Bruce E. Smith,
Complainant,

v. 

Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120082983

Agency No. 07-40085-00236

DECISION

On June 25, 2008, complainant filed an appeal from the agency's March 27,
2008 final decision concerning his 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.  The appeal is deemed timely and is accepted pursuant
to 29 C.F.R. § 1614.405(a).  For the following reasons, the Commission
MODIFIES the agency's final decision.

ISSUES PRESENTED

1. Whether the agency properly found that complainant was not subjected
to discrimination and harassment on the bases of race and reprisal when
it failed to select him for the position of Production Controller;
assigned him to take out trash and sweep the floor; set him up for
failure by assigning him to an electrical job he had not done in 13 years
without an experienced helper; reassigned complainant to the Facilities
Sustainment Project, Code PRL313; and, placed him in Absent Without Leave
(AWOL) status.  

2. Whether complainant's first-line supervisor committed a per se
violation of EEO regulations by interfering with the EEO process.

BACKGROUND

At the time of events giving rise to this complaint, complainant
worked as a facilities maintenance specialist, GS-9, at the agency's
Naval Facilities Engineering Command facility in Norfolk, Virginia.
On March 9, 2007, complainant filed an EEO complaint alleging that he
was discriminated against on the basis of race (Black) and in reprisal
for prior protected EEO activity under Title VII when:  

1. Complainant's first-line supervisor (S) assigned him to an electrical
job he had not done in 13 years without an experienced helper in an
attempt to set complainant up for failure;

2. S assigned him to take out trash and sweep;

3. S accused him of going to see an EEO Counselor without permission;

4. S tried to check complainant's cellular phone to see if he had called
an EEO counselor without permission;

5. S threatened to dock complainant's pay if he attempted to contact an
EEO counselor;

6. On three dates in January 2007, S placed complainant on AWOL status; 

7. On November 20, 2006, complainant's third-line supervisor (S3)
reassigned him from the Facilities Sustainment, Code PRL 312, to the
Facilities Sustainment Project, Code PRL313; and

8. The agency failed to select complainant for reassignment to the
position of Production Controller (Construction), GS-1152-09.

In an investigative affidavit, complainant alleged that he was subjected
to harassment when S assigned him to the complicated electrical job of
installing a lathe1 machine and assigned an inexperienced apprentice to
assist him, who he had to watch constantly to ensure that the apprentice
did not hurt himself.  He stated that he thought that S should have given
the electrical job to a more experienced electrician, and S set him up
for failure.  Complainant further alleged that on December 19, 2006 and
January 30, 2007, S assigned him to sweep and empty trash, which were
"demeaning" and "denigrating" tasks.  Deposition Hearing Transcript
(HT), p. 37.  

Complainant further alleged that S "docked" his pay for three hours
on January 10, 2007; 36 minutes on January 24, 2007; and, six minutes
on January 25, 2007.  HT, p. 48.  Additionally, S3 reassigned him from
the Emergency Services Department (ESD) to the Minor Works Department
(MWD).  

At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ).  Complainant timely
requested a hearing but subsequently withdrew his request.  Consequently,
the agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
The decision concluded that complainant did not prove that he was
subjected to discrimination or harassment as alleged.  Complainant did
not submit a statement on appeal, and the agency requests that we affirm
its final decision.  

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 EEOC Management
Directive 110, Chapter 9, § VI.A. (November 9, 1999) (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").
                       
Claims 1, 2, 6, 7, and 8:  Harassment and Disparate Treatment
                             
In order to prevail in a disparate treatment claim, 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).  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).  To ultimately prevail, complainant must prove,
by a preponderance of the evidence, that the agency's explanation is
pretextual.  Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502,
519 (1993).

To establish a claim of hostile environment harassment, complainant must
show that: (1) he belongs to a statutorily protected class; (2) 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 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 to the agency.  See Henson
v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 (March 8, 1994).  Further,
the incidents must have been "sufficiently severe and 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);
see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

For purposes of analysis, we assume arguendo that complainant
established a prima facie case of discrimination for claims 1, 2, 6,
and 7.  Nonetheless, we further find that the agency provided legitimate,
non-discriminatory explanations for each alleged action.  Specifically,
S stated that he did not set complainant up for failure and assigned
complainant to do the lathe project because complainant was previously
a WG-10 electrician, and the task complainant was assigned to do was
electrical.  S further stated that complainant's helper was assigned
to him because he was the only helper in the crew.  He stated that
complainant's helper has been assigned to work with other employees,
including supervisors.  

