[Redacted], Ervin P., 1 Grievant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 24, 2021

Appeal Nos. 2020002549, 2020004820nn (E.E.O.C. Feb. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ervin P.,1 Grievant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal Nos. 2020002549 & 2020004820 Unnumbered Union Grievances DECISION Grievant filed two appeals with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s two Step 2 grievance decisions concerning his grievances 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. For the following reasons, the Commission AFFIRMS the Agency’s decisions. BACKGROUND At the time of events giving rise to this complaint, Grievant worked as a Senior Contract Specialist, GS-13, in the Agency’s Redstone Arsenal in Huntsville, Alabama. Grievance One On April 10, 2018, Grievant sent a Division Chief (DC1) an email asking to invoke the first step grievance process. Subsequently, Grievant sent DC1 a memorandum, dated April 16, 2018, citing “grievances resulting from ongoing conditions and my work condition resulting from a recent personnel assignment to our Division” (Grievance 1). Grievant alleged that the “ongoing conditions” were the result of him filing a prior EEO complaint in 2011 and several grievances, as 1 This case has been randomly assigned a pseudonym which will replace Grievant’s name when the decision is published to non-parties and the Commission’s website. 2020002549 & 2020004820 2 well as serving as a union officer and representative.2 Grievant stated that the Agency assigned a former manager (FM1) to his division as Contracting Officer to harass him. Grievant stated that management assigned FM1 to his division a year or so after they were separated due to FM1 creating an environment of intimidation and fear. DC1 denied Grievant’s allegations, stating “[Grievant] has been treated equally, fairly, respectfully, and professionally while under my supervision.” DC1 approved the transfer of Grievant to another Division. On June 18, 2018, Grievant filed a second step grievance stating that the Agency granted only one requested remedy, assignment to a different directorate, but did not provide his other requested remedies. Grievant asked for review by a second step grievance deciding official and peer panel so that the additional requested remedies could be provided. Further, Grievant alleged that management targeted him for poor performance and failed to complete his annual appraisal in a timely manner. On August 31, 2018, the union filed an unfair labor practice (ULP) charge with the Federal Labor Relations Authority (FLRA) alleging the Agency failed to provide information requested in Grievant’s second step grievance. The union stated that the requested information would help determine whether Grievant was treated unfairly by the Agency. In a decision dated February 19, 2019, FLRA dismissed the ULP charge, stating “the Union failed to show that the data it requested was necessary” based on relevant statute. In a step two decision dated January 10, 2020, the Agency stated that Grievant requested reassignment to another directorate away from FM1; attendance at Contract Officer training and appointment as a Contract Officer; reimbursement for medical expenses related to stress of assignment of FM1 to his division; a new provision to the collective bargaining agreement establishing counseling and written notification between employee and supervisor regarding senior rater potential evaluation; reimbursement for legal fees incurred due to the grievance; 24 hours of paid time for working on grievance; provision of servers to backup employee emails for two years; and $300,000 in compensatory damages for emotional harm due to reprisal. The Agency’s decision stated that management moved Grievant to another directorate as a result of the first step grievance. Notwithstanding, as to the remaining remedial requests, the Agency stated: Grievant may attend Contract Officer training but Contract Officer appointments are based on merit and Agency need so there is no guarantee of appointment; reimbursement for medical expenses related to reprisal are denied; Grievant worked outside of the collective bargaining agreement but his supervisor increased his evaluation based on discussions between the two of them; relief denied for legal fees; Grievant did not request additional time outside of tour of duty to work on his grievance; each employee has a 4GB limit for email storage and they may save to external drives, archive, etc. as they choose; and compensatory damages denied as reprisal was not established. 2 Grievant alleged that various management officials had professional or personal relationships that made them “loyal” to one another and they took adverse actions against him consistent with those relationships. 