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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022000233 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Billie S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000233 Hearing No. 430-2020-00281X Agency No. DON-19-68093-00566 DECISION On October 18, 2021, 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 final action 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. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist, GS-1102-09 at the Agency’s Naval Medical Center in Camp Lejeune, North Carolina. On January 2, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and harassed him creating a hostile work environment on the bases of race (Black), sex (male), and age (42) when: 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. 2022000233 2 a. On January 23, 2018, Complainant presented his supervisor with his monthly military schedule and she immediately questioned the legitimacy of his absence; b. From March 21 to 23, 2018, and March 29 to April 20, 2018, Complainant was called to service on active orders and his supervisor questioned Complainant extensively regarding his time away; c. On April 23, 2018, upon his return from active orders, Complainant’s supervisor gave Complainant a larger workload than his coworkers and tasked them with monitoring his work; d. On June 5, 2018, Complainant’s supervisor questioned Complainant extensively when he returned from military service; e. On June 5, 2018, Complainant received an email from his supervisor reiterating the lunch and break policy which was sent only to him; f. On June 6, 2018, he discussed the June 5, 2018 email with his supervisor and she responded “Awe, [Complainant], you wouldn’t understand; us ladies just need to have our coffee;” g. On June 8, 2018, Complainant received a Letter of Termination during Probationary Period from the Acting Director for Administration; h. Complainant’s supervisor did not allow Complainant to take immediate breaks upon arriving at work, but allowed female employees to take immediate breaks upon arriving at work; and i. Complainant’s supervisor did not allow Complainant undocumented time away from work and required Complainant to adjust his timesheet, but allowed female employees time away from work and did not require an adjustment to their timesheet. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The Agency submitted a motion for summary judgment on September 30, 2020. The AJ assigned to the case issued a decision without a hearing on June 17, 2021, granting the Agency’s motion for summary judgment. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant was appointed to his position on January 22, 2018, subject to a two-year probationary period. Complainant’s first-line supervisor (Supervisor-1) was a Supervisory Contract Specialist and she was the selecting official in the hiring of Complainant. There were four female coworkers also in the role of Contracting Specialists in the Contracting Division including a Caucasian/Filipina age 28 (Coworker-1), a Caucasian age 36 (Coworker-2), a Hispanic age 42 (Coworker-3), and a Caucasian age 44 (Coworker-4). 2022000233 3 Regarding claim a, Complainant reported that Supervisor-1 asked the following regarding Complainant’s monthly military schedule, “is it mandatory, did you volunteer for this, do you have to go, how often will this be happening and how does [Complainant] expect to learn contracting if [he’s] always gone?” Regarding claim b, Complainant reported that Supervisor-1 asked, “how many times is this going to happen, how long will [Complainant] be gone this time, I have two Contract Specialist that will be out for training, I need you here, how am I going to run a Contracting Department with no one here?” Supervisor-1 stated that she does not remember the specifics related to claims a and b, but she indicated that any questions she may have asked were for the business purpose of knowing what work tasks she could assign Complainant based on his availability. Regarding claim c, Supervisor-1 reported the following workload assignments across the Contracting division: Complainant was assigned 32 contract options to exercise. Coworker-1 was assigned 12 contract options and 12 new contract requirements packages to award. Coworker-2 was assigned 16 contract options and 13 new contract requirements packages to award. Coworker-3 was assigned 9 new contract requirements packages and had a two-week training course to attend that month. Coworker-4 was assigned 11 new contract requirements packages to award and had a two-week training course to attend that month. Supervisor-1 reported that exercising contract options is the process that takes the least amount of time and is non-complex. Supervisor-1 noted that new contract requirements packages are more complex than exercising a contract option and can require up to 30 days per package. Supervisor-1 stated that Complainant’s assignment of exercising 32 contract options was actually a far lighter workload than his coworkers’ workload due to contract options being non-complex. Coworker-1 reported that she was assigned many contract options when she joined the Contracting Division. Coworker-1 stated that such repetitive assignments helped build her contracting foundation and that they allowed Complainant to “get his feet wet.” Complainant reported that Complainant’s coworkers were assigned to monitor his work. Supervisor-1 stated that coworkers were tasked with assisting, not