Maynard K.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Commissary Agency), Agency.

Equal Employment Opportunity Commission

Feb 2, 2018

0120160262 (E.E.O.C. Feb. 2, 2018)

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

Maynard K.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.

Appeal No. 0120160262

Hearing No. 451-2012-00215X

Agency No. DECA-00210-2011

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 13, 2015
final order 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. The Commission’s review is de novo. For the following reasons, the
Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Commissary
Management Specialist in the Agency’s Workforce Development Directorate, Human Resources
Department at Fort Sam Houston in San Antonio, Texas. On October 5, 2010, Complainant was
informed that he was being reassigned, effective November 7, 2010, to Fort Lee, Virginia.
Complainant requested to remain at Fort Sam Houston, but his request was denied. Complainant
claimed that a co-worker (CW-1) was allowed to transfer her duty station to Texas.

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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Complainant reported to Fort Lee in November 2010. Complainant was supervised by a first
(S1-1) and second-level supervisor (S2). Complainant experienced numerous changes in
supervision as officials moved around the Agency during a reorganization. Complainant went
out on medical leave in January 2011, and was out for approximately two months. When
Complainant returned, he reported to a new supervisor (S1-2). Approximately three weeks later,
Complainant was informed that he would be reporting to another new supervisor (S1-3).
Complainant subsequently retired from federal employment in September 2011.

On November 10, 2011 (and amended on November 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 race (African-American) and in reprisal for prior protected
EEO activity when:

1. From January 2010 to September 2011, he was subjected to constant changes in
supervision;

2. On or about September 8, 2011 he was notified a co-worker received approval to
work from Texas when his previous request was denied;

3. He was not afforded the same opportunities as his White coworkers including acting
assignments, heavier workload, promotional opportunities, cash awards, temporary
duty travel and instructing assignments; and

4. His skills were underutilized and he was given nonspecific administrative support
tasks to perform.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the
case granted summary judgment in favor of the Agency, and issued a decision on May 31, 2015.

In the decision, the AJ determined that Complainant failed to establish a prima facie case of
discrimination and reprisal to all claims. More specifically, the AJ found that Complainant failed
to show that similarly situated employees outside of his protected classes were treated more
favorably than he was. In addition, the AJ determined that Complainant failed to show that the
identified management officials knew of his prior protected EEO activity. Further, the AJ

2 On May 26, 2015, the EEOC Administrative Judge (AJ) assigned to the mater dismissed
several additional claims as untimely raised with an EEO Counselor. Complainant raised no
challenges to the dismissal of these claims on appeal; therefore, the Commission exercises its
discretion to review only the issues specifically raised in Complainant’s appeal and declines to
review uncontested aspects of the final order. The Commission will, however, consider these
claims as background evidence in support of Complainant’s overall hostile work environment
claim.
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concluded that Complainant failed to show a nexus between his race and prior protected EEO
activity and any of the alleged incidents. With respect to his hostile work environment claim, the
AJ determined that the alleged incidents were insufficiently severe or pervasive. Finally, the AJ
found that there was no evidence that the alleged conduct at issue was based on discriminatory or
retaliatory animus. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in finding that he had not been subjected to
discrimination and reprisal. Complainant challenges the Director’s reasons for reassigning him
to Fort Lee and not allowing him to telework from Texas. Complainant claims that he was
treated as a figurehead and was not allowed to manage the intern program. Further, Complainant
alleges that management officials falsified their statements during the investigation and failed to
support their contentions. Complainant alleges that he was denied promotional opportunities
while others were promoted to other positions. Accordingly, Complainant requests that the
Commission reverse the final order.

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 his protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a hostile
work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive
to create a hostile work environment, the Commission finds that Complainant failed to show that
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the Agency’s actions were based on discriminatory or retaliatory animus. For example, with
regard to claim (1), the Director of Workforce Development (Director) stated that Complainant
had three changes in supervision from January 2010 to September 2011. ROI, at 220. S1-1 left
Workforce Development for a new position in Information Technology and S1-2 became his
supervisor. Id. Around May 2010, S1-2 left the Agency for a special assignment for one year in
Afghanistan and S1-3 became his supervisor. Id. The Director noted that he himself left
Workforce Development in January 2011. Id. The Director added that Complainant changed
supervisors quite a bit during that period of time, but each supervisor was clear with
Complainant on what his responsibilities were. Id.

As to claim (2), the Chief of Leadership Development stated that CW-1 was not teleworking;
rather, she was reassigned to Fort Hood, Texas. ROI, at 24. Further, the record reveals that CW-
1 worked in a different position, different occupational series, and under a different supervisor
than Complainant. Agency’s Response to Order to Brief the Commission Regarding Decision on
the Record (Agency’s Response), Attachs. 8, 11. The Director explained that Complainant was
reassigned to Headquarters at Fort Lee because the intern program was being expanded and
management believed that Complainant could not adequately accomplish the Agency’s mission
from his then-location in Texas. ROI, at 220. The Director further noted that he and
Complainant’s supervisor believed that Complainant needed more supervision in the
performance of his duties to accomplish objectives in a timely manner. Id.

With regard to claim (3), Complainant first claimed that he was denied acting assignments. The
Director explained those assignments generally went to GS-14 employees. ROI, at 221. The
Director stated that he assigned acting duties to either the GS-14 Deputy Director or Chief when
he was away from the office. Id. Complainant additionally alleged that he was denied
promotional opportunities. The record reveals that Complainant received a promotion in August
2010 to the GS-13 level. Agency’s Response, Attach. 6. The Director stated that there were no
vacancies during his tenure to which Complainant could have been promoted. ROI, at 221.
Complainant has not identified any vacancies or positions for which he applied and was not
selected. Complainant claimed that he was denied cash awards; however, the record shows that
he was issued cash awards in 2009, 2010, and 2011. Agency’s Response, Attach. 2.
Complainant has not identified any other awards to which he believes he was entitled. Finally,
Complainant claimed that he was denied travel and instructing assignments. The Director
confirmed that Complainant was given the opportunity to travel because he was required to
check on interns and perform site visits periodically. ROI, at 221. The Director noted that it was
up to Complainant whether to travel or utilize other communication channels to perform these
duties. Id. As to instructing, the Director stated that Complainant was a backup instructor in the
event an instructor was unable to instruct. Id. The Director stressed that the Agency’s
instructors were at full capacity and there were no opportunities for him to be utilized as a
backup instructor. Id.

Finally, as to claim (4), the Director emphasized that Complainant’s duties were to oversee the
development of 34 corporate interns located at 18 locations throughout the country. ROI, at 222.

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The Director added that Complainant’s duties were very stringent in maintaining training for the
successful accomplishment of the interns. Id. The Director confirmed that part of
Complainant’s duties included administrative support such as developmental plans, progress
reports, and briefings, and he did not believe that Complainant was underutilized. Id. The
Director stated that administrative tasks were important to his duties because he was a part of the
training program for interns. Id.

The Commission agrees with the AJ that Complainant has not shown that he was subjected to a
discriminatory or retaliatory hostile work environment. Moreover, to the extent Complainant
claims that he was subjected to disparate treatment, the Commission finds that, as discussed
above, Complainant has not proffered any evidence from which a reasonable fact finder could
conclude that the Agency’s explanation for its actions was pretext for discrimination or reprisal.
As a result, the Commission finds no basis to disturb the AJ’s summary judgment decision
finding that Complainant was not subjected to discrimination, reprisal, 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 order, because the Equal Employment Opportunity Commission Administrative
Judge’s issuance of summary judgment was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.

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;
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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.

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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

February 2, 2018
Date