Leif S.,1 Complainant,v.Ryan McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 17, 2019

0120182390 (E.E.O.C. Dec. 17, 2019)

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

Leif S.,1
Complainant,

v.

Ryan McCarthy,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120182390

Hearing No. 420-2014-00045X

Agency No. ARCHEHUNTV12JUN02716

DECISION

On June 25, 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
May 14, 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are whether Complainant established that the Agency discriminated against
him and whether the Agency subjected Complainant to a hostile work environment based on his
race, color, age, disability, and in reprisal for prior protected EEO activity.

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 worked as an Instruction Systems
Specialist, GS-1750-12, at the Agency’s Engineering and Construction Training Division, U.S.
Army Corps of Engineers Learning Center at the University of Alabama at Huntsville in
Huntsville, Alabama.

Complainant identified his first-level supervisor (S1), a Supervisory Instructional System
Specialist, and his second-level supervisor (S2) Director, Instructional System Specialist, as the
management officials involved in his claims.

Complainant stated that between April 16 and April 20, 2012, S1 and a Student Trainee placed
him on leave without pay (LWOP) for a two-week period even though he performed work during
the relevant period.

On May 4, 2012, the Chief Value Engineer of the Corps (CVE) sent an email to S2 and carbon
copied four other individuals, stating that he was not sure who the Value Engineering course
information had been going to and that he had not received it in three years despite requesting the
information. In a subsequent email, CVE informed S2 that he had sent multiple emails to
Complainant and another individual. Complainant responded, stating that he had not received
multiple emails or any emails directly from CVE. Complainant added that he had complained in
the past about inadequate computer support and computer problems. S1 chimed in, stating that
Complainant had showed her an email indicating that CVE should receive proponent information
for Value Engineering, to which Complainant stated, “What was the purpose of the email below?
It implies that what I wrote in my email was not true.” In response, S1 informed Complainant that
what he wrote in his email presented an incomplete picture and asserted that Complainant had been
informed in March 2012 that the proponent should have changed to CVE. S1 stated that
Complainant’s computer problems were not involved and questioned the purpose of
Complainant’s email.

Complainant stated that on or about May 8, 2012, S1 visited his office to discuss a Memorandum
for the Record (MFR) that he declined to sign. Complainant asserted that during the conversation,
he asked S12 why she favored White employees over others. Complainant averred that S1
responded that she would not let Complainant get away with his question; that Complainant was
wrong; and that she would do something about his questioning. On May 9, 2012, S1 emailed
Complainant requesting that he return the MFR regarding Complainant’s non-attendance at a
conference. S1 informed Complainant that he needed to sign the MFR or indicate his refusal to
sign by the close of business that day. Complainant informed S1 that he was declining the MFR,
as he felt that it did not accurately reflect the circumstances surrounding his non-attendance at the
conference and implied that he was not a responsible person.

2 We note that S1 is of the same race as Complainant.
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Complainant stated that between April 23 and May 25, 2012, his external hard drive was removed
from his desk. Complainant contended that either S1 or S2 provided authorization for the removal
of his hard drive to harass him and cause him stress.

Complainant stated that on May 29, 2012 and other dates, he was available to serve as Acting
Division Chief in S1’s absence, but S1 provided the opportunities to his coworkers (CW1 and
CW2). Complainant averred that S1 denied him the opportunity to cross-train when S1 named his
coworkers as the individuals to contact in the event of urgent matters during S1’s absence.

On September 18, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(African-American), color (Black), disability (physical), age (64), and in reprisal for prior
protected EEO activity arising under Title VII when:

1. On April 16-20, 2012, he was placed on LWOP;

2. On May 4, 2012, S1 sent him and five others an email that was untrue and projected
him in a bad light;

3. On May 8, 2012, S1 gave Complainant a MFR that implied he was not a responsible
person, which he declined to sign;

4. On May 8, 2012, S1 responded to Complainant’s question about why she “favor[ed]
the White employees over others” by saying “if you think I’m going to let you get
away with this you are wrong; I’m going to do something about this.”

