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

Equal Employment Opportunity Commission

Nov 16, 2021

Appeal No. 2021002767 (E.E.O.C. Nov. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lenny W.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002767 Agency No. ARCEUFCRM20SEP02826 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 8, 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., 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 AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facilities Specialist, GS-1601-09, at the Agency’s Corps of Engineers, New York District Logistics Management Office in New York City. On October 7, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Ukrainian), national origin (Belarus), disability (cataracts), and age (56) when, as defined by the Agency: 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. 2021002767 2 1. From May 11, 2020, until the termination of his employment on June 25, 2020, Complainant was continuously harassed (nonsexual) and treated in a disparate manner from other employees by being segregated apart, excluded from anything to do with the office, and subjected to being called a “stupid Russian”; and 2. On June 25, 2020, Complainant was terminated from his position with the Agency during the probationary period. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. 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 the Agency had asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. The Agency pointed to the memorandum accompanying the Notice of Probationary Separation (hereinafter, “separation memo”), which indicated that Complainant was terminated for his “[f]ailure to work on and timely complete assigned tasks” and for “[i]nappropriate communication” with other employees. Specifically, in May 2020, Complainant was unable to complete his registration process under two hours when it should have taken 15 minutes; he was unable to timely complete ethics training, because he failed the training test 11 times before ultimately passing; he was unable to log onto the virtual private network (VPN) when teleworking and continued to email his direct supervisor (S1), District Logistics Manager, GS-0346-12, from his personal email account; and when an information technology (IT) technician contacted Complainant to assist him in connecting to the VPN, the IT technician reported that many of Complainant’s computer settings had been manipulated. In June 2020, Complainant attempted to engage a coworker in contacting the manufacturer of their laptops in order to modify them, insisting the laptops were not properly designed; Complainant was unable to prepare and sign his performance plan while teleworking, despite S1 providing detailed instructions; and he inappropriately asked his sponsor (another coworker assigned to help him during onboarding), “If a man is sexually attracted to a woman and wants to start a family, how does he invite her to a night club?” In sum, the separation memo stated that Complainant could not stay on task and exhibited unprofessionalism with his colleagues. In addition to the above reasons listed in the separation memo, management also stated that Complainant often interrupted and raised his voice when talking with S1 and engaged in other aggressive conduct with several employees, including telling a coworker not to eat snacks from the vending machine because it “makes [him] fat,” which the coworker reported to S1. The Agency ultimately found that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. On appeal, Complainant provided copies of the affidavit he completed during the investigation, as well as a written response to the separation memo that he submitted to the EEO counselor during the pre-complaint process. 2021002767 3 In his response to the separation memo, Complainant argues that his difficulties in completing the tasks were not his fault, that he was not told of any limit to the number of attempts required to pass his training courses, and that he never attempted to manipulate any settings on his computer. As for the inappropriate communication with his sponsor, Complainant argues that he was only asking a question related to the sexual harassment training he had recently completed and that it was not unprofessional. He claims that S1 and other coworkers are lying about him. 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”). Assuming Complainant established a prima facie case of discrimination in Claim 2, after a review of the record, we find that Complainant failed to show that his termination was motivated by discrimination. Complainant was terminated for his inability to complete tasks on time, for engaging in activities that were not part of his job duties-such as attempting to modify his laptop and its settings-and for unprofessional conduct with other employees. This unprofessional conduct included raising his voice to S1 and acting aggressive with her, which another witness corroborated in an affidavit; asking an inappropriate question to his sponsor about how to ask a colleague to a nightclub if he were sexually attracted to her; and insulting a coworker about his weight. Aside from his own bare assertions to the contrary, there is no evidence in the record that supports Complainant’s belief that his termination was based on discriminatory animus. His arguments in response to the separation memo are unavailing. He does not dispute several of the underlying facts in the Agency’s allegations, but simply argues that he was not at fault; even if this is the case, the record does not show that these reasons were pretext for discrimination. As to the facts he does dispute, he provides no evidence to show they did not happen as the Agency alleges. Complainant has therefore failed to establish beyond a preponderance of the evidence that the Agency’s articulated reasons were pretextual. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); and St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 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. 2021002767 4 To establish a claim of harassment, a 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 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 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). Therefore, to prove his harassment allegations in Claim 1, 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, national origin, disability, and/or age. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. We find that Complainant failed to show the Agency subjected him to a hostile work environment. To the extent Complainant was actually segregated from other employees or excluded from the office, the record shows that any perceived segregation was due to the fact that: (1) Complainant’s start date was in May 2020, when the office was on a rotating telework schedule due to the COVID-19 pandemic, and (2) that he was assigned to do introductory training that is required of all new Agency employees before beginning his regular duties. There is no evidence to show Complainant was segregated from other employees in the office because of his protected bases. In addition, Complainant has provided no evidence of being called a “stupid Russian” aside from his own assertions, and S1 denies ever making such a comment. In fact, other employees witnessed Complainant acting “aggressive” during conversations with S1. We find that Complainant failed to show that the Agency’s actions occurred as alleged or were based on discriminatory animus, and he therefore cannot establish a claim of hostile work environment. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2021002767 5 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). 2021002767 6 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 16, 2021 Date