[Redacted], Brenton W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021004056 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Brenton W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2021004056 Hearing No. 570-2020-00274X Agency No. NGA-0048-2018 DECISION On July 12, 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 June 1, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Chief of Data Science (Branch Chief) of the Professional Development Learning Solutions Division at the Agency’s National Geospatial-Intelligence College (NGC) in Springfield, Virginia. In this position he was responsible for development and management of data, providing oversight for both contractors and government staff. He was in pay band 4. Report of Investigation (ROI) at 95. Complainant’s immediate supervisor was the Division Chief for Professional Development (Supervisor). 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. 2021004056 2 Complainant explained that there were approximately ten other individuals at his level, but he was the only African-American male Branch Chief. ROI at 95. On June 14, 2018, Complainant reported that he was called into a meeting where he was informed that he would be removed from his position as a Branch Chief. Id. at 97. Present at the meeting was the Division Chief for Learning Management, the Division Chief for Geointelligence Learning Division (GOINT), and the Lieutenant Colonel. Complainant provided that this decision was made due to his earlier personal conflict with the Supervisor, which those present were aware of. Id. at 97. Complainant also reported that from January 20, 2018 through June 2018, the Supervisor did not communicate with him, did not include him in key meetings related to projects that he oversaw, and refused to correct or address challenges he experienced with a Team Lead (Coworker). ROI at 102-15. He provided that the aforementioned treatment was due to his color because he was not aware of any White person undergoing the same treatment. Id. at 115. He further provided that he was the only Black male at the NGC in a staff of about 450 people. Id. Complainant noted that there was no documentation which showed that his performance was less than satisfactory. Id. at 116. In response to Complainant’s claims, the Supervisor stated that she did not know what the word "transition" meant in regard to Complainant's position and did not believe that Complainant was removed from his work role as Branch Chief on June 14, 2018. Id. at 135. She explained that due to the high visibility of the Data Training Program, the College Director (Director) felt that Complainant's duties should focus on data training in support of analytic modernization. Id. As such, the Data Science Training was moved to the GEOINT Learning Division, which oversaw Analytic Modernization Training. Id. She stated that Complainant remained a Branch Chief under the GEOINT Learning Division until he left for his Joint Duty Assignment. Id. The Supervisor also stated that she was not aware of any meeting regarding Complainant leaving his Branch Chief position, and that Complainant elected to apply for the Joint Duty Assignment that he subsequently moved to after serving as a Branch Chief. Id. at 138. She provided that Complainant's pay band was not altered during his tenure as a Branch Chief, and that to her knowledge he remained in pay band 4 during his tenure. Id. As to issues regarding communication and meetings, the Supervisor provided that Complainant never informed her that he felt he was being excluded from meetings. Id. at 142. To the best of her recollection, Complainant was invited to all scheduled meetings, especially any meetings she herself scheduled. Id. She did state that she had individual, spontaneous, meetings with the Director on occasion, though she stated she would share information from these meetings with Complainant the next day. Id. She also reported that she was not aware of any issue between Complainant and the Coworker. Id. 143. 2021004056 3 While those present at the June 14, 2018 meeting did not provide statements, throughout the record, several individuals provided statements indicating that Complainant was only transitioned from his position as a Branch Chief when he left for his Joint Duty Assignment, which he volunteered for. See e.g., ROI at 231, 244. On October 24, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American) and color (Black) when: 1. On or around June 14, 2018, he was transitioned from his position as a Branch Chief; and, 2. From January 20, 2018 through June 2018, the Supervisor did not communicate with him, did not include him in key meetings related to projects that he oversaw, and refused to correct or address challenges he experienced with the Coworker. 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. The AJ assigned to the matter scheduled an Initial Status Teleconference for November 12, 2020. Complainant failed to appear for the teleconference. On November 13, 2020, the AJ issued a Show Cause Order for Complainant’s failure to appear. On December 18, 2020, the AJ dismissed Complainant’s hearing request and remanded the complaint to the Agency for a final decision. In the final decision, the Agency determined that Complainant failed to establish a prima facie case. Specifically, the Agency determined that Complainant failed to show that he was harmed by an adverse action, or that he was treated differently than other similarly situated employees. As such, the Agency found that Complainant had not been subjected to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that he was not informed of nor received notification of any formal actions related to his claim, including the Order of Acknowledgement or Scheduling of Initial Teleconference Order. He provides that he did not receive notification related to scheduling or progress until June 2021. Complainant also clarifies that he did not contend that he was transitioned from his role, but rather that he was subjected to repeated harassment from the Supervisor in the form of deliberate lack of communication, miscommunication of his actions to individuals, and intent related to transitioning him from his position that created a hostile work environment. The Agency has not responded to Complainant’s arguments on appeal. 