Major D.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionNov 7, 20180120171107 (E.E.O.C. Nov. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Major D.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120171107 Agency No. 15-00164-02212 DECISION On January 10, 2017, 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 December 9, 2016, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Electronics Engineer, ND-0855-04, at the Agency’s work facility in Crane, Indiana. On August 31, 2015, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him and subjected him to a hostile work environment on the bases of age (46) and in reprisal for prior protected EEO activity when: 1. On September 10, 2014, during the section meeting, the Section Manager (S1) discussed that the previous Division Manager was coming back to the Division, and proceeded to “talk trash” about that previous manager. 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. 0120171107 2. On October 7, 2014, during the program review, S1 started to “talk trash about several people in [Complainant’s] group and used different references about wife beating and President Obama.” 3. On February 9 or 10, 2015, S1 used offensive language in the workplace. 4. On March 27, 2015, S1 gave Complainant his final performance review, continuing his practice of age discrimination by giving him only a fraction (.25) of a continuing pay point. 5. On March 27, 2015, S1 issued Complainant a Letter of Reprimand. 6. On March 21, 2016, the Division Supervisor, S2, denied Complainant’s request for reconsideration for more pay points, after Complainant only received a fraction of a continuing pay point and no bonus point for his performance in 2015. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. With regard to claim (1), the Agency stated that Complainant contended that at a section meeting on September 10, 2014, S1 remarked that the previous Division Manager was a joke and was not very competent. The Agency stated that Complainant acknowledged that he did not know if the incident was discriminatory toward him, but he maintained that it is an example of a hostile work environment. The Agency noted that S1 asserted he does not know what Complainant is referring to with respect to the September 10, 2014 meeting. With regard to claim (2), the Agency determined that Complainant claimed that during a meeting with as many as 20 participants, S1 used foul language and made comparisons of wife beating and his negative opinion of President Obama with the sister company and their product. The Agency noted that Complainant admitted the remarks were not reprisal against him, but that Complainant claimed that some of the comments were about older individuals who did not share S1’s way of thinking. The Agency observed that S1 asserted that at the meeting at issue he was upset about the contractor company’s lack of action. According to S1, the comments should not have been relevant to Complainant because he is not African-American and does not have a wife. In terms of claim (3), the Agency stated that Complainant claimed he overheard S1 speak to an employee in the cubicle area and that S1 stated he received an email from the Union saying that someone heard him use foul language and talk down to an employee. According to Complainant, he did not deal directly with S1 concerning his perceived hostile work environment because they were barely speaking to each other and S1 would not accept anything he told him. The Agency noted that S1 asserted that he does not recall using offensive language on the dates in question. 0120171107 S1 maintained that he had a good relationship with the Union, and there was never a Union complaint concerning his language. The Agency stated that the Task Lead (W1) noted that behind closed doors S1 referred to Complainant being worthless as a worker and his performance being subpar. W1 stated that S1 also discussed Complainant in inappropriate ways in the presence of others. W1 claimed that S1 asked him to document Complainant’s actions so he could take disciplinary action against him since he considered Complainant a subpar employee. According to W1, S1 spoke about others in a similar manner as he regarded them as not on board with his plans. The Agency stated that a managerial inquiry conducted on October 21, 2015, revealed that 10 of 11 interviewed employees stated that S1 used harsh language, and nine agreed that the work environment was uncomfortable. The Agency further stated that S1 was removed from his position as Section Manager in November 2015. With regard to claim (4), Complainant received .25 of a continuing pay point for his performance in 2014, and Complainant maintained that he deserved a full point. The Agency noted that Complainant argued that age discrimination occurred because most of the older employees received similar amounts of CPPs as he did, and the younger employees in contrast received three or four CPPs, and some also received bonus points. Complainant argued that S1 believed that employees over the age of 40 made sufficient money and therefore he gave the pay points to younger engineers. The Agency observed that Complainant also argued that reprisal occurred as S1 did not approve any training for him, did not allow him to travel, and did not allow him to obtain information he needed to acquire more continuous learning points (CLPs). Complainant claimed that his inability to earn the requisite 80 CLPs was another reason he was not awarded more CPPs. According to Complainant, he could not earn 80 CLPS due to S1’s rejection of his requests for training by either not responding to him or by responding only after the deadline to register for the class. The Agency noted that Complainant argued that S1 and the Branch Manager, S3, waited until after the two-year CLP period had passed before they informed him he could have included events he had participated in, such as program reviews and weekly reviews, that would have counted toward his 80 hours of CLPs. S1 asserted that Complainant’s performance for 2014 was significantly below his level of pay. According to S1, Complainant also had conduct issues concerning meeting his training requirements and had been disciplined in January or February 2015 for those matters. S1 explained that the criteria he and S3 utilized was based on a policy which required that they consider the employee’s value to the organization and growth, and take into consideration the employee’s current salary. S1 maintained that he and S3 preferred to issue Complainant zero CPPs rather than .25 CPPs, but that would have obligated them to do an additional write-up. S1 asserted that his younger employees on average received more CPPs than his older employees because pay for performance was at issue. S1 maintained that the highest performers were those who were under 40 years of age, but their salaries were significantly less than the lower performers. S1 stated that five of his six younger employees were in high-level project management positions requiring more responsibility, technical focus, employee development and oversight. 