Alesia P.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 18, 2019

0120182093 (E.E.O.C. Dec. 18, 2019)

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

Alesia P.,1
Complainant,

v.

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

Appeal No. 0120182093
Hearing No. 570-2016-00124X
Agency No. DON15-00027-01574

DECISION

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 April 27, 2018, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a NF-2210-04
Information Technology Specialist/Remedy Administrator within the Agency’s Information
Technology Branch (MRI), Semper Fit and Exchange Service (MR), at Marine Corps Base,
Quantico, Virginia. Complainant was hired by the Agency on February 14, 2011. On June 2,
2015, Complainant filed an EEO complaint in which he alleged that the Agency harassed and
discriminated against him on the bases of race (African-American), national origin (Suriname),
sex (male), religion (Christian), color (black), age (born in 1960), and in reprisal for prior protected
EEO activity 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 or about November 2014, to the present, Complainant’s indirect supervisor (S2)
filed a baseless complaint against him that alleged he engaged in violent criminal
conduct, which resulted in an internal investigation;

2. On March 2, 2015, S2 issued Complainant a Letter of Reprimand;

3. On or about February 2015, Complainant received a decrease of 33 percent in his
employer retirement contribution;

4. On October 15, 2015, he was sent home on 14 days administrative leave with pay
and given a Letter of Proposed Suspension; and

5. On November 3, 2015, he received a Letter of Termination of employment,
effective immediately.

Regarding claims 1 and 2, in an investigative statement, Complainant stated that immediately after
he entered into an EEO settlement agreement for a prior complaint on May 9, 2014, his previous
immediate supervisor (S1) “hinted” to him that he might change the structure of the Remedy Team.
Complainant further stated that around September 2014, he asked the EEO office if he had been
fully considered for an NF-05 position via his settlement agreement, and informed the office there
was an NF-05 position that he had not been properly considered for by the Deputy Director
(Director). Complainant stated that in September 2014, S2 spent a considerable amount of his time
developing an Excel formula to determine what could have been wrong with the Weekly Tickets
Report that had been produced for over two years, and the Director attempted to make him seem
technically incompetent for a “simple report.”

Complainant stated that a coworker (C1) who announced “his or her gender-identity” was charged
with marijuana possession in October 2014. Complainant stated that the Agency falsely claimed
that he made C1 a “target for violence,” and C1 wanted his position. Complainant stated that C1
was removed from his team on or about November 17, 2014. Complainant further stated that he
was not told of a specific incident wherein he allegedly engaged in violent misconduct until he
saw S2’s initial inquiry document for the Violence Prevention threat assessment on October 16,
2015. He stated that although S2 told the EEO counselor that he thought Complainant might have
brought a gun to work, S2 never asked Complainant if he had a gun. Complainant stated that S2
had demonstrated that he believed that violent misconduct is easily linked to black men and
foreign-born individuals. Complainant stated that he perceived S2 is a “very aggressive
individual” who made up allegations and issued him a Letter of Reprimand while Human
Resources (HR) was trying to find a way to address the results of its investigation into his conduct
with him. Complainant also stated that the Letter of Reprimand falsely claimed that he was
detained by military police for threatening behavior on November 2, 2015. He stated that this
charge was later corrected as an “administrative error” after his debarment hearing on December
9, 2015.

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Regarding claim 3, Complainant stated that he became aware that the employer contribution to his
retirement had decreased 33 percent when he compared his last paystubs of January 2015 to his
February 2015 paystubs. He stated that HR told him that the decision was made by “higher level
management,” and it affected all employees. However, Complainant stated that there was no
“company-wide announcement” about the decrease, and he believed it was part of the “retaliatory
removal process” against him.

Regarding claims 4 and 5, Complainant stated that the decision to terminate him was influenced
by the Chief of Staff (Chief). He further stated that a Caucasian coworker (C1) was charged with
marijuana possession on October 10, 2014 and removed from his team on or about November 17,
2015. Complainant contends that C1 was named as the target of Complainant’s alleged threat,
which became the basis for his termination.

Additionally, Complainant stated that, contrary to allegations lodged against him, he did not
provide nonpublic information to B-1, a software vendor. He stated that the purchase of a new
tool/solution should have gone through an official bidding processing, but management failed to
properly go through the bidding process so that B-1 and other software vendors could compete.
Complainant also stated that contrary to Agency allegations, he did not communicate price
information about the tool to external individuals, and such information was published by the
Company.

Complainant further contends that an Office of Personnel Management (OPM) data breach
allowed “the Chinese” to steal his background information and fingerprints, and since then, the
Agency has considered him a security threat and framed fraudulent allegations against him to
warrant his termination. He stated that management considered him a security risk because he
managed the Remedy System and was impacted by the OPM data breach. According to
Complainant, “[i]f it were not for the OPM data breach, some individuals might not have made
these specific allegations on ‘privilege confidential information’ and terminated me,” Complainant
stated. Report of Investigation (ROI), p. 68-0.

