Angelo P.,1 Complainant,v.Barbara M. Barrett, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jan 30, 2020

2019004802 (E.E.O.C. Jan. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Angelo P.,1 Complainant, v. Barbara M. Barrett, Secretary, Department of the Air Force, Agency. Appeal No. 2019004802 Agency No. 9R1M13004F14 DECISION On June 7, 2019, 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 May 8, 2019, 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. ISSUES PRESENTED Whether Complainant was subjected to unlawful discrimination and a hostile work environment based on his race, sex, and age, and whether the Agency properly dismissed as untimely a claim of nonselection for training in April and May 2011 that was not raised with an EEO counselor until September 2012. 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. 2019004802 2 BACKGROUND At the time of events giving rise to this complaint, Complainant first worked as a Human Resource Specialist (HRS) and was then reassigned as a Management Analyst (MA) at the Agency’s Robins Air Force Base in Warner Robins, Georgia. On January 24, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), and age (64), and amended his complaint on August 7, 2013 to include reprisal for prior protected EEO activity arising under Title VII and the ADEA when: 1. On or about October 1, 2012, Complainant was forced to work all aspects of the arbitration caseloads on a daily basis, and he was forced to perform GS-13 and GS- 14 Judge Advocate General (JAG) duties; and 2. On May 13, 2013, Complainant was assigned from his permanent position to an over-hire position. Complainant stated that his second-level supervisor (S2) and third-level supervisor (S3) were the individuals who subjected him to unlawful discrimination and harassment during the relevant periods of time.2 S2 is a white female, who was 56 years old, and S3 is a black/African-American female, who was 52 years old. Beginning on or about October 1, 2012, Complainant worked all aspects of the arbitration caseloads on a daily basis. Complainant’s official duties were outlined in his Core Document. However, Complainant stated that S2 expected him to be in charge of all aspects of the arbitration workload, which Complainant stated were previously Judge Advocate (JA) functions and later became the duties of Directorate of Personnel. Complainant stated that he performed the actual arbitration hearings and another employee conducted any pre- and post-hearing briefs. These were Complainant’s duties while he worked as an HRS, and these duties did not change until he was reassigned as an MA. Complainant stated that the functions he performed under S2 were at a higher level than his position description. Complainant emailed upper management on March 28, 2013 to advise that he was performing tasks higher than his grade, he was in a hostile work environment, and that having only two people to handle arbitration hearings was untenable. Complainant also indicated that S2 assigned him the extra work because he is Caucasian and over 40 years old. Complainant also stated that S2 did not assign the same work to other individuals who attended the arbitration training. The record includes core documents, which provide position descriptions with lists of duties and grade, for Complainant’s HRS position, Supervisory HRS, General Attorney, and Supervisory General Attorney. 2 The record indicates that Complainant’s second-level supervisor held that position in relation to him from August through December 2012, and she was Complainant’s first-level supervisor from May 2009 until August 2012. S2 supervised Complainant from May 2009 through December 2012. 2019004802 3 Complainant stated that S2 and S3 worked together to remove him from his HRS position by posting the HRS position when he was reassigned to the position of an MA. Complainant was reassigned as an MA on May 13, 2013, and in an over-hire capacity as an MA from May 30 through July 14, 2013. It was not until July 14, 2013 that a Notification of Personnel Action (SF-50) was completed for Complainant’s reassignment. S2 stated that Complainant was performing arbitration duties prior to her arriving at the Agency. She further stated that Complainant’s core documents did not change while she was his supervisor. S2 stated that there was not one but three other individuals who worked with Complainant on the arbitration cases. S2 denies treating Complainant less favorably in assigning work, or belittling and degrading him or discriminating against him based on his race, sex, and age. S3 stated that Complainant came to her in February 2013 regarding S2’s supervisory abilities and skills, and that she became aware of Complainant’s March 28, 2013 email alleging that he was being subjected to a hostile work environment. S3 stated that Complainant requested the reassignment, and she was not involved in the decision to have Complainant reassigned. One of the Directors of Staff (DS1), who made the decision to reassign Complainant from HRS to MA, stated that Complainant never complained to him that he was being harassed based on his race, sex, and age. Complainant continues to work in his reassigned position as an MA. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency’s management intentionally created and condoned a hateful, harassing, and hostile work environment. Complainant states that he would have requested a hearing before an AJ; however, he was unable to due to a string of personal issues. Complainant argues that the Agency’s FAD was based on minimal information provided by management. Complainant also contends that the Agency investigators were connected to management as supervisors and/or coworkers, but acknowledge no conflict of interest in those relationships. Complainant states that S2 exerted her influence to pressure the Agency to issue a favorable FAD. Complainant states that S2 directed her hostility towards Complainant because of his race, sex, age, and due to his more extensive background and knowledge of their work compared to her. Complainant reiterates that S2 continued to require that he perform her duties, as he was a GS-12 and was supposed to provide support to S2 in her GS-13 supervisory position; however, he states that she performed no hearings. Complainant states that the issue of his training cannot be dismissed as untimely because management continued to deny him training and promotional opportunities from that time forward. Complainant alleges that S2 did everything within her power to make sure he was not successful at his tasks. 2019004802 4 Complainant gives as an example that he was repeatedly asked to explain any arbitration losses, which he states put him further behind in his workload. Complainant also states that he was not given the same amount of time to prepare for hearings as others, and that another supervisor (younger, black male) allowed Complainant to remain in the hostile work environment. Complainant states that he was not aware that the position he was placed in was an over-hire position, and instead he was informed he was being placed in a temporary detail to remove him from S2. Complainant states that he was not advised that he was being removed from his permanent position, and did not learn of this fact until he viewed his SF-50 and learned that S2 posted his prior permanent position to be filled. Complainant states that, while he voluntarily took the detail, he did not agree to being removed from his permanent position and being placed in an over-hire position. Complainant states that S2 conveyed to another employee that she did not want to work with Complainant, who she referred to as a “country bumpkin with no education.” On appeal, the Agency contends that it properly dismissed the claim of nonselection for training pursuant to 29 C.F.R. § 1614.107(a)(2), for nonadherence to applicable time limits. The Agency states that Complainant must initiate contact with an EEO counselor within 45 calendar days of the date of the matter alleged to be discriminatory. The Agency asserts that, with regard to disparate treatment, Complainant failed to make a prima facie case. The Agency acknowledges that Complainant is a member of protected classes; however, Complainant fails to establish a causal connection between that membership and an adverse action suffered. Additionally, the Agency states that Complainant has failed to identify any similarly situated employee outside of his protected classes who was treated differently. The Agency also argues that, even if Complainant did establish a prima facie case, the Agency has articulated a legitimate, non-discriminatory reason for its actions. Namely, Complainant was not assigned work outside of that established in his core documents or work that would have otherwise been assigned to a JAG. The Agency argues that Complainant admitted that he was aware that the new position was an over-hire one and that the Agency followed typical processes of facilitating reassignment. The Agency also states that Complainant has not asserted that anyone connected to his reassignment was aware of his protected activity, and therefore, Complainant cannot establish that the reassignment to an over-hire position was motivated by reprisal. Finally, with regard to the claim of harassment, the Agency states that Complainant proffers no evidence to prove that the credible reasons provided for management’s conduct were untrue or pretext for discrimination. Additionally, the Agency states that Complainant has not demonstrated that any of the alleged managerial conduct interfered with his work performance or to have created an offensive work environment, and therefore, it did not rise to the level of a hostile work environment. ANALYSIS AND FINDINGS As a threshold matter, we find that the Agency properly dismissed the claim regarding denial of training as untimely, under 29 C.F.R. § 1614.107(a)(2). Complainant contacted an EEO counselor on September 19, 2012; however, Complainant alleged that he was denied training from April to May 2011. Complainant was required to contact an EEO Counselor regarding that incident within 45-days of when he knew or should have known of the incident. As such, we affirm the dismissal. 2019004802 5 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”). To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To establish a claim of 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 classes; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, in order to establish his harassment claim, Complainant must show that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. 