[Redacted], Jeremy H., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency.

Equal Employment Opportunity Commission

Nov 8, 2021

Appeal No. 2020003727 (E.E.O.C. Nov. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jeremy H.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Missile Defense Agency), Agency. Appeal No. 2020003727 Hearing No. 420-2019-00354X Agency No. 2018-MDA-007-KC DECISION On June 10, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 23, 2020 final order 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. BACKGROUND During the relevant time, Complainant worked in contracts and procurement at the Agency’s Missile Defense Agency in Redstone Arsenal, Alabama. On August 22, 2018, Complainant filed a formal EEO complaint. In that complaint, he alleged the Agency discriminated against him based on race (African American) and sex (male when: 1. On July 23, 2017, he was reassigned from his position as Supervisory Director, Contract Policy Compliance and Review, to a temporary non-supervisory position (Procurement Analyst) in DAW (Acquisitions). 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. 2020003727 2 2. Complainant was subjected to discriminatory harassment/a hostile work environment as evidenced by the following: a. Before the effective date of his reassignment, on May 8, 2017, he requested that he be considered for the Deputy Director position rather than the Procurement Analyst position. However, the request was denied by the Director of Contracts. Complainant later learned of a non-competitive promotion of a colleague to the position of Deputy Director, DAW TFMO. b. On June 5, 2017, his first-line supervisor (“S1”) informed him that she was directed by the Director of Contracts to include certain “comments” in his mid-term appraisal. c. On January 10, 2018, S1 informed him that the Director of Acquisition and Director of Contracts were evaluating his current compensation (OCS 100) and that he should be concerned as it could result in another move against his will. d. In February and March 2018, his new first-line supervisor (“S2”) referred to his “high OCS [compensation]” on at least three separate occasions, repeating he should be concerned about it. e. On April 26, 2018, S2 met with him as instructed by the Director of Acquisition and Director of Contracts to have a conversation regarding his work plans because his current position as Procurement Analyst in DAW TFMO was temporary. f. On May 22, 2018, S2 “non-concurred” on his mid-term assessment which rendered his performance “unsuccessful.” 3. On January 8, 2019, S2 advised him he was marked down with a “-1” on his 2018 performance appraisal. Complainant alleged this occurred in retaliation for his filing the instant EEO complaint about Claims 1 and 2. Following the Agency’s investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency submitted a Motion for Summary Judgment. Complainant responded to the motion. Thereafter, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued a final order implementing the AJ’s decision. The instant appeal followed. 2020003727 3 ANALYSIS AND FINDINGS To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Disparate Treatment - Claims 1 and 3 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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; 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Reassignment In July 2017, Complainant was involuntarily reassigned by management from a supervisory position as the Director, Contract Policy Compliance and Review, to a non-supervisory Procurement Analyst position in Total Force Management (DAW). Both positions were within the Directorate of Acquisition. At all times, Complainant remained a NH-1102-1V (GS-15, Step 10 equivalent) and his pay and benefits remained the same. S1 (Caucasian, female) was Complainant’s first-level supervisor before his reassignment. After the reassignment until September 2018, S2 (Caucasian female) was his supervisor. 2020003727 4 The Director of Contracts (African American, female), who assumed her Director position in November 2016, stated that management was in the process of reassessing the program’s organization and goals that included raising expectations for the performance of the program. Based on the work products she reviewed from the Complainant, she decided he was not performing at the highest level in his current senior-level supervisory position as a result of the significant time since he had occupied and performed in an operational position. She noted that Complainant had been in his position for “more than six years and his performance was indicative of an employee who needed to renew/sharpen [his] foundational skill in contracting.” Among other things, she said the Agency was preparing for a triannual Procurement Management Review and based on Complainant’s performance she did not feel confidence in his ability to prepare the Agency for a successful Department of Defense level review. Therefore, she said she decided to reassign him to give him a chance to sharpen his operational skills and have time reflect on his next career move. She said she was hoping this would prepare