[Redacted], Jasper C., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 26, 2021

Appeal No. 2021003243 (E.E.O.C. Oct. 26, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jasper C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003243 Agency No. ARUSAR19FEB00556 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 April 23, 2021, 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 in reprisal for filing the instant EEO complaint. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Health Readiness Coordinator at the Agency’s 1st Mission Support Command, U.S. Army Reserve Command in Fort Buchanan, Puerto Rico. Complainant began a two-year term appointment on July 23, 2018. Report of Investigation (ROI) at 17. 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. 2021003243 2 Complainant stated that since August 2018, his first-line supervisor (S1) denied him career development training, such as a “Medchat” workshop in November 2018. Complainant alleged that S1 publicly demeaned Complainant when S1 stated during meetings that he did not want to spend training money for a temporary employee. Complainant also alleged that S1 spread rumors that Complainant was incompetent, and S1 encouraged him to quit or transfer. Complainant averred that S1 removed key responsibilities from him, such as creating reports and sending emails regarding Health Readiness Coordination. Complainant stated that S1 and a coworker (CW) falsely accused Complainant of committing errors and ordered him to do work that was beneath his grade level. ROI at 289-93. On February 19, 2019, S1 emailed Complainant and requested an explanation for his absence at that day’s staff meeting. S1 noted that he was not informed that Complainant had gone home sick or had an emergency. Further, S1 stated that Complainant had previously missed meetings. ROI at 261. Complainant responded that he did not understand the accusations and requested assistance from his chain of command. ROI at 32. On February 20, 2019, S1 issued Complainant an Official Counseling for failure to follow basic regulations as outlined in his position description. Specifically, without informing a staff member, Complainant failed to attend multiple staff meetings and also failed to return from a lunch break. S1 also explained that Complainant would send text messages, such as “sick-call” and “car trouble,” which was an inappropriate method for informing his supervisor that he would not be reporting to work. In addition, S1 stated that Complainant relayed erroneous information, that separation procedures should be initiated on those who do not get a flu shot, so S1 instructed Complainant to vet all emails through him. ROI at 34-5, 150-1. According to Complainant, S1 repeatedly failed to certify his timecards on time. ROI at 298. Complainant stated that S1 instructed him to teach a training scheduled for March 28, 2019. The presentation totaled approximately 250 slides, asserted Complainant. When he requested to divide the presentation with others on the team, Complainant contends that S1 replied that he only wanted Complainant to teach the class. Believing that S1 was setting him up for failure, Complainant stated that he spoke with the Chief of Staff (COS). In response, noted Complainant, COS stated that he would talk to S1. ROI at 299-300. On April 1, 2019, S1 issued Complainant a Written Reprimand for failure to follow a directive. S1 noted that, while Complainant was instructed to give an overview of medical readiness to students, Complainant sent a text message stating that COS excused him from the assignment. According to S1, Complainant was not excused from the assignment and failed to report to the assignment location. Complainant stated that S1 issued the same reprimand via email on April 2, 2019.2 ROI at 262-3, 304. 2 The record contains a copy of a different reprimand, dated April 2, 2019, for Complainant’s “yelling and cursing.” ROI at 264-5. However, it is not clear if this reprimand was issued to Complainant, and we note that Complainant does not reference this reprimand in his affidavit. 2021003243 3 On April 26, 2019, S1 issued Complainant a Notice of Termination During Trial Period for failure to demonstrate fitness for continued federal employment. S1 noted that Complainant failed to follow proper leave procedures and failed to follow supervisory directives on numerous occasions, as noted in prior disciplinary actions. S1 stated that Complainant also developed a pattern of challenging S1’s authority and displayed disrespectful behavior. For example, Complainant stated “this is bullshit, I am leaving” when S1 issued him a counseling on April 1, 2019. ROI at 282-4. EEO Complaint On March 21, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment in reprisal for filing the instant EEO complaint when: 1. since August 2018, S1 denied Complainant career development training, publicly demeaned, humiliated, and intimidated him, perpetuated rumors of him being incompetent, encouraged him to quit or transfer, and removed some of his key responsibilities; 2. since August 2018, S1 and CW falsely accused Complainant of making errors and ordered him to do work beneath his pay grade; 3. on February 20, 2019, S1 gave Complainant a written counseling; 4. on several occasions, beginning in March 2019, S1 failed to ensure that Complainant’s time and attendance was correctly entered; 5. on March 27, 2019, S1 only wanted Complainant, and no additional instructors, to give training at the Puerto Nuevo workshop; 6. on April 1, 2019, S1 gave Complainant an official written reprimand; 7. on April 2, 2019, S1 sent Complainant a counseling via email; and 8. on April 26, 2019, S1 terminated Complainant from his position of Health Readiness Coordinator. