0120173060
09-28-2018
Genaro G.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Genaro G.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120173060
Hearing No. 410-2016-00294X
Agency No. ARBENNING15JUL02459
DECISION
On September 15, 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 August 4, 2017, 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
At the time of events giving rise to this complaint, Complainant worked as a G6 Director at the Agency's Maneuver Center of Excellence facility in Fort Benning, Georgia.
On August 13, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when:
1. On July 2, 2015, Complainant was issued a Letter of Reprimand and a permanent reassignment from a supervisory position to a non-supervisory Information Operations Specialist position at the same grade;
2. On unspecified dates Complainant was subjected to harassment; and
3. Complainant received a "2" rating for the 2014-2015 rating period.
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). Complainant timely requested a hearing and the AJ held a hearing on May 16, 2017, and issued a decision on May 25, 2017. Specifically, the AJ found that Complainant failed to establish a prima facie case with regards to claims 1 & 3 because he failed to identify otherwise similarly situated coworkers from outside his protected classes who were treated differently. The AJ further found that, assuming Complainant established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions when Agency officials said that the Letter of Reprimand and the reassignment were due to Complainant making "three incidents of poor decision-making, all involving female subordinates" and the "2" rating was based on his Supervisor's (S: White, male) subjective assessment of his performance. The AJ further found that Complainant failed ot establish that the Agency's articulated reasons were pretextual. With regard to claim 2, the AJ found that Complainant failed to establish a prima facie case of harassment.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must establish a prima facie case 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination with regards to claims 1 and 3.
We next find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the Letter of Reprimand stated that the action was being taken because "a recent investigation revealed that you allowed female subordinate employees to stay in your hotel room during a TDY trip in 2011. You have failed to maintain a professional distance between yourself and your subordinates." In addition, S1 testified that:
The findings in the investigation really laid out a lack of good order and discipline [in the work area supervised by Complainant]. It also laid out that there was a series of episodes of tremendously bad judgment on [Complainant's] part. And those - the decisions that [Complainant] made over time to put himself in very, very compromising positions with subordinate female employees truly brought the command into -- put the command at risk to accusations that we allowed such behavior to continue. And, therefore, it really -- the investigation's conclusions laid out there was no choice for the command other than to act and to separate [Complainant] from direct supervision of female employees.
With regard to claim 3, S1 testified that he believed Complainant received the rating he deserved and that:
[Complainant's] report was a successful report. There was no derogatory information on that evaluation. As a matter of fact, there were three of the other personnel that I supervise, civilian personnel that I supervised, that got either equivalent ratings or in one case a rating that was less than the one [Complainant] got.
The Agency having articulated legitimate, nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has not met this burden. With regard to claim 1, Complainant first argues that another similarly situated coworker (CW: white, male) had complaints made against him, including EEO complaints, but he did not receive a letter of reprimand nor was he reassigned. We note, however, that the record shows that Complainant and CW worked under different supervisors. Furthermore, according to Complainant's own testimony, the allegation against CW was that he once "advised a female subordinate to use the same dating service as him," whereas the allegation against Complainant was that he shared a hotel room with two female subordinates. We therefore find that Complainant has not shown that he and CW were similarly situated.
Complainant argues on appeal that the allegations against CW were substantiated, while the sexual harassment allegations against Complainant were not. We find, however, that Complainant is mischaracterizing the record. We note in this regard that Complainant was not disciplined for harassment but for displaying poor judgment in sharing his hotel room, and that contrary to Complainant's argument on appeal, the record shows that Complainant admits he did indeed share his room as alleged. As such, we find that the allegation against Complainant that formed the basis for the discipline was substantiated. We further find that the difference in treatment between Complainant and CW does not indicate pretext given the fact they were not similarly situated..
Complainant next argues that the Agency has no policy or regulation against supervisors sharing hotel rooms with subordinate employees of the opposite sex. While the Agency may not have had such an official policy on the matter, we note that Complainant was not disciplined for violating an established policy but for exercising bad judgment.
Complainant next argues that S:
Took a scurrilous allegation from an employee who had a history of mental instability and a record of making false allegations for her personal benefit, a "frequent filer," conducted a procedurally flawed command investigation, ignored the investigating officer's conclusion that the allegations against complainant where unsubstantiated, and nonetheless used it as a vehicle to oust complainant from his position. [S] was overtly biased that he directly told Complainant that he could fire him because of the allegations and he recommended a 14-day suspension penalty.
While the initial Agency sexual harassment investigation against Complainant found the claims to be unsubstantiated, Complainant does not deny that he shared a hotel room with two female subordinate employees, which S testified was the basis for the discipline. Complainant next argues that the Deputy to the Commanding General (MO: white, male) described Complainant as "a predator" and that this is evidence of discrimination based on race. Complainant argues that "[r]eferring to an individual as a predator unquestionably conveys a negative and derogatory assessment of undesirable characteristics of that individual." Assuming arguendo that this is true, being conveyed in such a manner by MO is not the same as establishing that S's action in disciplining Complainant was motivated by animus against Complainant's race or sex. While Complainant argues that the word "has implications of lynchings, racial hatred, and the horror of invidious discrimination," we find Complainant's argument unpersuasive.
For the above reasons we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext to mask discrimination and we discern no basis to disturb the AJ's findings in this matter.
With regard to claim 3, Complainant disagrees with S's evaluation and argues that since he received the evaluation after filing his EEO complaint, and the evaluation applies to the Information Operations Specialist position which "had no supervisory responsibilities, and substantially less demanding and complex duties" than his prior position, for which he received higher ratings, that is evidence of reprisal. We note, however, that Complainant has not claimed reprisal as a basis in his Formal complaint. In any event, we find Complainant's arguments insufficient to meet his burden of establishing, by a preponderance of the evidence, that his 2014-2015 evaluation was based on discrimination or reprisal.
Finally, with regards to claim 2, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant may not base his harassment claim on claims 1 and 3 based on our finding that he failed to establish that either of the actions taken by the agency were motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000); see Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Complainant alleges that at the onset of an Agency investigation into his behavior her was moved out of his office and subsequently the locks on his office were changed. In considering whether any of these actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris v. Forklift Systems, Inc., the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a 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 the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record, we find that Complainant has not shown that the alleged actions either involved or were based on his protected bases. Nor has he shown that the actions were so severe or pervasive as to alter the conditions of his employment.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred. We therefore AFFIRM the Agency's final order.
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.
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 28, 2018
__________________
Date
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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