[Redacted], Kieth L., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 8, 2021

Appeal No. 2020000892 (E.E.O.C. Jun. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kieth L.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000892 Hearing No. 570-2017-01144X Agency No. ARCEHESA16SEP04315 DECISION On October 23, 2019, 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 September 20, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Manager, GS-0340-15 at the Agency’s US Army Corps of Engineers, Directorate of Civil Works, Project Management Business Process, Program and Project Management Community of Practice Branch.facility in Washington DC. On November 10, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Lebanese) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record 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. 2020000892 2 1. On or about July 16, 2016, Complainant learned that his own duties were reassigned to someone less qualified and that the Program Manager, National Programs Branch (PM: national origin unspecified) had been reassigned to the position of Program Manager, Automated Information Systems, which is the position Complainant alleged he held at the time; 2. Complainant has been subjected to harassment. We note initially that the Agency characterized the claims differently, listing three separate claims and dividing claim 1 into two separate claims, the first addressing Complainant’s notification of the reorganization and the second addressing the actual signing of the memorandum that authorized the reorganization. We find that these claims constitute the same claim and the relevant date is the date Complainant learned of the reassignment, not the date the authorizing memo was signed. Accordingly, we have consolidated the claims identified as claims 2 and 3 in the FAD, into a single claim, identified herein as claim 1. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). 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. Specifically, the Agency found that management officials articulated legitimate nondiscriminatory reasons for their actions and that Complainant failed to show that the Agency’s actions were based on his national origin or prior protected activity. With regard to harassment, the Agency found that the actions complained of were insufficiently severe to constitute harassment, and that Complainant failed to show that the actions were based on his protected bases. ANALYSIS AND FINDINGS 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”). Disparate Treatment Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 2020000892 3 Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. With regard to Claim 1, Complainant maintained that his former supervisor (S1: American of Italian descent) was responsible for the action. Complainant averred that “I filed an EEO complaint against [S1]. I believe we did not see eye-to-eye and he was upset about the first EEO complaint. On June 8, 2016, he signed a memorandum changing (reorganization/realigning) [the facility] and then he left the organization on June 10, 2016.” Complainant further averred that: The June 8, 2016 memorandum cited Engineer Regulation (ER) 25-1-2 as the authority he used to appoint [PM] as the P2 Program Manager. However, ER 25- 1-2 is an obsolete 18 year old regulation: it was superseded by ER-25-1-106 (dated 31 Oct 2014). Furthermore, [S1] has no authority under ER25-1-106 “Information Technology Capital Planning and Investment Management” assigns authority of the P2 AIS to the CFO because P2 is under the Business Tools Investment Review Board (BT IRB). The CFO is the leader of the BT IRB. The memo also states that [PM] is “currently responsible for the development, operation and maintenance of AISs which support program development and management” which is false. [PM] oversees a single small database called CWIFD that was completed under the umbrella of P2. Additional evidence follows: • I was the only person in the PID that received a memorandum appointing someone else to my duties. • I was the only employee who had 84% of their duties hollowed out. • I was the only employee who was stripped of his supervisory duties ([Complainant’s subordinate employee was] re-assigned to [PM]) 2020000892 4 • I was the only employee that was effectively “demoted” exposing me to a position reclassification audit. • I was the only person who has been humiliated and removed from a highly visible Program Manager position prompting people across the Corps to wonder what I did to deserve being fired. • Lost my entire yearly program budget authority ($9 mil/year). • Split the Project Management Business Process (remained under my control) from the Project Management AIS (moved under Jon Soderberg). This action introduced ambiguity & inefficiencies prompting an email citing concern from [the] SES, NAD Regional Business Director and chairman of the USACE Governance Board (UMAG). We next find that the Agency articulated a legitimate, nondiscriminatory reason for its action when S1 averred that: Beginning in late 2011 and early 2012, I initiated strategic discussions, which included the Complainant but was not limited to the Complainant, on future operations and missions, including developing a proposal to restructure or reorganize the majority of the Programs Integration Division. Although mainly focused on the office's primacy mission of developing the budget and the annual appropriations process, it also included the branch offices responsible for Civil Works automated information systems and for providing support to all USACE Civil Works. The restructuring or reorganizing, addressed a number of tasks, people, and the organization, not just the Complainant. . . . The primary focus of the reorganization was to improve the effectiveness and efficiency of the office in two specific mission areas - the preparation, defense, and delivery of budget allocations to individual projects studies and services within Civil Works in Corps of Engineers and the maintenance of the automated tools and systems used to support that function. . . . Since almost all employees of Programs Integration Division, including all the employees in the Budget Development, Budget Execution and National Programs Branches, as well as the Program Management Office of the Programs Integration Division were affected, the objective was not aimed at the Complainant. . . . I've had discussions with the complainant regarding consolidating the management of the automated information system over the previous 4 years. Prior to implementation of the reorganization proposal, I notified all employees in the organization to solicit their comments and input into the proposed restructuring. We also concluded negotiations with the bargaining unit regarding the restructuring. Although the negotiations with bargaining unit delayed reaching out and explaining the reasons for the reorganization, a town hall and further discussions occurred with all employees after I was reassigned to my current position. 2020000892 5 The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were. pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record, we find that Complainant has failed to meet this burden. With regard to Complainant’s arguments that the June 8 memorandum was issued under an expired regulation and that it falsely described PM’s duties, and his denial of S1’s claim that S1 notified all employees of the pending reorganization, we note that even assuming arguendo the truth of such allegations, they nevertheless do not establish that the Agency’s action was based on discrimination or reprisal. Furthermore, with regard to Complainant’s argument that S1’s responses fail to address how the reorganization uniquely affected Complainant in ways different than its effects on other employees, we note that we have assumed Complainant established his prima facie case, which means he was treated differently. The sole issue, therefore, is whether or not Complainant can show the Agency’s articulated reason for its action is a pretext to mask discrimination. We find that Complainant has not established, by a preponderance of the evidence, that S1 harbored discriminatory animus against Complainant’s protected bases or that the Agency’s articulated reason for its action is pretextual. Complainant on appeal argues that the realignment “had disastrous consequences.” We note, however, that as the Agency noted in its FAD, absent persuasive evidence that Agency officials were motivated by unlawful discrimination, we cannot second-guess the Agency's business decisions. Burdine, at 259. Because such persuasive evidence is lacking in this case, we find that Complainant has not shown he was subjected to disparate treatment based on his protected bases. Hostile Work Environment We note initially that, to the extent that Complainant is alleging that he was subjected to a hostile work environment to include the incident when he learned of the realignment stripping him of his duties, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment including such a claim must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) (Guidance). A prima facie case of hostile work environment that includes such a claim is precluded based on our finding that Complainant failed to establish that the action taken by the agency was motivated by discriminatory animus or retaliatory motive. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). Complainant alleges the following acts of harassment occurred: on July 6, 2016 the memo notifying him of the office realignment was left on his keyboard; and on August 30, 2016, he received an email, "Subject: Change of Supervisor Notice" changing one of his subordinates from his supervision to another Branch. In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant’s employment. See Guidance at 3. 2020000892 6 To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” The Court noted that such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so.” Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001). Following a review of the record we find that Complainant has not shown that the actions complained of either involved or were based on his protected bases. Nor were these actions severe and/or pervasive enough to create a hostile or abusive work environment. We therefore find that Complainant has not shown he was subjected to harassment. 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. 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. 2020000892 7 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). 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. 2020000892 8 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 June 8, 2021 Date