[Redacted], Emery F., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Jun 22, 2021

Appeal No. 2020000830 (E.E.O.C. Jun. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emery F.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020000830 Agency No. DHAJ917-0014 DECISION On October 18, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 8, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Facilities Manager at the Agency’s Defense Health Agency (DHA), National Museum of Health and Medicine (NMHM) in Silver Spring, Maryland. On March 7, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On April 14, 2017, Complainant filed the instant formal complaint. Complainant claimed that he was subjected to harassment/a hostile work environment based on his race (African American), color (Black), age (over 40), and in reprisal for prior protected EEO activity under when: 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. 2020000830 2 a. In March 2014, the Public Affairs Specialist bullied/harassed him and contractors in his area of responsibility, by sending emails to the Director, complaining about boxes being in front of an electrical panel without even talking with him or the contractors first; b. On June 22, 2015, when Complainant approached a table in the cafeteria at Ft. Detrick where the Chairman, Museum, Public Affairs Specialist, and the Administrator were sitting, and as you sat your tray down to join them, saying “Hi everyone,” he was snubbed and no one spoke to him except the Chairman; c. In July 2015, the Chairman, also Complainant’s second-line supervisor (S2), made multiple corrections and edits to a letter to an MRMC consultant which she directed Complainant to draft. The Chairman’s corrected letter resulted in a different intention, using her own words, thereby threatening to have an adverse impact in Complainant’s relationship with certain MRMC members he interact, which he refused to send;2 d. In July 2015, S2 was rude and disrespectful to him regarding a matter with another employee in his office; e. In August 2015, S2 came into his office, slamming the door behind her, accusing him of telling her he first told her he wanted to speak with her about something business related and not personal, which was after he told her he decided not to meet with her that day after requesting a meeting earlier; f. In August 2015, S2 embarrassed him in a staff meeting when she stated she wanted someone competent to assist the Logistics Management Specialist, also Complainant’s former supervisor, with the Disaster Recovery Plan; g. On February 12, 2016, S2 disrespected and harassed him by intentionally doing something to him as everyone was told not to do with the donuts he purchased for everyone, then mocked Complainant in front of them; h. In April 2016, the Executive Administrator, also Complainant’s supervisor (S1), disrespected him in a meeting regarding an email he sent to staff members regarding a pending power-outage; i. In May 2016, S1 purposely embarrassed him by skipping him in a morning meeting, after going around the table asking other staff members for project updates; j. In June 2016, S1 told Complainant to filter all his inner and outside communications through him and when Complainant told S1 that he was piling so much “on his plate” to set him up for failure, S1 responded “I have lots of work too. Welcome to the Government;” 2 The record reflects that the MRMC abbreviation is not identified. 2020000830 3 k. In June 2016, S1 into his office and antagonized/harassed him after his comments to him regarding being overwhelmed with work in his office earlier by saying “Just stopping by to do a morale check?;” l. In June 2016, S1 told him he was only doing what he was told to do, after Complainant described many areas he was negatively affecting in his area of responsibilities, and overloading him with new tasks; m. In July 2015, S1 scheduled a mandatory meeting, then never came or notified him of any cancellation; n. In July 2016, S1 continued to bully/harass him when he scheduled meetings at the end of his workday and/or did not show up for the meeting on more than one occasion; o. In July 2016, S1 took credit for Complainant’s work on the Disaster Recovery Plan, disassembled and renamed the project which was linked to Complainant’s evaluation, which affected his later rating that he included, to be lower to acceptable; p. In August 2016, S1 announced he wanted to re-purpose his office in a meeting in front of everyone; q. In August 2016, Complainant requested a meeting with S2 to discuss how S1 was bullying/harassing and negatively influencing his 2015-2016 Form-11 rating and she did nothing about it; r. In August 2016, S1 tried to convince him to accept an “Acceptable” rating and gave him training goals while sabotaging his efforts to meet them; s. In August 2016, S1 moved his name to the bottom of an emergency contact list, although Complainant was the Facilities Manager/Chief Engineer/Physical Security and Anti- Terrorism Officer t. In September 2016, Complainant had another private “one-on-one” meeting scheduled with S2 to discuss the unfair rating on his Form-11 and the concerns he had with