After 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 requested a hearing. On March 13, 2018,
the AJ granted the Agency’s Motion and dismissed Complainant’s hearing request. The AJ
remanded Complainant’s complaint for a final agency decision pursuant to 29 C.F.R.
§ 1614.110(b). On April 27, 2018, the Agency issued a final decision. The decision concluded
that Complainant failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant does not request a hearing. Complainant contends that the Agency’s final
decision mischaracterized his relevant EEO previous activity as a pending settlement agreement
breach claim; instead, it is his opposition to a discriminatory December 18, 2014 order by the
Marine Corps Base Command and his filing of the instant EEO complaint. Complainant further
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contends that after C1 was charged with marijuana possession, management depicted him as
“unstable and unpredictable” by initiating false claims of violence against him so that it could
cover up for the Caucasian employee (C1). Additionally, Complainant maintains that he did not
share confidential information with a vendor, as alleged by management.

STANDARD OF REVIEW

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, at Chapter 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”).

ANALYSIS AND FINDINGS

Disparate Treatment and Harassment

Generally, claims of disparate treatment such as this are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v.
Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd,
545 F.2d 222 (1st Cir. 1976). For a complainant to prevail, he must first 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. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567
(1978). Once a complainant has established a prima facie case, the burden of production 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).

If the Agency is successful, the burden reverts to the complainant to demonstrate by a
preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for
discrimination. At all times, the complainant retains the burden of persuasion, and it is his
obligation to show by a preponderance of the evidence that the Agency acted on the basis of a
prohibited reason. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St.
Mary's Honor Center v. Hicks. 509 U.S. 502, 519 (1993); U.S. Postal Service Board of Governors
v. Aikens, 460 U.S. 711, 715-716 (1983).

In order 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
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work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d
897 (11th Cir. 1982).

In this case, we assume arguendo that Complainant established a prima facie case of
discrimination. Nevertheless, we find that the Agency provided legitimate, nondiscriminatory
explanations for its actions. Specifically, regarding claims 1 and 2, S2 stated that he invited
Complainant, C1, and four supervisors/managers to discuss Remedy reports in an email dated
October 22, 2014. S2 further stated that Complainant insisted that C1 not attend the meeting
because she did not possess the expertise he had as a Remedy Administrator. S2 further stated that
Complainant continued to insist that C1 should not be in the meeting even after the Director
intervened and told him that S2 should be able to invite the people he felt would contribute to the
meeting. S2 stated that the next day, he was very concerned about Complainant’s “irrational
behavior” and asked S1 if he had ever seen Complainant like that before, to which S1 responded
that he had issues with Complainant in the past. S2 stated that he then told S1, “I wonder if
[Complainant] has a gun at the meeting.” ROI, p. 701. He stated that this was not a “casual
comment;” he was actually concerned about his personal safety as well as the safety of his
coworkers because he had never seen “such extreme behavior over inviting someone to a meeting.”
S2 stated that Complainant did not have a gun at the meeting and was very accepting of C1’s
assisting in finding ways to improve the Help Desk, which was a “complete turn-around of his
behavior and comments from the previous afternoon.”

S2 further stated that later that week, the Director recommended that he talk to HR to get his advice
on how to handle the situation with Complainant, and HR advised him to talk to the Violence
Prevention Officer. S2 stated that the Violence Prevention Officer discussed the incident with him
and then referred the matter to the Quantico Violence Prevention Team, who reviewed the case
and determined that Complainant displayed irrational behavior and should meet with personnel for
discussions and evaluations. S2 stated that in a subsequent meeting with Complainant and the HR
official about another issue, Complainant became “very animated and aggravated,” and at one
point, reached into his briefcase to produce documents. S2 stated that the HR official later told
him that he thought that Complainant may have been reaching for a weapon in his briefcase.

S2 stated that he understood that Complainant met with the Violence Prevention Team, an Agency
psychiatrist, and other evaluators to determine whether he was a threat. He stated that after several
employees were interviewed, a formal hearing was held on December 18, 2014. S2 stated that the
Violence Prevention Team recommended that Complainant attend Anger Management and
Conflict Resolution training.

Regarding claim 2, management stated that Complainant was issued a Letter of Reprimand
because he argued with S2 and accused him of not understanding what he was asking for in Reports
when S2 informed the reports must be accurate and without discrepancies. Management further
stated that Complainant was reprimanded because he failed to timely install his licensed copy of
“Crystal Reports” on the Remedy servers so that other users could access the copy, despite being
directed to do so by S1. Management stated that Complainant was also reprimanded because on
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February 20, 2015, he interrupted a meeting between S2 and S1 and inquired if they were talking
about him, which S2 found to be very unprofessional.

