[Redacted], Anthony Wong, 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 17, 2022

Appeal No. 2021000946 (E.E.O.C. Mar. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Anthony Wong,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000946 Agency No. AREUVICEN18FEB00401 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated February 24, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., 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 Financial Specialist, GS-09, at the Agency’s 266th Financial Management Support Center in Italy Finance Office in Vicenza, Italy. The record indicates that on June 16, 2015, Complainant, a GS-7 Military Pay Technician at the Agency’s Hawaii office, accepted a three-year GS-9 Finance Specialist foreign position at the Agency’s Italy Finance office. This foreign position was subjected to a maximum five-year limitation provided that the Agency granted a two-year extension. Complainant began the GS-9 position in Italy on September 20, 2015. 1 The Commission typically uses pseudonyms in lieu of complainants' real names when publishing its appellate decisions. In this instance, however, Complainant requested that his real name be used. 2021000946 2 The record also indicates that on August 30, 2017, Complainant submitted his resignation from the Agency effective October 31, 2018, at which time he retired. This is not at issue. The record indicates that on February 8, 2018, Complainant contacted an EEO Counselor alleging discrimination in regard to: his first level supervisor (S1) disclosing his age and his inattentive symptoms; S1 accusing him for standing too close to a female coworker; the Chief of Internal Control questioning him about leaving a bathroom door open; denial of a private office; denial of Overseas Extension (OTEX) and forcing him to enroll on the Priority Placement Program (PPP); removal from a supervisory position; and denial of performance awards. Unable to resolve the matters informally, Complainant was issued a notice of right to file a formal complaint. The record indicates that Complainant filed EEO complaints dated March 18, 19, 20, and 21 2018, which were consolidated under the instant complaint, alleging discrimination and a hostile work environment based on race (Asian), color (yellow), age (over 40), national origin (Hong Kong, China), disability (perceived), and in reprisal for prior EEO activity when: 1. From 2016 to July 2018, he did not receive a performance award. 2. On August 17, 2017, due to an office relocation, he was denied a private office, not allowed to hang a bulletin board and clock on the wall, and not allowed to close the window blinds behind him. 3. On January 19, 2018, he was questioned by the Chief of Internal Control about using the bathroom and leaving open the bathroom door. 4. On February 7, 2018, while standing in front of a female coworker’s desk, S1 accused him of being too close to her and it could be construed as sexual harassment. 5. On February 15, 2018, he was notified that S1 publicly disclosed his age status and medical condition when he declared that he was too old to work, very easily forgets things, loses concentration, it is hard for him to focus, and he is unable to withstand the pressure of work. Complainant also alleged that: 6. On July 25, 2017, he was denied OTEX and forced to enroll on PPP. 7. On March 3, 2016, he was removed from a supervisory position. Complainant did not challenge the Agency’s framing of his claims. On March 28, 2018, the Agency dismissed claims 6 and 7 due to untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). 2021000946 3 The Agency stated that the alleged incidents occurred on July 25, 2017, and March 3, 2016, respectively, but Complainant did not contact an EEO Counselor until February 8, 2018, which was beyond the 45-day time limit set by the regulations. The record indicates that on July 12, 2018, the Agency initiated an investigation of the accepted claims. On July 31, 2018, Complainant emailed an Agency EEO Director alleging discrimination in reprisal for prior EEO activity when: 8. On June 1, 2018, he received an annual performance rating of “3.”2 The Agency accepted Claim 8 to be added to the instant complaint. After completion of the investigation of the accepted claims (claims 1 - 5 and 8), the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a final Agency decision without a hearing. The Agency issued its final Agency decision. Therein, the Agency dismissed the issues related to Complainant’s performance awards of 2016 and 2017, part of Claim 1, and his annual performance rating of June 1, 2018, described in Claim 8, for untimely EEO Counselor contact. The Agency indicated that these claims would be considered as background evidence to support Complainant’s harassment claim. Regarding Claim 1, S1 indicated that he did not recommend Complainant for a performance award in 2016, 2017, and 2018 because Complainant did not receive the highest performance rating for those years. The record indicates that under the performance appraisal system for 2016 and 2017, the highest to the lowest performance rating was 1, 2, 3, 4, and 5, and Complainant received a “2” rating. Under the new performance appraisal system for 2018, the highest to the lowest performance rating was 5, 3, and 1 (Outstanding, Fully Successful, and Unacceptable) and Complainant received a “3” rating. Regarding Claim 2, S1 indicated that in August 2017, he did not allow all employees, including Complainant, to hang a