S1 aggressively coming after him, sabotaging his efforts while harassing/bullying him, and his relentless attacks toward him; u. In October 2015, S1 ordered Complainant to develop a plan to correct a safety hazard he created by having removed protective barriers from around the swale on the east side of the Museum for a retirement ceremony; v. On October 3, 2016, S1 adversely impacted Complainant’s efforts on a paving project where he had been designated the primary point of contact (POC) by contacting his contractor POCs, changing agreement, and blaming him for a misunderstanding; 2020000830 4 w. On October 25, 2016, S1 required Complainant, through his previous supervisor, to provide him with project updates before he would approve his training request to a convention that would have satisfied multiple Form-11 requirements he influenced. S1 purposely delayed his response so time would expire for Complainant to attend the training; x. In November 2016, S1 retaliated/harassed him when he gave him a Written Warning regarding his behavior after he filed an EEO complaint; y. On November 9, 2016, the Chairman failed to respond to his email request to remove S1 from his business area, complaining he was causing chaos, and chastising him before reading his daily updates, without an apology; z. On November 10, 2016, the Chairman failed to take action again when he expressed concern about S1’s impact with his Form-11 rating and his continual harassment after meeting with her on these issues; aa. On November 30, 2016, S1 retaliated against him by giving him a Written Warning with many false claims after he sent the Chairman an email of complaints about him, sabotaging his efforts in his area of responsibility during a paving project; bb. On January 5, 2016, the Chairman stopped by his office to discuss the fire hydrants at Building 17B after which Complainant complained about S1 constantly harassing him and setting him up for failure, expressed he did not have any confidence in him toward his success, fabricating events to write him up with warning, and the Chairman did nothing to mediate or investigate his concerns; cc. In February 2017, the Public Affairs Specialist bullied/harassed contractors in his area of responsibility by speaking directly to the contractors, complaining about matters that had already been approved by the Staff Curator; dd. On February 2, 2017, the Public Affairs Specialist harassed contractors in his area of responsibility where he was the POC, by speaking rudely, being confrontational and on February 6, 2017, after meeting where he agreed to speak to him first before interfering, and did it again in the gallery; ee. On February 3, 2017, the Chairman retaliated against him by failing to take action on his complaints that the Public Affairs Specialist was bullying/harassing contractors in his area of responsibility, supporting his actions; ff. On February 6, 2017, the Public Affairs Specialist bullied/harassed contractors in his area of responsibility despite his agreement to not speak directly to them, but to direct all complaints to his attention in a meeting just the day before; 2020000830 5 gg. On March 1, 2017, S1 gave him an Official Reprimand with many false accusations in retaliation for submitting a previous EEO claim, for speaking about trust and ethics at a mandatory team building training session held at the Pest Management Building on February 9, 2017; hh. On March 1, 2017, S1 embarrassed and degraded him by having a GS-12 sit in on his formal reprimand, kept interrupting him when it was his turn to speak, very disrespectfully; ii. On March 14, 2017, S1 retaliated against him by deliberately stalling to approve his Contract Officer Representative (COR) process, then stalling to register as his supervisor in WAWF to finalize his COR process for the Sabree and MVLE contracts that were granted from a previous grievance; jj. On March 14, 2017, S1 retaliated against him by taking back the COR appointments that he just approved, using the fabricated issue he attempted to have him investigated by DHA, having ratifications and refusing to reassign them back to him after he proved the invoice in question was a misunderstanding; kk. On March 22, 2017, S1 in retaliation, caused him to be investigated for misuse of Government funds with DHA by manipulating/fabricating circumstances he already knew Complainant was innocent, and pressed him where in violation even after he was informed by DHA nothing was there; ll. On April 3, 2017, S1 violated security protocol by not reporting a contractor who was no longer an employee at the Museum, did not support his inquiry/investigation as Physical Security Officer, in giving directive against Government regulations and attempting to block transparency on the issue and possible an attempted cover up; mm. On September 18, 2017, he received an unfavorable performance evaluation for the period ending June 30, 2017; and nn. On January 2, 2017, Complainant learned he was not able to participate in the Physical Security planning event for Vice President Pence’s wife although this was well within his area of responsibility. On May 11, 2017, the Agency dismissed claims a - bb on the grounds for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on March 7, 2017, which the Agency found was more than forty-five days after the alleged discriminatory event occurred. The Agency also dismissed claims c, e, g, l, n, p, r, u, bb, cc, ee, ff, hh, ii, jj, kk and ll for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding Complainant was not aggrieved. 