[Redacted], Heriberto P., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Apr 21, 2022

Appeal No. 2020005181 (E.E.O.C. Apr. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Heriberto P.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2020005181 Agency No. 9X1M16011 DECISION On August 20, 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 final decision, dated May 25, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Command Country Manager (Japan), GS-1101-13, for the Agency’s Pacific Section; Americas, South East Asia and Pacific Branch; International Division; Air Force Security Assistance and Cooperation Directorate; Airforce Life Cycle Management Center (AFLCMC) at Wright-Patterson Air Force Base (AFB), Ohio. His first-level supervisor was Pacific Section Chief, Supervisor (Supervisor), and his second-level supervisor was Deputy Branch Chief (Deputy Chief). On June 2, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (Caucasian) 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. 2020005181 2 1. on January 15, 2016, he was moved from a quiet low bay workstation to a highly disruptive high bay workstation environment (adjacent to his supervisor’s office) with no notice, discussion or union notification; 2. on January 22, 2016, [Supervisor] verbally counseled him; 3. on numerous occasions [Supervisor] did not approve his physical fitness time [PT] and scheduled meetings so that he could not partake in [PT]; 4. he was given a mid-term feedback which does not reflect his true performance; 5. [Supervisor] did not approve his credit hour request for hours needed to stay past the normal duty time in support of his assigned country, Japan; Thereafter, Complainant submitted a request to amend his complaint to include additional claims2: 6. On August 26, 2016, he was denied his Weingarten Rights. On October 12, 2016, the Agency accepted claim 6 for investigation along with claims 1 - 5. The investigative record reflects the following pertinent matters relating to the subject claims. In claim 1, Complainant stated he was moved from his prior work station to one with a lot of white noise that was right outside Supervisor’s office. Report of Investigation (ROI) at 132.3 Co-Worker 1 (Caucasian), a co-worker of Complainant’s, was also moved to the same area. See id. 2 Complainant also alleged he was subjected to a hostile work environment when “during the month of January 2016, he was physically moved, without proper notification to AFGE Local 1138, to a smaller location outside the office of [Supervisor].” Reasoning that this was the same claim as set forth in claim 1, the Agency dismissed the proposed amendment pursuant to 29 C.F.R. § 1614.107(a)(1). Additionally, Complainant sought to include the claim that, on August 26, 2016, he received a Notice of Proposed Reprimand. The Agency dismissed this claim on the grounds that it alleged a proposed personnel action, pursuant to 29 C.F.R. § 1614.107(a)(5). Thereafter, the Agency included the proposed reprimand as part of claim 6. Since Complainant does not challenge the dismissals on appeal, we exercise our discretion and shall not address the matter herein. See EEOC Management Directive on 29 C.F.R. 1614 (MD-110), at Ch. 9, §VI.A (Nov. 9, 1999). 3 We note that the pages of the ROI are stamped with two sets of numbers. Our citations are to the numbers that begin in 000. For brevity’s sake, we refer herein to the last 3 digits only. For example, page 000132 will be referred to as page 132. 2020005181 3 Complainant believed this was due to his race because of a combination of other things that followed, including Supervisor’s desire to have her thumb on him and Co-Worker 1. ROI at 132- 33. Complainant stated that none of Supervisor’s eight other employees (some Caucasian) were treated this way. ROI at 132. Supervisor said she was told by her first-line supervisor, Deputy Chief, and Branch Chief that her office would be moved so she could be closer to her employees. ROI at 139. Because of her move, Complainant and Co-Worker 1 would need to be moved. See id. Deputy Chief confirmed that he and Branch Chief directed the decision to move Complainant. ROI at 148-49. The reason was to put everyone together. See id. Human Resources (HR) Specialist added that employees are not involved in the decision process for such moves. ROI at 165. In claim 2, Complainant declared Supervisor verbally counseled him, behind closed doors, for not having his Instant Messenger (IM) on the prior day;4 for being late “one day” that he contended was not specified; and for not being in his cubicle for 45 minutes, supposedly “sometime last year.” ROI at 133. Complainant maintained if he knew he were going to be written up, he would have had his union