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

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2020003268 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Barry G.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003268 Hearing No. 570-2018-00017X Agency No. 16-68910-02860 DECISION On April 29, 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 March 20, 2020, final order 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 MODIFIES the Agency’s final order. ISSUES PRESENTED The issues presented are: (1) whether there are genuine issues of material fact that require a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ); (2) whether the AJ properly found that Complainant was not subjected to unlawful retaliation; (3) whether the AJ properly found that Complainant did not establish that the Agency's proffered reasons for its actions were pretext for discrimination; and (4) whether the AJ properly found that Complainant had not been subjected to a hostile work environment as alleged. 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. 2020003268 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Legal Technician, GS-0986-10, at the Agency’s Naval Litigation Office at the Navy Yard in Washington, D.C. Complainant began serving in this position on April 5, 2015, subject to a one- year probationary period as a new supervisor. Prior to that time, Complainant served as a Legal Instruments Examiner at the Department of Justice and had served as Acting Supervisor there. Complainant’s responsibilities as a Supervisory Legal Technician with the Agency included supervising three Legal Technicians and overseeing their work, as well as serving as the Organization Defense Travel Coordinator for the department. While serving as a Supervisory Legal Technician, Complainant reported several problems he was having with his subordinates to his first-line supervisor (S1) and his second-line supervisor (S2). In addition, in his role as travel coordinator, Complainant complained to S1 about problems with attorneys related to their use of travel cards. S1 advised Complainant to document the problems and take any action he deemed appropriate. In addition, S1 referred Complainant to the Litigation Support Manager (CW1) for mentoring and training as a new supervisor. CW1 had preceded Complainant in the Supervisory Legal Technician position and had 15 years of experience in the position. In August 2015, Agency management arranged to have a Conflict Resolution Facilitation to address problems between Complainant and other employees. Despite the facilitation, Complainant’s problems with other employees continued. S1 received complaints from attorneys that Complainant was not completing tasks correctly, had to be asked several times to do something, or did not complete a task. S1 advised Complainant that several team leaders complained and were dissatisfied with the support staff service. S1 and CW1 provided Complainant with advice on how to overcome these issues. In December 2015, Complaint notified S1 about time and attendance issues by his staff and non- use of government travel cards by two attorneys. S1 advised him to do what he felt was appropriate as a supervisor, including taking any necessary disciplinary action. S1 met with Complainant several times about the problems he was having with his staff, principally one subordinate (E1). S1 told Complainant that staff misconduct was not acceptable, advised him to document any instances in which it occurred, and told him to take whatever action he deemed appropriate. Complainant began to document E1’s conduct. S1 also asked Complaint to provide him with the names of the attorneys who were not using the government travel card, and S1 spoke to the attorneys or their supervisors. Complainant then received verbal backlash from the two attorneys about whom he had complained. On December 18, 2015, S1 met with Complainant to discuss his performance appraisal for his first six months on the job. S1 advised Complainant that “he must make progress soon if he wanted to emerge successfully from his probationary period.” 2020003268 3 In January 15, 2016, S1 contacted Human Resources to inquire about removing Complainant during his probationary period, and Human Resources sent S1 a sample supervisory probationary removal. On January 29, 2016, S1 warned Complainant in his performance appraisal about the need to make improvement to successfully complete his probationary period. On February 5, 2016, Complainant and E1 had an argument about E1’s work, raising their voices in the office. On February 18, 2016, S1 asked Human Resources about restructuring and combining Complainant’s position and CW1’s position to become one position at a GS-14 grade level. On March 25, 2016, S1 removed Complainant as the Supervisory Legal Technician GS-0986-10, and placed him in a Legal Technician, GS-0303-9, position. CW1 took over Complainant’s responsibilities. Complainant asked to be reassigned outside of the Naval Litigation Office. On April 6, 2016, Complainant was detailed to work as