[Redacted], Damion L., 1 Complainant,v.Christopher C. Miller, Acting Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jan 12, 2021

Appeal No. 2020000620 (E.E.O.C. Jan. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damion L.,1 Complainant, v. Christopher C. Miller, Acting Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020000620 Hearing No. 410-2017-00410X Agency No. DLAN-16-0252 DECISION On September 6, 2019, 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 August 5, 2019, final order 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 order. ISSUES PRESENTED The issues presented are: (1) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) properly issued a decision without a hearing; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, age, and/or reprisal. 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. 2020000620 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-2001-12 Accountable Officer at the Agency’s Defense Logistics Agency (DLA) Distribution facility in Warner Robins, Georgia. Complainant’s first day as Accountable Officer was July 12, 2015. Complainant’s first-line supervisor was the Deputy Director (S1), and his second-line supervisor was the Director (S2). Complainant is a Black male who was born in 1959. Complainant stated that he engaged in protected EEO activity for the first time when he initiated the instant EEO complaint. Complainant was placed in the Accountable Officer position through a noncompetitive Priority Placement. S2 stated that the Office of Personnel Management (OPM) had determined that Complainant was qualified for the Accountable Officer position. Complainant had previously worked as a Property Book Officer, but he had never worked as an Accountable Officer. According to S1, the two positions do not have much in common, so the former Accountable Officer (AO1) spent three months training Complainant in the position full-time. AO1 averred that it probably takes three to five years of training to successful function as an Accountable Officer. S2 stated that it should take between three to four months to learn the systems and understand how to succeed as an Accountable Officer. According to S2, it was not normal for a new Accountable Officer to receive three months of full-time on-the-job training, like Complainant received from AO1. Complainant stated that S2 told him that he did not have the experience for the Accountable Officer position. Complainant alleged that S2 made it clear that he had selected someone else for the Accountable Officer position and that he did not want Complainant there. According to Complainant, the person S2 wanted to be the Accountable Officer was younger than Complainant. S2 denied telling Complainant that he did not have the experience for or was not wanted in the Accountable Officer position. According to Complainant, when it was his turn to speak in staff meetings, S2 would frown and either place his hands on his head or on the table. Complainant averred that S2 also frequently challenged Complainant’s remarks, noted that Complainant had arrived late, or would look for other opportunities to attack Complainant. Complainant stated that S2 would dismiss his ideas as already discussed or would not invite him to meetings covering his areas of responsibility. Complainant alleged that, when he got up from a meeting one time to go to the restroom, S2 asked him if he could wait. S2 stated that, if he rubbed his head during a staff meeting, it was because he had a headache. According to S2, Complainant did have a tendency to speak out of line, make jokes at inappropriate times, or appear unengaged during meetings. S2 denied questioning Complainant when he was going to the restroom, although he stated that there was a general issue with employees getting up to answer phone calls or leaving the meeting before it was over. S1 stated that Complainant told her that he thought that S2 did not like him based on the way he treated him at staff meetings, and she stated that she told Complainant that she did not think that was true. 2020000620 3 According to S1, she relayed Complainant’s concerns to S2, who told her that he was sorry that Complainant felt that he was not liked and that it did bother him when Complainant got up a lot during staff meetings. S1 averred that she told Complainant about her conversation with S2. According to S1, she did observe Complainant arrive late to meetings, for which she reprimanded him. S1 stated that Complainant tended to joke a lot as part of his personality, which clashed with S2’s personality. AO1 stated that sometimes Complainant would make premature assessments in meetings with high level officials, undercutting S2 and functioning as a “lone wolf.” AO1 averred that Complainant should have been more diplomatic and been mindful of not embarrassing S2. According to AO1, S2 began displaying negative physical reactions when Complainant spoke, such as looking around the room or talking to someone else while Complainant was speaking. AO1 stated that she thought that there was a power struggle between Complainant and S2, but she noted that, as a manager, S2 should have spoken with Complainant if he did not appreciate his conduct or behavior during meetings. AO1 added that S2 did not treat other employees with the disdain he showed towards Complainant. Complainant stated that, because he had more than 23 years of military service as well as a number of years of civilian federal employment, he was supposed to accrue eight hours of annual leave per pay period. According to Complainant, he only accrued six hours of annual leave per pay period when he became the Accountable Officer. Complainant alleged that S2 would not help him rectify the error. S2 stated that Complainant casually mentioned that he was having issues with his annual leave. According to S2, he informed Complainant that he should work with Agency Human Resources and his former employer and that there was nothing he could do to adjust his leave. A Lead Human Resources Specialist (HR1) stated that she contacted Complainant on October 30, 2015, because a document was missing from his electronic Official Personnel File (eOPF) when it was submitted to the Agency from Complainant’s previous employer. According to HR1, the missing document was needed to substantiate his creditable military service time and calculate the service computation date (SCD) for the accrual of leave, and she told Complainant that his SCD would be changed if the Agency did not receive the document. HR1 stated that Complainant did not respond and that his SCD was changed on November 17, 2015. HR1 averred that Complainant provided the needed form on September 30, 2016, and she stated that she forwarded it to the appropriate organization on the same day. Complainant averred that he was entitled to reimbursement for Temporary Quarters Subsistence Expenses (TQSE) when he relocated for the position, but he stated that he did not receive it until November 2015. According to Complainant, S2 did not help ensure that Complainant was timely reimbursed for these expenses. Complainant alleged that the delay caused a financial hardship for his family. S2 averred that he was unaware that Complainant was not timely reimbursed for TQSE, but he noted that TQSE was handled by Human Resources. The record contains an August 11, 2015, email from a Lead Human Resources Specialist (HR2) to Complainant, asking for a copy of his permanent change of station (PCS) orders to look into his entitlement to TQSE and asking whether he had filed a voucher requesting reimbursement. The record does not contain a response to HR2’s email. HR1 stated that Complainant brought up an issue with his TQSE when they were discussing his leave accrual issue in the fall of 2015. 2020000620 4 According to HR1, she emailed him some questions about his TQSE to try to direct him to the correct contact, but Complainant did not respond. On May 12, 2016, S1 called Complainant into her office and told him that he was being removed from the Accountable Officer position, effective the next day. S1 told Complainant that AO1 would replace him as Accountable Officer. According to Complainant, he was told that he was not audit ready, but neither S1 nor AO1 could tell him how his audit readiness was measured. Complainant alleged that he should have been allowed to shadow AO1 until he was deemed audit ready. AO1 stated that, in May 2016, S1 and S2 told her that the Agency was facing an audit in two months and that she would be taking over as the Accountable Officer. According to AO1, she found it questionable that management determined that Complainant was not up to par when he was still being trained. AO1 averred that Complainant had a good attitude about learning the job and was succeeding in some areas of the position. AO1 noted that the Agency had conducted a mock audit, and she stated that she thought that Complainant had performed successfully during the mock audit. AO1 stated that she suspected that Complainant’s personality was a factor in his removal as Accountable Officer, noting that his personality was rather relaxed. After he was removed as Accountable Officer, Complainant was reassigned to the Customer Service Section. Complainant alleged that this reassignment placed him in a totally new career path with different duties. According to S1, management initially planned to move Complainant to the Performance Excellence Division, but Complainant suggested that he would be a better fit for the Customer Service Section. Complainant’s immediate supervisor in the Customer Service Section was the Resource Group Chief (S3). Complainant stated that, on June 13, 2016, he was instructed not to return to the building where he worked when he was Accountable Officer. According to S3, that building was a five-minute drive away from the Customer Service Section, and Complainant had been going there during work hours to vent about his removal from the Accountable Officer position to his former subordinates, which was unprofessional. S3 stated that Complainant was asked not to return to the Accountable Officer work area unless he was moving items out of his old workspace or his time there was otherwise work-related. According to Complainant, his keys to that building and his Agency cell phone were taken from him. S2 stated that the building keys and cell phone were for the Accountable Officer position and that Complainant was asked to turn them in when he was moved to the Customer Service Section. S3 averred that Complainant volunteered to return his keys. Complainant initiated contact with an EEO counselor on May 12, 2016. On August 12, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), sex (male), age (born in 1959), and reprisal for prior protected EEO activity (contacting EEO counselor to initiate the instant complaint) when: 1. On May 12, 2016, he was notified that he would be removed as the Accountable Officer, effective immediately, and he was reassigned to the Customer Service Section; 2020000620 5 2. He was subjected to harassment, including when: a. S2 failed to assist him with restoring his annual leave accrual to eight hours per pay period; b. S2 failed to assist him with getting his TQSE paid within the first 30 days; c. S2 advised him that he lacked experience as the Accountable Officer and was not wanted in the position; d. During staff meetings, S2 frowned, raised his eyebrows, placed his hands on his face, and talked to others when Complainant was speaking, and he questioned when Complainant went to the restroom; e. He was instructed not to return to the Accountable Office work area; and f. His government cell phone and building keys were taken from him. 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 AJ. Complainant timely requested a hearing. When Complainant did not object, the AJ assigned to the case granted the Agency’s May 10, 2019, motion for a decision without a hearing and issued a decision without a hearing on June 27, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that he had the abilities and skills needed for the Accountable Officer position. Complainant alleges that management intentionally created a hostile work environment for him. Complainant notes that, although the AJ told him that he did not need to be represented during the hearing process, he was provided with legal documents that he was not able to understand. The Agency did not submit a brief in response to Complainant’s appeal. