Ike D.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

Sep 22, 2016

0120140903 (E.E.O.C. Sep. 22, 2016)

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

Ike D.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Missile Defense Agency),
Agency.

Appeal No. 0120140903

Hearing No. 420-2013-00143X

Agency No. 2012-MDA-009

DECISION

Complainant filed an appeal from the Agency’s October 17, 2013, 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. The Commission deems the appeal timely and accepts it for de novo review.
For the following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Program Manager at Redstone Arsenal in Huntsville, Alabama. On
June 7, 2012, he filed an EEO complaint in which he alleged that his immediate supervisor, a
Supervisory Program Manager (S1) and his third-level supervisor, the Acquisitions Director
(S3) retaliated against him for EEO complaints he had filed in January and February of 2006,
as follows:

1. On January 12, 2012, S1 and S3 had given him a performance appraisal score of 89
for the period between May and September, 2011; and

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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2. On February 28, 2012, S3 denied his request to be deployed to Iraq.

At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy
of the investigative report (IR) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Although Complainant
timely requested a hearing, the AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing and over Complainant's objections, issued a summary
judgment decision on September 5, 2013. 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.

Appraisal: Complainant had been on deployment to Iraq between January and June of 2011.
IR 265. His performance appraisal rating period began on May 1, 2011, and ended on
September 30, 2011. Complainant was given a rating of 89 on all six performance factors:
problem-solving; teamwork; customer relations; leadership; communications; and resource
management. A score of 89 reflected overall performance at the successful level. S1 averred
that he did not give Complainant a higher score because he had observed that since
Complainant’s return from his most recent deployment, Complainant had been performing at a
lower level than that set forth in his performance plan. S1 noted that Complainant’s work
products were done by others and that they often had to be reworked. S3 concurred in the
appraisal, but the Executive Director subsequently raised the rating to 97 after Complainant
filed a grievance, noting that the increase took into account the work he had performed while
on deployment between May and June of 2011. The Executive Director pointed out in his
decision memorandum, however, that he concurred with S1 and S3’s assessment of
Complainant’s performance, which was the reason he raised Complainant’s score to 97 and not
to the full 100. IR 46-49, 53-56, 61, 63, 277-78, 285, 287, 292-95.

Deployment Denial: Complainant received a memorandum dated February 13, 2012, from the
Chief of the Civilian Expeditionary Workforce Programs office informing him that he had been
selected to fill a position of Regional Base Operations Manager in Iraq. The Agency, like
other organizations with the Department of Defense, routinely authorized overseas
deployments for their employees. S3 stated, however, that such deployments were never
meant to be continuous. On February 27 and 28, 2012, Complainant received emails from S3
informing him that he had recommended to the Director that Complainant’s request be denied.
S1, S3, and other witnesses averred that Complainant had been deployed four times
previously, that the Agency could not sponsor another deployment because they needed him to
do his job. IR 135-36, 139, 288, 296, 316.

ANALYSIS AND FINDINGS

The Commission cannot second-guess an Agency’s decisions involving personnel unless there
is evidence of a discriminatory motivation on the part of the officials responsible for making
those decisions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 259
(1981). Therefore, in order to warrant a hearing on his reprisal claim, Complainant would
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have to present enough evidence to raise a genuine issue of fact as to whether S1 or S3 was
motivated by unlawful considerations of his previous EEO activity in connection with his
performance appraisal and the denial of his request for deployment to Iraq. See 29 C.F.R.
§ 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). He
must also submit evidence sufficient to raise a genuine issue of material fact as to whether the
actions of S1 and S3 were harmful to the point that they could dissuade a reasonable employee
from making or supporting a charge of discrimination. Burlington Northern and Santa Fe Ry.
Co. v. White, 548 U.S. 53, 57 (2006).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact regarding motivation by presenting evidence tending to show that the reasons articulated
by S1 and S3 for giving him a performance appraisal rating of 89 and denying his request for
deployment to Iraq were pretext, i.e., not the real reason but rather a cover for reprisal. St.
Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993). Pretext can be demonstrated by
showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence. Opare-Addo v. United States Postal Service,
EEOC Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied
EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory
statements or past personal treatment attributable to those responsible for the personnel action
that led to the filing of the complaint, comparative or statistical data revealing differences in
treatment across various protected-group lines, unequal application of Agency policy,
deviations from standard procedures without explanation or justification, or inadequately
explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Service, EEOC
Appeal No. 0120141697 (Nov.12, 2015).

When asked by the investigator why he believed that the S1 and S3 had retaliated against him
for the complaints he filed in 2006, he responded that there was a pattern of management
“having issues” with older white males, and that he had applied for sixteen vacancies within
the Agency and had not been invited for an interview for any of them. IR 263-64. He also
averred that the angry tone of the email he had received from S3 in response to his request for
reconsideration of his deployment denial was further evidence of a retaliatory motivation. IR
267. He also submitted the affidavits of two former coworkers and a contractor who averred
that while there were indications of a hostile work environment for older employees, it more
likely resulted from poor supervision and leadership. IR 311, 315, 319. None of these
statements contradicts the explanations provided by S1 and S3 for giving Complainant an
appraisal rating score of 89 and denying his request for another deployment to Iraq or calls the
veracity of S1 and S3 into question. We note that in the email to which Complainant refers,
S3 had expressed his frustration with the fact that Complainant had assured him that he would
not seek another deployment but had done exactly that. We therefore agree with the AJ that no
genuine issue of material fact exists with respect to either allegation comprising Complainant’s
reprisal claim.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order.

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
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
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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 22, 2016
Date