Regarding claim 3, S2 stated that Complainant received the same adjustment to his retirement plan
as all Marine Corps Community Services (MCCS) members with his retirement plan. The Director
stated that he tried to explain to Complainant that the Board of Directors authorized the adjustment
for all employees in the organization. The Chief stated that he understood the employer
contribution did not impact employee participants at all. The Employee Benefits Manager (EBM)
stated that the employer contribution for the retirement plan was reduced from 12 percent to eight
percent at the beginning of fiscal year 2015 for all employees based on a recommendation by the
Plan actuary, which was approved by the Board of the Directors because the Plan had achieved
adequate funding status that allowed the reduction without negatively impacting the Plan’s
funding. EBM further stated that no employee communication was issued regarding this
reduction; it was only communicated to the appropriate finance and management representatives.

With respect to claims 4 and 5, the Director stated that Complainant was placed on administrative
leave and terminated for being argumentative, insubordinate, and disrupting the workplace with a
pattern of inappropriate conduct. S2 stated that in August 2015, he spoke with C1 about
developing a position paper that would look at the de-duplication of software functionality in order
to reduce annual recurring maintenance costs. He stated that he only spoke about this study with
C1 and Complainant, and on August 14, 2015, he told Complainant he thought the Microsoft
System Center Configuration Manager (SCCM) Incident Manager was considerably cheaper and
had tighter integration than the BMC Remedy. S2 also stated that he advised Complainant that
the document was merely a study meant to identify potential savings and asked him to not share
this information with anyone because it was not final.

S2 stated that sometime thereafter, Complainant sent an email to outside contractor BMC Remedy
divulging sensitive and proprietary information about looking for an alternate solution for the Help
Desk ticket system, although he was not authorized to divulge such information and was not the
Contracting Officer for the contract with this vendor. S2 stated that Complainant ultimately
admitted divulging this information after initially denying he did so. S2 stated that when he told
Complainant it was inappropriate to give a vendor insider proprietary information that could give
them an unfair advantage, he began shouting that it was inappropriate for S2 to accuse him of
having a gun. S2 stated that when he asked Complainant to calm down and speak and more quietly,
he began shouting even louder that S2 was wrong for accusing him of having a gun. S2 stated that
he spoke with the Director about the incident on August 19, 2015, and during a meeting with HR
and the Director on August 28, 2015, S2 agreed that it was best to terminate Complainant.

In an attempt to prove pretext, Complainant asserts that management made false accusations
against him in order to cover up C1’s drug charge. However, we find this theory is not supported
by the record. Even if the theory is correct, such a theory does not show that the Agency’s actions
were discriminatory. While Complainant’s conduct toward management may not have been
physically violent or threatening, we find there is ample evidence that he often argued and resisted
management’s direction in a spirited manner. For example, the Violence Prevention Team’s report
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relayed that although Complainant never made any physical contact with others, several employees
reported that he displayed “threatening behavior” through “loud and confrontational” actions. As
such, we find that the Agency acted reasonably in the interest of safety by investigating the matter
through its Violence Prevention Team.

Additionally, Complainant denies sharing confidential information with a vendor in an email, as
alleged by management. We note that the record does not contain the purported email with BMC
Remedy. However, in an October 22, 2015 letter in response to his proposed termination,
Complainant maintained that a BMC Remedy employee he communicated with was onsite and
aware that Agency employees were already getting training on the Microsoft tool, and therefore,
“this was not the major revelation [the Director] has characterized it.” ROI, p. 246. Further,
Complainant maintained that there was no rule that supported the Director’s contention that the
information he shared was proprietary or confidential, and employees on Complainant’s level
“have these sorts of conversations with contract employees all the time.” Complainant’s letter
indicates that he had a conversation with BMC Remedy about internal plans to study alternatives
for the Help Desk ticket system. While there may not have been any regulations specifically
addressing this disclosure, Complainant does not deny that management directed him not to share
this information with others. Consequently, we find it reasonable that the Agency found
Complainant’s conduct regarding this matter to be insubordinate and a serious violation of general
workplace expectations of confidentiality.

Moreover, there is ample evidence that Complainant often responded to disagreements in a rather
caustic manner that escalated, rather than diffused, situations. See Douglas F. v. Consumer
Financial Protection Bureau, EEOC Appeal No. 0120170529 (Mar. 5, 2019). Certainly,
Complainant objected to many of management’s decisions, but absent discriminatory animus, the
Commission will not second-guess an Agency's business decisions. Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 249 (1981). We conclude that the Agency properly found that
Complainant did not prove he was subjected to unlawful discrimination or harassment. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000); Enforcement Guidance on
Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994).

CONCLUSION

We AFFIRM the Agency’s final decision finding no discrimination.

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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.

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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

December 18, 2019
Date