bulletin board and clock during the office space move (from 2nd floor to 1st floor of the building) for two days until the maintenance team hung shelves above the desks in all sections. Complainant acknowledged that although he was not allowed to hang his bulletin board and clock on August 21, 2017, he was allowed to do so on August 23, 2017. S1 also indicated that he asked his employees, including Complainant, to open window blinds as much as practicable to allow natural light in but not so much it interfered with their work. 2 Complainant also alleged he did not receive an award for the 2018 performance rating in July 2018. The Agency included this performance award under Claim 1. It is noted that although Complainant initially indicated the alleged incident occurred on July 19, 2018, he later clarified that he received the subject performance appraisal on June 1, 2018. 2021000946 4 S1 told Complainant that if the light from the windows bothered him, he could close them as much as needed to work or they could have him moved to another desk that was not next to the window. Complainant opted to stay where he was within the section. S1 stated that numerous staff members open and close their blinds throughout the day. S1 noted that the availability of natural light and air was a continuing issue, and it was inspected annually as part of the office habitability inspection by the Italian health and safety officials. S1 further noted that he also asked all employees to open their windows each morning to circulate the air since the office spaces did not have central air or heat and opening the windows daily was the only way to circulate the air in the office spaces. Regarding a private office, S1 indicated that Complainant had a private office before the office move. After the move, stated S1, private office space was limited, and employees were provided one based on the nature of the work, position grades, availability of the spaces, and functionality of the section. Complainant was denied private office space after the move. Regarding claim 3, Complainant acknowledged that he left the bathroom door open after he used the bathroom in order to provide air ventilation. S1 indicated that both Complainant and the Chief of Internal Control’s conduct was unprofessional involving the incident. S1 noted that the bathroom Complainant used on that day had maintenance and ventilation issues and all staff were asked to use two other bathrooms (which were accessed from the outside of the building) as much as possible. Regarding claim 4, S1 stated that he saw Complainant sitting on the junior female employee’s desk. When S1 called him into S1’s office to privately discuss his unprofessional conduct, Complainant yelled at S1 and told S1, he did not see why S1 had a problem with this. S1 then told Complainant it was very unprofessional, and it could potentially create an EEO issue with fellow employees. Complainant ultimately agreed not do it again. Regarding claim 5, S1 denied this incident. Complainant acknowledged that he had no mental conditions and S1 did not tell others about his mental conditions or his real age. On appeal, Complainant indicates that S1 “didn’t speak of [Complainant’s] exact age;” rather S1 said “[Complainant’s] work would slow, he might lose his place on what he was doing and it would take him a long time to get things done.” Complainant states that S1’s foregoing remarks hinted or implied that he was old, having a mental issue, was unable to focus if distracted from work, and his work was substandard. 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), 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 2021000946 5 parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). Untimely EEO Contact (Claims 1 - 2016 and 2017 awards and Claims 6, 7, and 8) EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. Regarding Complainant’s 2016 and 2017 performance awards, part of Claim 1, and Claims 6 and 7, the record indicates that the alleged incidents occurred in 2016 and in or prior to July 2017. Complainant however did not contact an EEO Counselor until February 8, 2018, which was beyond the 45-day time limit set by the regulations. Regarding Claim 8, S1 indicated and the record reflects that Complainant was issued and signed the performance appraisal at issue on April 16, 2018. Complainant stated that he received the subject appraisal on June 1, 2018. Complainant however did not bring the subject matter to the EEO office, i.e., to initiate EEO counseling, until July 31, 2018, which was beyond 45-day time limit (even considering June 1, 2018 as the date he received the appraisal) set by the regulations. On appeal, Complainant indicates that the February 7, 2018 incident, described in Claim 4, which triggered him to recall all unpleasant events in the past 2.5 years, including the denial of his OTEX request (Claim 6), removing him from a supervisory position (Claim 7), and the denial of awards (Claim 1). Complainant further claims that he was not aware of discrimination regarding the appraisal until July 19, 2018, when he inquired about the subject matter to Human Resources Office. We note that the Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the limitation period is triggered under the EEOC Regulations. See 29 C.F.R. § 1614.105(a)(2); Ball v. U.S. Postal Serv., EEOC Request No. 05880247 (July 6, 1988). Thus, the limitations period is not triggered until a complainant reasonably should have suspected discrimination, but before all the facts that would support a charge of discrimination have become apparent. We find that the incidents were of such a nature that he should have reasonably suspected discrimination at the time of the incidents at issue. Thus, we find that Complainant failed to present adequate justification to warrant an extension of the applicable time limit for contacting an EEO Counselor. After a review of the record, we find that the Agency properly dismissed Claim 1 (2016 and 2017 awards) and Claims 6, 7, and 8 for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Disparate Treatment (Claim 1 - 2018 award) 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 or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). 