Matt B.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 20, 2018

0120161922 (E.E.O.C. Jun. 20, 2018)

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

Matt B.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120161922

Agency No. AREUVICEN14DEC04763

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated March 31, 2016, dismissing and/or finding
no discrimination concerning his 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. For the following reasons, we AFFIRM the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Fitness/Sports
Program Specialist, NF-0030-04, Sport, Fitness and Aquatics (SFA), Community Recreation
Division (CRD), U.S. Army Garrison (USAG) Vicenza, Vicenza, Italy. On December 30, 2014,
Complainant contacted an EEO Counselor regarding his complaint. Complainant filed his
formal complaint on February 4, 2015, alleging discrimination based on race (African-
American), color (black), sex (male), age (over 40), and in reprisal for prior EEO activity when
he was subjected to harassment (sexual and nonsexual) in that:

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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(1) In 2009, his supervisor (S1) held a Supervisory Recreation Assistant position open for a
year before selecting a male employee (E1) over him, thereby denying him an
opportunity for advancement and promotion;

(2) In February 2011, he was denied recognition for his contributions in transforming the
facilities at the “Luna Bubble” into a Mission Essential/Cross Fit Physical Training
Facility, even though S1 and four other managers were presented an Achievement Civil
Service Award for their actions concerning the project;

(3) In December 2011, while he was on leave, S1 moved his personal belongings out of his
office to an open area that was accessible to other employees; at the same time E1 was
allowed to have a private office;

(4) In December 2012, S1, E1, and a female coworker went on a Temporary Duty (TDY)
business trip to the Athletic Business Conference (ABC) in the United States while he
was not selected to attend;

(5) In January 2013, S1 excluded him from taking part in the brainstorming team discussion
about the Athletic Battle Series (ABS), an activity with various competitive and skill
events;

(6) At various times between March 10 - 12, 2014, he was subjected to sexual harassment
when S1 put a caricature on his desk and the wall near his desk; the caricature depicted a
unicorn with his tongue hanging out, spitting out the colors of a rainbow, showing an
erect penis and testes with the slogan “Get Busy;”

(7) Between March 2013, and October 2014, while S1 was the Acting Chief of CRD, he
delegated E1 to be the Acting Supervisory Sports Specialist instead of him;

(8) On November 20, 2014, his Director informed the SFA staff that S1 and E1 were being
selected to permanently fill the positions they had been acting in; and three other
identified employees, including one who later became his new supervisor (SS1) were
promoted while he was denied opportunity for advancement;

(9) On December 16, 2014, during an office holiday party, the Director presented awards for
years of civilian service to S1 and E1 while he received no award in recognition of over
30 years of service; and

(10) On December 19, 2014, SS1 informed him that his normal work schedule of 8:00
am to 5:00 pm would be modified to extend the end of his shift to 8:30 pm during
sporting events.

After completion of the investigation of the complaint, Complainant requested a final Agency
decision without a hearing before an EEOC Administrative Judge (AJ). The Agency then issued
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its final Agency decision dismissing “most” of the claims, without specifically identifying the
claims, due to untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2) since
they were distinct actions. The Agency nevertheless for the sake of argument asserted
legitimate, nondiscriminatory reasons for its actions in the complaint, which Complainant failed
to rebut.

ANALYSIS AND FINDINGS

Initially, the record indicates that the incidents in claims (1) through (7) occurred from 2009, to
October 2014. Complainant, however, did not contact an EEO Counselor regarding claims (1) –
(7) until December 30, 2014, which was beyond the 45-day time limit set by the regulations. We
find that Complainant should have reasonably suspected discrimination more than 45 days prior
to his initial EEO Counselor contact. Complainant does not indicate that he was not aware of the
requisite time limit to contact an EEO Counselor at the relevant time. On appeal, Complainant
does not provide any evidence to warrant an extension of the applicable time limit for contacting
an EEO Counselor. Thus, we find that the Agency properly dismissed claims (1) – (7) due to
untimely EEO Counselor contact. 29 C.F.R. § 1614.107(a)(2). We will consider these claims
for the purpose of our analysis regarding Complainant’s harassment claim.

Turning to claims (8), (9), and (10), 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), Chap. 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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. At the relevant time, Complainant was a Fitness/Sports
Program Specialist, NF-4, in USAG Vicenza, Italy. As Sports Program Specialist,
Complainant’s duties involved supporting the development, coordination, and assessment of
comprehensive community recreation programs for military, family, and civilian personnel at
USAG Vicenza.

Regrading claim (8), Complainant clarified that he was not claiming S1’s selection was
discriminatory; rather he was claiming that E1’s selection was discriminatory. S1 indicated that
E1 was placed into the role of Recreational Program Manager based on his skill set, experience,
and training. S1 stated that the job was outside of SFA and Complainant did not apply (or show
interest) for the position. S1 stated that Complainant repeatedly declined opportunities for
reassignment and acting roles. S1 stated that Complainant never indicated his interest or
willingness to be promoted. Furthermore, S1 stated that S1 also asked Complainant to update his
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resume and Individual Development Plan but Complainant never did. S1 also indicated that in
December 2013, although Complainant was offered, he declined an opportunity to become a
fitness center manager. SS1 was thus selected for reassignment to that position of fitness center
manager. SS1 later received a lateral transfer back to his previous job title, with no change in his
pay or grade.

Regarding claim (9), the Director denied he discriminated against Complainant not giving him
his service award during the December 2014 holiday party. The Director indicated that
Complainant was not due his 35-year service award until November 2015. We note that the
record reflects that Complainant’s service computation date was November 29, 1980.

Regarding claim (10), SS1 acknowledged that at the relevant time, SS1 asked Complainant to
adjust his duty hours starting January 8, 2015, to be present for nighttime basketball games; and
SS1 also told him that if he could not make it for a game, SS1 would fill in. SS1 indicated that at
the relevant time, he believed that it was necessary for Complainant to be present at the
basketball games in order to supervise crowd control and evaluate his program, facility, and
officiating crew. SS1 noted that Complainant’s performance standard stated that duty hours
could change based on program needs. Complainant’s coworkers indicated that SS1 also
changed their duty hours several times and their duty hours were highly irregular and dynamic
since they needed to be present for all of the facility events and activities.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination and we find that Complainant failed to
show he was subjected to a discriminatory hostile work environment. After a review of the
record, we find that Complainant failed to show that there were any similarly situated employees
not in his protected groups who were treated differently under similar circumstances.

CONCLUSION

The Agency’s final decision dismissing claims (1) – (7) due to untimely EEO Counselor contact
and finding no discrimination regarding claims (8) – (10) is AFFIRMED.2

2 On appeal, Complainant raises a new incident of a constructive discharge effective August
31, 2017. Complainant should contact an EEO Counselor, if he has not already done so,
regarding the alleged constructive discharge if he wishes to further pursue such a claim via the
EEO complaint process. 29 C.F.R. § 1614.105.
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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

June 20, 2018
Date