Jerrold K.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency.Download PDFEqual Employment Opportunity CommissionApr 8, 20160120140843 (E.E.O.C. Apr. 8, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerrold K.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Threat Reduction Agency), Agency. Appeal No. 0120140843 Hearing No. 570-2012-00430X Agency No. DTRA-11-ADRD-012 DECISION The Commission accepts Complainant’s appeal from the November 14, 2013 final Agency decision (FAD) 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the FAD. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Geologist at the Agency’s Research and Development Enterprise facility in Fort Belvoir, Virginia. Complainant has worked for the Agency since 1992. Around 2006, Complainant acted as the lead scientist in bringing Digital Photogrammetry (DP) technology to the Agency. This technology greatly enhanced many different research projects within the Agency. Complainant performed some DP duties, but the DP duties were not included in his position description. The Agency subsequently converted to the National Security Personnel System (NSPS). Complainant’s 2010 performance appraisal mentioned DP as a tool that assisted him in 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. 0120140843 2 performing his assigned duties for the Agency; however, his new position description under the NSPS system still did not include DP duties. The Agency converted back to the GS system after 2010, but DP duties still were not included in Complainant’s position description. From 2006 to 2008, Complainant acted as a co-worker’s (CW1) mentor. Complainant decided that they should work together on DP technology projects. In December 2008, CW1 informed the Sector Leader (SL) that she was having difficulty working with Complainant based on numerous incidents including Complainant hiding a key to the USB port that they were working on. Complainant, CW1, SL, and the then-Branch Chief met and discussed the dispute. Complainant believed that CW1 was attempting to “take over” the DP program involving the use of the “Predator” aircraft imagery program. The Branch Chief decided that CW1 would have primary responsibility for the DP Predator work and Complainant would have primary responsibility for the CaveHawk Quick Reaction Fund program. At the end of the meeting, CW1 offered for Complainant to participate with her in a future Predator DP test mission, but Complainant declined. In 2010, the CaveHawk program was in serious financial trouble, and Complainant’s co-workers (including CW1) assisted and supported Complainant to fix the problems. In November 2010, Complainant asked CW1 to stand in for him for a major CaveHawk milestone to allow him to celebrate his father’s birthday. In 2010, CW1 received the Agency’s Civilian of the Year award for numerous technical achievements, including her DP-related work. CW1’s work on the Predator project was not recognized as part of the award. Additionally, CW1 started with the Agency in 2007 under the NSPS system at the YD-2 grade level. The YD-2 grade level encompassed the GS-9 to GS-13 grades. When the Agency converted back to GS in 2010, CW1’s salary was equivalent to a GS-13 salary. As a result, CW1 was placed at the GS-13 level after the conversation. On August 6, 2011 (and amended on October 28, 2011), Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of sex (male) and age (59) when: 1. On January 2011, he learned that all Digital Photogrammetry duties had been removed from his position description (PD); 2. On April 28, 2011, he learned that his co-worker (CW1) was awarded as the Agency’s Civilian of the Year for her performance of Digital Photogrammetry duties and efforts with the Predator/Reaper UAV Squadron, and she was promoted to a GS-13 and given responsibility over all Digital Photogrammetry support for the Branch; and 3. On an unknown date, he was denied career enhancement and promotion opportunities, and his PD was rewritten to exclude his involvement in the Digital Photogrammetry Program. 0120140843 3 At the conclusion of the investigation of the complaint, 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, but subsequently withdrew his request. Consequently, the Agency issued a FAD pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or pervasive to establish a hostile work environment. Further, the Agency found that management articulate legitimate, nondiscriminatory reasons for its actions. More specifically, as to claim (1), the record revealed that at no point in Complainant’s career did his position description contain a description of DP duties. Instead, DP technology was a tool Complainant used to complete his assigned duties as a Geologist. The Agency concluded that the record was clear that Complainant played a significant role in developing DP technology for the Agency. However, the totality of the record evidence established that DP technology was not for Complainant’s use alone, but was a tool for use by the whole Agency. Furthermore, Complainant’s second-level supervisor (S2) noted that Complainant signed off on the converted position description from NSPS to GS without any comment. With respect to claim (2), SL stated that in January 2009, he, the former Chief, Complainant, and CW1 decided that CW1 would lead the Predator project using DP technology and Complainant would lead the $1.9 million CaveHawk project as a compromise to defuse their conflict. The CaveHawk project involved placing DP technology on remote-controlled aircraft and appeared to be a professionally challenging duty for Complainant. SL confirmed that Complainant was asked to continue to contribute to the Predator project, but he declined. With regard to CW1’s award, the evidence showed that her accomplishment with the DP program was only one of the technical accomplishments that led to the award. Finally, as to CW1’s promotion to the GS-13 level as a result of the responsibilities given to her based on the DP technology duties in her position description, the Agency determined that there was no indication in the record that the Agency competed a GS-13 position and awarded it to CW1. Instead, the process used was based on the reclassification of the position from NSPS to GS. However, and most importantly, Complainant was not in competition with CW1 to gain a promotion to GS-13 as he was already a GS-13. The Agency concluded that Complainant failed to establish that the Agency’s reasons for its actions were pretext for unlawful discrimination. As a result, the Agency found that Complainant had not been subjected to discrimination or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the FAD included a subjective and misleading assessment of the facts. Complainant argues that he produced an abundance of evidence of the Agency’s discriminatory actions. Further, Complainant claims that the FAD failed to consider 0120140843 4 the statements of other Agency officials. Accordingly, Complainant requests that the Commission reverse the FAD. ANALYSIS AND FINDINGS Hostile Work Environment To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or 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). Therefore, 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 a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. As Complainant chose to withdraw his request for hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Here, Complainant asserted that based on his protected classes, management subjected him to a hostile work environment based on several incidents where Agency officials took actions that seemed adverse or disruptive to him. The Commission concludes that Complainant failed to show that he was subjected to a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence in the record that discriminatory animus played a role in any of the Agency's actions. For example, DP duties were not removed from Complainant’s position description because DP duties were never part of Complainant’s position description under both the NSPS and GS system. ROI, at 274. Further, CW1 was awarded the Civilian of the Year award for her technical achievements, including some of her DP-related work. Id. at 275, 288. Finally, CW1 was converted to a GS-13 when the Agency switched to the GS system from the NSPS system in 2010. Id. at 289. At the time of the conversion, CW1 was classified as a YD-2, which encompassed the GS-9 to GS-13 grades. Id. CW1’s salary was equivalent to the GS-13 level; therefore, the Agency re-classified her as a GS-13 during the conversion. Id. Complainant was not in competition for any promotion with CW1, and there is no evidence that Complainant was denied any promotion opportunities. 0120140843 5 The Commission finds that Complainant has not proffered any evidence showing that the Agency's explanation was a pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination or a hostile work environment as alleged. 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 Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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 0120140843 6 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 April 8, 2016 Date Copy with citationCopy as parenthetical citation