a Management Analyst in the Office of the Deputy General Counsel (ODGC) at the Pentagon for a period of three months. During the detail, the Assistant to the DGC served as Complainant’s supervisor while the Naval Litigation Office retained responsibility for Complainant’s administrative functions, including time and attendance and leave. On June 3, 2016, the ODGC requested to extend Complainant’s detail. After a period of revisions in June to July 2016, Complainant signed and acknowledged his adjusted performance elements reflecting his duties at the ODGC on July 26, 2016. On June 17, 2016, Complainant sent S2 a letter requesting permanent reassignment to the position in ODGC. S1 and S2 attempted to find a permanent position for Complainant but were unsuccessful due to the reduction in positions and payroll budget during this time. On July 15, 2016, Complainant filed an informal EEO complaint. Alternative Dispute Resolution (ADR) was discussed but did not occur. On July 25, 2016, S1 received an email notification that Complainant booked travel to attend the Support Staff Workshop in San Diego, California. S1 informed Complainant that the Naval Litigation Office was already sending two female staff members. On July 26, 2016, the Assistant to the DGC apologized to S1 for not coordinating Complainant’s travel to the Support Staff Workshop with the Naval Litigation Office, and after further communication with S1, Complainant’s attendance was approved. Complainant attended the Support Staff Workshop from August 1-5, 2016. 2020003268 4 On August 8, 2016, Complainant created his travel voucher for the Support Staff Workshop but did not sign it until August 23, 2016. On August 24, 2016, an Authorizing Official asked CW1 why Complainant’s travel expenses were three times higher than the other staff who attended the Support Staff Workshop and questioned specific items in his expenses based on their cost. CW1 communicated the issues to Complainant and, on August 25, 2016, Complainant fixed his errors, resubmitted the travel voucher, and S1 approved it that same day. On September 7, 2016, S1 was contacted by the EEO counselor about Complainant’s EEO complaint. On September 16, 2016, S1 sent an email to Complainant and other employees instructing them not to speak with an attorney who was purportedly representing another Naval Litigation Office employee in his EEO complaint, as that attorney had not formally been designated as the representative. On September 23, 2016, the Agency EEO office received the designation of representation. Complainant subsequently spoke to the attorney representative and gave a statement to the EEO investigator. On November 2, 2016, S1 sent an email to the Naval Litigation Office announcing the newly established position of Litigation Support Manager position, GS 13/14, open for internal candidates and responsible for all litigation support for the Naval Litigation Office, which consisted of approximately 36 attorneys. The announcement specifically stated that management was “[s]eeking individuals at GS 13/14 level…” On November 4, 2016, Complainant emailed his resume to S1 stating that, “[a]s advised by my counsel,…I am applying…” On November 4, 2016, the vacancy closing date, Complainant learned that CW1 was selected for the Litigation Support Manager Position. EEO Complaint On November 7, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against and subjected him to hostile work environment harassment him on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: A. Since December 15, 2015, to November 15, 2016, he was subjected to a hostile work environment by his first-line supervisor (S1), Special Counsel for the Naval Litigation Office with the following incidents supporting his claim: 1. On September 16, 2016, his supervisor sent him an email directing him not to speak to another employee’s attorney in regard to an EEO complaint until further notice; 2020003268 5 2. On August 24, 2016, S1 had another employee contact Complainant to scrutinize his Support Staff Conference Travel and Rental expenses, requiring him to be the only employee in the office to provide a detailed explanation; 3. In August 2016, his supervisor stalled and held off approving reimbursement for his Government Travel Card; 4. On July 25, 2016, after contacting the EEO office, his supervisor attempted to block his attendance to the Support Staff Conference; 5. Since June 17, 2016, his supervisor has not responded to his letter of request for reassignment; 6. On April 3, 2016, Complainant was detailed to the position of Management Analyst, GS-0300-9, and since April 3, 2016, his supervisor failed to give him the performance standards for his position; 7. On March 25, 2016, his supervisor informed him that he was being removed from his supervisor duties of Supervisory Legal Technician, GS-0986-10, during his probationary period; 8. On March 25, 2016, his supervisor failed to give him guidance on Employee Labor Relations procedures regarding employees’ unprofessional behavior; 9. On March 25, 2016, during a meeting, his