[Redacted], Bart M., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 10, 2021

Appeal No. 2020003307 (E.E.O.C. Jun. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020003307 Agency No. 5J1G1800252F19 DECISION On May 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 3, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as the Community Support Flight Chief, GS-1101-13, at Malmstrom Air Force Base in Montana. In an EEO complaint filed on March 6, 2018, and amended several times thereafter, Complainant alleged that the Agency subjected him to discrimination and a hostile work environment because of his sex (male), age (56), and in reprisal for prior protected EEO activity when:2 1. On January 22, 2017, the Support Commander, his immediate supervisor (S1), furloughed Complainant while exempting the Force Support Deputy Commander from furlough; 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. 2 For ease of analysis, the incidents comprising Complainant’s claims have been rearranged in chronological order. 2020003307 2 2. On September 20, 2017, S1 subjected Complainant to verbal humiliation by questioning him during a briefing; 3. On October 6, 2017, S1 denied Complainant the opportunity to attend a free training session while allowing other flight chiefs the opportunity to attend that training; 4. On October 20, 2017, S1 issued Complainant a letter of reprimand for allegedly sleeping during work despite a witness statement to the contrary; 5. On November 21, 2017, the Mission Support Group Commander, his second-level supervisor (S2), denied Complainant’s administrative appeal of the reprimand issued by S1 on October 20, 2017; 6. On November 21, 2017, S1 ordered the Operations Officer and a fellow flight chief to assist him in interviewing prospective employees but not requiring other flight chiefs to have such assistance; 7. On an unspecified date in November 2017, S1 subjected Complainant to a “Commander-Directed” investigation in which he and three other individuals identified were all over the age of 40; 8. On an unspecified date in December 2017, S1 subjected Complainant to heightened scrutiny regarding supply expenses incurred during the previous year while ignoring the accounting office’s error occurring that same month; 9. On December 20, 2017, during a staff meeting, S1 made derogatory remarks toward presumably older employees by referring to them as “too old and slow” to efficiently carry out their jobs; 10. On January 8, 2018, S1 required Complainant to acknowledge receipt of emails while not requiring the same from other flight chiefs; 11. On January 9, 2018, S1 issued Complainant a second letter of reprimand for failure to follow instructions; 12. On January 11, 2018, S1 made derogatory references toward older employees during a meeting with Complainant; 13. On February 6, 2018, Complainant became aware that S1 planned to furlough him again in the event of another government shutdown, though that event did not occur; 14. On March 9, 2018, S2 sent Complainant a hostile email questioning him on items that were missing from the Outdoor Recreation Office’s holdings in 2015; 2020003307 3 15. During a meeting held on March 27, 2018, S2 improperly questioned Complainant given his command role within his flight; 16. On May 16, 2018, Complainant became aware that S1 had interfered in a potential transfer decision when he was not selected for a position as a supervisory food/beverage specialist; 17. On May 16, 2018, Complainant became aware that S1 had begun a secondary investigation of him two days after Complainant had informed S1 that he was seeking a transfer; 18. On May 16, 2018, S1 issued Complainant a proposed 14-day suspension for misconduct and mistreatment; 19. On June 21, 2018, S1 failed to provide Complainant with a program management review; 20. On June 29, 2018, S1 issued Complaint a letter of proposed reprimand; 21. On July 3, 2018, S1 proposed to suspend Complainant for 14 days, and ultimately suspended him for 10 days; 22. On July 23, 2018, S2 issued a decision upholding a reprimand proposed by S1 on June 29, 2018; and 23. On August 9, 2018, Complainant was informed that his prospective job offer for the position of supervisory community services specialist had been rescinded allegedly due to S1’s interference in another prospective job offer.3 Following an investigation, the Agency provided Complainant a copy of the report of investigation and notified Complainant of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant request a final agency decision on the merits, which the Agency issued on April 2, 2020. In the decision, the Agency concluded that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. Although Complainant promptly filed an appeal of the decision, he did not submit a brief or statement in support of his appeal. 3 The Agency dismissed incidents (18) and (20) on the grounds that they involved proposed actions. Complainant did not challenge the dismissal of these incidents on appeal and the Commission can find no basis to disturb the dismissal decision. These incidents, however, will be considered as background evidence in support of Complainant’s overall hostile work environment claim. 2020003307 4 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 claim of disparate treatment, 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). His first step would generally be to establish a prima facie case by demonstrating that he/she 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 management officials 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 incidents (1) and (13), S1 explained that the Force Support Deputy Commander was exempt from the furlough because, as the organization’s senior-ranking civilian, he had the knowledge and experience to run the service’s activities during the furlough, and that none of the flight chiefs, including Complainant, were deemed essential for furlough purposes. As to claim (3), S1 affirmed that she denied Complainant’s attendance at training because she had been in her position for two months and she determined that Complainant’s budgets and financial statements were inaccurate so she asked him to focus on achieving