EEOC Appeal 2020000575

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harley J.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 2020000575
Hearing No. 430-2018-00204X
Agency No. DON17-42158-01120
DECISION
On October 18, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), following a decision
by an Equal Employment Opportunity Commission Administrative Judge (AJ) concerning his
equal employment opportunity (EEO) complaint alleging employment discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et
seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Machinist, WG-3414-
10, at the Agency’s Norfolk Navy Shipyard facility in Portsmouth, Virginia.
On May 12, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (47) and reprisal for prior protected EEO activity under the Age
Discrimination in Employment Act of 1967 when:
1. 	From December 2015 to May 2017, Complainant was subjected to harassment;
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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2. 	From July 16, 2016 to present, Complainant was denied the opportunity to work
overtime compared to other WG-10 mechanics and apprentices, specifically on July
16, 2016; January 21, 2017; February 3; February 13-20; 2017; and March 11-12,
2017; and
3. 	From May 2, 2017 to 	May3, 2017, Complainant was denied steam plant
qualification training.
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 AJ. Complainant timely
requested a hearing. Over Complainant's objections, the AJ assigned to the case issued a decision
without a hearing on August 22, 2019, in favor of the Agency. The AJ concluded that Complainant
failed to establish that Agency officials were motivated by discriminatory animus towards his
protected bases, or that any harassment was sufficiently severe and/or pervasive to create a hostile
work environment.
When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the
AJ’s decision finding that Complainant failed to prove that the Agency subjected him to
discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).
The instant appeal followed.
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 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.
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 must further establish that such facts are material under applicable law.

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While Complainant has, in a very general sense, asserted that facts are in dispute, he has failed to
point with any specificity to particular evidence in the investigative file or other evidence of record
that indicates such a dispute. For the reasons discussed below, we find that, even construing any
inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could
not find in his favor.
Disparate Treatment
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging
disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at
802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the
challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802.
Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the
agency's action was based on prohibited considerations of discrimination, that is, its articulated
reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks,
509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis 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 Serv. Bd. of Governors v. Aikens, 460 U.S.
711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant
established his prima facie case of discrimination.
We next find that Agency officials articulated legitimate, nondiscriminatory reasons for their
actions. With regard to being denied overtime, Complainants supervisor (S1: 55 years old) denied
that Complainant was not provided the opportunity to work overtime, averring instead that on the
dates in question Complainant declined to work the overtime that was available. S1 further noted
that some of the comparators identified by Complainant as being similarly situated with him and
who did work overtime were Bench Mechanics, while Complainant is a Machinist, and that
“overtime is primarily offered to personnel based on the type of work they do. It is not always
available to machinists if there is no machining involved on the job.” With regard to being denied
steam plant qualification training, Complainant’s third level supervisor (S3: 34 years old) averred
that:
I do not recall this specific decision, but I do normally make decisions of this type.
These decisions are made based on the role the individual plays in the shop, as well
as the frequency that person uses the particular qualification. Steam plant is