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed, for the sake of argument, that Complainant established a prima facie case of retaliation and found that management officials articulated legitimate, nondiscriminatory reasons for their actions; namely, Complainant’s performance issues during his probationary 2021003243 4 period. The Agency then found that Complainant did not show pretext for discrimination and that Complainant’s allegations were unsupported by the totality of the record. The Agency also determined that Complainant did not show that he was subjected to harassment because many of the alleged incidents were more likely the result of routine supervision, managerial discipline, personality conflicts, and general workplace disputes. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. Complainant filed the instant appeal but did not provide a statement in support of his appeal. The Agency opposes Complainant’s appeal and requests that the Commission affirm its final decision. 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”). ANALYSIS AND FINDINGS Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant 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. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). In the instant case, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. 2021003243 5 For claim 3, S1 stated that he issued the counseling because Complainant’s performance did not improve, noting that Complainant sent erroneous emails and missed meetings. ROI at 320. Regarding claim 4, S1 explained that he missed deadlines to timely approve Complainant’s timecards because he had issues acclimating to the new system. However, S1 stated that Complainant’s timecards were always entered on time by another employee. ROI at 322. For claim 5, S1 asserted that others had previously conducted presentations and this was Complainant’s opportunity; however, Complainant refused and did not inform S1 or the team that he would not be attending the training. ROI at 323. Regarding claims 6 and 7, S1 stated that he issued the reprimand because Complainant did not appear for the scheduled presentation and his performance was declining. ROI at 324. As for claim 8, S1 contended that Complainant was terminated because of his attitude and performance deficiencies. ROI at 328. We find that Complainant has not shown that the Agency’s proffered reasons were pretext 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 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). As noted above, Complainant did not provide any arguments on appeal. Yet, in his rebuttal statement, Complainant argued that he did not concur with S1’s testimony due to “lack of integrity and false testimony.” ROI at 382. However, Complainant did not specify what testimony was false, nor provide any evidence showing that S1’s proffered reasons were not worthy of belief. Complainant’s bare assertions, that S1 discriminated against him, are insufficient to prove pretext or that the actions were discriminatory. Accordingly, we find that Complainant did not establish that the Agency retaliated against him when it issued him counselings and reprimands; failed to timely approve his timecards; and terminated his employment during his probationary period. Retaliatory Harassment To establish a claim of harassment 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 classes; (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 [Complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). 2021003243 6 To ultimately prevail in his claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). We find that Complainant belongs to a statutorily protected class based on protected EEO activity and that he was subjected to unwelcome verbal conduct. However, there is no evidence that those responsible were aware of Complainant’s protected EEO activity prior to the alleged harassment. Complainant stated that he emailed S1 in January or February to inform him of the EEO activity, but Complainant did not provide copies of these emails. ROI at 288. On April 2, 2019, Complainant emailed management officials, and copied S1, to inform them that he contacted the EEO office regarding S1’s “abuse of power.” ROI at 121. CW stated that she learned of Complainant’s EEO complaint in May 2019 from S1. ROI at 335. We note that, apart from the November 2018 “Medchat” workshop, Complainant did not provide specific dates for his allegations and there is no evidence that any of the complained of conduct occurred after S1 and CW learned of Complainant’s EEO activity. We find that Complainant did not show a retaliatory motive for the alleged harassment, and accordingly, we find that Complainant did not establish that he was subjected to harassment in retaliation for filing the instant EEO complaint. 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. 2021003243 7 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). 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. 2021003243 8 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 October 26, 2021 Date