2021000946 6 Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered a legitimate, nondiscriminatory reason for denying him a performance award in 2018. Specifically, S1 indicated that he did not recommend Complainant for the 2018 performance award because Complainant failed to receive the highest performance rating for the appraisal period from April 1, 2017 to March 31, 2018. Complainant received a rating of “3” (Fully Successful) and not the highest rating of “5” (Outstanding). On appeal, Complainant indicates that S1 and a female coworker (E1), who was also a GS-9, Financial Specialist, received a rating of “5” (Outstanding) for the appraisal period at issue and received a performance award of $2,000 and $500, respectively. The record indicates that E1 was in the same grade and position title as Complainant was. However, the record clearly indicates, and Complainant acknowledges, that E1 was assigned as an Internal Control Clerk as part of the Internal Controls Team whereas Complainant was assigned to process the Separations, Reserve Pay, and Military Pay within the Military Pay and Travel Team. S1 is Complainant’s supervisor and therefore not similarly situated to Complainant. Upon review, 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. After a review of the record, we find that Complainant has not shown that the proffered reason was a pretext for discrimination. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). In order to establish a claim of harassment, Complainant must show that: (1) he belongs to the statutorily protected classes or engaged in prior EEO activity; (2) he was subjected to unwelcome conduct related to his 2021000946 7 membership in those classes or his prior EEO activity; (3) the harassment complained of was based on those classes or that activity; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance 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). The statutory anti-retaliation provisions prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter a reasonable employee from engaging in protected activity. Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Although petty slights and trivial annoyances are not actionable, adverse actions such as reprimands, threats, negative evaluations, and harassment are actionable. Enforcement Guidance on Retaliation at II.B. Retaliatory harassing conduct is actionable if it is sufficiently material to deter protected activity, even if it is insufficiently severe or pervasive to create a hostile work environment. Id. at II.B.3. Here, regarding Claim 2, S1 indicated that all employees, including Complainant, were not allowed to hang items until the maintenance team hung shelves above the desks in all sections after the office move. Complainant acknowledged that he hung his bulletin board and clock after a few days of the move. S1 also informed his employees, including Complainant, to open window blinds as much as practicable to allow natural light in but not so much it interfered with their work. S1 further indicated that after the office move, a private office was not provided to all employees, including Complainant, due to limited availability. S1 assigned offices based on employees’ grade, the nature of their work, and functionality of the work area. Complainant has not identified any similarly situated person who was treated differently than Complainant. Regarding Claim 3, S1 found both the Chief of Internal Control and Complainant’s conduct unprofessional concerning the bathroom door incident. Other than this isolated incident, Complainant did not indicate that the Chief improperly questioned him about his leaving the bathroom door open on other occasions. Regarding Claim 4, as a supervisor, S1 was merely instructing Complainant to be professional interacting with his junior female employee. Regarding claim 5, Complainant acknowledged that S1 did not actually tell him or others about his mental conditions or his real age. S1 denied making any statement as alleged. After a review of the record, considering all the events, we find that Complainant failed to show that the alleged harassment was related to any protected basis of discrimination. On appeal, Complainant maintains that S1’s statements regarding the alleged incidents are not true. However, since Complainant did not request a hearing, we do not have the benefit of an AJ’s credibility determination of S1 in this case. Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. 2021000946 8 CONCLUSION Accordingly, the Agency’s final decision dismissing Claim 1, in part, and Claims 6, 7, and 8, and finding no discrimination and harassment as alleged is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2021000946 9 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 March 17, 2022 Date