[Redacted], Mark W., 1 Complainant,v.Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Feb 2, 2022

Appeal No. 2021001074 (E.E.O.C. Feb. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mark W.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security, Agency. Appeal No. 2021001074 Agency Nos. HS-ICE-01183-2019, HS-ICE-00362-2020 DECISION On November 19, 2020, 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 October 30, 2020 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Training Specialist, GS-1712-13, at the Agency’s Office of Firearms and Tactical Programs (OFTP), Tactical Operations Unit (TOU) at Fort Benning, Georgia. On June 18, 2019 (Agency No. HS-ICE-01183-2019), and December 26, 2019 (Agency No. HS- ICE-00362-2020), Complainant filed two EEO complaints collectively alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (mental and physical), age (69), 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. 2021001074 2 1. on or around February 8, 2019, Complainant was removed from his office and relocated to the machine shop area; 2. from March 19 to 24, 2019, Complainant was not invited to the Special Response Team (SRT) Rifle Meeting; 3. from March 19 to 24, 2019, Complainant was not acknowledged for his contributions or efforts in building the Test and Evaluation rifles or for developing the Red-Dot Optic on duty pistols; 4. on or around August 6, 2019, Complainant was tasked with an assignment with an impossible due date; 5. on October 24, 2019, Complainant was issued a lowered performance rating of exceeded expectations for Fiscal Year (FY) 2019; and 6. on January 15, 2020, management removed Complainant from his position and reassigned his Field Maintenance Armor Training (FMAT) Program to Armory Operations Equipment Specialists who have no training experience. In statements provided to the EEO Counselor prior to filing his complaint, Complainant asserted that the machine shop area was problematic for him because he has numerous health issues and the machine shop area has prolonged excessive noise. Complainant explained that he is a cancer survivor and experiences complications from several conditions, including Post-Traumatic Stress Disorder (PTSD) and several musculoskeletal and spinal ailments. The record reveals that the only reasonable accommodation Complainant requested was an ergonomic chair, which was approved. Complainant believed he should have seniority preference for an office. In response to Claim (1), Complainant’s third-level supervisor (S3) explained that the department received an increase in personnel and had to reorganize its seating chart, impacting the entire office. S3 stated that he was tasked to design and implement the seating plan which was subsequently approved. According to S3, “a number of employees [were] relocated from offices to cubicles.” Complainant’s second-level supervisor (S2) asserted that almost everyone in the department was moved to a different location. Complainant’s first-level supervisor (S1) averred that when Complainant questioned the move, S1 offered to move Complainant to a cubicle in the main part of the office, but Complainant refused; Complainant wanted to be returned to an office. S1 provided a copy of email communications with Complainant in which Complainant stated, “I respectfully decline a cubical [sic]. I am the senior GS13 at the entire OFTP with 29-years of federal service.” (Emphasis in original). Complainant further contended that his move was retaliatory and argued that he was previously denied a reasonable accommodation - but does not identify the accommodation requested or how the Agency denied it. S1 provided other emails demonstrating the Agency provided Complainant with an ergonomic chair to address his orthopedic issues. 2021001074 3 Another supervisor, the Unit Chief of OFTP Armory Operations Unit (AOU) addressed Claim (2). Initially the Armory Operations Unit (AOU), in Altoona, Pennsylvania, and Complainant’s department, the TOU at Ft. Benning, were to jointly manage the SRT rifle build project. However, staff in AOU objected because “emotions were high at their location regarding the issue. [Complainant] had made comments disparaging the staff at AOU verbally and in writing.” Because there was significant tension between Complainant and AOU, the Unit Chief chose to take other employees in order to affect a “successful, positive outcome . . . to the benefit of the Agency.” S2 further explained that the meeting took place in Altoona, Pennsylvania because that facility was the main repair facility for Agency firearms. Complainant’s attendance was not required because Complainant was a training specialist for Field Maintenance Armorer Training (FMAT), and the meeting had neither a training specialist nor FMAT component. Rather, the meeting was focused on the technical build and associated testing. In Claim (3), the record contains an email in which Complainant told S1 he did not receive recognition for the SRT Rifle build project nor for Red-Dot sights on pistols. S1 admitted giving Complainant the assignment at issue in Claim (4) but asserted that Complainant completed the assignment on time and did a good job. S1 explained that Complainant was tasked with developing a working copy of a manual and lesson plan for the Glock pistol, which was a very simple weapons system. In Claim (5), Complainant alleged that his performance appraisal was lowered because S1 “used ‘subjective’ information based on his personal opinion, interpretation and judgment.” Complainant said S1 did not support his appraisal with documentation and did not have any fact- based analysis using objective information. Complainant contended that his performance appraisal suffered because he is the oldest employee in OFTP and that management has been asking about his retirement date. Complainant argued that his rating was management’s way of trying to remove him from service. S1 denied that Complainant’s protected bases played a role in his performance appraisal. Rather, Complainant’s appraisal was a result of Complainant’s performance. For instance, he received a rating of 4 instead of 5 in “Provide Instruction and Guidance” because he “provid[ed] good instruction and guidance.” 2 Complainant received a 3 in “Develop and Implement Training” because he developed lesson plans and manuals as asked. S1 noted that Complainant “was asked to assist with a parts inventory and was hesitant and complained he was going to be thrown under a bus for it.” Thus, he received a 3 in his collateral duties. Further, Complainant received a 3 in “Team Work and Cooperation” because he “ha[d] an issue with another employee and has come to me on several occasions to tell me about this employee and why he should not be allowed to 2 In Complainant’s performance appraisal, scores are given on a scale of 1 to 5, with 5 being the highest. A score of 3 indicates the employee has “achieved expectations.” 