Nathanial E.,1 Complainant,v.Thomas B. Modly, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 15, 2020

2019005953 (E.E.O.C. Jan. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nathanial E.,1 Complainant, v. Thomas B. Modly, Acting Secretary, Department of the Navy, Agency. Appeal No. 2019005953 Agency No. DON-18-40085-00955 DECISION On August 26, 2019, 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 2, 2019, 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. 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 a GS-1101-09 Performance Assessment Representative (PAR) in the Facilities Service Contracts Management/Facilities Support Branch, Facilities Engineering and Acquisitions Division, Public Works Department at the Agency’s Norfolk Naval Shipyard facility in Portsmouth, Virginia. Complainant’s first-line supervisor was a Supervisory Facilities Support Contract Manager (S1), his second-line supervisor was the Division Director (S2), and his third-line supervisor was the Deputy Public Works Officer (S3). Complainant is black and African-American, and he had engaged in protected activity by filing multiple EEO complaints prior to the time of events giving rise to this complaint. 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. 2019005953 2 S3 averred that Complainant was insubordinate towards S1 multiple times in 2017. S1 stated that on September 25, 2017, she contacted Human Resources to start the process of issuing Complainant a Letter of Reprimand for conduct unbecoming a federal employee based on the instances of insubordination. According to S1, a Labor Employee Relations Representative (HR1) informed her that a fact-finding (FF) would need to be conducted first and that the Executive Officer (S4) would appoint someone to conduct the FF. On October 23, 2017, S4 appointed the Deputy Public Works Officer from the Agency’s Hampton Roads facility in Norfolk, Virginia to conduct the FF (FF1). FF1 stated that he had no organizational relationship to Complainant and that he worked in a different facility. FF1 averred that he arranged to interview Complainant on December 7, 2017. S3 stated that FF1 was also conducting a FF into alleged misconduct by another PAR (C1). Complainant alleged that on December 7, 2017, S1 brought FF1 to his cubicle and loudly announced to everyone in the area that FF1 was there to conduct a FF and then paraded him around the workspace. S1 denied announcing to anyone why FF1 was there or parading Complainant through the office. According to S1, she brought FF1 to Complainant’s cubicle and stated that FF1 wanted to speak to him without mentioning who FF1 was or why he was there. FF1 averred that S1 discreetly introduced him to Complainant at his cubicle. A PAR who worked near Complainant’s cubicle (C2) stated that he heard S1 helping someone who was looking for Complainant and C1, but he stated that he did not remember S1 announcing that the person was conducting a FF, being loud, or parading Complainant around the office. According to Complainant, he and C1 agreed to meet with FF1 to see what was going on. Complainant averred that while he and C1 were meeting with FF1, S1 and S3 kicked in the door and loudly demanded that the discussion cease while they called the union. Complainant alleged that S1 and S3 left the door open while loudly telling Complainant and C1 that they needed union representation. Complainant stated that he and C1 had informed FF1, S1, and S3 that they did not want union representation and that he and C1 would represent each other if representation was required. Complainant stated that the union had been hostile to him in the past. S1 and S3 denied kicking the door in, forcing Complainant or C1 to accept union representation, or raising their voices. S1 stated that she knocked on the door and told FF1, Complainant, and C1 that the meeting might need to be rescheduled because the union had informed her that the union needed to review the FF matter and determine whether to represent the employees. According to S1, Complainant and C1 loudly told her that they did not want representation and that they did not trust the union. S1 stated that S3 calmly but firmly told Complainant and C1 that the meeting would be rescheduled. According to S3, Complainant and C1 were the ones who raised their voices, insisting that they did not want union representation and that they wanted to represent each other. S3 stated that the union had not authorized C1 to represent Complainant because he was not an authorized union representative and that it was inappropriate for C1 to be present while FF1 was interviewing Complainant because C1 was the subject of another FF. FF1 stated that S1 and S3 opened the door of the room without kicking the door. According to FF1, S1 and S3 did tell Complainant that he needed proper union representation and that C1 was not recognized by the union as a representative. FF1 averred that S1 and S3 were not loud or yelling during this conversation. 