[Redacted], August V., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 30, 2021

Appeal No. 2021001210 (E.E.O.C. Sep. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 August V.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021001210 Agency No. DON-20-00253-00716 DECISION On December 9, 2020, 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 November 12, 2020, 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 an Administrative/Technical Specialist, NT-1910-04, in the Agency’s Maintenance, Engineering, and Industrial Operations Department, Pacific Detachment of the Naval Undersea Warfare Center Division located in Keyport, Washington. Complainant began working for the Agency on November 27, 2018 and was terminated during his probationary period on November 19, 2019. Complainant’s first level supervisor was the Production Manager (S1). His second level supervisor was the Division Head/Intermediate Maintenance Activity (IMA) Manager (RMO - Responsible Management Official). The Deputy Division Head/Deputy IMA Manager (S2) was the second senior person in IMA and was often acting when RMO was absent. 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. 2021001210 2 On February 25, 2020, Complainant filed an EEO complaint alleging that he was subjected to unlawful discrimination. The Agency defined the complaint as containing the following claims: 1. Based on reprisal for protected EEO activity (contact with an EEO Counselor, requesting workplace alternative dispute resolution and openly speaking out about sexist jokes in the workplace), Complainant was terminated during his probationary period from his position as an Administrative/Technical Specialist, NT-1910-04, at the Naval Undersea Warfare Center Division, Keyport on November 19, 2019, by the Pearl Harbor Torpedo Division, Code 34, Division Head. 2. Based on reprisal for questioning policy and procedural violations while working with live explosives and dangerous (life threatening) fuels byproduct, and questioning potential violations of overtime funding for training, Complainant was subjected to a hostile work environment from November 27, 2018 to November 19, 2019. In a Notice of Partial Acceptance and Partial Dismissal, the Agency accepted claim 1 for processing. The Agency dismissed claim 2 for failure to state a claim. Regarding claim 2, the Agency stated that Complainant attempted to frame a hostile work environment claim but provided no elements of workplace or work-related events to establish such a claim that is actionable under the jurisdiction of EEOC. The Agency noted that in his formal complaint, he listed the causes of a possible hostile work environment, i.e., raising concerns of improper or poor management practices, and potential fraud, waste, and/or abuse, which fall under the Whistleblower Protection Act. The Agency determined since the prior protected activity cited in claim 2 does not constitute prior protected EEO activity, which is a required element of a reprisal claim under the EEOC’s jurisdiction, the claim must be dismissed. At the conclusion of the investigation on the accepted claim, 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). In accordance with Complainant’s request, 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. Thereafter, Complainant filed the present appeal. Complainant states the basis of his appeal is the wrongful termination related to his filing an EEO complaint. He states that he believes the Agency is covering up the true motivation for his termination due to the severity of his reported concerns. He states his personal integrity does not align with upper management’s personal behavior (i.e., drinking, sexist comments, nepotism, etc.), which he believes contributed to the beginning of them reconsidering his employment. Complainant cites the specific example of him declining to join a motorcycle club which he claims S1, S2, RMO, and Coworker 4 (CW4) were members of and asked him to join. 2021001210 3 Complainant states that, “[a]lthough, the claim of hostile work environment was not accepted, it is a foundational contributing factor and serves primarily to illustrate the [A]gency’s method of treatment to anyone who does not agree with their personal views. Although EEO cases do not address hostile work environment claims, they are linked.” Complainant argues the Agency failed to present a logical business decision to support its action. Specifically, he claims he met and exceeded the requirements of his job. He cites to the Annual Performance Report which listed his rating as acceptable and the lack of any adverse counseling prior to his termination. Complainant states that the “most logical process would be to document the manager’s concerns” and if the employee does not improve, use those document counseling reports to justify reassignment or termination. Complainant notes that CW1, CW2, and CW4 did not state that he was unprofessional or did anything that reflected the negative statements made by upper management. Regarding the testimony that he was having unsolicited conversations with other employees, he states “[t]his is not entirely false.” However, he states a “more empowering manager” would encourage open discussions about improving the process rather than view them as a personal attack. Further, Complainant raises concerns about the investigation of his complaint. Specifically, he states that Person A, the Officer in Charge/Commander, should have been interviewed. Complainant notes Person A accompanied him on a business trip in August 2019, where they discussed discrimination and safety concerns. Complainant states Person A was unaware of concerns the RMO had with Complainant’s job performance and believes Person A would not agree with the RMO’s assessment or decision to terminate Complainant. Also, he argues that Person B (Keyport EEO) should have provided a statement. Further, he questions why CW2’s testimony was not required to be signed by the investigator. He states the Agency gave less weight to CW2’s testimony since it was not signed. However, he argues her testimony significantly contradicted the other manager’s statements and he believes her statement supported his claim of discrimination against individuals based on sex. Finally, Complainant notes that he was a disabled veteran with significant medical challenges which he states contributed to him not being able to sit in a chair for eight hours a day. He claims the RMO’s statement that he was not in his assigned place of work demonstrated the RMO’s lack of concern for individuals with disabilities.2 In response to Complainant’s appeal, the Agency argues that Complainant did not engage in any protected EEO activity. Further, the Agency states that even if he had, management articulated legitimate, nondiscriminatory reasons for his termination. The Agency notes that Complainant does not dispute management’s legitimate, nondiscriminatory reasons. The Agency notes Complainant acknowledges that he spent time away from his work site but attempts to justify it by deflecting management’s attempts to decrease it as micromanagement or required by his job. 2 We note that disability was not raised in Complainant’s formal complaint and was not an accepted basis. 