[Redacted], Garland C., 1 Complainant,v.Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2020000134 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Garland C.,1 Complainant, v. Kenneth J. Braithwaite, Secretary, Department of the Navy, Agency. Appeal No. 2020000134 Hearing No. 480-2019-00157X Agency No. DON18-00681-00557 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 29, 2019, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue is whether Complainant established that the Agency subjected him to discrimination or harassment based on his national origin, race or sex, or in reprisal for protected EEO activity. 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. 2020000134 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Marine Expeditionary Force Prevention Analyst at the Agency’s Marine Corps Community Services, First Marine Division in Camp Pendleton, California. Complainant was part of the Embedded Preventative Behavioral Health (EPBH) Program, which was led by a non-supervisory program manager, the EPBH Director (DIR) (Caucasian, female). Report of Investigation (ROI) at 41. On March 1, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race (African-American), national origin (African-Native-European-American) and sex (male), and in reprisal for prior protected EEO activity when: 1. beginning in the fall of 2015, Complainant was targeted by DIR with negative stereotypes of an “Angry Black Man,” portraying him to leadership and his peers as being hostile, erratic, brutish, dangerous, antisocial, difficult, and uncooperative, which affected his performance evaluations; 2. on October 17, 2017, during a meeting, DIR interrupted Complainant and spoke over him in front of coworkers and allowed a Specialist (SPEC1) (African American, female, prior EEO activity), to interrupt him and speak down to him. DIR and SPEC1 informed leadership that Complainant “stormed out of the meeting” in an effort to portray him as the instigator instead of the victim; 3. between November 1 and 15, 2017, in an email exchange, SPEC1 told Complainant that he hides behind discussions of race and uses the subject of race “to try and overpower and demean and put down the woman who work with [him].” DIR and SPEC1 provided emails to a Colonel (COL1) and took a reference out of context to imply that Complainant had accused them of being White supremacists; and 4. on or about November 28-30, 2017, another Specialist (SPEC2) (White, female, US), with DIR’s encouragement, approached two of his coworkers, CW1 and CW2, to inquire if he had ever been sexually inappropriate with or “elsewise mistreated” them. SPEC2 advised CW2 to file an unrestricted sexual harassment complaint against Complainant’s first-line supervisor (S1) (African American, male, US citizen), in an effort to discredit S1 and isolate him. Complainant alleged that he was retaliated against when: 5. on or around August 4, 2016, DIR emailed another Colonel (COL2) (Caucasian, male, US citizen) listing several “encounters” she had with Complainant that gave her cause for concern, to include possible physical safety, and requested his removal from employment. This email traffic was forwarded to the Chief of Staff (COS) (Caucasian, male, US citizen), and two Lieutenant Colonels (LTCOL1) (Caucasian, male, US citizen) and (LTCOL2); 2020000134 3 6. on unspecified dates, DIR withheld vital program information from Complainant; 7. on unspecified dates, DIR reported negative information about Complainant to S1; 8. in November 2017, DIR filed an EEO complaint against Complainant for sexual harassment, in an effort to raise questions about his integrity and professionalism; 9. on December 6, 2017, COL1 did not allow Complainant to attend a roundtable meeting; and 10. on February 9, 2018, COL1 did not allow Complainant to attend a Quarterly Force Preservation Board (QFPB) meeting. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency found that while Complainant was a member of a protected class based on his national origin, race, sex, and protected EEO activity, he did not show that he was subjected to any unwanted physical or verbal conduct based on any of his protected categories. For example, Complainant alleged that he was targeted with stereotypical behavior of an “Angry Black Man.” However, no witness stated that Complainant was called an “Angry Black Man,” or that any comments about Complainant being angry were tied to his race. The Agency determined that the record showed that Complainant and DIR had a contentious relationship because DIR was not happy with Complainant’s work product. The Agency then found that the incidents, taken together, were not sufficiently severe or pervasive to rise to the level of a hostile work environment. The Agency also found that the management officials articulated legitimate, nondiscriminatory reasons for their actions, and that the preponderance of the evidence did not support Complainant’s allegations. The Agency concluded that Complainant did not establish discrimination based on his national origin, race or sex, or in reprisal for protected EEO activity. Complainant filed the instant appeal but did not provide any arguments in support of his appeal. The Agency did not respond to Complainant’s appeal. 2020000134 4 ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). For 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, the burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his national origin, race and sex, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for their actions. For claim 1, DIR denied targeting Complainant with negative stereotypes. ROI at 196. Regarding claim 2, DIR stated that during the meeting on October 17, 2017, Complainant started to discuss his research, which was outside the scope of the discussion. DIR stated that when she stated that they needed to move forward, Complainant left the meeting. ROI at 197. For claim 3, SPEC1 confirmed that she stated that Complainant used race to overshadow real issues and demean his colleagues. SPEC1 stated that after the October 17, 2017 meeting, she reached out to Complainant as a “peacekeeper” to ask that they meet. 2020000134 5 SPEC1 stated that in Complainant’s response, he referenced white supremacists, and SPEC1 felt that things were getting out of hand and causing more hostility towards her since she was not on Complainant’s side as an African American. ROI at 235. Regarding claim 4, SPEC2 stated that on November 16, 2017, she contacted CW1 to obtain her advice and opinion on how to respond to an email she received from Complainant. SPEC2 stated that on November 20, 2017, CW1 contacted her to report a possible allegation of sexual harassment by S1. SPEC2 stated that Complainant’s name was not raised during that