representative attend the meeting and that Supervisor denied him his Weingarten rights. See id. When asked why he thought this was based on his race, Complainant said he could think of no other reason for Supervisor harassing him. See id. However, he also thought Supervisor was mad about his sending an email the previous Friday regarding the move of his work space. See id. Supervisor acknowledged that she verbally counseled Complainant. ROI at 140. She said that she consulted HR and was told she could require Complainant to keep his IM on. See id. On another occasion, Supervisor said Complainant was 30 minutes late. ROI at 141. Regarding the time Complainant was away from his cubicle for 45 minutes, Supervisor said that, when something was needed from Complainant that the General had requested, Complainant was at a Starbucks with Co-Worker 1. ROI at 140. According to Supervisor, no Weingarten representative was needed because Complainant was not being disciplined, simply verbally counseled. ROI at 141. Supervisor acknowledged she had verbally counseled three other Caucasian employees, but asserted that her counseling of Complainant was not due to his race nor the email he had sent. See id. In claim 3, Complainant alleged Supervisor did not approve his PT and scheduled meetings so that he could not participate in PT. Further, Complainant contended Supervisor sat on his requests and did not let him know in a timely fashion if she would deny them. ROI at 133-34. She scheduled meetings for the afternoons, at the time he had requested for his PT. ROI at 134. According to Complainant, Supervisor would not show up to the meetings or they were not official. See id. 4 While Complainant’s Declaration used the term “Instant Manager,” we assume that he meant “Instant Messenger.” 2020005181 4 Furthermore, on one occasion, Supervisor changed Complainant’s timesheet to reflect an hour of AWOL for the time he was at PT. See id. Complainant believed this was racial harassment, because he could not see any other reason for Supervisor’s actions. See id. According to Supervisor, Complainant was missing meetings due to his PT. ROI at 141. While she previously did not allow Complainant, or others, to take their PT if they had incomplete work, Supervisor “eventually changed [her] position”, and provided advanced approval of Complainant’s PT. If his work was not complete, Supervisor would “make a note of it and take appropriate action if necessary.” ROI at 141-42. When asked if her actions were due to Complainant’s race, Supervisor maintained they were related to Complainant’s presence to complete his work and having his leave approved by his supervisor. Id. at 142. In claim 4, Complainant averred that he was given mid-term performance feedback that did not accurately reflect his true performance. He put forward that he was performing supervisory work during the rating period of October 16, 2015, to February 17, 2016, and most people who did such work would receive at least a middle or higher range rating. ROI at 134. Instead, he stated, almost all of his ratings were marked lower. See id. Moreover, Complainant averred, there was feedback that was not an accurate portrayal of his performance, including items that were not part of his job. Complainant stated these included: changing his core hours for a teleconference call outside of work hours; obtaining prior approval for credit hours; seeking Supervisor’s approval before going to PT; and taking Japanese visitors directly to the General’s office when he did not do so. ROI at 134-35. Complainant indicated that Supervisor also gave him feedback that he thought actually applied to Co-Worker 1. ROI at 135. Complainant was also told by Supervisor that Complainant was fighting leadership, which he claimed was untrue. See id. Supervisor declared her feedback was based on what she observed of Complainant’s work performance. ROI at 142. She said that she mentioned to Complainant during the mid-term evaluation meeting that he was reluctant in adapting to changes imposed by leadership; constantly argued with her; and told her not do what leadership instructed. Id. Moreover, Supervisor stated that she gave the rest of her staff, who were Caucasian, the same or similar feedback. Id. She denied her action had anything to do with Complainant’s race. Id. at 143. In claim 5, Complainant maintained Supervisor did not approve his credit hour request needed to support his assigned country, Japan. As a result, argued Complainant, he was forced to complete the work on his own time. ROI at 135. He further stated that Supervisor said he should come in late or leave early to make up the time, but he was uncomfortable doing so for fear that he would be charged AWOL again. Id. Complainant believed this was based on race because he could not see any other reason for it. Id. at 136. Supervisor submitted that she does not grant anyone credit hours. ROI at 143. In claim 6, Complainant alleges he received a Notice of Proposed Reprimand (“Notice”) on August 26, 2016, and was denied his Weingarten rights. 