0120160210
05-17-2018
Harry E.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harry E.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Threat Reduction Agency),
Agency.
Appeal No. 0120160210
Hearing No. 570-2012-00463X
Agency No. DTRA-11-SC-009
DECISION
On October 17, 2015, 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 13, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final order.
ISSUE PRESENTED
The issue presented is whether substantial evidence in the record supports the Administrative Judge's determination that the Agency did not discriminate against the Complainant on the bases of race (African-American) and reprisal as a result of the claims set forth herein.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a GS-0132-13 Intelligence and Counterintelligence Operations Specialist at the Agency's Security and Counter Intelligence (SC) Branch facility in Darmstadt, Germany. On April 11, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of:
1. Race (African-American) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
a. On January 3, 2011, the Agency denied his Administrative Grievance regarding his performance rating for the period October 1, 2009 through September 30, 2010.
b. On December 9, 2010, he received a Notification of Personnel Action demoting him from a GS-0132-13, Supervisory Intelligence Specialist, to a non-supervisory GS-0132-13, Intelligence Specialist. He alleged that this was done not only to remove his supervisory duties but also in an effort to cause the classification appeal which was pending at OPM to be dismissed because he was no longer in the position he was appealing.
c. In November 2010, he received a lowered performance evaluation with an overall rating of 3.6 (met standards with an annual award) and on the same day received a Substandard Performance Review Letter from the supervisory Colonel (C1).
d. On October 28, 2010, C1 threatened to fire or demote him to a non-supervisory position, and stated "DTRA Leadership wants you out."
e. In August 2010, he was denied the opportunity to attend Leadership Essentials Training for which he was previously enrolled.
f. In July 2010, C1 denied his Date of Eligible Return from Overseas (DEROS) request and disregarded the SC Chief's (C2) request that he remain in his position for an additional two years. One of his white staff members was extended and promoted to the GS-13 level to replace him as the Chief of Security and Counterintelligence Field Office.
g. In April 2010, he was not selected for the position of Chief, SC Counterintelligence Division, for which he was a qualified candidate as a YC-2 (GS-14 equivalent).
h. In April 2007, he converted into the National Security Personnel System (NSPS) at the grade of YC-0132-2, Supervisor Intelligence Operations, instead of the YC-0132-3, thereby denying him a GS-15 equivalent promotion, although he had accreted the duties of that grade by the time of the conversion to NSPS, and similarly situated white employees were converted at a higher-grade level.
i. From October 2006 until the present, the Agency has failed to promote him through an accretion of duties.
2. Whether Complainant was subjected to discrimination on the basis of his race (African American), when, in August 2012, he learned that the Agency promoted similarly situated white employees to GS-14 positions through accretion of duties but denied him the same opportunities. Complainant named 2 employees as being similarly situated, both white with no prior EEO activity.
The record shows that Complainant began working at the Agency's Darmstadt, Germany field office in 2006 and was made an SC supervisor that same year. Three other supervisors, all Caucasian, were employed by the Agency at other field offices: Kirtland Air Force Base, Albuquerque, New Mexico (supervisor SP); Travis Air Force Base, San Francisco, California (supervisor SM); and Eglin Air Force Base, Fort Walton Beach, Florida (supervisor SR). Complainant, SP and SM were at the GS-13 level, while supervisor SR was at the GS-12 level.
The SC Chief, C2, sought to upgrade Complainant's and SM's supervisory positions to the GS-14 level, including assistance with re-writing the position description. However, Human Resources would not approve the higher grade. The Agency switched from the General Service, GS, pay system to the National Security Personnel System, NSPS, in 2007. While Complainant's pay and position did not change, his designation under NSPS changed to a YC-132-2 pay grade.
C2 testified that the Albuquerque field office "is located in the base where we store our nuclear weapons," and that field office had a significant Agency presence on a number of levels. For this reason, the responsibilities attendant to the supervisory position in Albuquerque were amplified. Therefore, Human Resources upgraded that position to the YC-132-3 level, which corresponded to a GS-14 or GS-15 level under the GS system. C2 testified that supervisor SP applied for and was selected for that upgraded, YC-132-3 position. Similarly, the Travis Air Force Base field office gained expanded responsibilities during the relevant time frame, such as treaty support. Subsequently, when the Agency reverted to the GS pay system in 2010, Complainant and SM remained classified at the GS-13 level, SR remained classified at the GS-12 level, and SP was now classified at the GS 14 level.
