[Redacted], Arnold W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Nov 18, 2021

Appeal No. 2020004378 (E.E.O.C. Nov. 18, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arnold W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020004378 Hearing No. 450-2020-00108X Agency No. DLAN-19-0049 DECISION 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 June 30, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Distribution Process Worker, WG-6901-05, at the Agency’s Red River Army Depot in Red River, Texas. On March 20, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (sciatic nerve pain, bulging discs) and in reprisal for prior protected EEO activity when since April 25, 2018, he was harassed leading to his termination during his probationary period on November 28, 2018. 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. 2020004378 2 Complainant was hired into his position on December 12, 2016, subject to a two-year probationary period. On April 25, 2018, Complainant suffered on-the-job injuries and subsequently, the Agency assigned him light duties in accordance with his physical restrictions.2 Complainant claimed that he was subjected to a hostile work environment because a female employee (CW1) alleged that Complainant harassed her. Complainant denied CW1’s allegations, asserted CW1 was supposed to be training him, and that he was only asking work-related questions. Complainant insisted that CW1 told him that she never made these allegations. The record contains a written statement from CW1 contemporaneous to the event in question, in which she asserted that Complainant asked to take her out to dinner, stared at her, and asked her about “more private and personal things besides working.” Complainant’s second-level supervisor (S2), who was also CW1’s supervisor, memorialized an informal investigation and explained that she spoke with CW1 and then Complainant. CW1 said she just wanted her personal space respected, and Complainant was warned to keep his questions work-related. Complainant believed that S1 “just had a goal to get rid of [him] because of the input he put on [his] score cards said that [he] wasn’t doing the job.” Complainant argued that the production metrics were beyond his control. The record contains a Letter of Warning, dated September 26, 2017, in which Complainant’s supervisor (S1) explained to Complainant that he was authorized to attend a physical therapy appointment on September 7, 2017, but departed the workplace more than 2 and a half hours early. S1 considered his departure to be excessively early, but also believed that Complainant did not intentionally try to abuse his leave privileges. S1 explained that Complainant needed to better communicate his intentions regarding leave. In an October 2, 2018, memorandum, S1 requested that Complainant be terminated because he was not meeting his production goals. S1 said Complainant did not meet production goals in June, July, or August, even though accommodation was made for Complainant’s medical limitation. S1 made brief reference to Complainant sleeping and loafing on the job and that Complainant was told his behavior was unacceptable. In an October 24, 2018 memorandum to Human Resources, S1 further articulated his position that Complainant should be removed from his position. S1 reiterated that Complainant was not meeting production expectations in the prior three months. S1 also said that Complainant was sleeping on the job and loitering on separate occasions in May 2018, and in June through August 2018. S1 pointed to an investigation that took place from May to June 2018, in which Complainant was accused of accosting a female employee and engaging the employee in inappropriate conversation, including an unwanted advance. S1 continued in the memorandum, that Complainant was seen sleeping at his workstation on September 28, 2018 and was absent without leave (AWOL) from his work area on October 23, 2018. 2 Complainant did not allege that the Agency failed to grant him a reasonable accommodation. 2020004378 3 S1 said that “[w]hen the above instances are addressed with [Complainant] he is at times contemptuous toward supervisor and continues the unprofessional behavior.” The Agency terminated Complainant’s employment on November 28, 2018, for “conduct unbecoming a federal employee.” The termination notice referenced the incidents discussed in S1’s memoranda. In his affidavit, Complainant asserted that the reasons articulated in the termination notice were false and protested that there was no counseling or warning. S1 testified that he regularly issued verbal counseling to Complainant about sitting around and sleeping on the job. S2 added that she had a verbal discussion with Complainant about loafing on the job. 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). Complainant requested a hearing, but the AJ assigned to the matter dismissed the hearing request and remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b) finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. In support of his appeal, Complainant submitted a copy of a Merit Systems Protection Board decision regarding his application for disability retirement benefits annotated with his comments for the Commission’s consideration. 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”). Disparate Treatment To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020004378 4 To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Agency management explained that during the probationary period of his employment, Complainant was seen sleeping on the job several times; loitering without work several times; and he failed to meet his performance metrics for each of several months prior to his termination even taking into consideration his medical limitations. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant fails to carry his burden here; he offers nothing more than conclusory statements and generalized suggestions that S1 always wanted to remove him. As such, we cannot find, by a preponderance of the evidence, that Complainant’s termination was based on unlawful discrimination or reprisal. Hostile Work Environment To establish a hostile work environment claim, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In this case, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally 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 the Agency's actions were based on discriminatory or retaliatory animus. Specifically, as to his allegations regarding CW1, the Agency was obligated to investigate a report of harassment, as it did here when S2 investigated CW1’s allegation. The Agency’s obligation cannot then support Complainant’s claim of harassment. Accordingly, we find that Complainant has not shown that he was subjected to a discriminatory or retaliatory hostile work environment 2020004378 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision. 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. 2020004378 6 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). 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 November 18, 2021 Date