[Redacted], Bryon F., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021000066 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryon F.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2021000066 Agency No. 19-00421-03203 DECISION 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 September 4, 2020, final decision concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Procurement Technician in Patuxent River, Maryland. On September 6, 2019, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him based on disability. By letter dated October 1, 2019, the Agency accepted the formal complaint for investigation and determined that it was comprised of the following claims: 1. Complainant alleged the Agency discriminated against him and subjected him to a hostile work environment based on disability when the following incidents occurred: 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. 2021000066 2 a. On or around November or early December 2018, Complainant’s first-level supervisor harassed him regarding taking leave for medical appointments. b. On or around January 19, 2019, his first-level supervisor threatened that if Complainant complained about being ill, the next step would be termination. c. On or around April 18, 2019, Complainant was retroactively coded as Absence Without Leave (AWOL). d. On or about April 26, 2019, Complainant receive a Notice of Termination During Trial Period, from his position as a Procurement Technician. After an 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The Agency found that even assuming arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish were pretext for discrimination. The Agency further found that Complainant failed to establish a prima facie case of harassment. The Agency reasoned that Complainant did not show that the alleged behavior from management was based on his protected class. In addition, the Agency reasoned that the alleged incidents were not sufficiently severe or pervasive. The instant appeal followed. Complainant does not submit a brief or statement in support of his appeal. 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”). 2021000066 3 Disparate Treatment Analysis A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1(a), management harassing Complainant for taking leave for medical appointments, the record contains an affidavit from Complainant’s first-level supervisor (S1). Therein, S1 asserts that she was having various problems with Complainant including taking personal phone calls during training, disappearing for long periods of time, and not properly requesting leave prior to being absent. Report of Investigation (ROI) at 208. The record reflects through text messages between Complainant and S1, that S1 was flexible with Complainant’s various requests for leave (including for emergency family situations and child-care issues). ROI at 216-226. The record also contains affidavits from two of Complainant’s co-workers during the relevant period. Therein, they assert that Complainant would take a considerable amount of personal calls at work, show up late to meetings, and sometimes not show up for meetings at all. ROI at 307-310, 313. Regarding claim 1(b), Complainant being threatened with termination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. S1, in her affidavit, asserts that she contacted human resources because she was having performance problems with Complainant and that she asked Complainant if he had everything he needed as far as training, and told him to let her know if he had any issues. ROI at 208-209. 2021000066 4 Regarding claim 1(c), Complainant being coded as AWOL, the Agency articulated legitimate, nondiscriminatory reasons for its actions. S1, in her affidavit, asserts that there was a team lunch meeting on the date in question and she could not find Complainant for 45 minutes. S1 states that when she got in touch with Complainant, he stated his children were on Spring Break and he went home to have lunch with them. S1 asserts that she told him that the proper code would be AWOL for his absence, and it was not until she referenced AWOL, that Complainant stated he was home taking medication.2 ROI at 209. Regarding claim 1(d), Complainant receiving a Notice of Termination, the Agency articulated legitimate, nondiscriminatory reasons for its actions.3 S1, in her affidavit, asserts that based on Complainant’s ongoing problems, she was not getting the work product she needed from him. ROI at 209. The record also contains a copy of the Notice of Termination (Notice) from the Agency to Complainant dated April 26, 2019. Therein, the Notice sets forth that Complainant conducted himself in an unacceptable manner by arriving to work late, taking unplanned leave and missing or being late to various meetings. ROI at 277. The record also contains an email from Complainant to S1 dated January 15, 2019. Therein, Complainant acknowledges some of his behavior that S1 stated caused her concern. Specifically, Complainant, in the email, states “I also take full responsibility for missing the meeting with the Division Head…I also want to assure you…that there were a few emergency situations that required me to step outside momentarily to make a personal phone call at it pertained to family…”ROI at 231-232. Complainant failed to establish, by a preponderance of the evidence, that the Agency’s reasons for its actions were pretext for discrimination. To the extent Complainant asserts, in his unsigned testimony, that S1’s testimony was false, we note that Complainant did not request a hearing before an EEOC Administrative Judge (AJ). Therefore, we do not have the benefit of an AJ’s credibility determinations or an AJ overseeing the further development of the record. Harassment/Hostile Work Environment Analysis To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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 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). 2 Complainant, in his unsigned testimony, asserts S1’s statement regarding this matter is false. ROI at 199. 3 The record reflects that Complainant resigned in lieu of termination. ROI at 289. 2021000066 5 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). Complainant failed to establish a prima facie case of harassment. We find that Complainant failed to establish that the alleged harassing incidents were based on his protected class. As set forth above in the section entitled “Disparate Treatment Analysis”, we found that the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish was pretext for discrimination. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 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. 2021000066 6 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. 2021000066 7 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 3, 2021 Date