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

Equal Employment Opportunity Commission

Aug 10, 2021

Appeal No. 2020005108 (E.E.O.C. Aug. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Antony Z.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Request No. 2021003256 Appeal No. 2020005108 Hearing No. 420-2019-00432X Agency No. ARREDSTON19JAN00142 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2020005108 (April 14, 2021). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). In January 2017, Complainant was hired by the Agency in its Multi-National Aviation Special Projects Office in Huntsville, Alabama as a Senior Logistics Analyst, NH-0346-03. S1, Division Chief, Supervisory Logistics Management Specialist was Complainant’s first-line supervisor. S2, Deputy Product Director, was his second-line supervisor. S3, Colonel, was the Project Director. Complainant was considered a probationary employee for the first two years of employment, through January 2019. 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. 2021003256 2 Subsequently, Complainant filed EEO complaints alleging that he was discriminated against and subjected to harassment on the bases of race (Caucasian), color (white), sex (male), age (over 40), and in reprisal for previous EEO activity when: 1(a). on October 18, 2010, S2 relieved him from his duties as Assistant Product Director - Sustainment program integrator on the fourth floor to a less than desirable position of no responsibility and very little work which will impact future evaluations; and 1(b). on October 19, 2018, S2 met with his former colleagues and told them that he was relieved, and they were to have no contact with him; and 2. He was discriminated against based on race, color, sex, age (over 40), and in reprisal for previous EEO activity when on January 2, 2019, he was terminated during his probationary period by his supervisor S1. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for a decision without a hearing on the consolidated complaints, which was opposed by Complainant. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination and harassment as alleged. The record reflects that in May 2017, C1, an employee complained to A1, an Agency director, that Complainant and another employee were using offensive language and hanging pictures/cartoons intended to make fun of him. Complainant acknowledged the use of offensive language but stated that the pictures were meant to be “jokes” and that C1 was too sensitive. A1 counseled Complainant and warned him about future use of offensive language. On December 1, 2017, A1 prepared a Memorandum for Record (MFR) regarding another incident where Complainant used offensive, derogatory, and angry language towards another employee. A1 counseled Complainant for a second time regarding his use of offensive language and reminded him of their previous conversation that past May, and the need to treat his fellow team members with respect. Complainant responded that he did not have time to train the team and it was easier to do the work himself. On August 14, 2018, S1 gave Complainant a letter of counseling regarding allegations that he used improper language of a vulgar or sexual nature in numerous meetings and in the workplace. This action was in response to a Sexual Harassment/Assault Response and Prevention (SHARP) complaint which alleged Complainant had made sexually explicit references to body parts. The letter of counseling was not made part of Complainant’s official personnel file. On August 20, 2018, Complainant told S1 that he had observed C2, another employee, record a telecom with his personal cell phone, and during a meeting to discuss this allegation, Complainant stated that he believed C2 was the person who had made the SHARP complaint against him. Later that day, there was a verbal confrontation between Complainant and C2, during which Complainant made reference to the SHARP complaint. C2 stated that Complainant called him a liar. 2021003256 3 On October 9, 2018, C4 and C5, contractor employees, stated that they were at their desk areas when Complainant came in to make coffee. C4 stated that Complainant stated that C6, a female contractor, was “not worth a s**t, did not know her job, and all she knew or cared was about was pizza. C4 maintained that he was not comfortable working in an environment where upper level government employees made such comments. Later that day, S1 received a complaint from C6 regarding Complainant’s comments and she requested a formal grievance as well as an apology from Complainant. On October 9, 2018, Complainant requested a Management Directed Reassignment (MDR) and was told that the request would be granted. On October 10, 2018, after a telecom, C4 reported that Complainant was again making derogatory comments about C6, stating that she did not know how to do her job. C4 again expressed his discomfort with this type of comment that he felt was unprofessional and bad for cohesiveness in the section. On or around October 10, 2018, a second SHARP complaint regarding Complainant was received. S1, S2, and S3 were notified. S1 met with Complainant to discuss the allegations, and Complainant stated that he believed C4 was the employee who made the report. S1 refused to provide that information to Complainant at that time. Complainant contacted the Contract Lead and told him to check C4’s timecard because C4 had left early the day before and he wanted to make sure that the time “was properly accounted for” on the timecard. S2 indicated that Complainant was not C4’s supervisor. Following these incidents, S1 contacted Agency Personnel officials seeking consideration of Complainant’s separation because he was a probationary employee and it appeared, he was not a “good fit” for the position. On October 18, 2018, S1 was notified that Complainant was questioning contractor employees, asking them if they had been asked to prepare an MFR regarding the allegations against him. A meeting was held with S1, S2, A2, and other Agency officials to discuss the escalating tensions with Complainant and to determine the best path forward. At that time, S2 made the decision to move Complainant to an assignment on the second floor. The relocation did not change Complainant’s position description, pay grade or series, and was not an official personnel action. S2 scheduled a meeting with Complainant and B1, Program Support Specialist/SHARP Victim Advocate, to inform him of the move to the second floor. S2 also told Complainant not to communicate with the contractors on the fourth floor outside of programmatic issues. S2 denied relieving Complainant of Program integrator duties because, in S2’s opinion, Complainant never had such duties and Complainant was a Logistic Management Specialist working for S1. Complainant, he stated, became very belligerent, argumentative, combative, and disrespectful. S2 maintained that he felt threatened. Although S2 denied calling a meeting to inform Complainant’s co-workers that he was being relocated, he acknowledged that he mostly likely did inform the employees that Complainant was being moved off the fourth floor and would be assigned new duties. S2 did not recall the specific details of his conversation. 2021003256 4 S1 felt that Complainant’s confrontational reaction to S2 was the culmination of his previous disrespectful and disruptive behavior, for which he had been counseled multiple times. Following Complainant’s response to S2’s reassignment instruction, Personnel advised management that separation was appropriate. Complainant worked on the second floor for one week, and was reassigned to a new section on October 25, 2018, reporting on October 29, 2018. On December 12, 2018, S1 contacted Personnel to initiate the formal termination process, and on January 3, 2019, S1 issued a notice of termination to Complainant for refusal to follow directions, inability to maintain good working relations, and disruptions to the work force. Complainant alleged that other employees also used profanity but were treated differently: C3, Black female; C7, Black male; C8, White male; and C9, White male, contractor. Complainant alleged that C3 and C7 used profanity during conversations in their cubicles and that C8 expressed displeasure over a training contract. He also felt that age was a factor in the Agency’s treatment of him because S2 asked him about retirement and S1 stated that “sometimes change is good.” S1 stated that his comment about change was related to the MDR and the change in supervisor as requested by Complainant. S2 denied that he ever had a conversation with Complainant about retirement, noting that he was a probationary employee with only two years of service, so it would not have made sense to ask him about retirement. The AJ found that the record contained sufficient information upon which to base a decision without a hearing; that were are no genuine disputes of material facts and that based on the undisputed evidence of record, no reasonable person could conclude that the Agency’s articulated non-discriminatory reasons for its actions were pretextual or that the true reason for its actions was discrimination on any protected basis. In EEOC Appeal No. 2020005108, we concluded that the evidence of record fully supported the AJ’s decision that Complainant’s allegations of discrimination had not been proven. In his request for reconsideration of that decision, Complainant essentially repeats the same arguments made and considered during his original appeal. We emphasize that a request for reconsideration is not a second appeal to the Commission. See EEO MD-110, Ch. 9, § VII.A. Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. 2021003256 5 After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal No. 2020005108 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 August 10, 2021 Date