S further stated that he assigned complainant to sweep and take out the
garbage because it was complainant's turn to do these tasks.  He stated
that all trades clean up the facility, including carpenters, painters,
and electricians.  

Additionally, S stated that he charged complainant AWOL on January 10,
2007 because complainant refused to do an assignment that he directed
him to perform.  He stated that he charged complainant AWOL on January
24, 2007 because he observed complainant leave his apprentice without
permission from management so that he could drive another employee
to work.  S also stated that he charged complainant AWOL on January 25,
2007, because complainant left his work station and told S to do an
assignment by himself.  

S3 stated that the ESD works on emergency tickets and service tickets,
and the position description in ESD is negotiated through the union if an
employee stands watch.  He stated that complainant is a GS employee, but
was detailed to a WG position in ESD.  He further stated that one of the
duties in ESD is to stand watch, but the American Federation of Government
Employees (AFGE) maintained that as a GS employee, complainant could
not stand watch, except for after hours and weekends.  S3 stated that
complainant could not meet the requirements of his ESD detail positions
because he could not stand watch; therefore, he transferred him to the
MWD, which does not require employees to stand watch.  In addition,
a Human Resources Specialist stated that the AFGE did not want its
employees standing watch.

The Lieutenant stated that he was the recommending official for the
Production Controller position and evaluated the applicants for the
position by reviewing the applicants' Knowledge, Skills, and Abilities
(KSA's) responses and resumes.  He stated that he scored each applicant
on a scale from one to five in six categories. He stated that one
applicant received the highest score of 23, and complainant and two other
applicants received a score of 22.  He stated that he recommended the
applicant with the score of 23 (Black) for the position because he had
the highest score. He further stated that he selected another applicant
(White) who scored 22 for the position because the applicant met the
agency's need for a shop planner scheduler (SPS) and had experience at
the Oceana and Dam Neck facilities.  He stated that he had no knowledge
of complainant's prior EEO activity and did not know complainant when he
made the selection.  The Lieutenant further stated that although agency
documents reflected that he was the selecting official for the positions,
he forwarded his recommendations to the "business line" so that they
could formally make the selections.  HT, p. 389.  

The Navy Public Works Business Line Coordinator stated that he was aware
of complainant's prior EEO activity because he was the named responsible
management official in his prior complaint.  Regarding the non-selection,
he stated that he and the Business Line did not evaluate the applicants
and only ensured that the criteria used to make the selections were
equitable.  He stated that the business line only reviewed the process,
not the merits of the Lieutenant's selections.   

Upon review, we find that complainant failed to prove that the agency's
explanations were pretext for unlawful discrimination.  Thus, we find that
the agency properly found no discrimination for claims 1, 2, 6, and 7.

With respect to claim 8, we note that although the business line reviewed
the criteria used to make the selections for the Production Controller
positions, the Lieutenant made the selections.  At the time that he made
the selection, the Lieutenant was unaware of complainant's race or prior
EEO activity.  Moreover, one of the two selectees is African-American,
which undermines complainant's claim that he was not selected because
of his race.  Thus, we find that complainant failed to establish a prima
facie case of race or reprisal for claim 8.  

Further, we find that the agency provided a legitimate, non-discriminatory
reason for its selections.  Specifically, the Lieutenant stated that
complainant was not selected for the position because a selectee met
the agency's need for a shop planner scheduler (SPS) and had experience
at the Oceana and Dam Neck facilities.  Complainant failed to prove
that the agency's non-discriminatory explanations were pretext for
unlawful discrimination.  Thus, we find that the agency properly found
no discrimination with respect to claim 8.  

Regarding complainant's hostile work environment claim, we find that
complainant failed to prove that any of the alleged actions occurred
because of his race or prior EEO activity.  Further, we do not find that
the alleged actions were sufficiently severe or pervasive to constitute
a hostile work environment.  

Claims 3, 4, and 5:  Interference with the EEO process

An employee may suffer unlawful retaliation if his supervisor interferes
with his EEO activity. See Binseel v. Department of the Army, EEOC Request
No. 05970584 (October 8, 1998); see also Marr v. Department of the Air
Force, EEOC Appeal No. 01941344 (June 27, 1996); Whidbee v. Department
of the Navy, EEOC Appeal No. 0120040193 (March 31, 2005).  
In this case, complainant alleged that when he told S that he had an
appointment to meet with the EEO counselor, S stated that he would make
the appointments for complainant to see an EEO counselor.  He stated that
S told the EEO counselor, "[Complainant] has a lot of work to do. You've
got to come to the shop [to meet with complainant]."  HT, p. 42. 