his to be competitive in resuming a leadership position. She said she told Complainant that she anticipated the reassignment to the Procurement Analyst position would be temporary (12-24 months) after which she expected him to be better prepared to apply for a higher-level position of his interest. She said Complainant did not express any dissatisfaction with the move to her until he filed the instant EEO complaint. The evidence also reveals that between May 2017 and November 2017, other employees under the Director of Contracts were similarly reassigned (eight Caucasian males, one Caucasian female, one African American female). According to the Director, these employees were reassigned for similar reasons as their current performance did not match up to the program’s expanded vision and goals. Based on a review of the record, we conclude that Complainant did not prove, by a preponderance of the evidence, that the reasons proffered by the Director for the decision to reassign Complainant were in any way motivated by his race or sex. Issuance of a “-1” on 2018 Performance Appraisal Complainant alleged that he was marked down on his 2018 performance appraisal in retaliation for filing the instant complaint. It is undisputed that S2, the rating official, was aware of the EEO complaint at the time of the rating. S2 explained that Complainant was under the “Acq Demo” alternate pay system. The Acq Demo performance management system equates an employee’s compensation to his/her level of contribution to the mission of the organization. She further stated that at the end of the appraisal cycle, the employee will compete a self-assessment describing contributions to the agency’s mission for the appraisal cycle. The supervisor will review the employee’s narrative and assess the level of contribution in each factor to determine the preliminary fact scores. During this rating period, S2 stated that she recommended that the Complainant get an OCS score of 100 (the same score in Complainant’s self-assessment) based on improvements which she saw in the Complainant’s performance. 2020003727 5 Under the Agency’s system, after receiving the rating supervisor’s recommended ratings, a Pay Pool panel, consisting of a group of peer managers from across the organization, validates the supervisory assessments of contributions against the performance factors. The Pay Pool panel conducts a final review of the OCS and the recommended compensation adjustments for the Pay Pool members. Final approval of the OCS rests with the Pay Pool Manager. After the Pay Pool deliberations are completed, CCAS software uses algorithms to determine the payout for the employees. Three types of compensation are available: Contribution Rating Increase (CRI), General Pay Increase (GPI), and a Contribution Award (CA). In the Pay Pool process, Complainant’s final score was reduced by one point. S2 stated she provided Complainant with his appraisal on January 8, 2019, and informed him that he would still receive a contribution award even with the delta -1 OCS due to the 2018 business rules. She told him if he wanted additional details, she would assist in setting up a meeting with the Pay Pool Manager. To her knowledge, she said Complainant did not request the meeting. The record supports S2’s testimony that the Pay Pool gave Complainant the -1 OCS, although it did not effect his receipt of a contribution award. There is simply no evidence that retaliatory animus played a role in the Pay Pool deliberations. In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support for the AJ’s determination that the responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his race, sex or prior protected activity played any role whatsoever in these matters. Harassment/Hostile Work Environment - Claim 2 To prove his harassment/hostile work environment 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 - in this case, his race, sex or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Deputy Director Position In May 2017, before the effective date of his reassignment, Complainant alleges that he requested that he be considered for the Deputy Director in Acquisitions (DAW) position rather than the Procurement Analyst position. However, he said the request was denied by the Director of Contracts. Complainant later learned of a non-competitive promotion of a colleague (Caucasian female) to the position of Deputy Director. 