monitoring, Complainant. Regarding claim d, Complainant stated that Supervisor-1 asked him three questions following his return from military service on June 5: (1) if Complainant had orders to show for that weekend; (2) if Complainant planned on taking off every Monday following those weekends; and (3) can Complainant transfer to a unit closer to North Carolina. Supervisor-1 indicated that she could not recall questioning Complainant about his military service in June. Regarding claim e, Complainant contends that the June 5 email was harassment because Supervisor-1 knew Complainant was already aware of the break policy and the usual practice was to courtesy copy everyone within the department, which Supervisor-1 did not do. 2022000233 4 Regarding claim f, Complainant stated he found the comment offensive because he considered the statement to be inappropriate from a person in a supervisory position. Regarding claim g, Complainant received a Letter of Termination during Probationary Period which stated that the determination was made based on Complainant’s poor performance. Complainant contends that his performance was not poor and that he was not counseled of his poor performance in writing. Supervisor-1 recommended that Complainant be terminated to Human Resources following observing Complainant asleep during a training session on June 6, 2018. The record contains a photograph Supervisor-1 took of Complainant sleeping. Coworker- 1 and Coworker-3 reported seeing Complainant close his eyes and appear to sleep during the training session. Supervisor-1 also prepared a document in June 2018 detailing additional deficiencies in Complainant’s work. The document contained examples of Complainant’s inattention, failure to follow instructions, and lack of organization. Supervisor-1 submitted the document to Human Resources in support of her recommendation. Coworker-1, Coworker-3, and Coworker-4 also reported observing Complainant’s errors caused by lack of focus and lack of organization. Complainant reported that he was not allowed to take immediate breaks upon arrival or allowed undocumented time away from work in claims h and i. Supervisor-1 reported that no employee was provided immediate breaks upon arrival or undocumented time. Regarding claim h, Supervisor-1 clarified that any employee, not just female employees, can get breakfast or coffee upon arriving to work to eat or sip at their desk during the workday. Supervisor-1 stated that this activity is not considered a break. Regarding claim i, Complainant contended that Coworker-4 was allowed undocumented time, however, Supervisor-1 denied allowing any employee such privilege. ANALYSIS AND FINDINGS 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). 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. Subjective belief or speculation as to motive, intent, or pretext is not sufficient to satisfy the complainant’s burden. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 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. 2022000233 5 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. (as revised, August 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). In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 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. 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); Complainant v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Complainant v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Complainant v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). 2022000233 6 To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). For purposes of analysis, we assume arguendo that Complainant has established a prima facie case of discrimination on the alleged bases. We find that Complainant failed to rebut the Agency’s legitimate, nondiscriminatory reasons for the adverse employment actions at issue. Regarding claim c, Supervisor-1 explained that the contract options assigned to Complainant were non-complex tasks that require less time and appropriate for Complainant as a new employee. Regarding claim g, the Letter of Termination indicated that Complainant was terminated for poor performance. At a minimum, Supervisor-1, Coworker-1, and Coworker-3 reported seeing Complainant asleep during a training session on June 6. Additionally, Supervisor-1, Coworker-1, Coworker-3, and Coworker-4 observed deficiencies in Complainant’s performance including inattention and lack of organization. Regarding claims h and i, Supervisor-1 stated that Agency policy is that no employee was provided immediate breaks upon arrival or undocumented time. We find Complainant failed to show that the Agency’s proffered reasons were pretextual. Complainant acknowledges in his signed declaration that he can only speculate that the actions were based on race, sex, or age. The record does not contain evidence of similarly situated employees treated differently than Complainant. Regarding his claim of harassment, the conduct alleged, even if assumed to occur as Complainant reported, is not severe or pervasive enough to alter the conditions of Complainant’s employment. The record also does not contain evidence that the alleged conduct was motivated by discriminatory animus. CONCLUSION Accordingly, we AFFIRM the AJ’s decision finding no discrimination, which became the Agency’s final action. 2022000233 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). 2022000233 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 January 26, 2023 Date