Jamison F.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.

Equal Employment Opportunity Commission

Jan 28, 2019

0120172701 (E.E.O.C. Jan. 28, 2019)

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

Jamison F.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.

Appeal No. 0120172701

Agency No. HHS-NIH-NIA-033-16

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 17, 2017
final decision 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 Supply Technician at the Agency’s
National Institutes of Health, National Institute of Aging, Intramural Research Program in
Baltimore, Maryland.

On January 6, 2016, Complainant filed the instant formal complaint. Complainant claimed that
the Agency subjected him to ongoing harassment in reprisal for prior EEO activity.

Complainant alleged that he had filed a prior EEO complaint that involved allegations against a
coworker, the Lead Distribution Facilities Specialist (“Specialist”), that was settled in April
2015. Both Complainant and the Specialist reported to the same first-line supervisor, the
Administrative Support Specialist, who stated he was aware of this prior complaint and others.

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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Complainant stated that the Specialist retaliated against him by not giving him
shipping/receiving assignments or by taking shipping/receiving assignments away from him.
Complainant acknowledged that as a result of the April 2015 settlement agreement, he had
increased property clerk responsibilities and reduced shipping/receiving duties. However,
Complainant claimed he was not to be removed from shipping/receiving duties. Complainant
claimed that the Specialist instead gave all shipping/receiving duties to other employees.

The Agency determined that the formal complaint raised three claims for investigation, identified
as follows:

1. on October 5, 2015, Complainant was issued a letter of admonishment and one-day
suspension, effective October 9, 2015:

2. from April 2015 to present, he was excluded from all shipping/receiving duties; and

3. in August 2015, he was issued a “Response to Written Concerns Memorandum.”

After the investigation of claims 1 – 3, Complainant was provided with a copy of the report of
investigation and notice of the right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant initially requested a hearing. Complainant, however, subsequently withdrew
the hearing request. The Agency issued the instant final decision on July 17, 2017, pursuant to
29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

To establish a claim of discriminatory hostile 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 his 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other words, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of his protected basis – in this case, his prior protected
activity. Only if Complainant establishes both of those elements – hostility and motive – will the
question of Agency liability present itself.
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Here, as discussed below, Complainant simply has provided inadequate evidence to support his
claim that his treatment was the result of his prior protected activity.

With respect to the October 5, 2015 decision to suspend him for one day, the Deputy, Scientific
Director and Chief (“the Deputy”), also Complainant’s fourth line supervisor, stated that she
issued Complainant the one-day suspension based on his inappropriate behavior in the
workplace. The Deputy stated that she also considered his past misconduct, noting,
“[Complainant] doesn’t always play nicely in the sandbox with others. He has a history of not
getting along with co-workers.”

The August 20, 2015 Proposal to Suspend for One (1) Calendar Day states that on July 30, 2015,
Complainant made a comment that a named employee was the Specialist’s “bitch” and that he
was not going to be the Specialist’s “bitch or house nigger.” It also noted that Complainant
stated that he and the Specialist “could “take it outside,” which was interpreted as a threat to
fight.

The Deputy stated that she determined the seriousness of Complainant’s behavior “in that it was
interpreted as a threat to [Specialist] by [Complainant] and the other staff present and that it was
disruptive and could have resulted in a physical altercation.” Further, the Deputy stated that she
considered mitigating factors including Complainant’s 11 years of Federal service, successful
performance and receipt of performance awards.

Regarding claim 2, Complainant alleged that from April 2015 to present, he was excluded from
all shipping/receiving duties.

The supervisor did not deny Complainant’s assertion, but explained that during the relevant
period, Complainant received a promotion “specifically for Property, and no shipping/receiving
duties, period. His new title is Supply Technician.” Based on his promotion to this new position,
the supervisor maintained that Complainant was not to perform or be graded on
shipping/receiving duties. The supervisor noted that Complainant “acknowledged it, and he has
plenty of work to do with property. He is fully aware he has plenty to do with that. We do not
need him for shipping and receiving duties.” Furthermore, the supervisor stated that the only
time Complainant would perform shipping/receiving duties was due to illness or absence of
shipping/receiving personnel, and that assignment would be from him, not the Specialist.

Regarding claim 3, Complainant asserted that in August 2015, he was issued a “Response to
Written Concerns Memorandum.”

The record reflects that following the July 30, 2015 altercation referenced above, Complainant
printed an “EEOC Log” from his computer and handed it to the Specialist. The claims that were
raised in Complainant’s log focused on his belief that he was not receiving shipping/receiving
assignments and that he was not receiving training or assignments related to his property duties.
Complainant also provided a copy to the Administrative Officer, his second-level supervisor.
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The Administrative Officer forwarded a copy to the Chief Administrative Officer (Chief) to
review and respond.

The Chief, also Complainant’s third line supervisor, stated that after a review of Complainant’s
log, he determined it was factually untrue. On August 5, 2015, he issued Complainant a
“Response to Written Concerns Memorandum” in response to an incident involving Complainant
where on July 30, 2015, he attempted to tell a named witness that they should go outside and
fight. The Chief stated that he subsequently issued a “cease and desist” directive to those
involved and met with each person involved to obtain that employee’s recollection of the
incident.

The Chief stated that as a manager “when an employee raises concerns, I have an obligation to
address them, plain and simple. I would be remiss as a manager if I ignored his concerns, and in
the light of his concerns not reflecting the facts I made the decision to write and present the
memo to address the concerns.” The Chief stated that he met with Complainant and explained
that his supervisor would assign him specific projects.

Regarding concerns relating to training, the Chief stated that the supervisor had discussed
Complainant’s duties with Complainant on numerous occasions and provided written
explanations of the property management processes. Furthermore, the Chief explained that
Complainant had not been excluded from training offered by the Agency and that training had
always been made available to Complainant.

The record reflects that Complainant received fully successful performance reviews and received
a $500 on-the-spot-award in June 2015.

As detailed above, Complainant has failed to provide sufficient evidence to call into question the
veracity of the explanations provided by responsible management officials or otherwise indicate
that these incidents more likely resulted from retaliation. Complainant is unable to meet his
burden of proving a retaliatory motive regarding the incidents making up his claim of a hostile
work environment.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning the instant complaint because
the preponderance of the evidence of record does not establish that discrimination occurred.2

2 On appeal, Complainant does not challenge the March 25, 2016 partial dismissal issued by the
agency regarding one other claim. Therefore, we have not addressed this issue in our decision.

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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.

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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

January 28, 2019
Date