supervisor made the following comments to him: “Do you know how many people wanted me to fire you? “I think we made a mistake when we hired you.” “It’s not my problem you can’t handle your staff.” “The poll is out, nobody likes you.” “This termination is not something that I came up with today, this has been in the works for some time now.” 10. On December 15, 2015, Complainant’s supervisor overlooked his concerns when Complainant reported to him that employees under his leadership were abusing Time and Attendance regulations and misusing the Government Travel Cards versus personal credit cards under his leadership. B. On November 15, 2016, Complainant became aware that his supervisor, also known as the hiring official, did not select him for the position of Litigation Support Manager, GS- 13/14, regarding vacancy announcement #MIOC 0301-14-12396. 2020003268 6 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 timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's May 20, 2019, motion for a decision without a hearing and issued a decision without a hearing on March 6, 2020, in the Agency's favor. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination and hostile work environment harassment as alleged. In the AJ’s decision, the AJ noted that most of the actions at issue occurred prior to the time that S1 became aware of Complainant’s EEO activity. While Complainant asserted S1 must have become aware of his EEO activity when ADR was contemplated in July 2016, Complainant’s assertion was not supported by the record and amounted to speculation. The AJ determined that Complainant, as a new supervisor, experienced significant difficulty with oversight of his staff and that there were numerous complaints about Complainant’s management, including from his subordinates and from attorneys in the unit. The record further shows that his managers’ actions, including the removal of Complainant from his supervisory position during his probationary period, were motivated by their belief that Complainant was not an effective manager, rather than by discrimination based on his sex or reprisal for EEO activity. The AJ found that despite Complainant’s claims of sex discrimination and reprisal, there was no evidence other than his bare assertions to find that the direction not to speak to a coworker’s attorney, the scrutiny of his travel reimbursement submission, or any of the other claims leading up to his non-selection were unlawfully motivated. Rather, the AJ stated, the undisputed facts in the record support the Agency’s reasons for its actions. Finally, the AJ addressed Complainant’s allegation that Agency counsel reviewed manager affidavits related to the instant matter. Specifically, the AJ explained that the Commission has recently held that EEO MD-110 permits agency defense counsel to participate in the pre- complaint and investigative stages under clearly defined and controlled conditions that will carry out the Agency Head’s obligation to defend the Agency against legal challenges while avoiding inappropriate interference with the activities of the EEO Office. The AJ noted that this means that agency defense counsel may assist agency management officials and witnesses in the preparation of their affidavits during the investigative stage. Annalee D. v. Gen. Serv. Admin., EECO Appeal No. 0120170991 (Oct. 10, 2018), req. for recons. granted, EEOC Request No. 2019000778 (Nov. 27, 2019). Therefore, the AJ found that unlawful interference did not occur. CONTENTIONS ON APPEAL On appeal, Complainant contends that genuine issues of fact exist requiring a hearing. Specifically, Complainant states that management officials made statements under oath that are contradicted by the record and Complainant’s testimony. 2020003268 7 Complainant assert that the record includes abundant evidence of sex discrimination and argues that he was similarly situated to CW1 because they shared the same position at different times; had overlapping position descriptions and duties; and worked under the same chain of command. According to Complainant, the record evinces reprisal because his attendance at the Support Staff Workshop was blocked immediately after he filed his formal complaint. He adds that the record also contains sufficient evidence showing that his non-selection was discriminatory and retaliatory. Complainant reiterates his contention that his claims rose to the level of severe and pervasive, and that the incidents that occurred were not mere isolated incidents. In response, the Agency argues that the AJ’s issuance of a decision without a hearing was appropriate. The Agency maintains that the record lacks evidence of gender discrimination or reprisal related to Complainant’s non-selection, contending that Complainant failed to offer evidence that his qualifications were observably superior to CW1’s qualifications for the Litigation Management Support position. According to the Agency, Complainant further failed to show that the harassment he complained of was based on his sex or EEO activity. ANALYSIS AND FINDINGS In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). Decision Without a Hearing We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2020003268 8 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). After a review of the record, the Commission finds that the AJ's issuance of a decision without a hearing was appropriate. The record has been adequately developed, Complainant was given notice of the Agency's motion to issue a decision without a hearing, he was given an opportunity to respond, he was given a comprehensive statement of undisputed facts, and he had the opportunity to engage in discovery. Unlawful Retaliation - Claim (A)(1) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1973). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 304 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 (1931). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the Agency was aware of his protected activity; (3) Complainant was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse action. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2010). A federal employee engages in protected activity when he engages in “statutorily protected conduct.” Walker v. U.S. Dep’t of the Air Force, 518 Fed. Appx. 626, 627 (11th Cir. 2013) (citing Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Complainant must demonstrate that he was subjected to discrimination in retaliation for participating in the EEO process or complaining of “unfair practices in the workplace.” Here, Complainant was named as a witness in a coworker’s EEO complaint and S1 was aware. The record shows that S1 emailed employees who were identified as witnesses informing them that they should not speak with the coworker’s attorney. S1 denied communication with the attorney for the purposes of discussing the coworker’s EEO matter for at least one week. 2020003268 9 This is sufficient to establish an inferential nexus between the email and Complainant’s participation in the EEO process. We find that Complainant has met the burden of establishing a prima facie case of retaliation with respect to claim (A)(1). We turn to the Agency to articulate a legitimate, nondiscriminatory reason for its action. The AJ found that Complainant offered no evidence other than his bare assertions to find that the direction not to speak to the coworker’s attorney was unlawfully motivated. However, the record includes an email in which S1 does in fact state that Complainant had been identified as a potential witness and he was to decline to communicate with the retained attorney. ROI at 265. S1 stated that the representative had not formally advised the Agency of his representation and Complainant was to refrain from speaking with him until he did so. Id. S1 stated that he was advised to send the email because the attorney had not formally advised the Agency of his representation and did not do so until one week later. S1 asserted that Agency policy dictates that Agency employees shall not provide “factual official information” without the appropriate authority. However, S1’s testimony is inconsistent with Agency policy, which explicitly states that it does not apply to release of official information or testimony by Agency employees in “administrative proceedings conducted by, or on behalf of” the EEOC. ROI at 406. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency's explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). Upon review of the record, we find that the record is filled with inconsistencies and lacks supporting evidence regarding S1’s email instructing Complainant not to speak with his coworker’s attorney. Our review of the record finds that S1 conceded that he engaged in the conduct alleged by Complainant in claim (A)(1). However, as noted, the policy that S1 indicated he relied upon does not support S1’s reliance or justify the email. While S1 testified that he adhered to Agency policy when issuing the email, the record indicates that the policy S1 relied upon expressly exempts application of the instruction to administrative proceedings, including those conducted by or on behalf of the EEOC. Further, S1 failed to identify who advised him to send the email and the record lends no support to his assertion. We find that Complainant has established that the Agency's legitimate, nondiscriminatory reason was unworthy of credence, and therefore was pretext for discrimination. As such, Complainant has proved by a preponderance of the evidence that he was subjected to reprisal discrimination.2 Therefore, the Agency is liable for retaliation regarding S1’s email. Id. at 33, 440, 442, 444, 446. Accordingly, we will order the Agency to provide EEO training to S1 and to post a notice of this finding. 