Carroll G.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 30, 2020

2020001991 (E.E.O.C. Sep. 30, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carroll G.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020001991 Hearing No. 420-2019-00211X Agency No. ARREDSTON17AUG02708 DECISION On December 31, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 27, 2019 final order 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. BACKGROUND During the period at issue, Complainant worked as a Country Program Manager (CPM) assigned to the Oman Foreign Military Sales (FMS) program at the Agency’s Installation Management Command in Redstone Arsenal, Alabama. On September 28, 2017, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him in reprisal for prior EEO activity (15-6 Investigation)2 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. 2 15-6 is an investigation into alleged misconduct. 2 2020001991 on August 25, 2017, he received an overall performance rating of “two” from the Division Chief, for performance rating period July 1, 2016 through June 30, 2017. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter the AJ issued a decision by summary judgment in favor of the Agency on December 6, 2019. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD- 110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 3 2020001991 Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). In finding no discrimination by summary judgment, the AJ found that the record developed during the investigation established the following undisputed facts. During the relevant period, Complainant was employed as a Country Program Manager (CPM) with the United States Army Security Assistance Command (USASAC) and was assigned to the Oman Foreign Military Sales (FMS) program. The Division Chief, Central Command Directorate (CENTCOM) was Complainant’s first-level supervisor and the Deputy Director, CENTCOM was his second-level supervisor.3 Complainant’s duties as a Country Program Manager included supporting foreign military sales with the country of Oman. On September 27, 2016, Complainant represented USASAC at a Program Management Review with Oman and other participants. During his presentation, Complainant was determined to be ill- prepared and did not perform well, which was embarrassing to the Agency. On October 6, 2016, a representative of the Omani Royal Air Force (RAF), Ministry of Defense, sent a letter to a U.S. military officer serving at the U.S. Embassy in Oman, entitled “Contract Termination.” The letter was solely about Complainant and requested his removal from the FMS case with Oman based on “unsatisfactory performance” and being “not prepared well” for the September 27, 2016 program review. The letter further stated “Also kindly don’t involve [Complainant] in any RAFO cases in future for above mentioned reasons.”4 Because of Oman’s written request, Complainant was removed from the Oman program. A CENTCOM Deputy Director notified Oman of Complainant’s removal by letter dated October 19, 2016. The AJ noted that during an October 2016 meeting, the previous supervisor counseled Complainant, put him on notice of RAFO’s request and notified him that he was being removed from the Oman program. Complainant disputed Oman’s categorization of his performance. Following the meeting, the previous supervisor prepared a Memorandum of Record detailing the incident, the counseling and Complainant’s response to the counseling. By the end of December 2019, Complainant was transferred to the Saudi Arabia Program under the supervision of his supervisor. 3 The record reflects that during the relevant period, Complainant’s supervisor retired from Agency employment. 4 RAFO is an abbreviation for Royal Air Force-Oman. 4 2020001991 Complainant was displeased knowing that the Oman incident would be considered in is performance evaluation. The AJ noted that Complainant refused to meet with or cooperate with his supervisor about his rating, citing a pending 15-6 investigation he had initiated against the supervisor. The 15-6 investigation was initiated by Complainant after the supervisor, on January 24, 2017, disseminated (as part of a training packet to program managers) a written memorialization of Complainant’s performance deficiencies in relation to the Oman incident. He viewed the disclosure to be harassment and in violation of his privacy rights, and filed the 15-6 complaint for that reason. On August 4, 2017, the supervisor issued Complainant’s rating. Complainant was rated a “2” rather than the “1” he coveted. The AJ noted that in the past, Complainant only received “1’s” and “the lowered rating was based on the Oman incident, which the Agency deemed to be a major failure. The previous supervisor believed Complainant should be held accountable for the incident, that he could have been penalized more harshly, and thought Complainant was being naïve if he thought his performance evaluation would not be impacted by the failure. According to the [previous supervisor], the supervisor gave Complainant the ‘benefit of the doubt’ by rating him at a ‘2.’” Here, the undisputed facts fully support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his prior protected activity. CONCLUSION We AFFIRM the Agency’s final action, implementing the AJ’s decision by summary judgment, finding no discrimination. 5 2020001991 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. 6 2020001991 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 September 30, 2020 Date