2021001210 4 The Agency notes he also sets forth reasons he believes management disliked him, that have nothing to do with protected EEO bases, such as his lack of interest in joining a motorcycle club, and his “personal integrity which does not align with upper management’s personal behavior,” and speculates that those are the reasons for his termination. Additionally, the Agency notes he points to his satisfactory performance appraisal and the fact that he had “no warnings;” however, the record shows that he was aware of S1’s and RMO’s concerns with his roaming around the workspace engaging others in non-work related conversations. The Agency notes Complainant’s own submissions show his frequent criticism of management and his misplaced assessment that he was in a position where his judgment of his senior managers’ competence was welcome. The Agency notes that during the investigation, Complainant listed “disagreements” with management’s testimony and their failure to accurately asses his performance inadequacies. However, the Agency states that in a discrimination case the focus is not on whether the Agency’s assessment was correct, only on whether it was based on discrimination. Regarding pretext, the Agency notes Complainant cites the lack of adverse counseling as evidence that his conduct and performance were good, but the HR Specialist confirmed, no warning is required for a probationary employee. With regard to his claim that other witnesses should have been interviewed, such as Person A, the Agency states that Person A did not have a management role in the IMA but was the Officer in Charge. Regarding Complainant’s objection to CW2 not signing a declaration, the Agency noted as a contractor, the Agency needed to go through her contract and had no authority to directly task her to sign it. The Agency notes that none of CW2’s testimony supports Complainant’s contentions except that she agrees they are “vindictive leadership.” The Agency notes most of Complainant’s evidence is his complaints made to persons other than his managers of boorish behavior, unspecified discrimination, safety violation, and “unprofessional conduct.” However, the Agency states Complainant cannot establish pretext simply based on his own subjective assessment of his own performance. 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”). At the outset, we note Complainant does not challenge the framing of his claims by the Agency. To the extent Complainant is challenging the dismissal of claim 2, we find that the Agency properly dismissed this claim as it addressed Complainant’s whistleblower activities with no nexus to EEO-related matters. 2021001210 5 The Commission has previously held that whistleblower activities are generally outside the purview of the EEO complaint process. See Complainant v. Dep’t of Housing and Urban Development, EEOC Request No. 05880911 (February 13, 1989). Here, there is no indication that Complainant raised allegations of discrimination as part of his whistleblower activities. Next, we address Complainant’s contentions surrounding the adequacy of the investigation of his complaint. We note that by foregoing the right to request a hearing before an EEOC AJ, Complainant declined the opportunity to develop the record through discovery and to cross examine witnesses. However, we find the record in the present case was fully developed. Complainant challenges the lack of testimony from Person A and Person B and the fact that CW2’s statement was not signed. In the present case we assume Complainant established a prima facie case of retaliation; thus, we find Person B’s testimony is not necessary. In addition, Complainant has not established that Person A’s testimony was relevant. Specifically, the Agency noted that Person A did not have a management role in the IMA but was the Officer in Charge. Regarding CW2, although her declaration was not signed, we note that she was not an Agency employee, but a contractor. Thus, the Agency lacked the authority to direct her to sign the statement. Further, upon our review of CW2’s statement we find the statement does not contain specific evidence, other than CW2’s speculation, that managers took any action against Complainant in reprisal for protected EEO activity. Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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. 2021001210 6 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); Complainant v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency noted Complainant was terminated during his probationary period for spending unproductive time while on duty in unsolicited conversations criticizing other employees and management. The record contained evidence that management’s concerns with Complainant’s behavior began as early as February 2019. Management had numerous conversations with Complainant regarding his behavior; however, he continued to be absent from his work area, spent long periods of time talking to other employees, and displayed a disrespectful attitude. In addition, the record revealed that Complainant's negative attitude toward the established work practices amounted to effectively “sowing seeds of discord amongst the various [ ] members of the team.” While Complainant thought it was a good idea for a manager to formally counsel an employee prior to termination, the record reveals this was not required for probationary employees. Additionally, we note Complainant does not dispute that he was away from his worksite, but attempts to argue unsuccessfully that this was required by his job. Further, the fact that the Agency rated Complainant’s performance acceptable does not undercut the Agency’s conduct related reasons for his termination. We find Complainant failed to prove by a preponderance of evidence that the Agency’s actions were a pretext for discrimination in retaliation for his protected activity. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination 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. 2021001210 7 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). 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. 2021001210 8 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 September 30, 2021 Date