[Redacted], Dan R., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 25, 2021

Appeal No. 2020004801 (E.E.O.C. May. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dan R.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020004801 Hearing No. 530-2014-00136X Agency No. ARTYAD10JUL03318 DECISION On August 28, 2020, 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 July 31, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mechanical Engineer, GS-0830-09, at the Agency’s Tobyhanna Army Depot facility in Tobyhanna, Pennsylvania. On August 18, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to harassment and discrimination on the bases of national origin (Asian Indian) when: 1. Complainant was continually denied training; 2. On February 24, 2010, Complainant’s registration for a Pro/Engineer Data Management class was denied; 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. 2020004801 2 3. On three separate occasions (February 22, 24 and March 2, 2010) Complainant’s requests to take an on-line class titled Program Management Tools were denied; 4. On April 1, 2010, Complainant’s registration for the Introduction to Pro/Engineer Wildfire 4.0 class (scheduled for April 12, 2010) was cancelled; 5. On June 24, 2010, Complainant’s registration for the Introduction to Pro/Engineer Wildfire 4.0 class (scheduled for July 6, 2010) was cancelled; 6. On July 8, 2010, Complainant’s registration for the Introduction to Pro/Engineer Wildfire 4.0 class (scheduled for July 12, 2010) was cancelled by his first-line supervisor; 7. Complainant’s December 9, 2009, request to take a class at Wilkes University titled PE in Mechanical-Concentration in Heat and Mass Transfer was denied; and 8. Complainant was downgraded from the position of Mechanical Engineer, GS- 0830-09 to the position of Engineering Technician, GS-0802-07, effective June 8, 2010. The Agency accepted the complaint and conducted an investigation. Complainant subsequently amended his complaint to include the allegation that the Agency subjected him to harassment on the bases of national origin and reprisal for prior protected EEO activity when, on December 15, 2010, he was notified of a 3-day suspension. The Agency accepted the amendment and conducted a second investigation. On January 21, 2011, prior to the completion of the investigation, the Agency and Complainant entered into a settlement agreement and ended the processing of the complaint. A letter from Complainant to the Agency dated November 18, 2011 alleges that the Agency breached the settlement agreement. A final decision by the Agency dated December 22, 2011 found the Agency was in compliance with the terms of the settlement agreement. Complainant appealed to the Commission. In a June 25, 2012 decision, the Commission reversed the Agency’s decision and remanded the matter to the Agency. In so doing, the Commission gave Complainant the option to either return to the status quo of the processing of his complaint or obtain specific performance or provisions concerning lost wages. The parties submitted requests for reconsideration to the Commission, which the Commission denied. In so doing, the Commission reiterated that the Agency was to notify Complainant that he had the option to either return to the status quo of the processing of his complaint or obtain specific performance or provisions concerning lost wages. Complainant elected to return to the status quo and another investigation was conducted. The report of investigation produced the following pertinent facts: 2020004801 3 Regarding his alleged basis of reprisal relating to his suspension, Complainant indicated that the his prior EEO activity was the instant complaint. Complainant provided testimony as to his allegations that he was denied training, as noted above. Supervisor1 attested to Complainant’s allegations regarding his training requests. He explained that he denied the December 2009 heat and mass transfer course because that is a course on how to design surfaces of heat transfer and Complainant has a master’s degree in engineering and knows the heat transfer equations that they use at the facility. He further explained that they do not design heat transfer surfaces or heat transfer devices and there was no need for Complainant to have that training. Supervisor1 attested that no other employee requested that training. Supervisor1 attested that when Complainant brought up courses related to the Professional Engineer license, he told him that he would support him if he wanted to get those classes. Supervisor1 attested that the organization wanted their engineers to become licensed Professional Engineers (PEs). Supervisor1 attested that, with respect to the classes on February 22nd and 25th and March 2nd, 2010, that Complainant’s requests were denied because he was working on a project. He also attested that he suggested to Complainant that he consider taking courses in April or May 2010. Supervisor1 attested that the April 2010 class was canceled by training because they did not have the 14-days needed to process the request. Supervisor1 attested that he signed off on it, but they canceled it. Supervisor1 attested that the July 6, 2010 training was in Ann Arbor, Michigan and he could not justify the expense of sending Complainant that far to take a class that he could get an hour away or, generally at