, hostility and motive, will the question of Agency liability
present itself.

We find that the AJ drew the proper conclusions of law and fact based on the hearing record, and
the investigative file, and properly found that Complainant had not established that she had been
discriminated against or subjected to a hostile work environment based on any of her claimed
bases. Moreover, we defer to the AJ’s credibility determinations which recognized that the
Agency witnesses were more credible than Complainant. We find that Complainant has not
established that any of the alleged actions constituted a hostile work environment based on her
sex, national origin, or prior EEO activity.

CONCLUSION

After a review of the record in its entirety, it is the decision of the EEOC to AFFIRM the
Agency’s final order, because the Commission Administrative Judge’s decision properly found
that Complainant had not been subjected to discrimination or harassment.

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.
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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

January 19, 2018
Date