In August 2010, C1 became the new Chief SC of the Darmstadt field office, replacing C2. In assessing the field office, C1 determined that the professional atmosphere of the office was not consistent with his expectations. C1 based his assessment on his interviews with staff and, his observations of the Darmstadt office and other Agency facilities. For example, a Chief Warrant Officer testified that she took issue with Complainant's management style because he "was not very supportive" at a time when she was dealing with health issues, and that others in the office "complained that (he) did not keep them informed." She further opined that she "did not feel that Complainant was management material. He was not always straight forward; he would tap dance around things."
As a result of C1's recommendation, Complainant's extension of tour request was denied and he was subsequently reassigned back to state side duty at Fort Belvoir, Virginia, where he was no longer a supervisor, but received the same pay and benefits of his prior position. The record reflects that C1 denied the extension requests of other, non-African-American staff during that same time frame. Additionally, prior to the instant matter, there is no record of EEO activity on the part of Complainant.
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 5, 2015, and issued a decision on August 13, 2015. 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. In her decision, the AJ explained that the Albuquerque field office supported the Agency's Defense Nuclear Testing School at Kirtland Air Force Base, along with its customary mission of counter-intelligence and physical security. This was in contrast to the diminished role played by the Darmstadt field office at that time. Moreover, treaty duties previously managed in Germany, were now managed at Travis Air Force Base. Hence, the supervisory responsibilities at Albuquerque and Travis were substantially broader in scope than that of Darmstadt.
The AJ also determined that Complainant failed to show that his responsibilities had sufficiently increased or warranted a higher pay grade, and that there was no showing that the Agency's legitimate nondiscriminatory reasons for its actions were pretextual. Further, he AJ found credible C1's testimony concerning the decisions he made upon his arrival at Darmstadt and his assessment of the field office's operation.
CONTENTIONS ON APPEAL
On appeal, Complainant focuses specifically on claim 2 - the Agency's alleged failure to promote him to the GS-14 level through accretion of duties. He contends, among a number of things, that the Agency failed to properly grade his position, in that his "GS-14 rating was not processed and acted on by the HR department in the Agency." He further states that the position description should have been processed through the Defense Logistics Agency (DLA). Additionally, Complainant takes issue with the credence given by the AJ to testimony by C1, wherein C1 made his assessment of the Darmstadt field office, in partial reliance on information provided by the "disgruntled" Chief Warrant Officer. The Agency, in turn, reiterates previously submitted arguments and maintains that the AJ's decision should be affirmed.
STANDARD OF REVIEW
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).
ANALYSIS AND FINDINGS
We note that the Commission has the discretion to review only those issues specifically raised in an appeal. Because Complainant does not specifically contest claims 1(a)-(i) these issues will not be addressed in this decision. See EEOC Management Directive for 29 C.F.R. Part 1614, (MD-110), Chap. 9, � IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
The instant appeal can be examined under both disparate treatment and hostile work environment analyses. In order to prevail on a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of hostile work environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Further, the incidents must have been "sufficiently severe and 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); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).
In the instant matter, we assume without so finding, that Complainant established a prima facie case of disparate treatment discrimination. Nevertheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, the Agency assessed its needs and acted within its purview in not promoting Complainant to the GS-14 grade. We find no merit in Complainant's argument that DLA should have processed his position description, and that proper classification would have placed him at the GS-14 level. Assuming for the purpose of argument that his contention is true, it has no bearing on his failure to show a discriminatory motive on the part of the Agency. As alluded to by the AJ, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury, EEOC Request Mo. 05940906 (January 16, 1997). Complainant herein failed to show that the Agency's actions were based on discriminatory animus.
Moreover, we find that Complainant failed to show that the alleged actions were based on either of his protected classes. In so finding, we defer to the AJ's credibility determinations with respect to the witness testimony presented at the hearing. In the instant matter, Complainant failed to show that the Agency's non-discriminatory explanations were a pretext for unlawful discrimination under a disparate treatment analysis and he failed to establish any claim of a hostile work environment; the AJ's findings are supported by substantial evidence in this regard as well. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). A finding of hostile work environment involving claim 2 is precluded by our determination that Complainant did not establish that the Agency's actions were motivated by race or reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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 final agency order because substantial evidence supports the AJ's ultimate finding, that unlawful employment discrimination was not shown.
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
____5/17/18______________
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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