Complainant further stated that his previous supervisor allowed him to
take official time to go and meet with the EEO counselor, and he informed
the EEO counselor that S would not allow him to go offsite to meet with
the counselor.  He stated that after he told the counselor that he was
uncomfortable with S arranging his meetings with the counselor at the
work facility, the counselor gave complainant "an official signed paper"
that he hoped would persuade S to let complainant go offsite to meet with
the counselor.  HT, p. 44.  Complainant stated that when he presented
the paper to S, S stated, "Oh, you've been to [the Naval Station EEO]
office in Norfolk."  HT, p. 45.  Complainant stated that when he denied
going to the Norfolk Naval Station EEO office, S said, "Yes you have.
You've been off - this is proof you've been to Norfolk.  I'm going to
have to dock your pay, AWOL. You have to - you went there without my
permission." HT, p. 46.   

Additionally, complainant stated that S asked to see his cellular phone,
and stated, "Let me see your phone, you know. I can prove that you called
that person [EEO counselor], right, went to Norfolk.  That's how you
got this paper right here."  HT, p. 45.   Complainant stated that he
did not allow S to check his cellular phone. 

S stated that after complainant told him that he had met with an EEO
counselor, he told complainant, "[Complainant], instead of, you know,
going to Norfolk and wasting all that travel time, to let me know, I'll
make the appointment for you and bring the guy down here."  HT, 163.
S stated that he did not want the "extra time" it took for complainant
to travel to the offsite EEO office to affect the work that needed to
be done.  HT, p. 164.

S further stated that he made several appointments for complainant to
meet with the EEO counselor in the general foreman's office "behind
a locked door."  HT, p. 164.  "And as soon as he [complainant] made me
aware that he needed an appointment, I set it up at [the EEO counselor's]
earliest convenience."  HT, p. 164.  S maintained that the agency's
policy is for supervisors to set up EEO appointments with employees who
want to meet with a counselor.  HT, p. 165.  

Additionally, S stated that when he saw that complainant had paperwork
from an EEO counselor, he asked him where he obtained the paperwork,
and complainant denied that he had been to the counselor.  He further
stated the following:

I said, you know, "Have you gone on any EEO business?  He said, "No."
I said, "Have you been calling the EEO?"  I said, "Well, you are going
to have to let me see your cell phone to see if you have."  He said,
"No." And I let it go.    
HT, p. 166.  S further stated that complainant asserted that he had the
right to see an EEO counselor whenever he wanted to see the counselor.
S stated that he told complainant that although he had the right to see
an EEO counselor, he must set up the appointment to see the counselor
for complainant during work time.  HT, p. 167.  He stated that he told
complainant that if he left work without permission, his pay would
be docked because he would be AWOL.  S stated that he did not dock
complainant's pay for attempting to meet with an EEO counselor.  

Upon review of this matter, we find that S's acknowledged actions
violated the letter and spirit of EEO Regulations and constitute a
per se interference with the EEO process.  By requiring complainant to
inform him anytime complainant needed to meet with an EEO counselor,
S impermissibly injected himself into the EEO process.  Although S
maintained that he needed to schedule employees' appointments with EEO
counselors to ensure that work time was maximized and travel time to
the offsite EEO office was limited, we are persuaded that S required
complainant to always go through him before contacting an EEO counselor.
For instance, when complainant produced documents from the EEO office,
S interrogated complainant about his past EEO activity and asked to
inspect his cellular phone so that he could determine if complainant
had contacted an EEO counselor without his knowledge.  Moreover, S
maintained that the agency's policy is for supervisors to schedule all
appointments with EEO counselors for employees.  S clearly acted as if
he were entitled to arrange all of complainant's interactions with an
EEO counselor.  Thus, we conclude that S's actions went far beyond a
legitimate need to verify complainant's whereabouts during work hours.   

We note that we have held that there may be special, limited circumstances
wherein supervisors may permissibly make alternative arrangements for
employees to meet with EEO counselors.  For instance, in Fermin Salas
v. Department of the Interior, EEOC Appeal No. 0120065120 (June 26,
2009), the Commission held that a supervisor did not interfere in the
EEO process when he informed an employee that he must attend training
critical to his position but would be provided with access to an EEO
counselor during the time period that he completed the training.  

