EEOC Appeal 2020001102

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Nick S.,1
Complainant,
v.
Kenneth J. Braithwaite,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2020001102
Agency No. DON 18-42158-00836
DECISION
Complainant 	appeals 	to 	the 	Equal 	Employment 	Opportunity 	Commission 	(EEOC 	or
Commission) 	from 	the 	Agency’s 	final 	decision 	dated 	October 	18, 	2019, 	finding 	no
discrimination concerning his 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.
For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as
a Painter Work Leader, WL-4102-09, assigned to the Paint Department at the Norfolk Naval
Shipyard, Portsmouth, Virginia.
On October 25, 2018, Complainant filed his complaint alleging harassment and discrimination
based on race (African American), age (over 40), and in reprisal for prior EEO activity when on
October 25, 2018, he received a pre-action investigation for refusing work removing paint from
the USS McKee.
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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At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). 	Complainant did not request a hearing.
The 	Agency 	issued 	its 	final 	Agency 	decision 	concluding 	that 	it 	asserted 	legitimate,
nondiscriminatory reasons for its action, which Complainant failed to rebut.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). 	See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of
review "requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission's own assessment of the record and
its interpretation of the law").
To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). 	Complainant must initially establish a prima facie case by demonstrating that
he or she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. 	Furnco Construction Co. v. Waters, 438 U.S. 567, 576
(1978). 	Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a
legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears
the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the
agency acted on the basis of a prohibited reason. 	See St. Mary's Honor Center v. Hicks, 509
U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency's actions were motivated by discrimination. 	See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

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To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a
statutorily protected class: (2) she or 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 her or 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. 	See Henson v. City of Dundee, 682 F.2d 897 (11 th 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). 	The harasser’s conduct should be evaluated
from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement
Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).
After a review of the record, we, assuming arguendo that Complainant had established a prima
facie case of discrimination, find that the Agency articulated legitimate, nondiscriminatory
reasons for its action. 	Furthermore, we find that Complainant did not establish discriminatory
animus or retaliatory intent.
Complainant’s Ship Building Supervisor (S1) indicated that on October 16, 2018, Complainant
was assigned to pick up (or sweep up) paint chips from the passageways of the USS McKee ship.
Specifically, Complainant was assigned to sweep up, bag, and properly dispose of the paint
chips, which had already on their own, flaked off the ship and fallen to the floor. 	Complainant
was not assigned to perform any surface preparation and/or hot work. 	Complainant believed
that the paint chips contained barium and were unsafe. 	S1 indicated that the paint chips were
tested by the Safety Department and it was determined that they were safe for handling. 	S1
stated that Complainant was informed of the Safety Department’s findings, but he still refused to
perform the work. 	As a result, stated S1, Complainant was issued the pre-action investigation.
After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination.
Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift
Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must
fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002
(Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that any of the actions taken by the Agency were motivated by
discriminatory animus. 	See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept.
21, 2000).
CONCLUSION
Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0620)
The Commission may, in its discretion, reconsider this appellate decision if the 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. 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, 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).

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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
October 6, 2020
Date