[Redacted], Kirk L., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionOct 21, 2021Appeal No. 2020004514 (E.E.O.C. Oct. 21, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kirk L.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004514 Hearing No. 420-2016-000048X2 Agency No. ARCEVICK15JAN00174 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated July 30, 2020, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Deckhand, XF- 5788-06, at the Agency’s U.S. Army Corps of Engineers, Vicksburg District, Operations Division, River Operations Branch, Maintenance Section, Vicksburg, Mississippi. 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. 2 The Agency, in its July 30, 2020 final order, made a typographical error by citing it as Hearing No. 420-2017-00261X which concerned Complainant’s subsequent complaint. 2020004514 2 On April 17, 2015, Complainant filed his complaint, which was later amended, alleging discrimination and harassment based on race (Black) and in reprisal for prior EEO activity when: 1. He received negative comments and behavior remarks on his Fiscal Year (FY) 2014 performance evaluation; 2. He was reassigned; and 3. His email account was made inactive and he was not receiving his government email. Upon completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency filed a motion for summary judgment. The AJ issued a decision without holding a hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision. The record indicates that on December 15, 2013, Complainant was promoted from a temporary Deckhand position to a permanent Deckhand seasonal position at the Maintenance Section, River Operations Branch. As a seasonal employee, Complainant was subject to release to non-pay status and recall to duty to meet workload requirements. His duty station was in Colfax, Louisiana. As a Deckhand, Complainant’s major duties involved tying off the boats and barges, painting, tying cable lines, and cleaning. Regarding claim 1, Complainant’s then supervisor (S1) indicated that in July 2014, Complainant and a Chief Engineer (the second highest officer aboard ship), Employee A, had an altercation because Complainant was taking Employee A’s tea in the refrigerator without asking Employee A’s permission. Employee A reported to S1 that during the altercation, Complainant got up in his face, balled up fists, and started yelling and intimidating him and he felt threatened by Complainant. Complainant indicated that he did not know it was Employee A’s tea. Thereafter, Complainant told S1 that a Crane Operator, Employee B, told Complainant that Employee B did not want to ride in the vehicle with Complainant while traveling because Employee B did not feel safe. After that, S1 witnessed Complainant getting in Employee B’s face with his fists balled up and trying to intimidate Employee B. Based on the foregoing, S1 noted the comments in Complainant’s FY 2014 performance evaluation under his Working Relationship & Communications responsibility, which was one of four performance responsibilities (i.e., Technical Competence, Adaptability and Initiative, Working Relationship & Communications, and Responsibility and Dependability). Specifically, S1 indicated that Complainant had several instances of arguments with other crew members; he seemed to have a very short temper and became very vocal and threatening during disagreements; and he had not shown himself to be a very good team player. Complainant indicated that he did not agree with S1’s comments and he should have received a “Success” rating for Working Relationship & Communications. 2020004514 3 The record indicates that although Complainant initially received a rating of “Needs Improvement” (lowest to highest responsibility ratings were Fails, Needs Improvement, Success, and Excellence) for his Working Relationship & Communications performance responsibility, it was later changed to a higher rating of “Success.” This change however did not affect Complainant’s FY 2014 overall performance evaluation rating of “Fair” (lowest to highest overall ratings were Unsuccessful, Fair, and Successful) since he received a rating of “Needs Improvement” for his Technical Competence performance responsibility. Complainant indicated that he should have received a “Success” rating for Technical Competence responsibility because he always showed initiative to do his job. However, S1 indicated that Complainant was given a rating of “Needs Improvement,” and not “Success,” for his Technical Competence because he lacked knowledge and experience to tie a line to tie off the barge; he burned up a grinder; and he poured paint thinner in an unsafe and dangerous manner. Regarding claim 2, the Chief of the River Operations Branch, Complainant’s third level supervisor (S3), indicated that he received a call from his Division Chief that a Union President called his Commander indicating that during a meeting held on February 20, 2015, between Complainant’s supervisors, including S1, and Complainant, to discuss Complainant’s FY 2014 performance evaluation, all four of the supervisors “threatened to throw [Complainant] in the river.” After discussing the foregoing with the Commander, S3 convened a meeting with Complainant and the Union President on February 23, 2015, to address the subject matter. They, including Complainant, all agreed that Complainant would be assigned away from his current supervisors in Colfax, Louisiana, to the Plant Unit in Vicksburg, Mississippi, which was closer to Complainant’s home (45 minutes to Vicksburg, Mississippi, instead of three hours to Colfax, Louisiana). Complainant did not notify his supervisors that he felt harassed by their February 20, 2015 comments. S3 noted that Complainant subsequently requested to be reassigned to the Matt Sinking Unit to receive more overtime since there was less overtime in the Plant Unit. Complainant was thus reassigned to the Matt Sinking Unit as requested in September 2015. Despite Complainant’s claim, S3 noted that there was no change as to per diem pay after or before the assignment to the Plant Unit because he was not on travel orders. Regarding claim 3, Complainant indicated that on April 3, 2015, he noticed that he was not receiving his government emails. Complainant however acknowledged that he contacted an Information Technician regarding the matter, and his email issue was fixed on the same day or the next day. The Agency indicated that Complainant’s U-Pass transaction log showed that his distribution account was, in part, disabled because he failed to complete the required annual training to keep it active and he failed to keep up with his passwords. Complainant’s supervisors had nothing to do with this incident. Complainant appeals from the Agency’s final order. 2020004514 4 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs 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. See St. Mary's Honor Center 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. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 2020004514 5 To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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). 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). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. The record reflects that S1 was informed by Employee A that he and Complainant had an argument and Employee A was threatened by Complainant. S1 also witnessed Complainant having a verbal confrontation with Employee B and Complainant had his fists balled up to intimidate Employee B. The record reveals that Complainant agreed to his reassignment to the Plant Unit in Vicksburg, Mississippi, which was closer to his home. Regarding his email, there is no evidence that Complainant’s supervisors had anything to do with Complainant’s email being disabled. After Complainant notified the Information Technician of his email issue, the problem was fixed immediately. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 2020004514 6 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. 2020004514 7 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 October 21, 2021 Date Copy with citationCopy as parenthetical citation