2021004056 4 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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 802 n. 13. 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 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, assuming arguendo that Complainant established a prima face case based on color and race, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. To this extent, the Supervisor stated that Complainant was not transitioned from his position as a Branch Chief, and she did not know what the word “transition” referred to. She did explain that the nature of Complainant’s position changed. The Supervisor noted that due to the high visibility of the Data Training Program, the Director felt that Complainant's duties should focus on data training in support of analytic modernization. As such, the Data Science Training was moved to the GEOINT Learning Division, which oversaw Analytic Modernization Training. However, she stated that Complainant remained a Branch Chief under the GEOINT Learning Division until he left for his Joint Duty Assignment. The Supervisor also provided that Complainant’s pay band was unchanged. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Complainant has reported that he was the only Black male at the NGC in a staff of about 450 people. He also contended that his position as a Branch Chief was altered due to a conflict that he had with the Supervisor, which others were aware of. However, the record ultimately reflects that Complainant’s position was unchanged, and there is no evidence that he was moved to a different pay band. 2021004056 5 While Complainant has presented statements regarding personal conflicts and the fact that he was the only Black male, he has not presented evidence linking this information to a change in his role as a Branch Chief. Moreover, as noted above, the record reflects that Complainant was not transitioned from his position as a Branch Chief until he began his Joint Duty Assignment, which he volunteered for. In sum, there is no evidence in the record to suggest that Complainant was transitioned from his position as a Branch Chief due to discriminatory or retaliatory animus. Therefore, we find that Complainant has failed to meet his burden of persuasion. Harassment Complainant has alleged that she was subjected to a hostile work environment based on his color and race. Such a claim is examined under the guidelines set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in which the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). See also Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). It is well-settled that harassment based on an individual’s color and race activity are actionable. Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases a complainant must prove the existence of five elements: (1) that she is a member of the statutorily protected class and/or engaged in prior EEO activity; (2) that she was subjected to unwelcome conduct related to her sex and/or protected EEO activity(3) that the conduct complained of was based on her sex and/or EEO activity; (4) that the conduct had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) that there is a basis for imputing liability to the employer. See McCleod v. Soc. Sec. Admin., EEOC Appeal No. 01963810 (Aug. 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897, 903 (11th Cir. 1982) As noted above, we find that Complainant did not establish that the Agency was motivated by discriminatory with respect to claim 1. As such, a case of harassment, with respect to claim 1, is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). With respect to Complainant’s contentions that the Supervisor did not communicate with him, did not include him in key meetings related to projects that he oversaw, and refused to correct or address challenges he experienced with the Coworker, we find that the record does not provide support that the instances occurred as described by Complainant. The Supervisor provided that Complainant was included in all scheduled meetings, and if he was not available for a meeting that took place, she would inform him of the content of any meetings the next day. Moreover, the Supervisor reported that she was not aware of any issue between Complainant and the Coworker. 2021004056 6 Where, as here, the evidence is at best equipoise, Complainant fails to meet his burden that the incidents occurred. See Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sept. 24, 2014); Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his co-worker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an AJ did not make credibility determinations). In sum, we find that Complainant did not establish that he was subjected to a hostile work environment based on his color or race, as alleged. Regarding Complainant’s contention that he did not receive notification related to scheduling or progress until June 2021, it is Complainant’s responsibility to keep the EEO office informed of his current contact information. See 29 C.F.R. § 1614.105(b)(1). This includes maintaining a viable email address on record where Complainant can be reached. The in-person intake form in the record shows that Complainant provided an email address, and it is that email address where the AJ sent correspondence. ROI p. 32. At whatever point Complainant’s email address changed, it was Complainant’s responsibility to update that information. Complainant provided no proof that he ever attempted to contact the Field Office and provide updated contact information. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision 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. 2021004056 7 See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2021004056 8 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 April 20, 2022 Date