0120171350
09-14-2018
Albert S.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Albert S.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120171350
Hearing No. EEOC No. 570-2015-00815X
Agency No. 14-00027-02948
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's February 3, 2017, 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. For the reasons which follow, the Commission AFFIRMS the Agency's decision.
ISSUE PRESENTED
Whether Complainant showed by a preponderance of the evidence that the Agency subjected him to unlawful harassment when, among other actions, it reassigned him from a supervisory to a non-supervisory position and failed to provide him with a mid-year performance review.
BACKGROUND
Complainant worked as a grade level GS-14 Supervisory Financial Management Analyst in Washington, D.C. Complainant began his employment, in late December 2012, with the Marine Corps Evaluation and Analysis (MCFEAT), Risk and Compliance Branch (RFK), Fiscal Division, Programs and Resources Department (P&R) at the Agency's Headquarters. RFK was established in February 2013. When it was established there was to be a review of RFK in twelve months. Under reorganization, MCFEAT was abolished and its mission subsumed by the Operations Section where staff could be used to support internal controls and financial statement audits in order to increase Agency efficiency and effectiveness. RFK was reorganized into three sections.
S1, a Supervisory Financial Manager, began supervising Complainant in May 2013. S2, the Director of the Fiscal Division for Programs and Resources, was Complainant's second level supervisor. From January 2014 to April 2014, S1 was directed to begin a reorganization of RFK. Complainant was notified on June 18, 2014, that he was going to be reassigned on June 29, 2014, to the position of Financial Management Analyst, GS-14, Risk and Compliance Branch, Fiscal Division, P & R. The job duties to which Complainant was assigned existed before the reassignment. The reassignment did not result in a change of grade or pay.
In January 2014, an independent accounting firm began conducting an audit of fiscal year 2013. MCFEAT had no authority over the audit. The P&R's Audit Section was the Agency support team and point of contact for the audit.
On October 31, 2014, Complainant filed a discrimination complaint alleging that the Agency discriminated against him by subjecting him to a hostile work environment on the bases of race (African American) and color (Black) when:
1. From January 22, 2014, to April 9, 2014, S1 refused to communicate with him or discuss work-related issues;
2. From January 30, 2014, to July 30, 2014, S2 disrespected Complainant while communicating with him;
3. From January 30, 2014, to July 30, 2014, S2 harassed Complainant via email;
4. In March and April 2014, S1 failed to provide Complainant with his performance appraisal;
5. On June 18, 2014, S1 issued a management directed reassignment (MDR) notice to Complainant removing him from his supervisory to a non-supervisory position which would negatively affect his career; and
6. On June 18, 2014, Complainant was reassigned to the new position and, on the same day, his old position was announced with the organization.
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 timely requested a hearing but subsequently withdrew his request. Thereafter, the Agency issued a decision pursuant to 29 C.F.R. � 1614.110(b) and concluded therein that Complainant failed to prove that the Agency had subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
Complainant urges that the Agency's decision be reversed. He maintains that the Agency subjected him to a hostile work environment by harassing and humiliating him through e-mail and work communications and by reassigning him to a non-supervisory position.
The Agency asserts that its decision should be affirmed. In this regard, the Agency contends that it articulated legitimate, nondiscriminatory reasons for its actions and Complainant has not shown pretext. The Agency also contends that the evidence does not support a claim that Complainant was subjected to discriminatory conduct that was so severe or pervasive that it altered the work environment.
STANDARD OF REVIEW
This matter is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b). Accordingly, the Agency's decision is subject to a 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, at Chapter 9, � VI.A. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
Disparate Treatment
Complainant alleged that the Agency treated him disparately. The adjudication of a complaint of discrimination alleging disparate treatment follows the McDonnell Douglas three-step evidentiary analysis. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case.2 Second, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Third, once the Agency has articulated its reason, Complainant must show that the Agency's reason was pretextual, that is, it was not the true reason for its action. 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. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
Hostile Work Environment
Complainant also alleged in his complaint that he was subjected to an unlawfully hostile work environment and that no other race was treated in this manner. Complainant's claim of harassment will be analyzed under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). See also Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 80 (1998); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A harassment/hostile work environment allegation does not require an adverse action to a specific, term, condition, or privilege of employment. An abusive or hostile working environment exists "when the workplace is permeated with 'discriminatory intimidation, ridicule and insult' that is 'sufficiently severe or pervasive to alter the condition of the victim's employment.'" Harris, 510 U.S. at 21 (quoting Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986)).
As an initial matter, the Commission recognizes that some of the incidents which Complainant has identified would not, standing alone, be considered an adverse employment action. However, a combination of incidents, which could not survive individually, could rise to the level of a hostile work environment. We therefore view the conduct at issue in the context of the totality of the circumstances.
Upon our de novo review, we conclude that the Agency did not discriminate against Complainant on any basis, treat him disparately, or subject him to an unlawfully hostile work environment. The Agency provided legitimate, nondiscriminatory reasons for its actions and Complainant has failed to show that the Agency's reasons were pretextual, that is, that they were not the true reasons for its actions.
With respect to claims 1-3, Complainant alleged that, from January 22, 2014, to April 9, 2014, S1 refused to communicate with him or discuss work-related issues (claim 1); from January 30, 2014, to July 30, 2014, S2 disrespected him while communicating with him (claim 2); and from January 30, 2014, to July 30, 2014, S2 harassed Complainant via e-mail. The evidence does not lead us to conclude that Complainant's race or color played any role in the Agency's alleged actions.