2As we find that Complainant has established discrimination based on retaliation, we need not reach a determination on his claim of discrimination based on sex. 2020003268 10 Remaining Disparate Treatment Claims Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on his protected classes, the Agency articulated legitimate, nondiscriminatory reasons for its actions in the remaining claims at issue. With respect to Complainant’s allegations concerning his travel expenses and reimbursement, S1 denied directing or having anyone scrutinize Complainant’s travel voucher. S1 further averred that another employee attending the same conference was subjected to similar treatment. ROI at 369. S1 stated that the Authorizing Official who reviewed Complainant’s travel voucher identified an issue with Complainant’s travel claim and the claim for a female employee as well, which she asked CW1 to resolve. Id. In email discussion concerning Complainant’s travel costs, CW1 explained that “all Naval Litigation Office employees travel authorizations, vouchers/local claims are thoroughly reviewed by the Authorizing Officials because they are responsible for any travel they sign,” which is consistent with S1’s testimony. ROI at 262. CW1 further clarified that eight Assistant Directors had not reviewed Complainant’s travel claim as suggested and that the system reflected the route list of approval officials. Id. Moreover, the record supports S1’s testimony that the Authorizing Officer found issues with Complainant’s travel claim along with a female employee’s travel claim. Id. at 452. S1 noted that Complainant’s travel claim was later modified to resolve the concerns. Specifically, Complainant resubmitted the request on August 25, 2016, S1 approved the request within minutes after receipt. As for Complainant’s attendance at the Staff Support Workshop, S1 denied attempting to block Complainant’s attendance at the conference. ROI at 371. S1 stated that when he received an automatic notification that a travel authorization was awaiting approval, he sought confirmation from the DGC that Complainant’s attendance was approved. Id. Once the confirmation was secured, S1 stated he acted to endorse Complainant’s attendance at the Conference. Id. A review of email correspondence corroborates S1’s testimony. ROI at 260, 457. With respect to Complainant’s request for reassignment, S1 and S2 acknowledged receiving Complainant’s letter. ROI at 372-73. S1 stated that he did not respond because the letter was directed to S2 and he did not interpret the letter as requiring a response. Id. S2 averred that he spoke with Complainant about the request but did not provide a written response. Id. at 588-89. Nevertheless, S1 and S2 stressed that they attempted to arrange a reassignment for Complainant, which the record confirms. S2 further attested that he was able to detail Complainant to the OGC Central Office at the Pentagon, a position which he stated provided Complainant the opportunity to work outside Naval Litigation Office while a permanent reassignment could be explored. Regarding Complainant’s Progress Review, S1 explained that Complainant’s Progress Review was complicated by the need to adjust the critical elements in his performance plan because of the reassignment and subsequent detail to the ODGC. ROI at 374. 2020003268 11 S1 asserted, however, that Complainant was an active participant in the adjustment process and that when Complainant was notified on June 3, 2016 by ODGC that it wanted to extend Complainant’s detail, critical elements in the old performance plan were no longer suitable for that purpose, thus requiring further edits. As a result, S1 explained that it was necessary to send Complainant revised critical elements which he did on June 29, 2016. S1 also stated that Complainant responded to the revised elements on July 6, 2016, indicating that additional changes were needed and on July 15, 2016 and July 25, 2016, Complainant sent S1 proposed revisions, which S1 considered. ROI at 460, 462, 464. S1 stated that even with the additional work associated with Complainant’s requested changes to his critical elements, the timeline for his progress review was not unusual, explaining that the progress review for other employees occurred after Complainant’s Progress Review. As for Complainant’s removal from his supervisory duties, the record shows that, in a letter dated February 25, 2016, Complainant was advised that his supervisory duties were being removed, effective immediately. S1 indicated that the action was being taken because Complainant’s performance as a supervisor was unsatisfactory. The letter described “continuing friction and unprofessional interactions” between Complainant and members of staff that were “disruptive to the office.” S1 added that he believed that the dysfunction caused Complainant and his staff to have made significantly more errors than acceptable. A review of the record corroborates S1’s reports of ongoing performance concerns. With respect to the allegation that S1 failed to give Complainant guidance with respect to employees’ unprofessional behavior, S1 denied that Complainant requested any such guidance from him but acknowledged that he met with Complainant on several occasions to discuss Complainant’s many concerns with the conduct of his staff. ROI, at 378. S1 stated he assumed Complainant sought confirmation from Human Resources that certain employee behaviors about which he complained were inappropriate or inconsistent with office policy. S1 asserted that he encouraged Complainant to rely on the guidance of CW1, who was Complainant’s predecessor in the position and assigned to serve as his mentor. S1 also stated that CW1 informed him that although Complainant frequently consulted with her, he rarely followed her advice. Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency’s explanation for its actions regarding these incidents was pretext for discrimination or reprisal. Finally, regarding the non-selection claim, the record supports the AJ’s determination that the selectee and Complainant were not similarly situated. Moreover, Complainant has failed to establish a nexus between the non-selection and his sex or protected activity. Management averred that Complainant was not qualified for the Litigation Support Manager position and cited to Complainant’s own supervisory issues and performance issues as evidence in support of that determination. 2020003268 12 Agencies have broad discretion to choose among equally qualified candidates as long as the selection is not based on unlawful considerations. Lashawna L. v. Evt’l. Prot. Agency, EEOC Appeal No. 2019000124 (Mar. 8, 2019). They may select candidates with fewer years of experience if they believe that such candidates are best qualified to meet the needs of the organization. Barney G. v. Dep't of Agric., EEOC Appeal No. 0120172111 (Nov. 29, 2018). They may even preselect a candidate as long as the preselection is not premised upon a prohibited basis. Michael R. v. Dep't of Agric., EEOC Appeal No. 0120172112 (Nov. 29, 2018). The Commission cannot second-guess such personnel decisions unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. Burdine, supra, 450 U.S. at 259. Here, Complainant has not presented enough evidence to show that his qualifications for the Litigation Support Management position were so plainly superior to those of the CW1 as to compel a finding of pretext. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the Complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (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 Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). In this case, we do not find that Complainant has shown that he was subjected to a hostile work environment based on his sex or in reprisal for his protected EEO activity. We find that the complained of conduct did not have the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). 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. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency's final order accepting the AJ's finding on the merits of his claims. We REMAND the complaint to the Agency to address matter of unlawful retaliation, in accordance with the Order provided below. 2020003268 13 ORDER 1. Within 90 calendar days of the date this decision is issued, the Agency shall conduct a supplemental investigation on the issue of Complainant's entitlement to compensatory damages with respect to the finding of unlawful retaliation and shall determine the amount of compensatory damages to which Complainant is entitled. Complainant will cooperate in the Agency's efforts to compute the amount of compensatory damages, if any, and will provide all relevant information requested by the Agency. The Agency shall issue a final decision on the issue of compensatory damages with appeal rights to the Commission. A copy of the final decision must be submitted to the Compliance Officer referenced below. Within 30 days of its determination of the amount of compensatory damages owed to Complainant, the Agency shall pay Complainant that amount. 2. Within 30 calendar days of the date this decision is issued, the Agency shall provide a minimum of eight hours of in-person or interactive EEO training S1 with a specific emphasis on reprisal and the obligation to not restrain, interfere, coerce, or retaliate against any individual who exercises his or right to oppose practices made unlawful by, or who participates in proceedings under, the Federal equal employment opportunity laws. 3. Within 30 calendar days of the date this decision is issued, the Agency shall consider taking appropriate disciplinary action against S1. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the Compliance Officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If S1 has left the Agency's employ, the Agency shall furnish documentation of his departure date. 4. The Agency shall post a notice in accordance with the paragraph entitled, “Posting Order.” POSTING ORDER (G0617) The Agency is ordered to post at its Naval Litigation Office at the Washington Navy Yard copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled “Implementation of the Commission's Decision,” within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2020003268 14 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020003268 15 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2020003268 16 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 27, 2021 Date