2020002549 & 2020004820 3 On February 3, 2020, Grievant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 2020002549.3 In response to Grievant’s appeal, the Agency stated that Grievant failed to establish its adverse actions were motivated by reprisal. Grievance Two On June 15, 2018, Grievant sent an email to his new Division Chief (DC2) stating that he was filing a first step grievance “concerning my continuous unfair treatment while assigned to Program Strategies in the area of performance, work assignments, [and] performance evaluation” (Grievance Two). Grievant stated that DC1 and another manager made negative comments in his 2018 performance appraisal because he complained about the assignment of FM1 to his division.4 DC2 stated that he could not adjust the performance appraisal because it was issued before Grievant was assigned to his division. DC2 stated that the matter should be elevated to a level where it can be addressed. On October 9, 2018, Grievant filed a step two grievance. Following a grievance meeting, in a step two grievance decision, dated August 3, 2020, the Agency agreed to delete the sentences referring to “a backlog” in the narrative for the two aforementioned performance elements. However, the Agency denied Grievant’s request for reimbursement of medical expenses, amendment to the collective bargaining agreement to provide counseling and communication between supervisor and employee regarding senior rater potential evaluation, legal fees, 24 hours of paid time for time spent on grievance outside of work, two years of backup service for emails for employees, compensatory damages, 2018 overtime pay, removal of a May 2018 letter of reprimand, and removal of statements made by management at a meeting in 2019. On August 28, 2020, Grievant filed an appeal with this Commission, which was docketed as EEOC Appeal No. 2020004820. In opposition to Grievant’s appeal, the Agency stated that Grievant failed to establish a connection between the alleged adverse actions and reprisal for prior EEO activity. The Agency stated that Grievant reiterated concerns from EEOC Appeal No. 2020002549, and that it removed the verbiage from the performance element narrative as Grievant requested. 3 In pertinent part, Article 51, Section 2.a(3) of the collective bargaining agreement between the Agency and American Federation of Government Employees states: “If the Union does not pursue a grievance involving a complaint of discrimination to arbitration, the grievant may request the EEOC to review the final decision resulting from the grievance procedure.” 4 The record shows that Grievant received a “Fully Successful” (3.8 out of 5.0) rating for his July 1, 2017 to March 31, 2018 performance rating. In two rating elements (Subject Matter Expert/Primary Technical Advisor and Life Cycle Acquisition - Planning, Negotiations, Execution, and Administration), the performance rater noted a backlog of actions that were not completed within the standard 30-day timeframe. Grievant alleged that management created the backlog. 2020002549 & 2020004820 4 ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a Grievant may appeal to the Commission from a final decision of the Agency, the Arbitrator, or the Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. In these circumstances, the Commission will only review that portion of the decision which pertains to the Grievant’s employment discrimination claim, as it does not have jurisdiction over any alleged violations of a collective bargaining agreement. See 29 C.F.R. § 1614.301(a). Disparate Treatment To prevail in a disparate treatment claim such as this, Grievant 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. See Furnco Constr. 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 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Grievant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). The prima facie inquiry may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997). Grievant stated that his prior EEO activity began with a 2011 EEO complaint and that he has also filed several grievances and served as a union officer and representative. Grievant alleged that various management officials had professional or personal relationships that made them “loyal” to one another and they took adverse actions against him consistent with those relationships. Grievant stated that management placed a former manager, FM1, in his directorate to harass him. Grievant also alleged that management delayed his performance appraisal and that DC1 put negative information in the narrative portion of two performance elements for 2018. DC1 denied Grievant’s allegations and stated that she treated Grievant equally and did not discriminate against him. The record contains a 2018 performance appraisal in which management rated Grievant as “Fully Successful” (3.8 out of 5.0), and in two performance elements noted that a backlog of actions was not completed within the standard 30-day timeframe. Management moved Grievant to another directorate per his request and agreed to remove the “backlog” language from the two performance element narratives. After careful review of the record, for Grievance One and Two, we find that Grievant failed to show that the Agency’s actions were based on retaliatory motives. 2020002549 & 2020004820 5 Harassment To establish a claim of harassment a Grievant 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 [Grievant'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). Here, we find that Grievant failed to establish discriminatory harassment. Specifically, we find that Grievant failed to prove, by a preponderance of the evidence, that the actions complained of were based on reprisal. 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 decisions finding no retaliatory motives. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Grievant 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). 2020002549 & 2020004820 6 Grievant 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, Grievant 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 Grievant’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 Grievant 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). GRIEVANT’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. 2020002549 & 2020004820 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Grievant’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 February 24, 2021 Date