Unlike in Salas, there were no special circumstances here that made it
necessary for S to arrange all of complainant's meetings with the EEO
counselor in perpetuity.  In this case, S established himself as the
permanent gatekeeper by which employees must pass before they contact
an EEO counselor, which undermined complainant's right to consult a
counselor anonymously.  29 C.F.R. § 1614.105(g).  S further entangled
himself into complainant's EEO activity when he aggressively interrogated
complainant about his past contact with an EEO official and attempted
to inspect his cellular phone to determine if complainant had contacted
the EEO counselor without his knowledge.  This excessive entanglement
with employees' EEO activity is reasonably likely to deter employees
from engaging in the EEO process.  See John B. Whidbee v. Department of
the Navy, EEOC Appeal No. 0120040193 (March 31, 2005) (Commission found
reprisal when supervisor informed all employees that if they wanted
to file an EEO complaint, they needed to discuss it with him first);
see also Robinson v. Shell Oil Co., 117 S.Ct. 843, 848 (1997) (a primary
purpose of anti-retaliation provisions is maintaining unfettered access
to statutory remedial mechanisms).  Thus, we conclude that S unlawfully
retaliated against complainant by interfering with his EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the agency's
finding of no discrimination with respect to claims 1, 2, 6, 7, and 8.
The Commission finds that the FAD is REVERSED with respect to claims
3, 4, and 5 because we conclude that the agency engaged in a per se
violation of the EEO regulations.  In order to remedy the violation,
the agency shall take the actions specified in the following Orders.

ORDER

The agency is ordered to take the following remedial actions: 

1. The agency shall provide EEO training to all managers at Naval
Facilities Engineering Command in Norfolk, Virginia.  The training shall
place special emphasis on the agency's obligation to prevent retaliation
and interference with the EEO process. The Commission does not consider
training to be a disciplinary action.  

2. The agency shall consider taking disciplinary action against the
responsible supervisor (S). The agency shall report its decision within
thirty (30) calendar days. If the agency decides to take disciplinary
action, it shall identify the actions taken. If the agency decides not
to take disciplinary action, it shall set forth the reason(s) for its
decision not to impose discipline.  

3. The agency shall undertake a supplemental investigation to determine
complainant's entitlement to compensatory damages under Title VII. The
agency shall give complainant notice of his right to submit objective
evidence (pursuant to the guidance given in Carle v. Department of the
Navy, EEOC Appeal No. 01922369 (January 5, 1993) and request objective
evidence from complainant in support of his request for compensatory
damages within forty-five (45) calendar days of the date complainant
receives the agency's notice. No later than ninety (90) calendar days
after the date that this decision becomes final, the agency shall issue
a final agency decision addressing the issue of compensatory damages. The
final decision shall contain appeal rights to the Commission. The agency
shall submit a copy of the final decision to the Compliance Officer at
the address set forth below. 

4. The agency and its management shall cease and desist from requiring
that all contact with EEO counselors must be arranged through management
officials. 

5. The agency shall post the attached notice, as detailed below.
The agency is further directed to submit a report of compliance, as is
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action listed in this order has been implemented.

POSTING ORDER (G0900)

The agency is ordered to post at the Naval Facilities Engineering Command
in Norfolk, Virginia copies of the attached notice.  Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted.  The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material.  The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
 
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)

Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013.  The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order.  29 C.F.R. §
1614.503(a).  The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement.  See 29 C.F.R. §§ 1614.407,
1614.408, and 29 C.F.R. § 1614.503(g).  Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action."  29 C.F.R. §§ 1614.407 and 1614.408.  A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. § 1614.409.
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).  All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013.  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 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 (T0408)

This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint.  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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing.  In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)

If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security.  See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. §§ 791, 794(c).  The grant or denial of the request is within
the sole discretion of the Court.  Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:


______________________________
Carlton M. Hadden, Director
Office of Federal Operations


_____02/16/10_____________
Date


1 A lathe is a machine for shaping a piece of material, such as wood
or metal, by rotating it rapidly along its axis while pressing a fixed
cutting or abrading tool against it.  The American Heritage Dictionary
of the English Language, Fourth Edition (2000).
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0120082983




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

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0120082983