5. On April 23, and May 25, 2012, Complainant’s external hard drive was taken from
the office; and

6. On May 29, 2012, S1 denied Complainant the opportunity to cross-train as the
Division Chief in her absence.

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. The AJ dismissed the hearing request on the grounds that
Complainant failed to comply with an order. The AJ remanded the complaint to the Agency for a
final agency decision (FAD). Thereafter, upon review of the Agency’s original partial acceptance
of Complainant’s claims, the Agency accepted Complainant’s previously dismissed claims. The
Agency investigated the additional claims and 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.

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In the FAD, the Agency found that Complainant failed to establish a prima facie case of harassment
because he failed to show by the preponderance of the evidence that the incidents of alleged
harassment occurred as alleged and/or were prompted by his protected EEO activity. The Agency
stated that assuming, for the sake of argument, that Complainant met his burden of establishing a
prima facie case on the bases claimed, management’s responses to Complainant’s contentions were
examined and found to be legitimate and nondiscriminatory. The Agency added that moreover,
Complainant failed to show that the Agency’s reasons were pretext for discrimination.

Regarding incident (1), witnesses testifying in support of management explained that Complainant
had a recurring problem with complying with the requirements for documenting his time and
attendance. The Agency noted that the record established that management’s articulated reason
for placing Complainant on LWOP was his refusal to appropriately submit his timesheet by the
relevant date. The Agency stated that Complainant provided no evidence that other employees
were treated more favorably after engaging in similar conduct and there was nothing in the record
to support his contention that he was singled out based on his protected classes.

With respect to incident (2), the Agency determined that the text of S1’s emails provided
legitimate, nondiscriminatory explanations for her decision to send the email confronting
Complainant about the excuses he offered for failing to properly identify the individual who should
have received proponent information.

As for incident (3), the Agency asserted the neither Complainant nor the Agency provided copies
of the MFR in question. However, the Agency stated that to the extent that the email
correspondence contained in the record reflected the concerns of the MFR, the concerns appeared
to have been based on legitimate managerial concerns about Complainant’s seemingly
unwarranted overreaction to a coworker’s involvement in taking and conveying messages
regarding the arrangements for assembling course materials.

Regarding incident (4), the Agency found that the record did not support a finding that the incident
occurred as alleged. Specifically, Complainant failed to describe the overall context for the alleged
exchange and the record contained no additional evidence substantiating Complainant’s claim that
S1 made the statement. While a witness indicated that he felt S1 favored White employees based
on her hiring practices, that same witness asserted that S1 had “pets”, but they were not based on
protected status or race.

As to incident (5), the Agency determined that based on the testimony, there was no basis for
determining that the incident occurred as alleged. There was no reliable evidence that anyone
removed Complainant’s hard drive and S2 testified that there was no authorized removal of
Complainant’s hard drive. Moreover, Complainant failed to provide evidence to rebut the
assertion.

With respect to incident (6), the Agency found that the preponderant evidence supported a finding
that S1 rotated duties to serve as Acting Chief in her absence among her three GS-12 employees.
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Email evidence indicated that S1 selected CW1 most often, followed by Complainant, and CW2
served the least. The Agency noted that Complainant and CW1 are in the same protected classes
with respect to age, sex, race, disability, and prior EEO activity. Accordingly, the Agency stated
that the record provided no basis to conclude that the favorable treatment CW1 received was based
on any protected class.

In considering Complainant’s harassment claim, the Agency determined that even if the individual
incidents were considered as a single ongoing course of conduct, Complainant failed to provide
sufficient evidence showing that he was subjected to discriminatory harassment based on his
protected classes. Additionally, the Agency found that the record contained insufficient evidence
to support a finding that the incidents Complainant challenged in his complaint and/or the
additional incidents he mentioned in his testimony occurred as alleged and/or were prompted by
discriminatory animus based on age, race, color, disability, or protected activity.

