[Redacted], Leon B., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jan 28, 2020

Appeal No. 2019001695 (E.E.O.C. Jan. 28, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Leon B.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2019001695 Hearing No. 570-2017-00298X Agency No. ARCEGALV16APR01688 DECISION On February 14, 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 November 9, 2018 final order concerning an 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Construction Control Representative, GS-11 at the Army Corps of Engineers, Far East District facility at Camp Humphreys, Republic of South Korea. On May 9, 2016, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on race (Caucasian/white), national origin (Swiss), sex (male), religion (Church of Jesus Christ of Latter-Day Saints), age (48), and in reprisal for prior protected EEO activity 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. 2 2019001695 1. Complainant’s Lead Construction Control Representative spoke of "nipple twisting" a woman with at least two other staff present while standing in a parking lot near work vehicles; 2. The Lead Construction Control Representative bragged that he continually pulled-up the front of a waitress' shirt while he was out eating and drinking the previous night until the waitress became frustrated and upset with him; 3. The Lead Construction Control Representative claimed that he likes to eat bananas when they have been inserted into a woman's vagina and she pushes them out while he eats them; 4. After an email was sent throughout the office notifying staff of an EEO sensitivity session, the Lead Construction Control Representative exclaimed out loud so that most of the office could hear him say, "Which guy had his pussy hurt again?;" 5. The Lead Construction Control Representative spoke of wanting to buy some marijuana and go drinking at bars and "girlie clubs" on several occasions; 6. Complainant’s second-line supervisor (Chief Resident Engineer) made comments during a staff meeting fondly lamenting the 'good old days' when you could go to work parties and have male and female strippers;" 7. The Chief Resident Engineer then added that at the Far East District they used to have women sneaked onto the base at a club (perhaps insinuating prostitutes at the East Gate Club). Also during his staff meeting the Chief Resident Engineer said that, "Before the Bible-thumpers ruined everything, Far East District used to be a fun place to work;" 8. The Chief Resident Engineer mentioned during a staff meeting that no one would wanted to buy his mattress when he was packing up his items to move because of all the stains (while laughing), perhaps insinuating sex or incontinence; 9. During the time period from April 10 through June 23, 2016, Complainant was not offered or scheduled any overtime; 10. Since filing his EEO complaint in May 2016, Complainant has been ostracized from other workers in his office and was no longer involved in work related discussions or asked his opinion or input; 11. On May 9 and October 11, 2016, Complainant was given new work assignments without any orientation or handoff and without basic information and briefing of past, current, and future issues on the new assigned job sites, and the Lead Construction Control Representative complained about Complainant’s work on these newly assigned matters via email communications to his superiors and co-workers; 3 2019001695 12. On May 13, 2016, the Lead Construction Control Representative spoke publicly about Complainant’s EEO complaint at a mandatory office safety meeting and addressed the rumors by making comments about how a "guy" (while looking directly at him) had made allegations of sexual harassment against himself and the Chief Resident Engineer while laughing at the implication of his statement; and 13. On June 9, 2016, and May 13, 2016, Complainant was subjected to further harassment by the Lead Construction Control Representative and Chief Resident Engineer at two mandatory office safety meetings where there was a conversation of a sexual nature and "lewd" behavior. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s June 28, 2018 motion for a decision without a hearing and issued a decision without a hearing, on October 18, 2018. The Agency subsequently issued a final order adopting the AJ’s finding of no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Our regulations allow an AJ to issue such a summary decision when he finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. See Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); also 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 rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); EEO Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Ch. 9, § VI.B. (Aug. 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). To successfully oppose a summary decision, 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish 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. Therefore, we find that the AJ properly issued a decision here by summary judgment. 