Brenton R.,1 Complainant,v.Deborah Lee James, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionJan 29, 20160120142272 (E.E.O.C. Jan. 29, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton R.,1 Complainant, v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120142272 Hearing No. 540-2013-00182X Agency No. 8L1M12060 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the Agency’s final action 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 Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Management Analyst in the Agency’s 75th Air Base Wing, Logistics Readiness Squadron (LRS) at Hill Air Force Base, Utah. In July 2012, Complainant briefed the LRS leadership team on training courses and completion percentage. At one point during Complainant’s presentation, Complainant’s second level supervisor (S2) asked Complainant what the acronym “No FEAR” meant. Complainant believed that S2 was referencing Complainant’s prior EEO activity and mocking him. 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. 0120142272 2 On June 29, 2012, S2 appointed the Quality Assurance Inspector to review the security program for which Complainant was responsible. The review identified numerous discrepancies. SAO and S1 drafted a document outlining the discrepancies and plans and suspense dates for Complainant to correct the issues. On July 17, 2012, Complainant met with his first-level supervisor (S1) and the Supply Accountable Officer (SAO) for a counseling session regarding the discrepancies. The matter was discussed, but S1 decided against having Complainant sign the document. On an unspecified date, Complainant claims that he learned from his former supervisor that a co-worker (CW1) told SAO that Complainant was interested in a job across the base. Complainant claims that SAO replied that if CW1 waited, he might have Complainant’s job because SAO thought Complainant was moving to another job. On September 19, 2012 (and amended on December 27, 2012), Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of reprisal for prior protected EEO activity when: 1. [Complainant’s second-level supervisor] (S2) allegedly asked Complainant what “No FEAR (Federal Employee Anti-Discrimination and Retaliation Act)” meant when Complainant was briefing him and other LRS leadership during a staff meeting; 2. [Complainant’s first-level supervisor] (S1), allegedly stated to Complainant, “We're going to have you sign paperwork that you won't fail the inspection on purpose;” and 3. On December 11, 2012, Complainant was made aware that the Supply Accountable Official (SAO) allegedly mentioned to another employee that Complainant “wouldn't be working here much longer.”2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the Agency and issued a decision on April 23, 2014. In the decision, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ found that there was no evidence that the alleged incidents were based on retaliatory animus. As a result, the AJ found that Complainant had not been subjected to a hostile work environment as alleged. When the 2 The Agency dismissed several additional claims and religion as a basis of discrimination. Complainant did not challenge these dismissals before the AJ or on appeal; therefore, the Commission will not address them in this decision. 0120142272 3 Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ's decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). CONTENTIONS ON APPEAL On appeal, Complainant claims that he was not able to fully present his case as the Agency failed to produce items which would have helped his case. Further, Complainant contends that he intended to introduce evidence and witnesses which would show that the Agency had plans to fire him. Accordingly, Complainant requests that the Commission reverse the final action. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Hostile Work Environment To establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 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, to prove his harassment claim, Complainant must establish 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 (in this case, his prior protected EEO activity). Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. Here, Complainant alleged that based on his prior protected EEO activity, management continuously subjected him to a hostile work environment as evidenced by multiple incidents. The Commission concurs with the AJ's determination that, even when viewing all of the alleged incidents and evidence in the light most favorable to 0120142272 4 Complainant, the record does not show that the Agency subjected Complainant to a retaliatory hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency's actions were based on retaliatory animus. For example, with respect to S2’s question during Complainant’s presentation, S2 explained that he asked Complainant about “No FEAR” because he did not see it defined in the slides. ROI, at 94. S1 noted that he believed that S2 asked Complainant the question as a genuine attempt to gather information because he did not know the specifics of the training. Id. at 106. Further, SAO noted that S2 was a fairly new Commander at the time and likely did not know what the acronym meant. Id. at 110. Regarding the security program review and upcoming inspection, S1 affirmed that he and SAO wrote up a document to formally address the security issues discovered for which Complainant was responsible. Id. at 106. Complainant disagreed with the findings and began raising his voice during the counseling session. Id. S1 decided to not ask Complainant to sign the document or document the counseling session until they could ensure the validity of the findings by an outside security expert. Id. Finally, SAO denied telling CW1 that Complainant would not be working there much longer. SAO clarified that he told CW1 that Complainant would not being performing facility management duties much longer. ROI, at 101. SAO explained that two other employees would be taking over the facility management duties Complainant had been performing as management had been working to return Complainant back to the duties stated on his position description. Id. Construing the evidence in the light most favorable to Complainant, the Commission finds that he has not shown that any of the alleged actions were based on retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Accordingly, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to a hostile work environment as alleged. CONCLUSION 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 final order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. 0120142272 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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), 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, 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 (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 0120142272 6 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 29, 2016 Date Copy with citationCopy as parenthetical citation