a number of closer locations. Supervisor1 attested that the July 12 to 16, 2010 training was in Pittsburgh and Complainant had attempted to get a rental car for his trip and was told that, because he did not have a credit card, he could not rent a car. Supervisor further explained that Complainant had attempted to rent the car several days prior to the training for personal reasons and when he explained to him that he needed to figure out how to get a car for the trip, Complainant had no answer. Supervisor1 attested that the course was canceled for this reason. Supervisor1 also attested that he authorized Complainant to attend a Pro/E training course, but Complainant failed to register for it. Complainant attested that he had not been downgraded from a GS-09 and he was still performing the same duties as he had since starting. However, he also attested that he did not believe he was using his experience or education and management had expressed concerns about his performance. He attested that he signed a document regarding being demoted to a GS-07. He attested that he believed this was due to discrimination. 2020004801 4 Supervisor1 attested that management and customers were having issues with Complainant’s performance. Complainant was assigned to work on a project under a different supervisor, using Pro/E, which Complainant had indicated an interest in using and had been using to some degree. Supervisor1 attested that management reported that Complainant performed and added some value, but only at the GS-07 level. Supervisor1 attested that management thought that role might be a good fit for Complainant, rather than letting him go. Supervisor1 attested that he explained to Complainant that the Branch Chief for whom he had been working thought he was doing okay as a GS-07 and would be happy to have that work out for Complainant as a GS-07, especially since he had no use for a Pro/E engineer. Supervisor1 explained that he asked Complainant if he would want to go to that group as a GS-07. Supervisor attested that, although he was considering terminating Complainant, he did not tell him that he would be terminated if he did not take this option. He attested that Complainant signed a letter indicating that he would take the GS-7 level position to do Pro/E. He attested that Complainant was being assigned GS-07 level work but had not been placed in a GS-07 position. A Memorandum to Complainant from the Agency dated October 7, 2010 provides notice of a 3- day suspension. It process that the charges were failure to carry out written instructions within the time required, noting that Complainant had been issued official travel orders for training to report to Pro-E training from August 30, 2010 through September 3, 2010 and he failed to report; and absent without approved leave (AWOL), noting that, on August 23, 2010, Complainant was not at his desk, had not signed in at his workstation sign-in sheet, and had not called in to advise management of his whereabouts or status. A Memorandum to Complainant from the Agency dated December 13, 2010 provides notice that Complainant was issued a 3-day suspension for the reasons specified in the proposal. It indicates that this action was consistent with Agency policies, the Table of Penalties, and the penalties imposed on other employees who have committed similar offenses. It also indicates that the penalty reflects the consideration of factors including Complainant’s length of service, performance record, and conduct history. Emails between Complainant and Supervisor1 document Complainant’s absences as noted in the proposed suspension. They indicate that Complainant’s contention that he was absent from the training due to his difficulty in obtaining a rental car and, on August 23, 2010, he was in an EEO meeting. Supervisor1 attested that the proposed suspension was for 3 days, without pay. He also attested to the charges as indicated and Complainant’s explanations for his absences. Documentation provided by the Agency shows that, in December 2011, Complainant was sent a check reimbursing him for the three days of lost pay, but Complainant had not cashed the check. A Civilian Payroll Technician confirmed this in testimony. Emails between Human Resources indicate that Complainant’s suspension action was never processed. 2020004801 5 The record includes an August 30, 2013 email from Complainant to the Agency providing notice of his resignation, effective September 7, 2013. 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 and the AJ held a hearing on April 18, 2016, April 19, 2016, May 19, 2016, and August 2, 2016, and issued a decision on July 28, 2020. 