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

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2020000897 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2020000897 Agency No. NGAE-0011-2018 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 11, 2019, 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. 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 Program Officer, Pay Band 4, at the Agency’s CIO-T (also referred to in the record as CIOT-TQ) facility in Springfield, Virginia. On January 28, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment based on race (African-American), sex (male), and age (58) when: 1. On November 16, 2017, Complainant learned, via email, that the Director of CIO- T Business Operations (S-3), did not approve his first-line supervisor’s (S-1) 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. 2020000897 2 recommendation to raise his FY2017 performance evaluation score by .2 points (from 3.2 to 3.4). 2. On November 3, 2017, S-1 denied Complainant’s request to move his billet to the Security Installation (SI) records management division. Complainant claimed that SI had actively recruited him to join their division because they appreciated how well he managed CIO-T’s records management program; 3. On October 20, 2017, during Complainant’s FY2017 performance evaluation feedback session with S-1, he learned that the Chief of Staff of CIO-T (S-2), urged S-1 to lower Complainant’s performance evaluation score. Complainant claims that because he received low performance scores, management effectively denied him the right to apply for promotions, receive bonuses, or transfer to other offices. 4. From 2016 to the end of his employment,2 Complainant was not allowed official business travel to meet with his customers. His requests to travel to the Agency’s Arnold and St. Louis facilities (NCW) were repeatedly denied. Upon traveling to St. Louis for personal reasons in October 2017, S-1 allowed him to work for two days at NCW, but he was not given travel benefits (i.e., airline, hotel, and rental car costs). 5. In October 2016, during the absence of S-1, S-2 provided Complainant with his FY2016 performance evaluation. During the meeting with S-2, she made comments to Complainant regarding his salary. S-2 commented that Complainant should be happy with what he had in regards to his salary and that his salary was higher than S-2’s salary. Complainant believed that S-2 was very disturbed that his Pay Band 4 salary was higher than her Pay Band 5 salary. 6. Since June 2016, Complainant was moved three times by S-1, and the last move was approximately September 29, 2017. Complainant also claims S-1 transferred him from the position of space management lead, and the position was given to a coworker. 7. From April 2011 to December 2014, the Agency funded Complainant’s course work towards completion of his Ph.D. program. The funding was mysteriously stopped, and Complainant was not able to complete his dissertation. Complainant believes that S-2 had his tuition payments discontinued through her personal resources in Human Development. 2 The timeframe for this claim as described in the Agency’s final decision and in Complainant’s brief on appeal is “February 2016 to [the] present.” However, Complainant states in his brief that he is now retired and no longer works for the Agency. 2020000897 3 8. On February 26, 2018, Complainant was notified of nonselection for the position of Non-Supervisory, Technical Executive, National Security Agency at the Ft. Meade NGA Support Team facility. Complainant believes this is because of the low performance scores that he received as an employee in his office for the prior two years.3 In his brief in support of appeal, Complainant withdraws Claim 8 and does not appeal the Agency’s final decision regarding this claim. We therefore address only Claims 1 through 7. 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. For Claims 1, 2, 3, 4, 6, and 7, the Agency argued both that Complainant failed to establish a prima facie case of disparate treatment discrimination and that it had legitimate, nondiscriminatory reasons for any adverse actions; the Agency concluded that Complainant was unable to show that those reasons were pretextual and found no discrimination. For Claim 5, the Agency found that S-2’s comments to Complainant about his salary did not rise to the level of harassment because they were not severe and/or pervasive. The instant appeal followed. 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”). We find that the investigation was adequate. Disparate Treatment: Claims 1, 2, 3, 4, 6, and 7 In order 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). 3 On February 28, 2018, Complainant amended his complaint to include this claim of the February 26, 2018 incident of nonselection. 2020000897 4 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 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). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Here, assuming arguendo that Complainant established a prima facie case of discrimination, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We find that the evidence fails to demonstrate by a preponderance of the evidence that the above reasons were pretextual and that the Agency’s actions were rooted in impermissible discrimination. Harassment: Claim 5 Complainant argues that all of his claims constitute a hostile work environment. Each claim, except Claim 5, also involves disparate treatment allegations. Claim 5 consists of comments made to Complainant by S-2 about his salary, without a corresponding employment action. Under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), Complainant’s claim of a hostile work environment must fail with regard to Claims 1, 2, 3, 4, 6, and 7. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). As to Claim 5, we find that S-2’s comments to Complainant do not constitute harassment. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant’s employment. Thus, not all claims of harassment are actionable. As noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998), “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’” We find that assuming Complainant’s allegations in Claim 5 are true, he fails to show that he was subject to discriminatory harassment. The one conversation with S-2 about his salary, without more, is simply insufficiently severe or pervasive to constitute a hostile work environment. Furthermore, there is no indication that the alleged comments were motivated by discrimination. 2020000897 5 CONCLUSION Upon careful review of the evidence of record, including the parties’ arguments on appeal, we conclude that the Agency correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency. 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. 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. 2020000897 6 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. 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 July 19, 2021 Date