2020005181 5 He maintained Supervisor pulled him away from his work and started reading him the Notice, in the presence of a management witness. ROI at 136. He said when he asked Supervisor what the meeting concerned, as he wanted to have his representative present, Supervisor ignored him twice and kept reading the Notice. See id. When asked how this incident was based on his race, Complainant simply replied that the alleged events were harassing and continuous. See id. He further stated that he told the General in a meeting in October 2016 that he felt targeted, harassed, and singled out. ROI at 136-37. According to Supervisor, HR Specialist advised her that she did not have to provide Complainant with the opportunity for representation. ROI at 143. HR Specialist declared that employees should not be offered representation for this type of “one[-]way communication.” ROI at 166. Deputy Chief confirmed this as well. ROI at 150. Supervisor articulated that she herself had a witness present at Complainant’s meeting. ROI at 143. She also stated that she treated Co-Worker 1 and a female co-worker (Caucasian) (Co- Worker 2) the same way during similar situations, though Supervisor acknowledged that she did not have a witness present for Co-Worker 2 because it was a different type of letter. ROI at 143- 44. In response to a question on whether her action had anything to do with Complainant’s race, Supervisor said her action was based on HR guidance. ROI at 144. In Co-Worker 1’s opinion, Complainant was a good worker and Supervisor was a micromanager. ROI at 154-55. He also stated that Complainant did not say, in so many words, that he felt he was being discriminated against or harassed, though a lot of their conversations were about this type of treatment. ROI. at 156. Another co-worker (Caucasian) (Co-Worker 3) affirmed that Complainant was treated differently and harassed by Supervisor, Deputy Chief, and Branch Chief. ROI at 159-60. Specifically, she said Complainant was micromanaged and that they picked on him. See id. She felt Complainant was being harassed. ROI at 160. 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 (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. Specifically, the final agency decision (FAD) reiterated the dismissal of two of the three amended claims. It also found that, with regard to claims 1, 2, and 5, the Agency articulated legitimate, nondiscriminatory reasons for its challenged actions that were not proven to be a pretext for racial discrimination. The FAD further found that incidents in claims 3, 4, and 6 did not occur as alleged. Ultimately, the FAD concluded, Complainant did not establish that he had been subjected to unwelcome conduct that was based on his race, and therefore cannot establish that he was subjected to a discriminatory hostile work environment or harassment on the basis of his race. 2020005181 6 CONTENTIONS ON APPEAL Complainant presents no arguments on appeal. Regarding the dismissals, the Agency agrees that it properly dismissed claim 1 and improperly dismissed claim 6, thus concurring with the FAD. For the first time, on appeal, the Agency argues that claims 2 and 3 should be dismissed, pursuant to 29 C.F.R. 1614.107(a)(4), because Complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination. Alternatively, the Agency contends that all six claims fail to demonstrate harassment. It points out that Complainant has submitted no evidence, documents, or statements to show that the Agency erred in its factual or legal conclusions. Thus, the Agency asserts that its FAD should be affirmed. 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 Chapter 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”). Dismissals We agree with the Agency that its dismissal of the proposed reprimand aspect of claim 6, was improper. “Where a proposed Agency action is purportedly combined with other acts of harassment to form a pattern of alleged harassment, an agency may not properly dismiss it on the grounds that the claim concerns a proposed action.” Timika O. v. Dep’t of the Treasury, EEOC Appeal No. 2021004265 (Jan. 10, 2022). See also Sonkwa v. Dep’t of Def., EEOC Appeal No. 0120133093 (Jan. 16, 2014), citing Settles v. U.S. Postal Serv., EEOC Request No. 05970496 (Apr. 8, 1999). Thus, we have considered claim 6 in our harassment analysis. As to the Agency’s contention that claims 2 and 3 should be dismissed because they raise the same issues that were brought up in a grievance procedure, it is inappropriate to raise additional dismissal grounds for the first time on appeal. As the agency did not dismiss the instant complaint pursuant to 29 C.F.R. § 1614.107(a)(4), we will not address this matter further. See, e.g., Navarro and Montoya v. Dep’t of the Navy, EEOC Appeal Nos. 0120073150, 0120073153 (Oct. 3, 2007). 