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. The instant appeal followed. On appeal, Complainant alleges that the Agency failed to comply with the Commission’s order to place in him in a status quo position because he was reassigned to a different branch and he had a steep learning curve. He alleges that this assignment was a constructive discharge. The record also includes a petition for enforcement. Complainant alleges that the AJ failed to address the Agency’s noncompliance with the prior order and found that Complainant’s claims were not proven. Complainant also asserts that there was direct evidence of discrimination, as Supervisor1 told him that his training was denied because he was from India and his education had been free, so he preferred to approve training for American citizens who have to pay for their education. He asserts that the AJ was biased against Complainant’s son because he had autism, his due process rights were violated, and the AJ misunderstood Complainant’s performance as the reason for the downgrade. He also argues the AJ used the wrong legal standard and ignored evidence and that the AJ’s opinion is not supported by the record. He also provides a list of issues with the EEOC investigation, rebuttal to testimony of record in the form of a Notice of Errata. In response, the Agency argues that Complainant was not subject to national origin discrimination. It asserts that Complainant’s assertion of direct evidence of discrimination was found not credible by the AJ; Complainant failed to establish a prima facia case of discrimination based on disparate treatment; and the AJ found that Complainant established a prima facie case of reprisal regarding the suspension but also found that he could not establish pretext for the Agency’s legitimate, non-discriminatory reason for its actions. It also asserts that, with respect to the other allegations, the Agency articulated legitimate, non-discriminatory reasons for its actions and Complainant has not proven pretext. It also argues that Complainant was not subjected to a hostile work environment. The Agency also argues that Complainant’s claims regarding noncompliance are not part of the instant proceedings. 2020004801 6 ANALYSIS AND FINDINGS Standard of Review Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Harassment Claim To establish a claim of hostile environment 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis -- in this case, his national origin. Only if Complainant establishes both of those elements -- hostility and motive -- will the question of Agency liability present itself. Complainant's harassment allegations can generally be described disagreements with managerial decisions, such as approving training requests and the issuance of a suspension as discipline. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep't of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was 2020004801 7 motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Although Complainant has alleged discrimination, we find the record does not establish that his national origin or prior protected EEO activity played any role in the incidents at issue. Disparate Treatment 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 a 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 Constr. 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 Tex. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). In accordance with the burdens set forth in McDonnell Douglas, and Coffman v. Dep’t of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant’s allegations regarding having been denied training, demoted, and suspended give rise to disparate treatment claims. However, even if we assume that Complainant established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. Supervisor1 explained that Complainant’s training requests were denied for legitimate reasons, including there being no need for an employee to be trained in a particular area, Complainant’s currently being on a project, travel and lodging costs, Complainant’s unexpected inability to produce a credit card to secure a rental car, and not enough time to process the request. Supervisor1 also explained that Complainant failed to register for one class. Regarding Complainant’s alleged demotion, Complainant acknowledged that he had not been demoted, although he was performing tasks associated with a lower grade level. Supervisor1 explained that there had been complaints and concerns about Complainant’s performance, and he was given work at a GS-07 level that he was able to adequately perform. Rather than terminate him, management attempted to give him the option of continuing in a GS-07 role. 2020004801 8 Regarding the suspension, the Agency explained that Complainant had been issued official travel orders to report for training from August 30, 2010 through September 3, 2010 and he failed to report and he was AWOL on the morning of August 23, 2010, as he was not at his desk, had not signed in at his workstation sign-in sheet, and had not called in to advise management of his whereabouts or status. We recognize that Complainant attested that he was absent from the training due to difficulty in obtaining a rental car and, on August 23, 2010, he was in an EEO meeting. However, we still find management’s use of discipline was legitimate and non- discriminatory and within its discretion. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Although Complainant has alleged that the Agency discriminated against him, we find the record does not establish that his national origin or prior protected EEO activity played any role in these actions. Therefore, we find he has failed to establish a claim of disparate treatment. 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.2 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 2 Complainant’s allegation of constructive discharge is not currently before the Commission. 2020004801 9 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. 2020004801 10 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 May 25, 2021 Date