0120171107 With respect to claim (5), S3 asserted that Complainant was issued the Letter of Reprimand because he failed to follow instructions in recording Defense Acquisition Workforce Improvement Act (DAWIA) CLPs. S3 stated that both he and S1 discussed the matter with Complainant by sending him email reminders, and the Agency’s electronic Defense Acquisition Career Management (eDACM) system sent Complainant automatic reminders. S3 maintained that he informed Complainant that CLPs were a requirement of the position and that he told Complainant what events in which he participated would qualify as CLPs if he were to enter them into eDACM. S1 stated that he has not given a Letter of Reprimand to any of his other employees. S1 asserted that by documenting only two hours of continuous learning over a ten-year period, Complainant exhibited a willful passive/aggressive behavior that affected the morale of the organization. Complainant contended that S1 did not counsel him that action could be taken against him if he did not complete 80 CLPs until several months after the CLP two-year period had expired. Complainant claimed that his computer had a virus in November 2014, and it was wiped clean, so he could not enter CLPs. According to Complainant, he did not receive guidance on what qualified as an allowable CLP, and management did not assist him in taking training he needed to earn the CLPs. Complainant acknowledged that he did not research what events could receive credit as CLPs. Complainant maintained that he entered CLPs into eDACM but that S1 disallowed some of his entries because they were mandatory training events and did not fall under the purview of what could be considered as CLPs. The Lead Labor and Employee Relations Specialist stated that management’s use of the Letter of Reprimand complied with the regulatory directives and guidelines as it was the lowest level of formal discipline. The Lead Labor and Employee Relations Specialist asserted that disciplinary action was warranted as Complainant had been instructed on four occasions from June 30, 2014 to February 9, 2015, to enter his 80 DAWIA CLPs into the eDACM system, but he never did so. S1 stated that after contacting Complainant on February 9, 2014, he gave Complainant until February 12, 2014, to complete the task before initiating disciplinary action. As for claim (6), Complainant stated that since S1 had been removed as the Section Manager, he asked S3 to reconsider the .25 pay points he received. The Agency noted that Complainant argued that he should have received more pay points because he was performing work outside of his job description, such as draftsman duties and work as a technical writer. Complainant further stated that he was the subject matter expert for two older systems. Complainant stated that S3 denied his request for reconsideration on the basis that his written request did not justify any change to his pay points. Complainant subsequently requested reconsideration from the Division Supervisor, S2. S2 denied the request stating that Complainant did not provide any reasons to justify changing his pay points as what he provided as justification consisted of his normal job responsibilities. According to S2, Complainant’s execution of draftsman level work is work at a lower level, his being a subject matter expert for two older systems is not an indication of going above and beyond, and he was not able to show her that his duties were truly outside of those written in his job description. S2 further noted that Complainant received a Letter of Reprimand during the performance period. 0120171107 Assuming arguendo Complainant set forth a prima facie case under the alleged bases, the Agency determined that it articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim (4), S1 stated that Complainant’s performance was below his level of pay, he had conduct issues and he failed to complete his CLP hours. With regard to Complainant’s attempt to establish pretext, the Agency pointed out that Complainant was not a high-level performer. As to Complainant’s argument that younger employees were favored, the Agency asserted that five of the six Engineers under age 40 were involved in high level project management and had lower salaries, which resulted in higher CPP points once their performance was calculated. In terms of claim (5), the Agency stated that its reason for issuing the Letter of Reprimand was Complainant’s failure to complete 80 hours of CLPs and enter them into eDACM. The Agency rejected Complainant’s attempt to establish pretext. The Agency pointed out that Complainant conceded he was not aware of the identities of the individuals who he claimed failed to complete the CLP hour requirement but were not disciplined. The Agency stated that the Letter of Reprimand was based on Complainant’s conduct. With regard to claim (6), the Agency determined that Complainant set forth a prima facie case of reprisal. The Agency noted that S2 stated that the document Complainant provided did not list any accomplishments that went beyond the average expectation for his position. S2 stated that she granted a reconsideration request to an employee that she believed provided adequate justification. The Agency determined that Complainant failed to establish pretext. The Agency noted that S2 granted a reconsideration request to an individual who was older than Complainant and had prior EEO activity. In terms of Complainant’s harassment claim, the Agency determined that Complainant failed to demonstrate that he was subjected to unwelcome verbal or physical conduct based upon his age or prior EEO activity. The Agency noted as to the incidents specified in claims (1) – (3) that Complainant acknowledged that none of the comments were directed at him and that he did not report the conduct to anyone. The Agency stated that while Complainant claimed that S1 made comments about older individuals who did not agree with him, he did not specify what the comments were or indicate the comments were age-related. The Agency pointed out that other employees reported S1’s use of inappropriate language and that subsequently S1 was removed from his position. The Agency further stated that the alleged behavior failed to rise to the level of severity or pervasiveness necessary to create a hostile work environment. As a result, the Agency found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. 