CONTENTIONS ON APPEAL

On appeal, the Agency argues that Complainant failed to timely submit a brief in support of his
appeal and that the Commission should not consider Complainant’s “Reply to Agency’s Brief in
Opposition to Complainant’s Appeal.” In response, Complainant asserts that he did not submit a
brief in support of his appeal because there was sufficient evidence to find in his favor.
Complainant maintains that the finding of no discrimination was improper, and the FAD should
be reversed.

ANALYSIS AND FINDINGS

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

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. Co. 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.
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The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Tex. 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 Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000);
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, age, disability, and reprisal, we find that the Agency articulated legitimate,
nondiscriminatory reasons for the actions taken by Agency management. As described above,
regarding claim (1), S2 recalled that S1 had difficulty getting Complainant to submit his time on
several occasions but denied directing S1 to place Complainant on LWOP status. Supplemental
ROI (SROI), at 35. The timekeeper testified that Complainant was placed on LWOP due to his
failure to submit his timesheet within the deadline for submission. Id. at 65B. She affirmed that
Complainant had a history of non-compliance with his timesheet and based on that history, S1
directed her to code Complainant’s time as LWOP. Id. However, Complainant was subsequently
paid for the time in question. Id.

With respect to claim (2), the record includes email correspondence from May 4, 2012, in which
S1 stated that Complainant presented an incomplete picture in his response to an Agency
proponent. ROI, at 93-97, 100, 108. While Complainant contends that S1’s email was untrue and
portrayed him in a negative light, a review of the email correspondence does not support
Complainant’s allegations that S1 acted with discriminatory or retaliatory animus when responding
to Complainant’s email. Likewise, regarding claim (3), the record includes email correspondence
that indicates that S1 issued the MFR following a conversation with Complainant when
Complainant failed to attend a conference and the email does not suggest that S1 acted with
discriminatory or retaliatory animus. Id. at 85.

As for claims (4) and (5), we agree with the Agency that Complainant failed to establish that the
incidents occurred as alleged. S2 asserted that no other employees brought complaints of race-
based preference against S1. SROI, at 37. As for the hard drive incident, S2 recalled that
Information Technology investigated Complainant’s allegation along with S1, but there was never
resolution and it was unknown whether Complainant’s hard drive was removed, lost, or misplaced.
Id. S2 affirmed, however, that there was no authorized removal of Complainant’s hard drive. Id.
at 38.

Regarding claim (6), the record indicates that S1 rotated through employees to serve as Acting
Chief in her absence. ROI, at 127-129, 195, 224. S2 noted that Complainant had the opportunity
to serve as Acting Chief at least three times during the relevant period, which was equal to or more
than his GS-12 coworkers. Id. at 195.

We find that Complainant has not shown that the proffered reasons were pretext for discrimination.

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Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05. We do not
find any evidence showing that the Agency’s reasons are not worthy of credence or that the Agency
acted with discriminatory animus. Moreover, Complainant has not shown pretext for
discrimination, and has not proven by a preponderance of the evidence that the Agency
discriminated against him based on his protected classes or for his prior protected EEO activity.

Harassment

To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily
protected claim; (2) they were subjected to harassment in the form of unwelcome verbal or physical
conduct involving the protected class; (3) the harassment complained of was based on their
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). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance
on Harris V. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

With respect to harassment and a hostile work environment, the evidence does not support
Complainant’s claim because the actions of which he complains do not rise to the requisite level
of severity or pervasiveness. Also, there is no nexus between the alleged actions and
Complainant’s protected classes. We note that even if the matters occurred as alleged by
Complainant, the anti-discrimination statutes are not civility codes. Rather, they forbid “only
behavior so objectively offensive as to alter the conditions of the victim’s employment. Oncale v.
Sundowner Offshore Serv., Inc., 523 U.S. 75. 81 (1998). Complainant has not demonstrated that
he was subjected to a discriminatory or retaliatory hostile work environment.

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 that Complainant
was not discriminated against as alleged.

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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

December 17, 2019
Date