[Redacted], Barney G., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2020003246 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barney G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003246 Agency No. DON-19-00259-01958 DECISION On April 27, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 2, 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. BACKGROUND Complainant worked as a Supply Systems Analyst, GS-2003-09, at the Naval Medical Center in San Diego, California. In a formal EEO complaint filed on June 19, 2019 and subsequently amended, Complainant alleged that the Agency subjected him to discrimination and a hostile work environment on the bases race (African-American) and in reprisal for prior protected EEO activity when: 1. On March 25, 2019, Complainant was suspended for five days after Complainant’s second level supervisor (S2) decided to uphold Complainant’s first level supervisor’s (S1), proposed suspension, while other similarly situated employees were not suspended for the same offenses; 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. 2020003246 2 2. On July 30, 2019, S1 instructed Complainant not to use his ear buds while in the office because they distract him from his duties; 3. On August 27, 2019, S1 gave Complainant a verbal warning regarding disruptive behavior and using the department’s administrative office as a break room; 4. On December 11, 2019, S1 sent Complainant an email stating that he provided an incorrect project code to the budget department, did not provide an Electronic Catalog (ECAT) follow-up to the end user, and left work without letting S1 know that the entry was inaccurate; and 5. Complainant overheard S1 having a conversation with his co-worker, CW2, about mistakes he made on a previous work assignment but CW2 was not at work and did not have any involvement in the work that was being discussed.2 Following an investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notified him of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge. On January 31, 2020, Complainant requested a final agency decision without a hearing. In accordance with his request, the Agency issued a final decision in which it found Complainant was not subjected to discrimination or reprisal as alleged. The instant appeal followed. 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 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 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 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, 802 (1973). 2 The Agency dismissed an additional claim as untimely raised with an EEO Counselor. Complainant raised no challenges to the dismissal of this claim on appeal and the Commission can find no basis to disturb the Agency’s dismissal. We further note that the accepted claims have been re-ordered chronologically for clarity. 2020003246 3 His first step would generally be to 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 Const. Corp. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since S1 and S2 have articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). With regard to incident (1), S1 and S2 averred that they suspended Complainant after consulting with the Human Resources Office, based upon his failure to carry out his duties in a way that could have adversely affected patient care. IR 192-94, 318-24, 359. S1 stated that she was notified of three incidents and discussed the matters with the parties involved. The record reveals that S1 charged Complainant with failure to properly discharge his duties when: (1) on February 5, 2019, he did not provide service to customers when he did not direct a purchase request to Material Management; (2) on February 8, 2019, his behavior was unacceptable when he had the knowledge to complete required funding documents without turning away a customer; and (3) on February 11, 2018, he failed to complete an urgent purchase request. Based on these incidents and Complainant’s prior disciplinary history, S1 proposed Complainant’s suspension for five days. S2 subsequently issued a decision sustaining the suspension after considering the documentation in support and Complainant’s response. With respect to incident (2), S1 stated that she had been receiving feedback from customers and Complainant’s co-workers since November 2018, that Complainant was unresponsive to phone calls due to his using ear buds, and that she had repeatedly told him to stop doing so, most recently on July 30, 2019. IR 234-35, 365, 372-73, 378-79. As to incident (3), S1 averred that on August 27, 2019, she informed Complainant that the administrative office was not a breakroom and that he should stop using it as such, to which Complainant responded that he was on his break in a rude and hostile manner. IR 231-34, 364, 372, 378. S1 gave Complainant a verbal warning regarding his behavior because he had behaved in a similar disrespectful manner on several occasions over the past few weeks. Concerning incident (4), S1 affirmed that Complainant failed to provide a follow-up email to an end-user, and that he also provided the end-user with an incorrect expense element. S1 noted that she was not chastising Complainant; rather, she advised him to utilize his co-workers for assistance. Further, S1 stressed that there was no requirement that Complainant notify her of his departure, but other employees did it as a courtesy. IR 259-60, 262. Regarding incident (5), S1 stated that she had spoken with the individual who served as the office lead for following up on purchase request contracts, that this individual had asked her about two documents in the system that looked like they had incorrect expense elements, and that she informed her that Complainant was working on the expense with the budget office. IR 263. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the explanations provided by S1, S2, and S3 for each of these incidents are a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2020003246 4 Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d. EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Complainant has presented neither affidavits, declarations or unsworn statements from witnesses other than himself nor documents that contradict or undercut the explanations provided by S1 or S2, which cast doubt upon the veracity of these individuals as witnesses, or which tend to establish the existence of at least one of the indicators of pretext listed above. As Complainant declined to request a hearing when given the opportunity to do so, the Commission can only evaluate the facts based on the weight of the evidence presented. We also note that Complainant did not submit a brief or a statement in support of his appeal in which he specifically challenged the Agency’s factual findings and legal conclusions. We therefore find that the evidentiary record is not sufficient to establish than any of the incidents at issue in the instant complaint were motivated by an unlawful discriminatory or retaliatory animus. Hostile Work Environment To the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record conclusively establishes that every one of the incidents at issue involved nothing more than routine work assignments, instructions, and admonishments, none of which, either singly or collectively, was sufficiently severe or pervasive to give rise to a hostile work environment. Annalee D. v. U.S. Postal Serv., EEOC Appeal No. 0120180162 (Dec. 28, 2017); Genaro D. v. Dep’t of Homeland Security, EEOC Appeal No. 0120142618 (Dec. 19, 2016); Gray v. U. S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2020003246 5 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). 2020003246 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 September 16, 2021 Date