Homer S.,1 Complainant,v.Eric K. Fanning, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 23, 2016

0120150726 (E.E.O.C. Jun. 23, 2016)

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

Homer S.,1
Complainant,

v.

Eric K. Fanning,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120150726

Hearing No. 530-2010-00125X

Agency No. ARFTMONM09JAN00204

DECISION

The Commission accepts Complainant’s appeal from the Agency’s November 4, 2014 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 final
order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electronics
Engineer at the Agency’s Space and Terrestrial Communications Directorate at the U.S. Army
Communications-Electronics Research, Development and Engineering Center at Fort
Monmouth, New Jersey. Complainant entered duty as a probationary employee on May 27,
2008. Complainant was assigned early in his tenure to split his time between two projects: the
Warfighter Information Network-Tactical (WIN-T) and the Stryker Brigade Combat Team
(SBCT). In July 2008, Complainant was assigned a note-taking assignment for the WIN-T
program. Complainant failed to meet the deadline required by his WIN-T Project Manager
(PM). Complainant’s second-line supervisor (S2) learned of Complainant’s performance and
interactions with his supervisors. By September 2008, Complainant was pulled off the WIN-T

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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project due to management’s concerns and the WIN-T client’s dissatisfaction with
Complainant’s work.

In mid-November, Complainant began working under a new first-line supervisor (S1). On
December 4, 2008, Complainant looked up job listings on Monster’s website and contacted an
attorney. Later, on December 16, 2008, Complainant emailed a friend who was working in a
different division and asked if he knew of any “cool managers up there who have a slot open.”

Complainant met with S1 on December 5, 2008. At the meeting, Complainant requested
access to a technical maintenance manual that he claimed had been denied to him. After the
meeting, S1 forwarded Complainant a link to the manual with a message stating
“[Complainant], see if you can download it from the site. If not, I will get the document on
Monday for you. Have a nice weekend.” Complainant responded “Thanks, [S1].”
Complainant worked the rest of the workday and then went home.

According to Complainant, however, S1 verbally attacked him during the meeting, used a
racial slur, and stated that she was not “gonna have no lazy-ass nigger, especially on
probation.” Complainant did not report for work the following Monday.

On December 10, 2008, S1 emailed S2 expressing concern that Complainant had drafted his
daily report from the previous day based upon second-hand information and not his own
observations. Complainant was responsible for producing the report using his own
observations.

On December 18, 2008, management terminated Complainant for lack of performance.
According to S2, Complainant was terminated for his failure to perform satisfactorily on the
WIN-T project because he did not accept the responsibilities of his position.

On April 15, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American), national origin (St.
Vincent/The Grenadines), color (Black), and in reprisal for prior protected EEO activity when,
on December 18, 2008, he was informed that he was terminated.

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, and the AJ held a hearing on March 19, 2014, and issued a decision on
October 16, 2014.2

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency had articulated legitimate,

2 The AJ initially issued a bench decision on April 11, 2014; however, the decision was
subsequently edited and issued on October 16, 2014.
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nondiscriminatory reasons for its actions. The AJ found that the record was replete with
evidence of Complainant’s inadequate performance during his probationary period. Because
Complainant was a probationary employee, the Agency had the lawful option to watch his
performance closely so that they could assess whether he would be an asset as a full
performance employee for the Agency. Here, there was evidence that Complainant would not
succeed. PM testified that Complainant did not respond properly to the WIN-T deadlines and
that he stopped waiting for Complainant and handled some Complainant’s responsibilities
himself. Complainant did not seem to understand the gravity of this situation as he emailed
those above him attempting to give his superiors direction, without presenting dates certain
when he would submit the work for which he was responsible. Complainant’s immediate poor
reputation within WIN-T was concerning to S2 who was responsible for making sure that
WIN-T was well served. Ultimately, WIN-T demanded that Complainant be taken of their
project.

Complainant’s lead on the SBCT project testified that he was unable to rely on Complainant.
He noted that Complainant’s performance never fell off, but it never got going in the first
place. By the time S1 became Complainant’s supervisor, she had been told by S2 and
Complainant’s former supervisor to keep a close watch on Complainant’s work. S1 found that
Complainant was not properly reporting his own observations in certain reports, but was
relying on what others told him.

Despite his claims otherwise, the AJ determined that Complainant was aware of the problems
with his performance. Complainant had been taken off the WIN-T project by September 2008,
and he was looking for other employment in December 2008 before meeting with S1. In fact,
S1 testified that she let Complainant know that things had not gone well for him up to this
point and raised his WIN-T performance issues. Finally, after discussing the matter with S1,
S2 decided to terminate Complainant during his probationary period.