financial stability for his Flight. No other flight chiefs attended the training. Regarding claims (4) and (5), S1 confirmed that she issued Complainant a reprimand for sleeping on duty based on a witness statement and photograph of the incident. S2 denied Complainant’s appeal based on the collected evidence. As to claim (6), S1 acknowledged asking Complainant to include the Operations Officer on his panel interviews for the Operations Officer’s professional development. With respect to claims (7) and (21), S1 explained that the investigation was initiated following an Inspector General inspection of her unit during which Complainant and two other managers/supervisors were identified as behaving unprofessionally towards their subordinates. S1 appointed an investigator to investigate the allegations which resulted in charges of disrespectful language and conduct unbecoming against Complainant. S2 confirmed that an unbiased investigation was conducted, and he determined that the substantiated misconduct along with Complainant’s failure to execute an event in disregard to S1’s instructions warranted issuance of a 10-day suspension against Complainant. The ongoing investigation also resulted in officials involved in Complainant’s reassignment at issue in claim (16) deciding to not go forward with the personnel action. 2020003307 5 With respect to claim (17), S1 denied that there was a “secondary investigation;” rather, some of the individuals interviewed during the original investigation were asked “follow-on” questions to clarify other statements previously received. With regard to incident (10), S1 averred that Complainant had failed to consistently respond to her emails and that several other flight chiefs had complained of difficulty working with Complainant for the same reason. With respect to incident (11), S1 averred that she had issued Complainant a letter of reprimand because of incomplete work he had submitted despite her clear instructions. Regarding claim (19), S1 affirmed that Complainant had not previously requested a copy of the program management review and had been briefed on topics covered in the review. After learning of his request, S1 ensured Complainant was provided a copy “within an hour.” Regarding incident (22), S1 averred she issued Complainant the reprimand that S2 upheld because leave requests submitted by Complainant failed to comply with orders regarding leave requests. Finally, with respect to claim (23), S1 denied any involvement in the rescission of the tentative Supervisory Community Services Specialist position. There is no evidence indicating that any of Complainant’s chain-of-command interfered with Complainant’s tentative job offer. A review of the record reveals that the job offer was withdrawn based on Complainant’s failure to meet the suitability requirements of the position. To ultimately prevail on these disparate treatment claims, Complainant must prove, by a preponderance of the evidence, that the Agency management’s explanations for the actions at issue are pretexts 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). 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). Here, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents that contradict or undercut Agency management’s stated reasons for any of the incidents alleged. In light of Complainant’s failure to raise any arguments on appeal regarding the truthfulness of Agency management’s testimony, we agree with the Agency that Complainant has not presented evidence sufficient to establish the existence of a discriminatory or retaliatory motivation on the part of any management official in connection with the alleged incidents at issue. Hostile Work Environment To establish a claim of harassment 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 classes; (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 2020003307 6 imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In this case, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statues are not a civility code. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., 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. With respect to claim (2), S1 denied verbally humiliating Complainant during the briefing and S2 attributed any complaints about Complainant’s performance during the briefing to Complainant’s inaccurate budget assessments. As to claim (8), management officials stressed that Complainant was unable to provide responses to questions when asked about the financial operations of the facilities under his control, and no one was aware of the Accounting Office having made a $2,000 error. As for the comments in claims (9) and (12), S1 denied making any age-related derogatory comments. Witnesses corroborated S1’s denial that the comments were not made. Specific to claim (12), S1 stated that she had heard Complainant state that kitchen staff employees were old and slow, and she told Complainant that he needed to answer for the significant loss of money for the site rather than blaming the kitchen staff. Regarding claim (14), S2 stated that he sent Complainant an email advising him that he was holding him accountable to take preventative measures to ensure against future losses of inventory following the report of significant losses of inventory from Outdoor Recreation during his tenure. Finally, with respect to claim (15), Agency officials confirmed that Complainant was not improperly questioned about his command role, rather Complainant was asked about his flight and activities but could not provide the requested details about his financial operations. We find that none of these incidents, either alone or collectively, were severe or pervasive enough to rise to the level of a hostile work environment or were motivated by discriminatory or retaliatory animus on the part of any Agency management official. As a result, the Commission finds that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. After a review of the record in its entirety, 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. 2020003307 7 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). 2020003307 8 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 June 10, 2021 Date