2020005181 7 Disparate Treatment (Claims 1, 3, 4, and 5) 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. McDonnell Douglas, 411 U.S. at 802, n.13; 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. Tex. Dep’t of Cmty. Affs. 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. St. Mary’s Honor Ctr. 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 the agency has articulated a legitimate, nondiscriminatory reason for its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). We find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, Supervisor was required to move her office, which, in turn, necessitated moving Complainant’s and Co-Worker 1’s work space. The reason was so that Supervisor could be closer to her employees. Regarding claim 3, Supervisor said that she changed her practice because, as a result of his PT, Complainant was missing meetings. She would approve Complainant’s PT in advance, and if he did not get work completed, Supervisor would make note of it and take appropriate action if necessary. Supervisor stated her actions had to do with Complainant being present to complete his work and having his leave approved by his supervisor. Regarding claim 4, Supervisor declared that Complainant’s feedback for the relevant period was based on what she observed of his work performance. For example, she noted that he was reluctant in adapting to changes, constantly argued with her, and he told her not to do what leadership said to do. She further stated that all of her staff, who were Caucasian, were given the same or similar feedback. Complainant has not shown any nexus between his race and Supervisor’s feedback. Regarding claim 5, Supervisor admitted that she did not approve Complainant’s request for credit hours. She explained, however, that she did so because she has a practice of not approving credit hours for anyone. 2020005181 8 As the Agency has articulated legitimate, nondiscriminatory reasons for its actions, Complainant now bears the burden of establishing that the Agency’s stated reasons were merely a pretext for discrimination. Complainant makes no argument as to why the Agency’s reasons were pretextual, as he does not submit a rebuttal or any appellate arguments. He does state in his Declaration, as to claim 1, that none of the other employees were moved. However, the record reflects that Co-Worker 1 was also moved. Regarding claim 4, he attested that Supervisor erroneously gave him midterm feedback that actually pertained to Co-Worker 1. However, Complainant provided no evidence to support this. His unsupported assertions do not establish that the stated reasons for moving him or for his mid-term feedback, respectively, were pretexts for discrimination. In sum, Complainant has not shown that the Agency's reasons are unworthy of credence or that discriminatory motivation more likely motivated the Agency's actions. As a result, we find that there was no discrimination. Harassment (Claims 2 and 6) To the extent that Complainant is alleging that he was subjected to a hostile work environment in claims 1, 3, 4, and 5, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus with regard to the afore-mentioned claims. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). To establish a claim of hostile work environment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). In short, 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that Complainant failed to establish that he was subjected to unlawful harassment in claims 2 and 6. Complainant has not established that the conduct at issue was based on his protected class. Regarding claim 2, Supervisor gave distinct, performance-based reasons why she verbally counseled Complainant. 2020005181 9 Regarding claim 6, we find that the nature of the claim focuses on the denial of Complainant’s Weingarten rights rather than the validity of the proposed reprimand itself. The Commission does not have jurisdiction over the denial of Weingarten rights. See Simensen v. U.S. Postal Serv., EEOC Appeal No. 01A21068 (Feb. 26, 2002). 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 no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 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). 2020005181 10 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. 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 April 21, 2022 Date