[Redacted], Michael G., 1 Complainant,v.Thomas W. Harker, Acting Secretary, U.S. Department of Navy, Agency.

Equal Employment Opportunity Commission

Jun 14, 2021

Appeal No. 2020003086 (E.E.O.C. Jun. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michael G.,1 Complainant, v. Thomas W. Harker, Acting Secretary, U.S. Department of Navy, Agency. Appeal No. 2020003086 Agency No. DON No.19-40084-01959 DECISION On March 20, 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 February 13, 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. 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 Procurement Analyst, GS-1102-12, at the Agency’s Naval Facilities Engineering Command Far East, at the Yokosuka Naval Base facility. On April 26, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment based on his sex (male) and age (57) when: 1. From January 2019 through April 2019, several conversations occurred between Complainant, his Master Labor Contract (MLC) Local National coworkers, his supervisor (S1), the executive officer, and the human resources personnel, that 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. 2020003086 2 addressed his concerns regarding unnecessary office chatter/gossip, his request for an extension of his tour, whether he was in “big trouble” as insinuated by multiple comments, and other matters/dialogue of a personal and/or private nature; 2. On July 31, 2018, Complainant received an email from his supervisor, Supervisory Procurement Analyst (S1), stating that Civilian Service Retirement System (CSRS) and Federal employees Retirement System (FERS) pre- retirement, Microsoft Office Training, was an option for him; 3. From November 7, 2017 through May 2018, several encounters with S1 created a hostile work environment; and 4. From February 2017 to August 2018, the Supervisory Contract Specialist (S2) made negative and offensive remarks to Complainant regarding women, older people, and other employees in Complainant’s work environment. Complainant’s first-level supervisor was the Supervisory Procurement Analyst, (female, YOB: 1966) (S1). His second-level supervisor until August 5, 2018 was the Supervisory Contract Specialist (male, YOB: 1968) (S2). Beginning in October 2018, his new second-level supervisor was the Supervisory Contract Specialist (female, YOB: 1977) (RS2). Claim 1 - Office Chatter and Gossip Complainant contended that two MLA Local National co-workers (CW1 and CW2) talked a lot and their talking was disruptive to his concentration. Complainant had raised concerns regarding the office’s noisy environment, that he viewed as not conducive to productivity due to the unacceptable and unprofessional noise level of the two co-workers. He raised his concerns, but he claimed that his supervisor did not effectively address his concerns. S1 stated that the coworkers did not report to her. Complainant also believed the coworkers were spreading rumors about him and that these rumors began when he informed his supervisor of his desire to extend his tour in Yokosuka. S1 averred that she submitted his request for a tour extension on September 24, 2018. The record shows his request for an extension was approved on November 14, 2018. RS2 testified that she was S1’s supervisor and that she replaced S2. She testified that shortly after her arrival in October 2018, she met with Complainant, who told her that his co-workers (CW1 and CW2) talked a lot and their talking was disruptive. Complainant also told her that he believed that his immediate supervisor (S1) could not be trusted. RS2 offered the possibility of moving Complainant to a quieter cubicle if Complainant wanted to do so On January 18, 2019, Complainant claimed that two other employees told him that word was going around base that “he was in big trouble or in a big problem.” Complainant was concerned the MLC coworkers had been creating lies to try to get him in trouble by circulating false accusations against him. S1 assured Complainant that he was not in trouble. 2020003086 3 Claim 2 -Questioned Regarding His Age and Potential Retirement Date S1 was a new supervisor. Complainant averred that on November 7, 2017, during their initial meeting, S1 asked him his age and when he was going to retire. He asserted that he never discussed retirement plans with S1 or any Agency employees. ROI 739-70, 742. S1 denied asking Complainant his age and did not recall asking him about his retirement date. ROI at p. 818. She added that she was not aware that Complainant thought she created a hostile work environment until he filed this complaint. ROI at 820. On June 8, 2018, S2 directed all supervisors to complete Electronic Individual Development Plans (IDP) for their employees by July 6, 2018. On June 14, 2018, S1 forwarded this email to her subordinates, including Complainant. All employees were asked to give input for the IDP tracker. On June 29, 2018, S1 asked Complainant if he had come up with goals and a training for his IDP, but Complainant indicated he had not and, and S1 told him she needed it by July 3, 2018. Complainant submitted his IDP on July 3, 2018, but he did not list specific courses in the training sections. On July 31, 2018, S1 recommended a class pertaining to pre-retirement, and one relating to his current work. S1 also stated that based on clarification from S2, any training classes that require an SF 182, “Authorization, Agreement and Certification of Training, would not be approved unless they were listed on the employee’s IDP. She wrote, “This would include leadership courses, CSRS/FERS Pre-Retirement, Microsoft Office training, etc.” She asked him if he would like to review the list of courses for possible opportunities and told him to let her know if he saw any courses he was interested in so they could update his IDP. ROI 91-102, 768-779. He stated that it was “more than a coincidence” that S1 “singled him out in her July 31, 2018 email to him, by noting available retirement courses. Complainant did not discuss S1’s email with her. Complainant said that S1 “took it upon herself to list the courses for Complainant which included CSRS/FERS Pre-retirement.” Complainant stated he did submit his response to his supervisor’s inquiry regarding his IDP within the specified date, but he acknowledged that he did not list any specific training courses in his IDP. Claim 3 - Hostile Work Environment Complainant averred that S1 created a hostile environment of favoritism. Complainant averred that his supervisor used MLC employees to make false allegations against him and to claim he was the cause of a hostile environment in the office. Complainant stated that he provided documentation and discussed several matters with multiple personnel in Human Resources (HR), including vehicles driving near his residence after work hours. Complainant recognized some of the cars as being those belonging to his coworkers, whom he believed were targeting him and he viewed the after-hour activity as a threat. He said that HR failed to act. Complainant claimed that S1 “touched him unwantedly multiple times,” which he noted on a 2018 NAVFAC FE equal opportunity climate survey. 