Broderick D.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 30, 2018

0120181009 (E.E.O.C. May. 30, 2018)

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

Broderick D.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120181009

Hearing No. 570-2016-00076X

Agency No. ARBELVOIR15MAR01134

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated December 27, 2017, finding no discrimination
with regard to his 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., Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Acquisition
Specialist, GS-12 (NH-1101-03), Human Resources (HR) Solutions Office, Fort Knox,
Kentucky. On April 7, 2015, Complainant filed his complaint alleging discrimination based on
race (Caucasian), color (white), sex (male), age (over 40), national origin (United States),
religion (Baptist), disability (post-traumatic stress and anxiety), and in reprisal for prior EEO
activity when he was subjected to a hostile work environment in that:

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.
0120181009

2
(1) He was denied training in February 2013;
(2) The Agency failed to decrease his workload as a reasonable accommodation; and
(3) He was issued a letter of counseling on February 4, 2015.

Complainant also alleged that:

(4) He was denied a reasonable accommodation beginning in September 2013.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On July 29, 2016, the Agency filed a Motion for Summary
Judgment and Complainant filed his response on August 31, 2016, and his updated response on
September 1, 2016. On December 14, 2017, the AJ issued a decision without holding a hearing,
finding no discrimination. The Agency’s final order implemented the AJ’s decision.
Complainant appealed.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ adopted and incorporated the Agency’s Statement of Undisputed
Material Facts of the Agency’s Motion for Summary Judgment by reference into her decision.
The AJ assumed arguendo that Complainant had established a prima facie case of discrimination
and then determined that the Agency articulated legitimate, nondiscriminatory reasons for its
actions. At the relevant time, Complainant was employed as an Acquisition Specialist, GS-12,
HR Solutions Office, Fort Knox, Kentucky. Complainant previously worked in the Mission
Installation Contracting Command (MICC) prior to starting with HR Solutions in December
2012.

0120181009

3
Complainant indicated that: he was diagnosed with chronic generalized anxiety disorder with
nervousness, nervous disorder, depression, Post-Traumatic Stress Disorder, panic attacks, and
obstructive sleep apnea in 2003; he had difficulty with short and long term memory,
concentration, and focusing and forgetfulness; and it took him longer to learn new or high level
tasks that were unfamiliar. Complainant stated and the Agency acknowledged that in September
2013, he provided medical documentation to the Agency.

Regarding claim (1), management indicated that Complainant was not granted an assistant or
training from an identified employee from MICC (a non-HR Solutions employee) who had
volunteered to assist him with completing Performance Work Statements and Independent
Government Estimates because management determined that Complainant was not ready for that
training at the relevant time. Furthermore, stated management, the MICC Division Chief told
HR Solutions that Complainant was spending too much time with MICC staff. Management
stated that Complainant attended Defense Acquisition University classes and 25 formal training
classes for his position after his arrival at the HR Solutions Office in December 2012.
Complainant does not contest the foregoing statement; nor does he argue that he was denied
training to perform the duties of his position.

Regarding claim (2), Complainant’s supervisor (S1), who became Complainant’s immediate
supervisor in January 2015, stated that after the review of the workloads, S1 decided to distribute
work equally among his three Acquisition Specialists, including Complainant. S1 indicated that
he was not aware of Complainant’s reasonable accommodation (lighter workload) at that time.
Specifically, S1 indicated that Complainant’s workload was significantly less than his two
coworkers (C1, female; and C2, male), i.e., Complainant had seven task orders, whereas C1 and
C2 had 12 and 15 task orders respectively. Thus, S1 stated that he met with C1 and C2 and
asked them to identify the task orders they wanted to give to Complainant to ensure an equitable
distribution of work. C1 declined to give up her work but C2 volunteered to give up four of his
tasks. S1 then notified Complainant of these reassignment tasks which were not complex or
unfamiliar to him. Complainant then became confrontational about the reassignment, as
described in claim (3).