The record establishes that the Agency was reorganizing. Regarding claim 1, in which S1 was alleged to be the discriminating official, S1 acknowledged that he did not discuss issues with Complainant and other employees because they were extremely busy. He also acknowledged that he refrained from providing detailed information about the reorganization because it was not final. He denied, however, that he refused to communicate with Complainant. Two other employees, both Caucasian, had also complained to S2 that S1 was not communicating with them. The record reveals that S2 directed S1 to increase his communication with Complainant and his other subordinates. Regarding another incident of alleged disrespect, S1 chided Complainant when he cancelled a meeting to brief senior leaders the morning the briefing was to go have gone forward. Considering S1's actions as a whole, the evidence does not establish disparate treatment nor does it lead to the conclusion that any conduct was based on an unlawful motive. Not everything that makes an employee unhappy is discriminatory. Discrimination statutes prohibit only behavior that is directed at an employee that is connected to protected bases.
S2 was identified as the discriminating official in claims 2 and 3, which are allegations that S2 disrespected Complainant and harassed him via e-mail. Regarding S2's conduct toward Complainant concerning an audit, the record reveals that a single point of contact was established concerning the audit that the command was conducting. Complainant, S2 stated in his affidavit, bypassed the audit and provided incorrect information to another department, causing confusion during the audit. S2 verbally counseled Complainant as a result, but he denied that he talked to Complainant in a disrespectful manner as alleged. Even if we assume that S2 was disrespectful, we have consistently held that the civil rights statutes are not meant to be civility codes, ridding the workplace of all petty slights and annoyances. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The discrimination statutes do not create a right to work in a pleasant environment, merely one that is free from discrimination. As a result, employees may experience unprofessional, inappropriate, and disrespectful treatment. However, so long as such treatment is not based on a prohibited reason, the discrimination statutes do not cover such actions which inevitably occur in the workplace.
S2 and S1 also e-mailed and addressed Complainant about the audit being conducted. The Commission has repeatedly held that employment actions such as routine work assignments, instructions, and admonishments do not rise to the level of discriminatory harassment. See Zada C. v. U.S. Postal Serv., EEOC Appeal No. 0120161460 (May 29, 2018); DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000). Such actions are common workplace occurrences, and unless it is reasonably established that the actions were somehow abusive or offensive, and were taken in order to harass Complainant on the basis of his protected groups, such everyday events are not sufficiently severe or pervasive so as to offend the general sensibility of an individual experiencing such occurrences in the workplace. See Goines v. Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006); Bennett v. Dep't of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000); Wolf v. U.S. Postal Serv., EEOC Appeal No. 01961559 (July 23, 1998). In an email to Complainant, S2 described his performance as unsatisfactory. S2 explained that he did so because Complainant provided a total cost for a temporary assignment rather than an itemized account as requested. We find no discrimination here. An employer's legitimate criticism of an employee's work product does not constitute harassment or create a hostile work environment. See Apodaca v. Dep't of Veterans Affairs, EEOC No. 01990542 (May 24, 2002).
Regarding Complainant's mid-year performance review (claim 4), which was not completed in March, the record does not support a finding that the delay in its completion was attributable to discriminatory animus. S1 was delinquent in conducting mid-year assessments for all his GS-14 employees in March 2014. Complainant did not receive his review until September 2014. The record reveals that March was a busy month and, also, that mid-year reviews were often late. For example, the record reveals that, for the mid-year reviews due in March 2013, Complainant did not submit two of these reviews until October 2013. Complainant has failed to show pretext.
We next address claims 5 and 6. In these claims, Complainant alleged that he was removed from his supervisory position to a nonsupervisory position. On the same date of his reassignment, the position from which he was reassigned was re-announced. We find that the Agency articulated a legitimate, nondiscriminatory reason for its actions. The Agency reassigned Complainant because Complainant's Branch was under reorganization. He was reassigned based on mission and functional requirements of the organization. Complainant's position was abolished and absorbed by the newly created Operations Section. The record also discloses that the Agency officials did not find that Complainant possessed the skill set needed to occupy the position and the position was competitively announced. Complainant did not apply, and two African American women were selected. We note that the Commission will not substitute its judgment for personnel decisions made by the Agency so long as the decision is not made based on a prohibited factor.
Essential to a claim of discrimination is the presence of prohibited animus. Complainant has failed in this regard. Further, our finding that there was no discriminatory animus as to each of the claims precludes a finding of an unlawfully hostile work environment. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
In sum, Complainant has failed to establish by a preponderance of the evidence that the Agency subjected him to unlawful discrimination based upon his protected groups. At all times, a complainant carries the "ultimate burden of persuading the trier of fact that [he] has been the victim of intentional discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 256; St. Mary's Honor Ctr. v. Hicks, 509 U.S. at 511. It is not sufficient "to disbelieve the employer; the fact finder must believe the [Complainant's] explanation of intentional discrimination." St. Mary's Honor Ctr. at 519. Here, the record does not support a finding that the Agency was motivated by a prohibited basis when it engaged in any of the challenged conduct.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency's finding that Complainant was not subjected to discrimination.
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).
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
_9/14/18_________________
Date
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.
2 The prima facie inquiry may be dispensed with where the Agency has articulated reasons for its actions.
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