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the 2020000620 6 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”). Summary Judgment We determine whether the AJ appropriately issued the decision without a hearing. 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. 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. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Upon review, we find that the AJ properly issued a decision without a hearing because there are no genuine issues of material fact. Complainant, who did not respond to the Agency’s motion for a decision without a hearing and does not identify any genuine issues of material fact on appeal, contends that he was disadvantaged during the hearing process because he did not have a representative. However, the AJ’s April 10, 2019, order and the Agency’s May 10, 2019, motion for a decision without a hearing clearly informed Complainant that he had until June 19, 2019, to file any response to the Agency’s motion, and, pursuant to 29 C.F.R. § 1614.605(e), a complainant “shall at all times be responsible for proceeding with the complaint whether or not he or she has designated a representative.” We will now consider Complainant’s discrimination claims. Discrimination Based on Race, Sex, Age, and/or Reprisal Complainant alleged that he was subjected to discrimination based on race, sex, age, and reprisal when he was removed as the Accountable Officer, when he was assigned to the Customer Service Section, and when he was subjected to harassment. 2020000620 7 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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). To establish a claim of harassment a 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 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). 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). Reprisal claims are considered with a broad view of coverage. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006); see also, Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). Retaliatory actions which can be challenged are not restricted to those which affect a term or condition of employment. Id. Rather, a complainant is protected from any discrimination that is reasonably likely to deter protected activity. Id.; see also, Carroll, supra. The Agency’s legitimate, nondiscriminatory reason for removing Complainant as the Accountable Officer was that, despite months of extensive one-on-one training from AO1, Complainant did not have the skills needed to succeed as the Accountable Officer during an audit. The Agency’s legitimate, nondiscriminatory explanation for assigning Complainant to the Customer Service Section was that Complainant had pointed out that such a move would be a better fit for his skills than an assignment to the Performance Excellence Division. As evidence of pretext, Complainant contends that S2 did not like him personally and argues that he should have been given more time to learn the duties of the Accountable Officer position. However, while the record reflects tension between Complainant and S2, this does not negate the Agency’s legitimate, nondiscriminatory reason or otherwise establish pretext. 2020000620 8 Complainant alleged that he was subjected to harassment when S2 did not help him adjust his annual leave accrual or receive his TQSE reimbursement. The record reflects that these matters were handled by Human Resources, not S2, and that the majority of the delay with the reimbursement and in correcting Complainant’s annual leave accrual was attributable to Complainant’s failure to provide the required documents to Human Resources. We find that Complainant has not established by preponderant evidence in the record that S2 did not assist Complainant with these matters because of his race, sex, age, or prior protected activity. Complainant also alleged that S2 harassed him by telling him that he did not have the experience needed to be Accountable Officer and that he was not wanted in the position and in staff meetings by frowning, raising his eyebrows, touching his head, and not paying attention to Complainant and by questioning Complainant’s need for restroom breaks. The record, including the testimony of S1 and AO1, supports Complainant’s allegation that S2 did not seem to like him and reacted negatively when Complainant spoke during staff meetings. However, S1 testified that Complainant’s jokes and tardiness were what irked S2, AO1 noted that Complainant had a tendency to speak out of turn and undercut S2, and both S1 and AO1 attributed S2’s treatment of Complainant to their clashing personalities. Complainant has not established by the preponderance of the evidence in the record that there was a connection between this treatment by S2 and his membership in any protected class. Finally, Complainant alleged that he was subjected to unlawful harassment when he was asked not to return to the Accountable Officer work area and when he was asked to return his keys and cell phone. The Agency’s legitimate, nondiscriminatory reasons for making these requests were that Complainant did not have a work-related reason for returning to the work area and that he no longer needed the keys to the work area or the government cell phone. S3 also testified that Complainant had been disruptive, venting about his removal as Accountable Officer to his former coworkers during working hours. We find that there is no evident connection between these instances of alleged harassment and Complainant’s race, sex, age, and/or protected EEO activity. 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 order because the issuance of summary judgment was appropriate and because the preponderance of the evidence in the record does not establish that Complainant was subjected to 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 2020000620 9 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). 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. 2020000620 10 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 12, 2021 Date