2021001074 4 make any decisions on certain things and how he has personality disorders. This is not how a team works.” Complainant’s second-level supervisor at the time (S2a) met with Complainant to discuss Complainant’s appraisal. Complainant said nothing during that meeting that convinced S2a to change the appraisal. Of note, S2a said that Complainant attempted to demonstrate his ability to engage in teamwork by relaying a story of a personal tragedy involving a co-worker’s family. S2a said the story had no bearing on Complainant’s ability to work as a team. Further, S2a said that Complainant’s appraisal for FY 2019 was higher than his appraisal for FY 2018. In Claim (6), Complainant argued that he developed and supervised the FMAT program in 1995 and taught related classes for various components of the Agency in various geographical locations. Complainant asserted that Agency employees in Altoona are not equipped to run the FMAT program. Complainant primarily claimed that his supervisors removed the FMAT program from him as an act of retaliation. S3 denied that Complainant was removed from his position. Rather, S3 was part of a conversation with the OFTP Assistant Field Director, Complainant’s fourth-level supervisor (S4), who decided to move the FMAT program to the AOU in Altoona. Moreover, S3 said that Complainant had not delivered the FMAT program since 2012, when it was canceled. In 2019, S4 decided to restart the program with the Equipment Specialists in Altoona. S2 stressed that many of the Equipment Specialists at AOU in Altoona were previously instructors in the FMAT program. S4 explained that the FMAT program had not been operational since 2012, and he decided to reinstate the program “based on availability of personnel, facilities and resources.” S4 noted that the program is not a position description, but rather a program within OFTP. According to S4, “[t]he program will be revitalized in a new format at the ICE Armory [in Altoona] due to the fact that there is already a FMAT classroom at the Armory and availability of personnel to support it.” S2 supported this statement, adding that AOU has “the classroom, supplies, and equipment needed.” S4 added that the lesson plans Complainant developed in the course of his duties are valuable and contribute to OFTP’s mission. At the conclusion of the investigations, the Agency provided Complainant with a copy of both reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency consolidated both complaints into a single final decision and concluded that Complainant failed to prove that the Agency subjected him to discrimination, reprisal, or a hostile work environment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant provides a statement purporting to rebut the Agency’s explanations for their actions. 2021001074 5 Complainant contends that the Agency treated him less favorably based on his protected classes. Complainant claims that Agency management officials were disingenuous in their testimony to try to wear him down emotionally. Further, Complainant argues that management has continually retaliated against him since 1999. Accordingly, Complainant requests that the Commission reverse the final decision. 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 - Claims (1), (2), (4) - (6) To prevail in a disparate treatment claim, 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 was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. 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. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). Here, as more fully articulated above, Agency management provided legitimate, non- discriminatory reasons for its actions. Regarding Claim (1), Complainant was reassigned from an office to a cubicle as part of a larger OFTP reorganization due to an increase in staffing. Management officials confirmed that the reorganization affected nearly everyone in the office and numerous employees were relocated to cubicles. When Complainant voiced his concerns about the move, management offered Complainant a cubicle in another location, but Complainant refused. With respect to Claim (2), Complainant’s presence was not required at the SRT Rifle Meeting, and he had previously had very negative relationships with some AOU staff members. As a result, management decided to send another co-worker to attend the meeting instead. As to Claim (4), S1 did not believe the assignment was impossible, and Complainant completed the assignment without difficulty. With regard to Claim (5), S1 explained that Complainant’s performance rating was in line with his performance and provided specific examples as detailed above. 2021001074 6 Finally, as to Claim (6), Complainant was not removed from the position in question; rather, the FMAT Program had not been operational since 2012, and it was decided to reinstate and locate it in Altoona. S4 explained that personnel, resources, and facilities meant that resurrecting the FMAT program at AOU in Altoona was a prudent move. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory or retaliatory animus. Complainant does not carry his burden here. Rather, Complainant’s arguments consist of nothing more than speculation. Hostile Work Environment To establish a hostile work environment claim, 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment claim, Complainant must establish that she 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 his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. Specific to Claim (3), Complainant has not shown that the lack of acknowledgement was due to any of his protected bases. 2021001074 7 Management officials all stated that while Complainant may have suggested Red-Dot pistol sights to upper management officials, his contribution to the project was unknown. Further, Complainant may have participated in the early stages of rifle accessories evaluation, but it was later learned that Complainant was not documenting the modifications to the evaluation rifles. Notwithstanding, management officials stated that he was thanked for his contributions for the project. The Commission finds that there is no evidence demonstrating that Agency officials were motivated by discriminatory or retaliatory animus. Accordingly, we find that Complainant has not shown that he was subjected to discrimination, reprisal, or a hostile work environment. 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. 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. 2021001074 8 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. 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 February 2, 2022 Date