2019005953 3 S3 stated that after December 7, 2017, the FF was put on hold based on objections from Complainant and C1 and a union grievance. Complainant alleged that on March 14, 2018, S4, HR1, and the union vice president (U1) had a meeting to discuss the procedures for the FF. According to Complainant, he had no knowledge of the meeting. According to U1, the March 14, 2018, meeting was not about FF procedures but was a meeting to deal with a union grievance pertaining to management conducting FFs regarding incidents that occurred over the course of many months or a year. U1 averred that Complainant expressed interest in appearing at any grievance meeting but that the union’s trustee (U2) decided that Complainant should not be at the meeting or told that one was taking place. U2 stated that union grievance meetings were more effective and productive when the involved employees were not present. U1 averred that, at the meeting, the union and management agreed that a FF could only look into conduct that occurred in a three-month period. Complainant stated that FF1 interviewed him on March 15, 2018. According to Complainant, the questions FF1 asked him were based on management’s agenda rather than facts. FF1 stated that he conducted the interview properly and denied that he was biased towards management. Complainant averred that he was targeted by management with the FF because he had previously filed a number of EEO complaints and because of his race and color. S1, S3, S4, HR1, and FF1 denied targeting Complainant because of his race, color, or prior protected EEO activity. According to Complainant, the FF conducted by FF1 was illegal because FF1 was investigating conduct that took place nine months prior to the interview. Complainant averred that there is no Agency regulation that permits management to conduct a FF so long after an alleged incident. FF1 averred that the Agency’s Fact-Finding Manual does not specify a time limit or statute of limitations for conducting a FF after misconduct is reported. On May 4, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (black), and in reprisal for prior protected EEO activity when he was subjected to a hostile work environment, characterized by the following: 1. On December 7, 2017, S1 broadcasted to other employees that Complainant was the subject of a FF and paraded him through the office; 2. On December 7, 2017, S3 initiated an illegal FF against Complainant and then abruptly cancelled it; 3. On December 7, 2017, S1 and S3 would not tell Complainant the reason for the FF; 4. On December 7, 2017, S3 used loud and intimidating language to attempt to force Complainant to have union representation during the FF; 5. On March 14, 2018, S4, HR1, and U1 met to determine procedures for the FF without Complainant’s knowledge or participation; and 6. On March 15, 2018, FF1 participated in the FF and would not provide Complainant any information on the purposed of the FF. 2019005953 4 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. 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, 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”). 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). 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). Complainant has not established by a preponderance of the evidence that some of the alleged harassment occurred in the manner alleged. Although Complainant alleged that S1 loudly announced that FF1 was conducting a fact-finding on him, S1 and FF1 denied that S1 was loud, announced why FF1 was there, or paraded Complainant around the office, and witness C2 stated that he did not remember S1 doing any of these things. Similarly, Complainant stated that S1 and S3 kicked open the door and loudly insisted that Complainant and C1 needed union representation, but S1, S3, and FF1 all stated that the door was not kicked in and that it was Complainant and C1 who raised their voices after S1 and S3 entered the room. We also find that there is no evident connection between any of the alleged harassment and Complainant’s race, color, or prior protected activity. The record reflects that management initiated the FF to investigate allegations that Complainant had been insubordinate towards S1. 2019005953 5 Regarding the union representation issue, although Complainant stated that he wanted C1 to represent him because he did not trust the union, it is undisputed that C1 was not a union representative in December 2017 and that C1 was also the subject of a fact-finding conducted by FF1. Moreover, U2 excluded Complainant from the union grievance meeting because he wanted the meeting to be efficient, not because of Complainant’s membership in any protected class. Accordingly, Complainant has not established by a preponderance of the evidence in the record that he was subjected to harassment based on race, color, and/or reprisal. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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). 2019005953 6 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. 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 15, 2020 Date