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considered a "high risk" qualification, so I try to limit the numbers to those who use
it frequently and are highly competent in the particular skill. [Complainant] was a
machinist in that area and being a machinist did not require that (steam plant)
qualification. Also, [Complainant] would not have been the only person removed
from the list.
The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden
shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s
reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine;
McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet
this burden.
With regard to the denial of overtime, Complainant averred that:
I signed the rare sign-up sheet every chance that it was passed around but the
majority of the time the overtime was secretive, and I was only verbally asked on
infrequent occasions. I have had to ask [S1] numerous times if I was included in
the overtime only to be told "No" or" I got someone else to do it".
Complainant further averred that two Union Officials told him on separate occasions that when he
was denied overtime it was because he lacked qualifications to perform the work required, but
Complainant said he disagreed with this explanation because on two occasions S1 brought in
Machinists “from another section to take my weekend overtime.”
With regard to the denial of steam plant training, Complainant confirmed S3’s contention that the
training was not necessary for him to perform his regular duties but that averred that “it is required
for overtime.” Complainant averred that he twice sought to take the training class but his
attendance was twice “mysteriously” cancelled. Nevertheless, Complainant averred, he was still
able to take the training on the second occasion despite his name having been removed from the
list. Complainant further averred that despite S3’s denial of any knowledge of Complainant’s prior
EEO activity, S3 was aware because he had been called as a witness. Complainant, however, did
not indicate that S3 had been identified by Complainant as a Responsible Management Official in
any prior EEO complaint by Complainant. Complainant has therefore not shown that either S1 or
S3 harbored any animus towards Complainant’s protected bases. Nor has he shown, by a
preponderance of the evidence, that the Agency’s articulated reasons for its actions are pretextual.
Hostile Work Environment
We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile
work environment, Complainant may not include the denial of overtime or the denial of training n
any harassment claim. A prima facie case of hostile work environment that includes such claims
is precluded based on our finding above that Complainant failed to establish that any of the actions
taken by the agency in these claims were motivated by discriminatory animus or retaliatory motive.
See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000).

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Complainant alleges the following other acts occurred: on December 3, 2015, Complainant’s work
leader (WL, age unknown), told co-workers that Complainant "was an asshole"; on April 27, 2016,
WL said to Complainant "I don't give a damn what you think"; on June 9, 2016, WL and
Complainant’s former Supervisor (FS: 44 years old) made Complainant sign a performance
evaluation with no rating; on July 27, 2016, WL made the comment that Mr. Complainant “was
standing around all morning" instead of working; on August 6, 2016, WL flipped his middle finger
at Complainant and pointed at him with a "dummy rifle cartridge" that was connected to his
identification badge; on or about August 10, 2016, Complainant found out that WL was
responsible for the temporary withholding of three hours of overtime pay for work performed on
July 27, 2016 until Complainant received the pay in a subsequent pay check; on October 26, 2016,
S1 made hand gestures implying Complainant was talking and not working; on October 29, 2016,
Complainant was given 30 minutes notice to report for an overtime shift because S1 forgot to tell
him in advance; on February 6, 2017, S1 told Complainant that he was going to conduct a pre-
action investigation of Complainant due to his failure to report for an overtime shift on February
4, 2017 that Complainant was not aware he was scheduled to work; and on February 26, 2017, WL
said to Complainant “this gate has racks in it and you are on crack" in front of S1 and his Zone
Manager.
In considering whether any of the above actions, whether individually or collectively, constitute
harassment, the Commission notes that in Harris v. Forklift Systems, 510 U.S. 17 (1993), that the
Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986),
that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration
of the conditions of the complainant’s employment. See EEOC Notice No. 915.002 (March 8,
1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. 	To establish a claim of
harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he
was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the
harassment complained of was based on the statutorily protected class; (4) the harassment had the
purpose or effect of unreasonably interfering with his work performance and/or creating an
intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability
to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810
(August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment,
the conduct at issue must be viewed in the context of the totality of the circumstances, considering,
inter alia, the nature and frequency of offensive encounters and the span of time over which the
encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of
Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment.”

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The Court noted that such conduct “must be both objectively and subjectively offensive, [such]
that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that
the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524
U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record we find that Complainant has not shown that the alleged actions
either involved or were based on his protected bases. Furthermore, we find the alleged actions
were 	insufficiently 	severe 	and/or 	pervasive 	to 	change 	the 	conditions 	of 	Complainant’s
employment.
Finally, we note that Complainant has not shown how he was prejudiced by the fact that the AJ
originally assigned to the complaint was subsequently changed to a different AJ.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we find that Complainant has not shown the presence of a material
issue of fact. Nor has he shown, by a preponderance of the evidence, that discrimination or reprisal
occurred. We therefore AFFIRM the AJ’s 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.

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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).
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
June 24, 2020
Date