2020000830 6 Further, the Agency dismissed claims a, b, h, i, j, s, t, dd, and hh as EEOC regulations are not to be used as a “general civility code.”3 In addition, the Agency dismissed claims d, f, o, q, v, w, y, z, and aa for similar or identical claims. After an investigation of claims gg, mm and nn, Complainant was provided a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on August 8, 2019, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The decision dismissed thirty-seven claims for untimely EEO contact, failure to state a claim, and similar or identical claims. For the remaining claims, the Agency determined that management articulated legitimate, nondiscriminatory reasons for its actions. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment: Claims gg, mm and nn A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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, as here, 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. 3 We note that Title VII is not a general civility code. Rather it forbids “only behavior so objectively offensive as to alter the conditions of the victim’s employment.” Oncale v. Sundowner Offshore Serv. Inc., 523 U.S. 75, 81 (1998). 2020000830 7 Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant worked as a Facilities Manager at the Agency’s National Museum of Health and Medicine (NMHM) in Silver Spring, Maryland. Regarding claim gg (official reprimand), S1 (Caucasian, white, over 40) stated that during his first month at the Museum, he noticed Complainant was difficult to interact with, especially in meetings. S1 noted that Complainant worked behind a locked door with drawn blinds, isolating himself from the Museum and the staff he was there to support. In addition, S1 noted while Complainant frequently complained having difficultly engaging with staff within the Museum and outside of the Museum. Complainant also had difficulties with the contract staff working for facilities in which Complainant had overall responsibility. S1 stated as the months went on, Complainant’s behavior became more problematic and disruptive. In November 2016, S1 issued Complainant a Letter of Warning in an attempt to address his behavior issues. S1 stated that he worked with the Human Resources (HR) Specialist in making a plan for corrective actions using the DHA progressive discipline process. He issued Complainant an Official Reprimand based on Complainant’s refusal to perform assigned tasks which followed the November 2016 Letter of Warning for the same type of behavior. The record contains a copy of Complainant’s Official Reprimand dated March 1, 2017 in which S1 placed him on notice for inappropriate, disrespectful, and insubordinate behavior exhibited by him in the performance of his duties. Specifically, S1 stated that during the February Facilities meetings on January 16, 2017 with the NMHM Director and staff, he asked Complainant three times to forward his recommendation for his role under the new NMHM Maintenance Contract. However on all three times, Complainant refused to forward his recommendations and stated he would coordinate directly with the Facilities Integrator. S1 also noted that later that day, on January 16, 2017, he informed Complainant that he corresponded via email with the Facilities Integrator on another issue and mentioned in the email that the Facilities Integrator decided that Complainant would serve as a Contracting Officer’s Technical Representative (COTR), not as a Contracting Officer (COR). Complainant replied to S1 that regardless of the role selected, he would not perform either role he chose. S1 stated that Complainant stated in a very hostile tone of voice that he had “lied” to him, and that the Facilities Integrator did not say this. Subsequently, on January 22, 2018, S1 noted that Complainant sent an email to the Facilities Integrator, contrary his instructions for him to route his COR/COTR recommendations through him, instead of choosing to inform Facilities Integrator that he refused to perform the CORT role. S1 further stated that he replied to Complainant’s email recommending that he reconsider refusing this role. The next day, January 23, 2018, S1 asked Complainant for his final decision regarding the CORT and Complainant again refused to perform this duty. S1 determined the incidents was totally unacceptable and would not be tolerated in the future. 