conversation. SPEC2 stated that on November 22, 2017, she spoke with the employee who raised the allegation, and that Complainant’s name was mentioned briefly as a possible witness because his office was nearby. ROI at 231. For claim 5, DIR stated that she communicated her concerns to COL2 regarding a phone call she had with Complainant. ROI at 198. Regarding claim 6, DIR denied intentionally withholding vital programmatic information from Complainant. DIR stated that in May 2017, she issued a directive for the Major Subordinate Commands to submit a Human Subjects Research Protection Program (HRPP) Applicability Review for approval to obtain data for monthly reporting. DIR stated that she gave a deadline of May 30, 2017, and that Complainant did not submit his HRPP Applicability Review until April 2018, which was approved. ROI At 198. For claim 7, DIR stated that she informed Complainant’s supervisors that she had issues with Complainant’s communication styles, which were, at times, “disrespectful and/or dismissive.” ROI at 199. Regarding claim 8, DIR stated that on November 21, 2017, she filed an EEO complaint because she was advised that her encounter with Complainant in March 2017 “sounded like sexual harassment.” ROI at 198-9. For claim 9, we note that while Complainant alleged that COL1 did not allow him to attend a roundtable meeting on December 6, 2017, Complainant stated that DIR misled LTCOL2 by telling him that the roundtable meeting was only for uniformed personnel only.2 ROI at 143. DIR responded that she was not involved in the selection of the participants of this meeting. ROI at 198. Regarding claim 10, COS stated that he never received a call from COL1, or anyone else, asking that Complainant be excluded from the QFPB Meetings. COS stated that Complainant used to attend these meetings, but that a newly appointed Commanding General slowly reduced the number of attendees. ROI at 222. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were 2 The EEO investigator noted that COL1 retired and did not participate in the investigation. ROI at 3. 2020000134 6 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). In this case, we find that Complainant did not provide any evidence and only made bare assertions that management officials discriminated against him, which are insufficient to prove pretext or that their actions were discriminatory. In addition, a review of the record supports the Agency’s proffered reasons. For example, while S1 stated that he heard DIR calling Complainant “angry,” he noted that it was not tied to Complainant’s race. ROI at 225. S1 also stated that DIR and SPEC2 “demonstrated animus” towards Complainant, but that he had not been able to determine the reason behind the animus. ROI at 226. In addition, COL2 attributed the “negative interactions” between Complainant and DIR to issues with Complainant’s work; COL2 specified that Complainant’s calculations or analyses were either incorrect or referenced the wrong material. ROI at 218. For claim 2, the witnesses corroborated that DIR’s actions were due to Complainant’s continued attempts to discuss something that was off-topic. ROI at 230, 234, 239, 243. For claim 3, Complainant used the term “white supremacists” in his email to SPEC1, who responded that no one discriminated against Complainant because he was an African American male. SPEC1 added that Complainant demeaned and put down the women he worked with, and that he crossed many professional boundaries. ROI at 119. We note that there is no evidence that DIR or SPEC1 took things out of context to imply that Complainant was accusing them of being white supremacists. For claim 4, CW1 confirmed that SPEC2 asked if Complainant was ever inappropriate with her, but that SPEC2 was “dramatic and nosey” all the time. ROI at 247. Regarding claim 5, the emails sent by DIR on August 4, 2016, show that DIR described a conversation with Complainant when they discussed discrepancies in his analysis on some data. ROI at 136-9. We note that the emails did not show that DIR expressed concerns about a possible physical safety issue or a request for Complainant’s removal from employment. For claim 6, S1 stated that DIR did withhold vital program information from Complainant. ROI at 226. However, witnesses confirmed that the information was not provided to Complainant because he did not timely submit his HRPP certification. SPEC1 stated that HRPP certification was required and that to her knowledge, Complainant did not get his certification. ROI at 235. A witness (W1) stated that Complainant did not follow the protocol, and that she was copied on the emails providing the instructions to Complainant’s supervisors. ROI at 243. Regarding the “negative information” about Complainant in claim 7, S1 stated that DIR complained to him that Complainant was late on deliverables, there were quality issues with his deliverables, and that he did not attend meetings and planning sessions. S1 stated that he believed that the “friction” between Complainant and DIR was due to DIR’s belief that she could directly task Complainant. ROI at 226. For claim 8, W1 stated that DIR informed her that she did not want to file a sexual harassment complaint against Complainant, but that when DIR reported his behavior, she was told that she needed to file a complaint. 2020000134 7 W1 stated that in March 2017, she saw that DIR seemed disturbed and asked what was wrong. W1 stated that DIR informed her that Complainant was pursuing her romantically and told her that he loved her; stated that they were “meant to be”; and he wanted to “show her the world,” and take her to China and the ballet. ROI at 244. For claim 9, W1 stated that she was sent to the roundtable meeting to represent her command because it did not have a uniformed Force Preservation Officer. ROI at 245. We find that there is no evidence to show that the proffered reasons were unworthy of belief and that Complainant did not establish pretexts for discrimination. Accordingly, we find that Complainant did not establish that he was discriminated against based on his national origin, race or sex, or in reprisal for protected EEO activity. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on his national origin, race or sex, or in reprisal for 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 decision finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on his national origin, race or sex, or in reprisal for protected EEO activity. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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. 2020000134 8 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, 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. 2020000134 9 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 11, 2021 Date