0120171107 CONTENTIONS ON APPEAL On appeal, Complainant contends that the final decision did not use the spreadsheet of pay points that showed the continued discrimination against people over the age of 40 and that the Agency included other people that are not in the same pay pool as he is to show a different picture of what has been occurring. ANALYSIS AND FINDINGS 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). He must generally 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. Corp. 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. To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). With regard to Complainant’s claims of disparate treatment in claims (4) – (6), we shall assume arguendo that Complainant set forth a prima facie case of discrimination under the alleged bases. In terms of claim (4) and Complainant only receiving .25 of a pay point, S1 asserted that Complainant’s performance for 2014 was significantly below his level of pay. According to S1, Complainant also had conduct issues concerning meeting his training requirements and had been disciplined in January or February 2015 for those matters. As for claim (5), S3 asserted that Complainant was issued the Letter of Reprimand because he failed to follow instructions in recording DAWIA CLPs. S3 stated that both he and S1 discussed the matter with Complainant by sending him email reminders, and the eDACM system sent Complainant automatic reminders. S3 maintained that he informed Complainant that CLPs were a requirement of the position and that he told Complainant what events in which he participated would qualify as CLPs if he were to enter them into eDACM. With respect to claim (6), S2 stated that the document Complainant provided did not list any accomplishments that went beyond the average expectation for his 0120171107 position. S2 denied the request stating that Complainant did not provide any reasons to justify changing his pay points as what he provided as justification consisted of his normal job responsibilities. We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions in claims (4) – (6). In attempting to establish pretext, with regard to claim (4), Complainant contends that S1 did not approve any training for him, did not allow him to travel, and did not allow him to obtain information he needed to acquire more CLPs. Complainant also claims that most of the older employees received similar amounts of CPPS as he did, and the younger employees received three or four CPPs while some also received bonus points. Complainant argues that S1 believed that employees over the age of 40 made sufficient money and therefore he gave the pay points to younger engineers. Complainant, however, has not refuted the Agency’s assertion that his performance was below his level of pay and not of sufficient quality to merit more pay points. For example, the record indicates that Complainant was untimely at times in completing his assignments. Moreover, Complainant did not fulfill the requirement to obtain 80 CLPs. Further, the Agency added that four engineers in Complainant’s section who were over 40 received one or more CPPs and two engineers under age 40 received less than or equal to the amount of CPPs that engineers over 40 received. We find that Complainant has not established pretext with regard to the Agency’s explanation for issuing him .25 pay points. With respect to claim (5), Complainant argues that S1 did not inform him that he could be subjected to disciplinary action regarding the CLPs until several months after the CLP two-year period had expired. Complainant claims that his computer had a virus in November 2014, so he could not enter CLPs. According to Complainant, he did not receive guidance on what qualified as an allowable CLP, and management did not assist him in taking training he needed to earn the CLPs. However, the Lead Labor and Employee Relations Specialist stated that disciplinary action was appropriate given Complainant had been instructed on four occasions from June 30, 2014 to February 9, 2015, to enter his 80 DAWIA CLPs into the eDACM system, but he never did so. S1 stated that after contacting Complainant on February 9, 2014, he gave Complainant until February 12, 2014, to complete the task before initiating disciplinary action. Complainant failed to comply. We find that Complainant has failed to establish that the Agency’s reasons for issuing him the Letter of Reprimand was pretext intended to hide discriminatory motivation. In terms of claim (6), Complainant contends that he should have received more pay points because he was performing work outside of his job description, such as draftsman duties and work as a technical writer. Complainant also claims that he was the subject matter expert for two older systems. We find that these arguments are not sufficiently persuasive to refute the Agency’s explanation for denying Complainant’s reconsideration request. Therefore, we find that Complainant has not established that he was subjected to discrimination as to these claims. Hostile Work Environment 0120171107 To establish this claim, 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 determining that a working environment is hostile, factors to consider are the frequency of the alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating, and if it unreasonably interferes with an employee’s work performance. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); EEOC Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). Upon review of the alleged acts of harassment, we discern that the work environment at the Agency facility reflected discord and resentment. S1 was responsible to a large degree for the significant strains that permeated the work environment. In fact, an Agency investigation resulted in S1 being removed from that position. However, there is insufficient evidence to establish that the alleged harassment was directed at Complainant. The remarks at issue in claims (1) and (2) were clearly not directed at Complainant. There is insufficient evidence to suggest that the foul language at issue in claim (3) was focused toward Complainant. Moreover, the record indicates that S1’s hostility toward Complainant and certain other employees was based on their alleged inadequate job performance by his standards rather than their age or prior EEO activity. With regard to claims (4) – (6), as we have stated, we discern no discriminatory or retaliatory motivation was involved in the actions at issue. We find that whether considered individually, or cumulatively, the incidents alleged by Complainant, did not constitute harassment against Complainant based on his age or prior EEO activity. CONCLUSION The Agency’s determination that no discrimination occurred is AFFIRMED. 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. 0120171107 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. 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. 0120171107 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 November 7, 2018 Date Copy with citationCopy as parenthetical citation