After learning the reassignment and witnessing the subject confrontation, S2 immediately
informed S1 about Complainant’s reasonable accommodation. S1 stated that upon learning of
Complainant’s reasonable accommodation from S2, the redistribution of work never occurred.
Complainant acknowledged that. C1 acknowledged that she did not give up her tasks at the
relevant time and she was assigned to more complex tasks in the office due to her experience and
she inherited some of the previous Acquisition Manager’s work.

Regarding claim (3), S1 indicated that he met with Complainant to discuss the redistribution of
workload mentioned in claim (2) and during the meeting, Complainant became anxious and
frustrated and raised his voice concerning assignment of C2’s tasks to him. Complainant does
not contest the fact that he was confrontational despite S1’s instruction to stop. As a result, S1
stated that on February 4, 2015, he issued Complainant the counseling letter at issue based on his
behavior toward S1 during the meeting.
0120181009

4
Therein, S1 noted that S1 had verbally counseled Complainant on at least three occasions
regarding him losing his self-control which led to his intervention. Management indicated that
the counseling letter was not included in Complainant’s personnel file. S1 indicated that he
verbally counseled C2 when Complainant told him that C2 used vulgar profanity on a daily basis
in front of employees and customers. There is no evidence that C2 also had a confrontation with
S1 despite S1’s instruction not to do so. Upon review, we find that Complainant failed to show
that there were any similarly situated employees not in his protected groups who were treated
differently under similar circumstances.

After a review of the record, we agree with the AJ that Complainant failed to rebut the Agency’s
legitimate, nondiscriminatory reason for its actions. Regarding his claim of harassment, we find
that Complainant failed to establish the severity of the conduct in question or that it was related
to any protected basis of discrimination. Complainant claimed that he was an ordained minister
and that his coworkers’ cursing and blasphemous language created a hostile working
environment. However, Complainant does not indicate that the language at issue was directed
toward him. C1 indicated that: she witnessed coworkers’ using profanity in the office and the
workplace was not a good place to work; Complainant did not interact with his coworkers; and
C1 and Complainant subsequently accepted a position with another Agency. We note that
neither Complainant’s resignation from his position at the Agency or his transfer to a position
with another Agency is at issue. Management indicated that at the relevant time, Complainant
did not complain to them that he was subjected to a hostile work environment.

Regarding claim (4), Complainant indicated that in September 2013, he requested: modification
of the way instructions and feedback were given related to his work; allowance of extra time to
learn and apply new or unfamiliar tasks; dividing large assignments into smaller more
manageable tasks and goals; flexibility of bringing work home; weekly meeting between
employee and supervisor to review and assist with contract issues before they become critical;
time off for doctor appointments and counseling sessions; and a reassignment to a vacant
position if job performance was not acceptable due to his medical condition. Management
indicated that Complainant had been accommodated as he requested. We note that Complainant
does not claim that he was denied any of the accommodations set forth above. Complainant has
not specifically identified what accommodation he requested that was not provided, that was
necessary, and/or supported by medical documentation. Management stated that: Complainant
had no performance issues; his performance had been satisfactory; and he had a limited amount
of work assigned compare to the other Acquisition Specialists.

Assuming (without deciding) that Complainant was an individual with a disability, the
Commission finds that Complainant failed to show that he was denied a reasonable
accommodation or that any Agency actions were motivated by discrimination. Complainant
does not allege that he was required to perform his duties beyond his medical restrictions. After
a review of the record, we find that the record is adequately developed and there are no material
facts in dispute. We also find that the AJ properly found that the complaint was properly decided
without a hearing and that the AJ properly adopted the parties’ statement of undisputed facts.
0120181009

5
Upon review, the AJ found and we agree that there is no evidence that the Agency’s articulated
reasons were untrue or otherwise indicative of pretext. Based on the foregoing, we find that
Complainant failed to show that the Agency’s actions were motivated by discrimination as he
alleged.

CONCLUSION

Accordingly, the Agency’s final order finding no discrimination is AFFIRMED.

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).

0120181009

6
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

May 30, 2018
Date