[Redacted], Laurence L., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency.

Equal Employment Opportunity Commission

Aug 24, 2021

Appeal No. 2020003671 (E.E.O.C. Aug. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Laurence L.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force (National Guard Bureau), Agency. Appeal No. 2020003671 Agency No. 41341800145 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March, 20, 2020 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFIFRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as Systems Administrator, Computers,2 GS-2210-11, Network Control Center (NCC), 102nd Communications Flight, 102nd Intelligence Wing, at the Otis Air National Guard Bureau, in Massachusetts. During the relevant time, Complainant’s first level supervisor was the IT Specialist Supervisor, who held the rank of Chief Master Sergeant (S1). Complainant’s second level supervisor was the Base Communications Commander, who held the rank of Major (S2). 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 Complainant’s position is also referred to in the record as a Computer Network/Systems Administrator and as an Information Technology (IT) Specialist (Network). 2020003671 2 On January 30, 2018, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency discriminated against him and subjected him to harassment. Specifically, the Agency accepted the following claims: a. Whether Complainant was subjected to harassment based on disability (osteoarthritis/walking condition) when on October 26, 2017, the Information Assurance Manager (IAM) stated, “If I wanted to talk to [the Master Sergeant] I should walk across the room and talk to him.” b. Whether Complainant was subjected to harassment based on age (68) when the Information Technology Specialist/Staff Sergeant urinated on the wall and floor by Complainant’s desk and commented that it was done to make people believe that Complainant could not control his bladder due to his age. c. Whether Complainant was subjected to harassment in retaliation for EEO activity (November 12, 2017) when: 1. On November 17, 2017, S1 stated that he was going to move Complainant’s desk to the rear of the office; 2. On November 30, 2017, S1 sent an email notifying Complainant that he was moving his desk; 3. On December 1, 2017, S1 told him he was moving his desk; and 4. On December 8, 2017, S1 had Complainant’s desk moved.3 d. Whether Complainant was discriminated against in reprisal for EEO activity (November 12, 2017) and disability (denial of reasonable accommodation) when on November 30, 2017, S1 refused his request for a reasonable accommodation to leave his desk in the present location. e. Whether Complainant was discriminated against in reprisal for EEO activity (October 26, 2017)4 when on December 8, 2017, Cyber Systems Operations (CSO)/Senior Airmen reported an alleged classified security violation against Complainant which resulted in a security investigation. 3 The report of investigation noted that during witness testimony, it was discovered the date of December 8, 2017 was incorrect. The record reflects Complainant’s desk was actually moved on the weekend of January 7-8, 2018. 4 The accepted claim erroneously listed the date of the underling event of alleged discrimination as October 26, 2017, instead of the date of Complainant’s contact with the EEO Counselor, which was November 12, 2017. 2020003671 3 f. Whether Complainant was discriminated against in reprisal for EEO activity (November 12, 2017) when on April 4, 2018, S1 wrote in his current appraisal, “His coordination and communication within the work center is fair at best and could be improved. His customer service is courteous but teamwork in the work center is fair at best, again.” g. Whether Complainant was subjected to harassment on the basis of age (68) when on June 1, 2018, S1 stated, “He still works in the NCC and I periodically check up on him to see if he is still breathing.” 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). In accordance with Complainant’s request, 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. Regarding Complainant’s claim that he was denied a reasonable accommodation, the Agency noted the ultimate decision was that Complainant’s desk would remain by the door and be repositioned so that it was three feet closer to the door than his previous location, thus, he received an effective accommodation. Further, regarding Complainant’s claim that the Agency’s actions surrounding his request for reasonable accommodation were taken in reprisal for his prior EEO activity, the Agency noted that the reason S1 sought to reconfigure desks in Flight’s work area was to address the issue of cross talking and noise in the work area, and to create team adhesion by locating members of the NCC team in one area and members of the IA team in the other area. Regarding incident e, the Agency noted the CSO saw a computer with a classified label on Complainant’s desk which was in a non-classified area, and the CSO reported the incident to the IAM, who in turn, reported it to Security Forces, and an investigation was conducted. The Agency found Complainant failed to demonstrate by a preponderance of evidence that its actions were based on discriminatory or retaliatory animus. Regarding incident f, the Agency noted that in Complainant’s appraisal, S1 wrote that, “His coordination and communication within the work center is fair at best and could be improved. His customer service is courteous but teamwork in the work center is fair at best, again.” S1 explained that he included these comments in Complainant’s appraisal because it was constructive feedback and a reflection of Complainant’s performance for the year. S1 further noted that Complainant lacked respect for team members other than the Master Sergeant and would not listen to any other team member or take their advice. The Agency cited the statements of several of Complainant’s coworkers as support for S1’s critique, who stated Complainant, “butts heads with certain individuals,” would “clash with everyone,” and was “not an easy person to get along with.” 2020003671 4 Additionally, S2 noted that the unit was a customer support unit and there had been complaints that Complainant had been rude and inappropriate, and several instances where other people reported that they did not want to deal with Complainant. The Agency determined Complainant did not establish that its articulated reason for including the comments was pretext for discrimination based on his protected EEO activity. Regarding the claim of harassment, the Agency determined that incidents b, c1, c2, c4, and g did not occur. The Agency determined incidents (a) and c3 did occur. However, the Agency determined that Complainant did not establish that he had been subjected to unwelcome conduct that was based on his age, disability, or protected EEO activity and therefore cannot establish that he was subjected to a discriminatory hostile work environment. 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”). At the outset, we note Complainant does not challenge the framing of the incidents on appeal. Moreover, we find the record in the present case was fully developed. Upon review, 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 discriminatory or retaliatory animus. We note Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Additionally, Complainant failed to show that he was denied a reasonable accommodation or was forced to work beyond his medical restrictions or that the actions taken regarding his reasonable accommodation were based on discriminatory or retaliatory animus. Furthermore, 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. 8, 1994). Specifically, regarding incident b, we find the record does not establish that this incident occurred as alleged. Regarding incident g, we note that S1 stated he did not recall making the claimed statement. 2020003671 5 However, he said that even if he made the statement, it would have been made because Complainant was in the back of the building and he would have made that statement for anyone working in the back by themselves at the end of the day in a joking way. In his declaration, Complainant acknowledged that S1 may have intended for the comment to be a joke; however, Complainant stated he did not perceive it as a joke. We find the comment by itself is not evidence of discriminatory animus based on age. Even assuming incident g and the remaining incidents of harassment occurred as alleged, we find Complainant has provided no evidence to support his claim that his treatment was based on his age, disability, or in retaliation for protected EEO activity. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as alleged. CONCLUSION Accordingly, the Agency’s final decision 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. 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. 2020003671 6 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. 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. 2020003671 7 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 August 24, 2021 Date