2019004802 6 Complainant avers that he was treated less favorably than individuals outside of his protected class. However, Complainant indicated that both he and one of his coworkers (CW1), who is a white, female, age 39-40, were treated poorly. Complainant does not provide an individual outside of his protected class memberships who is treated more favorably than he. Complainant does not establish a prima facie case of disparate treatment based on his race, sex, and age. Complainant engaged in protected EEO activity; however, the record indicates that neither S2 nor S3 were aware of this protected EEO activity. Therefore, Complainant has not established a prima facie case of reprisal either. Assuming, arguendo, that Complainant established a prima facie case for disparate treatment based on his race, sex, and age, and harassment based on those same bases and reprisal, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. The Agency indicates that there was a large backlog of arbitration cases, which Complainant and others on his team were tasked with completing. The record indicates that Complainant had a high volume of work, but that it was not outside or above his grade or core documents. The record includes interviews with two other individuals on Complainant’s team, Complainant’s coworkers one and two (CW1 and CW2, respectively). CW1, who is a white, female, age 39-40, stated that she and Complainant were “worked to death.” ROI at 11. CW1 also stated that S2 instructed her not to work on arbitration, but did not give CW1 a reason why she was not to assist Complainant on arbitrations. CW1 also stated that arbitration advocacy was not in her and Complainant’s core documents, although that was a role they regularly held. Instead they were both to provide arbitration support. CW1 stated that S2 pressured she and Complainant about getting the arbitrations done and was not supportive of the need for additional help with the arbitration backlog. CW1 confirms that there were two other individuals, including CW2, who worked with her and Complainant. However, CW1 stated that these two other individuals did not do arbitration work. CW1 stated that she and Complainant were moved to over-hire positions on May 23, 2013, and that she did not discover this until she viewed her personnel record. CW2, who is a white, male, age 53, states that he was Complainant’s coworker until he became Complainant’s immediate supervisor in December 2012. CW2 states that he is unaware of Complainant being assigned or handling work outside of his grade. Instead, CW2 states that Complainant had a high volume of work due to the backlog, but that a high volume was not indicative of work beyond Complainant’s grade. CW2 states specifically that Complainant’s work was within that listed in the core documents for an HRS GS-0201-12. While Complainant has established his membership in protected classes, he has not established that he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected classes. Instead, Complainant has indicated that he was not the only person subjected to the alleged treatment and neither Complainant, nor his coworkers or any management officials, has provided evidence that any treatment was motivated by animus to Complainant’s protected classes. Complainant emailed upper-level management about his concerns about his working conditions, specifically his work load, and action was taken to reassign him and CW1. 2019004802 7 One Director of Staffing indicated that, due to Complainant’s workload and the priority for backlogged arbitration, no extra cases were assigned to Complainant, from March through June 2013. Thus, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). With regard to Claim 2, Complainant acknowledges that he accepted the reassignment and did not have an issue with the reassignment, in and of itself. Complainant stated that he did not have a problem with the change in position/reassignment, but instead had an issue with his former position being made available for a new hire, and his reassigned position being an over-hire, initially. The record establishes that neither S2 or S3 were responsible for Complainant’s reassignment to an MA being initially an over-hire position. Instead, the record indicates that HR failed to complete the action on the SF-50s for his and CW1’s personnel files, which left both of them in over-hire positions. The record also establishes that neither S2 or S3 were responsible for Complainant’s reassignment. The two Directors of Staff made the decision to reassign Complainant to the MA position after Complainant emailed management over concerns about his workload. Complainant argued that his placement in an over-hire position put his job at risk, since over-hire positions are the first to be eliminated in work force reductions. However, the record does not indicate that S2 or S3 had any part in the determination to reassign Complainant or place him in an over-hire position but instead this was due to administrative errors by the agency’s HR department. Finally, we find no evidence of discriminatory animus in the fact that Complainant’s prior position was filled by someone outside his protected groups. In his March 28, 2013 email, Complainant asserted that he wanted to be reassigned and to leave the HRS position due to the what he perceived as an unfair workload. The Agency accommodated this request. The fact that whoever obtained Complainant’s former HRS position differs from him in any given statutorily protected class membership is not, on its own, indicative of animus towards Complainant’s class memberships. 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. 2019004802 8 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. 2019004802 9 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 January 30, 2020 Date