Archie G.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Nov 7, 2018

0120171660 (E.E.O.C. Nov. 7, 2018)

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

Archie G.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Appeal No. 0120171660

Agency No. 4O1C1001TF17

DECISION

On April 5, 2017, 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
March 31, 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 following reasons, the Commission AFFIRMS
the Agency’s final decision finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Material Handler
Supervisor, WS-05 at the Agency’s Beale Air Force Base in California.

On November 29, 2016, Complainant filed an EEO complaint alleging that his first level
supervisor (Chief of the Materiel Management Branch) and second-level supervisor (Director of
the 9th Mission Support Group) discriminated against him on the bases of race (African-American),
national origin (African-American), and color (black) when:

1. On October 26, 2016, he was told, “Well, you’re a big intimidating guy” and “there
could/would be a chance that you would be forcefully removed from the building,” as
a response as to why he could not see the group commander;

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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2. On October 26, 2016, his request to have a third-party neutral during a meeting with
leadership (second-level supervisor & Deputy Director) was denied by his first-level
supervisor; and

3. On August 17, 2016, after he requested a status update about his hardship transfer to
Japan, his first-level supervisor informed that his leadership (second-level supervisor
& Deputy Director) saw him as a “big, aggressive, and dysfunctional employee.”

Complainant elected to participate in the Agency’s Compressed, Orderly, Rapid, and Equitable
(CORE) pilot program. Pursuant to his request, the Agency held a CORE Fact-Finding Conference
(CFFC) on February 16, 2017. At such time, Complainant voluntarily withdrew claim (2), because
he had not requested a third-party neutral to be present at the meeting. During the CFFC,
Complainant was given the opportunity to present his case, examine management officials, and
cross-examine witnesses.

On March 30, 2017, the Agency issued a final decision, finding no discrimination. In so finding,
the Agency acknowledged that the incident in claim (1) occurred, but nevertheless determined that
Complainant had not been subjected to a hostile work environment based on his color, national
origin, or race. The Agency found that the incident in claim (3) did not occur. Consequently, the
Agency concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

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 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”).

On appeal, Complainant contends that the Agency relied on misguided societal stereotypes about
African-American men. In this regard, Complainant asserts that society views African-American
men as domineering, intimidating, aggressive, and angry individuals, unless they assume a role of
humility or submission. He avers that the mere fact that he disagreed with management’s finding
that there was no hardship program in place for him was not enough to label him as an intimidating,
aggressive, and dysfunctional employee. Complainant contends that management automatically
painted him as a scary individual when he acted in a manner contrary to their expectations.

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In response, the Agency contends that Complainant failed to demonstrate a prima facie case of
harassment discrimination or show that the Agency’s articulated legitimate, nondiscriminatory
reasons were pretext for discrimination.

To establish a claim of harassment, Complainant must show that: 1) he belongs to a statutorily
protected class; 2) he was subjected to unwelcome verbal or physical conduct involving the
protected class; 3) the harassment complained of was based on a 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 employer. See
Complainant v. United States Postal Service, EEOC Appeal No. 01965238 (Oct. 16, 1998).

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's
decision. In so finding, while we acknowledge that Complainant may have subjectively perceived
the comments at issue to be harassment, we agree with the Agency that these comments did not
have the purpose or effect of unreasonably interfering with his work performance and/or creating
an intimidating, hostile, or offensive work environment. See Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 81 (1998) (holding that Title VII is not a civility code).

Even if claim (3) also occurred, we find that Complainant has failed to rebut management’s
articulated legitimate, nondiscriminatory reasons for using the terms. In this regard, management
asserts on appeal that the comments at issue accurately described Complainant’s behavior and
were used to communicate to him that his behavior created a certain perception issue and made
others uncomfortable. Although Complainant may disagree with management’s characterization
of his behavior, he has not shown that the Agency’s explanation was a pretext for discrimination.

CONCLUSION

We AFFIRM the Agency’s decision finding no 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.
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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.

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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

November 7, 2018
Date