Regarding the alleged racial slurs, the AJ found that Complainant failed to show by a
preponderance of the evidence that the incident occurred as he alleged. The AJ did not find
Complainant’s testimony credible on this matter, and found S1 to be credible about what
happened during the meeting. The AJ determined that the use of the slur as Complainant
described appeared to be inserted, and did not conform to the flow of the conversation.
Complainant’s reaction later that day was not the response of a person who had recently been
the subject of racial slurs. Complainant stated in an email later that day to S1 “Thank you,
[S1] in response to S1’s email stating “Have a nice weekend.” The AJ noted that Complainant
took the next work day off purportedly due to the impact of the slurs on him physically, but
not before he worked the remainder of the day that it happened. Finally, the AJ found that
there was no evidence that Complainant ever told anyone about these slurs after he was
discharged. Complainant testified that he told the Human Resources Specialist that S1 was a
racist and that he needed a new position elsewhere; however, the AJ found that Human
Resources Specialist credible when she testified that this did not happen. As a result, the AJ
concluded that S1 did not make the purported slurs based upon a preponderance of the
evidence.
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The AJ determined that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that the AJ’s finding that he failed to show that he was
subjected to discrimination and reprisal is not supported by substantial evidence. Complainant
alleges additional claims not previously accepted by the Agency or raised while the matter was
before the AJ. Complainant contends that management never counseled him about his poor
performance. Complainant alleges that he presented direct evidence of discrimination based on
S1’s slurs during their December 5, 2008 meeting. Complainant claims that S1 wrote a false
email to S2 to create a pretext for her discrimination and eventual justification for his
termination. Finally, Complainant claims that Agency officials attempted to interfere with the
EEO investigation and provided false information. Accordingly, Complainant requests that the
Commission reverse the final order.

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. Nat’l Labor Relations Bd., 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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

ANALYSIS AND FINDINGS

As an initial matter, the Commission shall address Complainant’s claims regarding the
investigation of his complaint. Complainant claims on appeal that Agency officials
intentionally interfered with the investigation. Upon review of the entire record, the
Commission is not persuaded that the investigation into Complainant's complaint was in any
way improper. Complainant has not presented any evidence of impropriety in the processing
of his complaint, and Complainant failed to raise any concerns while the matter was pending
before the AJ. Thus, despite the above referenced arguments, the Commission determines that
the investigation was properly conducted.
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In addition, the Commission notes that Complainant raises several new claims on appeal.
However, these new claims were not previously raised by Complainant and, therefore, the
Commission will not address them as they were raised for the first time on appeal.
Complainant is advised that if he wishes to pursue any additional claims, he should initiate
contact with an Agency EEO Counselor.

Disparate Treatment

To prevail in a disparate treatment claim such as this, 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 Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978).
Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell
Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a
legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 519 (1993).

Upon review, the Commission finds substantial evidence supports the AJ's decision.
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, substantial record evidence shows that Agency officials articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, S2 testified that management decided to
terminate Complainant’s employment during his probationary period based on the culmination
of his poor work performance, his inability to accept the responsibilities of the position, and
his inability to successfully complete the tasks expected of the position. Hr’g Tr., at 153-54.
S1 noted that Complainant had on numerous occasions completed his daily report assignment
using the observations of other employees rather than his own. Id. at 223. Other management
officials and co-workers testified that Complainant missed deadlines and was unresponsive to
their requests for status updates. Based on his lack of performance, interactions with
management officials, and management’s belief that he may not meet the expectations of the
position, management terminated Complainant’s employment during his probationary period.

Finally, with regard to Complainant’s allegation that S1 used racial slurs during their
December 2008 meeting, the Commission finds that substantial record evidence supports the
AJ’s finding that the incident did not occur as Complainant alleged. The AJ found that
Complainant was not credible in his testimony regarding the alleged incident while S1 was
credible in her recollection of the meeting. Further, Complainant presented no corroborating
evidence. Additionally, Complainant’s testimony that he reported to the Human Resources
Specialist that S1 was racist was contradicted by the Human Resources Specialist.
Consequently, the Commission finds that substantial record evidence supports the AJ’s finding
that Complainant failed to show that the incident occurred as alleged. Thus, to the extent that
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Complainant may be alleging that he was subjected to a discriminatory hostile work
environment, the Commission finds that such a claim must fail.

The Commission finds that there is substantial evidence in the record to support the AJ's
finding that Complainant did not establish that the Agency's explanation for its actions was a
pretext for discrimination or reprisal. The record and facts gleaned at the hearing fail to
disclose any evidence purporting to show the Agency's actions were pretext for discriminatory
or retaliatory animus. Thus, after reviewing the record and considering arguments on appeal,
the Commission finds that the AJ made reasonable credibility determinations, which are not
contradicted by objective evidence, and his factual findings are supported by substantial
evidence.

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 the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported
by the record.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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. The requests 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
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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
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

June 23, 2016
Date