2020003727 6 The Director of Contracts stated that Complainant never discussed his desire with her to be reassigned to the Deputy DAW position. To the best of her recollection at the time the Complainant was reassigned a Deputy position did not exist. She said she was not involved in the subsequent placement of another individual into the Deputy Director position because DAW was not an organization under her authority. The Director of Acquisition, who led DAW, stated that she was not aware of the Complainant’s request to be considered for the Deputy Director position in DAW. She stated that the person later placed in the position did not receive a promotion but was laterally reassigned from one NH-IV position to another. Comments in Complainant’s 2017 Mid-Term Assessment It is undisputed that Complainant’s 2017 mid-term assessment identified, among other things, areas for improvement. Complainant asserted the comments were inaccurate, unfair and unwarranted. He also stated the comments led to the impression that he was not performing up to expectations and he disagreed with that assessment. S1 (Native American/Caucasian female) stated that that Complainant had had excellent evaluations in the past, including from her. At this mid-term review, she was simply communicating that the new Director had heightened expectations and was broadening the responsibilities of the various programs. The comments were designed to inform Complainant of the additional areas the Director wanted to concentrate on for the remainder of the rating period. S1 provided a copy of all of her director-level reports’ mid-term assessments, which showed she similar identified areas for improvement in the mid- term assessments of five other employees (all Caucasian, two female and three male) in addition to Complainant. Moreover, the record reflects that the comments in Complainant’s mid-term assessment did not harm him in any way. For the 2017 annual assessment, Complainant received his expected score of 100 along with a general pay increase. Comments about Complainant’s “High OCS” Compensation S2 explained that employees under the Acq Demo alternate pay system like Complainant, the “OCS” is a numerical value which represents the employee’s contribution to the mission of the organization and is linked to the employee’s basic pay. Within the system, OCS scores range from 0 to 100. An OCS of 100 indicates that the employee is at the top of the NH-IV pay band, which is equivalent to a GS-15, Step 10, in the General Schedule pay system. Employees with OCS of 100 are expected to be experts in their practice area. S2 stated that in January 2018, she gave feedback for Complainant’s 2017 annual appraisal which also served as the contribution panning for the current rating cycle. She asserted that she did not tell Complainant that the Director for Acquisition and Director of Contracts were evaluating his current compensation (OCS 100) and that he should be concerned about that it might result in another move against his will. S2 said she told Complainant that at a 100 OCS score, his contributions would need to be commensurate with the high score. 2020003727 7 S2 stated as supervisor, she had the responsibility to convey the expectations to the employee and ensure the work assignments which Complainant was assigned were at the level commensurate with his expected contribution. Moreover, S2 denied telling Complainant he would be compared with Directors and Deputies because that was not the standard to be measured against. Instead, she stated that employees are evaluated on their own work product and contributions based on standards set by the pay system factors. Discussion about Career Plans On April 26, 2018, it is undisputed that S2 met with Complainant to have a conversation regarding his career plans because his current position as Procurement Analyst in DAW TFMO was temporary. As discussed in more detail earlier in this decision, the Director of Contracts stated that Complainant always knew the reassignment to the Procurement Analyst position was intended to be temporary and give him time to brush up on his skills and develop a career plan. According to S2, the April 2018 discussion was simply to further facilitate that process. There is no evidence that beyond the discussion Complainant was told that his Procurement Analyst position would end on a particular date. 2018 Mid-Term Assessment “nonconcurrence” S2 stated that her discussions with Complainant regarding OCS, job plans, and expectations were her responsibility as a supervisor. S2 stated that Complainant submitted a self-assessment of his work performance as required under the Acq Demo system, and she did not concur with all of his assessments. She said that her nonconcurrence was based on her direct observation of his work during the rating period. Moreover, S2 explained that the mid-term assessment was not a performance rating, which occurs at the end of the appraisal year. In sum, she stated, “I very carefully reviewed [Complainant’s] mid-point assessment and his rebuttal. I have fairly evaluated his performance based on the Acq Demo [Agency pay system] factor descriptions and expected contribution criteria for an NH level IV with an OCS of 100. My actions have nothing to do with his race or sex.” In sum, with regard to all his allegations proffered in support of his harassment/hostile work environment claim, Complainant simply has provided inadequate evidence to support a finding that his treatment was the result of his race, sex or prior EEO complaint. A case of harassment 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. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no discrimination or unlawful retaliation as alleged was established. 2020003727 8 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). 2020003727 9 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 November 8, 2021 Date