Kristopher M.,1 Complainant,v.Thomas B. Modly, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 7, 2020

Appeal No. 2019000258 (E.E.O.C. Jan. 7, 2020)

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

Kristopher M.,1
Complainant,

v.

Thomas B. Modly,
Acting Secretary,
Department of the Navy,
Agency.

Appeal No. 2019000258

Hearing No. 510-2016-00271X

Agency No. DON-15-65886-01559

DECISION

On August 27, 2018, 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 8, 2018, 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., Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the
Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented herein is whether Complainant established that he was subjected to
harassment and disparate treatment due to his protected bases from February 11, 2015 until his
termination on April 17, 2015.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant was hired on February 9, 2015,
as an Electrical Engineer, GS-0855-09, at the Agency’s Fleet Readiness Center Southeast, Naval
Air Station in Jacksonville, Florida. His first-line supervisor during this time was the Supervisor
Engineer (Supervisor) and his second-line supervisor was the Competency Department Manager
(Manager). Complainant was terminated from his position during his probationary period on
April 17, 2015.

On June 22, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (African), national origin (Nigerian), disability (Clinical
Depression), genetic information (mental disabilities and family medical history), age (42), and
in reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation
Act. Complainant alleged the following claims of harassment:

1. He was subjected to harassment based on his race, national origin, disability,
genetic information, age, and reprisal, which led to his termination on April 17,
2015. Complainant alleged that the following events occurred:
a. On February 11, 2015, the Supervisor asked about Complainant’s age and
marital status.
b. On February 24, 2015, the Supervisor informed the Security Department of
Complainant’s mental disability.
c. On February 24, 2015, the Supervisor informed the Security Department that
Complainant was not qualified to obtain a security clearance.
d. On February 24, 2015, the Supervisor asked Complainant if anyone in his
family has mental problems.
e. On February 24, 2015, the Supervisor asked Complainant what type of
medication he takes for his mental health.
f. On February 24, 2015, the Supervisor asked Complainant if he has attempted
suicide.
g. On February 24, 2015, the Supervisor asked Complainant what types of
medical problems his family has.

2. Complainant alleged that he was subjected to harassment on the bases of race,
national origin, disability, age, genetic information, and reprisal, from February
25, 2015 to March 9, 2015, culminating in his termination on April 17, 2015. In
support of this claim of harassment, Complainant alleged that the following
events occurred:
a. SECSPE (Security Specialist), SECOFF (Security Officer), the Supervisor,
and the Manager stated that people with mental health issues are not allowed
to work in the U.S. Military.
b. Complainant’s Nigerian passport was rejected by the Security Specialist and
the Security Officer due to EEO activity when Complainant made them aware
of racism.
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c. The Supervisor and the Manager asked Complainant if he had taken his
medication for his mental disability.
d. More than 15 co-workers questioned where Complainant was from and how
Complainant was hired as an Electrical Engineer.
e. The Supervisor disclosed Complainant’s mental disability to Complainant’s
co-workers.
f. The Supervisor advised employees to keep an eye on 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 EEOC
Administrative Judge (AJ). Complainant requested a hearing, but the AJ dismissed the hearing
request on June 19, 2018. The AJ remanded the complaint to the Agency, and the Agency issued
a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

Complainant appealed without specific comment or argument. We note that he made an
untimely request to extend the time period in which he could submit an appeal brief, which was
denied. The Agency provided the Commission the complaint record for review, with no
statement in opposition to the appeal.

ANALYSIS AND FINDINGS

The Commission notes that Complainant did not appeal the AJ’s decision to dismiss the hearing
and we discern no reason to review the AJ’s decision. We shall only address Complainant’s
appeal of the Agency’s final decision finding no discrimination.

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R.
§ 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R.
§ 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part
1614 (EEO MD-110), at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard
of review “requires that the Commission examine the record without regard to the factual and
legal determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the
parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

Disparate Treatment - Termination

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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For Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the
evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Complainant alleged that he was subjected to discrimination which culminated in his termination
on April 17, 2015. Complainant has alleged that he was subjected to disparate treatment as well
as harassment. We shall address Complainant’s claim of disparate treatment first. For the
purposes of analysis, we assume Complainant is an individual with a disability. 29 C.F.R.
§ 1630.2(g)(1).

A review of the record indicates that the Manager terminated Complainant during his
probationary period for his failure to demonstrate fitness for continued federal employment. One
specific example provided by the Manager in his affidavit was that Complainant failed to
relinquish his Nigerian passport when initially requested and in a timely manner. As such, an
incident report was filed against Complainant which was submitted to the Agency’s Central
Adjudication Facility. The Manager indicated that he issued the Notice of Termination with
consultation with the Office of Legal Counsel and the Agency’s Human Resources Office. The
Security Officer also noted that Complainant failed to relinquish his Nigerian passport upon the
Agency’s initial request and that the matter was reported to the Agency’s Central Adjudication
Facility. He also informed management of Complainant’s interactions regarding this issue and
provided guidance on the requirements involving dual citizenship and foreign passports as they
relate to security eligibility. The Security Specialist averred that Complainant was asked twice
to relinquish his passport but refused to do so and only complied after the third request. The
Notice of Termination outlined the events that led to Complainant’s termination during his
probationary period as they pertained to the issue of the foreign passport. Based on our review
of the record, we find that the Agency provided legitimate, non-discriminatory reasons for
terminating Complainant.
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We turn to Complainant to establish that the Agency’s reasons were pretext for discrimination.
In response to the Agency’s reasons, Complainant merely stated in his affidavit that the Agency
officials were not providing truthful responses. However, Complainant provided no support for
his assertion. Further, he does not challenge the Agency’s reason for the termination, namely his
handling of the foreign passport situation. As such, we conclude that Complainant did not show
that he was subjected to disparate treatment when he was terminated from his position during his
probationary period.

Harassment

In his harassment claims, in addition to the incident discussed above, Complainant alleged that
the Supervisor, Manager, Security Officer, and Security Specialist subjected him to harassment
when they allegedly asked him questions about his age, his marital status, his disability, his
family history, his medications, and provided information to coworkers about his medical
conditions.

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 – in this case, his race, age, national origin, disability,
genetic information, and/or retaliatory animus. Only if Complainant establishes both of those
elements – hostility and motive – will the question of Agency liability present itself.

Here, as already concluded above, there is no evidence to support a finding that Complainant’s
protected bases or prior protected activity played any role whatsoever in the decisions to
terminate him. Moreover, the responsible management officials averred that they did not engage
in the conversations alleged to have occurred as Complainant asserted. The Supervisor and the
Manager noted that Complainant was the individual who informed them that he had issues
obtaining his medication. They both indicated that they asked Complainant about his medication
situation based out of concern for Complainant. The Security Specialist averred that
Complainant brought him a binder filled with medical information. The Security Specialist
stated that he did not want to see the binder as it did not provide information he needed. All four
management officials denied making the comments alleged by Complainant. Complainant, in
response, only asserted without proof that the Agency officials were not providing truthful
responses. Without any supporting evidence or documentation, we cannot find that Complainant
has supported his claims that the alleged events occurred as he described. In sum, Complainant
failed to prove that his race, national origin, age, disability, genetic information, or retaliatory
animus played any role in the incidents he proffered as evidence of his harassment claim.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination
and/or harassment.

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.
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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

January 7, 2020
Date