4 2019001695 Claim 9, 10 and 11 - Denial of Overtime, Exclusion and New Assignments Regarding Complainant’s claim of disparate treatment in allocation overtime, we applied the three- part test established by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he had to first establish a prima facie case of discrimination by presenting facts that reasonably give rise to an inference of discrimination. See McDonnell Douglas at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Next, the burden then shifted to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Third, if the Agency met that burden, then Complainant needed to persuade the fact-finder that the Agency acted on the basis of a prohibited reason by a preponderance of the evidence. See St. Mary’s Honor Cent. v. Hicks, 509 U.S. 502 (1993). Where the Agency has articulated a legitimate, nondiscriminatory reason for its action, then our inquiry can proceed directly to the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s reasoning behind its actions were pretextual. See Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). The Agency has articulated a legitimate and non-discriminatory explanation for Complainant’s lack of overtime. The Agency stated that Complainant had never submitted the requests for overtime. Complainant failed to present contrary evidence necessary to establish the Agency justification was pretextual. Although the record contained what appeared to be two forms to request overtime, Complainant admitted that he did not recall actually submitting a formal overtime request. Complainant also stated that he understood that scheduled overtime had been cancelled due to a change in mission. Regarding exclusion and new assignments, the Agency explained that Complainant received assignments based on his special expertise in concrete construction. The Agency further stated that Complainant completed some of his projects on his own, especially when his assignments in the Far East District involved “spot-checking” the inspection work performed by Korean counterparts. Complainant acknowledged that he often worked on his own projects separately but received help from Lead Construction Control Representatives whenever he needed support from the Far East District. In his sworn statement, Complainant failed to provide specific examples of being ostracized. Complainant presented no evidence to corroborate his accusations that he had been excluded from decision-making or excessively burdened with work assignments. Claims 1, 2, 3, 5, 6, 7, 8 and 13 - Hostile Work Environment We analyzed most of Complainant’s claims in the context of harassment. To prove unlawful harassment, Complainant had to establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in his situation would have found the conduct to be hostile or abusive. Complainant must also prove that he was harassed because of his protected bases - in this case, age race, religion, color and national origin. Only if Complainant established both of those elements, hostility and motive, would Agency liability arise. 5 2019001695 Wibstad v. U. S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14, 1998); Cobb v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997.) We reviewed the alleged conduct at issue in the context of the totality of the circumstances, regarding the nature and frequency of offensive encounters and the span of time over which the encounters occurred. 29 C.F.R. § 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N-915-050, No. 137 (Mar. 19, 1990). We noted Complainant started his position in the Far East District in August 2015. But after February 2017, Complainant was promoted to project manager and was assigned out of the Far East District. Over that sixteen- month period, Complainant stated he had witnessed the Lead Construction Control Representative and Chief Resident Engineer make at least eight sexually inappropriate comments. We agree with the AJ’s assessment in that the Chief Resident Engineer and the Lead Construction Control Representative should not have made the “boorish” and “raw” comments that Complainant described. Nevertheless, even if true, their behavior did not rise to a level of hostile and pervasive. According to the Supreme Court of the United States, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.”’ To qualify as 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.” See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark Cnty. School Dist. v. Breeden, 532 U.S. 268 (2001). Claims 4, 12 - Reprisal Comments Complainant may establish his retaliation case by showing (1) he engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sep. 25, 2000). This Commission analyzes reprisal claims broadly. Carroll v. Dep’t of the Army, EEOC Request No. 05970939 (Apr. 4, 2000). To constitute retaliation, the employer’s action need not materially affect employment. Instead, Title VII prohibits adverse treatment based upon a retaliatory motive or actions reasonably likely to deter a charging party from engaging in EEO protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)). We recognize that on June 13, 2016, Agency management verbally counseled both the Resident Chief Engineer and Lead Construction Control Representative for using explicit language. The Agency further issued letters that ordered both the Lead Construction Control Representative and the Resident Chief Engineer not to retaliate or take actions that may be perceived as retaliation. The record revealed that both comments identified in claims 4 and 12 were made before the Agency took corrective action. Despite his Far East District supervisors’ comments, Complainant did not suffer adverse employment treatment as a result of working in the Far East District. Based on the record before us, we cannot find the Agency liable acting in reprisal against Complainant. Indeed, the Agency reflects that it had rewarded Complainant for his work in the Far East District. 6 2019001695 Complainant earned a performance bonus, an exceptional rating on his evaluation, and was selected for promotion and reassignment out of the Far East District. CONCLUSION We AFFIRM the Agency’s final order adopting the AJ’s decision without a hearing, finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. 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. 7 2019001695 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 January 28, 2020 Date