2020000830 8 He further noted that Complainant received a Memorandum of Warning on November 30, 2016, for previous displays of similar inappropriate behavior. Moreover, S1 determined that the Official Reprimand is being taken to stress upon Complainant the need for more responsible behavior on his part. With respect claim mm (on September 18, 2017, he received an unfavorable performance evaluation for the period ending June 30, 2017), S1 was Complainant’s rater, after Complainant’s previous supervisor left the organization. He stated that during the relevant period, he gave Complainant feedback throughout his rating cycle. S1 stated that he and Complainant worked together to redefine his standards, making many deletions at his request, to improve changes for him to have a successful rating for the remaining six months. S1 noted that Complainant refused to make a safety plan assignment a priority and asked to have the safety officer duties removed from his job description. Furthermore, S1 noted that Complainant claimed that an evaluation that is overall “Acceptable” instead of “Excellent” is a bad evaluation. S1, however, does not agree with his opinion. Specifically, S1 stated Complainant received what he would consider an above-average evaluation based on NMHM evaluations completed during this evaluation cycle. S2 (Caucasian, white, over 40) stated that she concurred with S1’s rating of Complainant’s performance. Specifically, she stated that based on the information provided by S1 in the review “I felt the description of Complainant’s performance was accurate.” The record reflects that Complainant’s evaluation for the period from July 1, 2016 to June 20, 2017, indicated he received two “Mets” and one “Exceeded” on his three critical elements, resulting in an overall rating of “Acceptable.” His evaluation also indicated he received a performance award in the amount of $1,555 and a time off award of 24 hours which was signed by S1 and approved by S2. In claim nn, Complainant claimed that on January 25, 2017, he learned that he was not able to participate in the Physical Security panning event for the wife of Vice President Pence, although this activity was well within his area of responsibility. S1 asserted that he had no role in the physical security planning for the Second Lady and that it was the responsibility of the Second Lady’s security team. He noted that there was no additional physical security planning requirement for NMHM prior to the Second Lady’s visit nor did he receive any notification from Ft. Detrick or DHS Security offices regarding any planning for this visit. Following the Second Lady’s visit, S1 stopped by Complainant’s office to return his walkie-talkie, he thanked Complainant for his help getting the grounds ready and maintaining communications while the Second Lady was here, but Complainant stated he was going to file a complaint because he was not included in the security planning for the event. S2 explained that individuals from the Executive Officer of the Vice President and the U.S. Protective services planned all aspect of the Second Lady’s visit. 2020000830 9 S2 stated she gathered operational guidance from the Executive Office of the Vice President and the United States Protective Services regarding security and they indicated they would provide any needed security and that it was not necessary for us to modify our operations. Further, S2 acknowledged that physical security is among Complainant’s tasks. However, for this unique event, security was arranged by the Executive Office of the Vice President and the U.S. Protective Services. Thereafter, S2 made the decision to follow the guidance of the Executive Office of the Vice President and the U.S. Protective Services. The undisputed facts fully support the Agency’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for its actions. There is no evidence of any other similarly situated employee who was treated more favorably. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask discrimination on any basis alleged. Complainant, as indicated above, simply has provided no evidence to support his claim that her treatment was the result of his race, color, age and/or prior EEO activity. Harassment (entire complaint, including dismissed claims ) We note that apart from the claims discussed above, Complainant has raised approximately 37 other matters which the Agency dismissed as independent claims on various grounds. However, we nevertheless consider them in the context of a broader harassment claims, which include the claims accepted for investigation. To the extent that Complainant’s claims can also be construed as one of ongoing discriminatory harassment/hostile work environment, such a harassment claim 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 Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). As significantly, however, we have reviewed the numerous claims and determine that even considering them in the aggregate, they are not demonstrative of actions which are sufficiently severe or pervasive to create a hostile work environment. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. Since the Commission has decided to affirm the Agency’s decision on the merits, we decline to address the procedural dismissal of thirty-seven claims, on the grounds of untimely EEO contact, failure to state a claim, and stating the same claims. 2020000830 10 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. 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). 2020000830 11 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 June 22, 2021 Date