2020003086 4 He stated that S1 mentioned a “hostile environment” to him on several occasions. S1 denies intentionally touching Complainant and denied any sexual harassment. Specifically, S1 testified that she does not recall ever touching Complainant or his bringing any such claim to her attention. He stated that on December 8, 2017, S1 told him that she wanted his work completed and directed him to provide an update on the status of his work before he went on leave beginning on December 11, 2017. Complainant stated that he had to work late to accomplish the task. He stated that in January 2018, S1 came to his desk and asked about his leave plans in conjunction with conferences in August and December 2018. S1 stated she asked Complainant to provide her with status of the purchase card program prior to his going on leave, so she could provide support for his absence. She stated that Complainant never requested compensatory time or overtime for his working beyond normal working hours. She stated that his leave requests were approved. She stated that he received $1,000 award for his “above fully successful” performance. She averred she considered him to be a very good employee, and indicated he was rated among the highest in the division. ROI at 818 to 821. Claim 4 - Negative Comments by S2 Complainant said he “never discussed any negative thoughts” towards S1 and S2, but that S2 openly shared S2’s prejudicial views against women numerous times from December 2016 through August 2018. Complainant averred that S2 dislikes women. S2 maintained that Complainant dislikes women. Complainant averred that S2 said the Deputy Public Works Officer was old and should retire. Complainant stated that he noted S2’s actions in an EEO command climate assessment. 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). In the decision, the Agency concluded that Complainant failed to establish that Agency management discriminated against him or subjected him to a hostile work environment as alleged. CONTENTIONS ON APPEAL Complainant argues that “the February 13, 2020 decision should be vacated and judgment entered for Complainant,” because he says “there was enough circumstantial evidence in the record to support that management engaged in sex and age discrimination against him and created a hostile environment based on sex and age in the workplace.” He says that third party co-workers confirmed Complainant’s report of sex and age discrimination. In addition, he says that the new supervisor agreed that the noise level in the office was indeed loud and distracting and that RS2 “fell short in a managerial/leadership role.” He also raises new allegations on appeal regarding incidents that took place after the filing of this complaint. 2020003086 5 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”). Initially, we note that Complainant raises new claims of discrimination on appeal for the first time. To the extent Complainant is raising new claims on appeal, Complainant should contact an EEO Counselor as new claims cannot be raised on appeal. Section 717 of Title VII requires that federal agencies make all personnel actions free of sex discrimination. See 42 U.S.C. § 2000e-16 (all personnel actions in federal employment “shall be made free from any discrimination based on race, color, religion, sex, or national origin”). Similarly, Section 633(a) of the ADEA requires that federal agencies make all of the actions free of age discrimination. 29 U.S.C. 633(a). See 29 U.S.C. 633(a) (all personnel actions in federal employment “shall be made free from any discrimination based on age.”). Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she 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 their 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). Here, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The Commission notes that the anti-discrimination statutes are not a civility code. 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). 2020003086 6 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 animus. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. Regarding claim (1), S1 stated that she discussed Complainant’s tour extension with S2 and submitted it to the Position Management Board. Once it was approved, she informed Complainant’s MLC co-workers. S1 further stated that she assured Complainant that she had not heard any rumors that he was in “big trouble” and that she did not have any issues with his work. S1 asserted she was not aware of any other personal or private matters discussed in the workplace. RS2 stated that she met with Complainant shortly after her arrival and Complainant raised concerns about the disruptive talking and noise. RS offered to move Complainant to a quieter cubicle if he wished. RS2 affirmed that Complainant did not raise any further concerns after this meeting. As to claim (2), S1 explained that Complainant needed to complete his IDP and he had not identified any training courses. S1 stated that sent him an email clarifying that any courses requiring an SF 182 needed to be on his IDP and listed leadership, Microsoft Office, and pre- retirement training courses as examples. S1 stressed that she sent Complainant the email because he was the only employee who had not identified specific training courses in his IDP. With regard to claim (3), S1 affirmed that she did not recall asking Complainant any questions about his age or when he would retire. She denied touching Complainant. In addition, S1 asserted that she asked Complainant about the status of the purchase card program prior to his leave so she could provide support in his absence. S1 stated that Complainant never informed her that he stayed beyond his normal working hours to perform any duties. S1 confirmed that she did not deny Complainant compensatory time, overtime, or requests for leave. Finally, S1 affirmed that after discussing Complainant’s performance appraisal, Complainant provided insufficient evidence to support changing it. Notwithstanding, Complainant received an award for his “above fully successful” performance. Furthermore, to the extent that Complainant is alleging that S1 subjected him to sexual harassment by touching him, we find that Complainant presented no corroborating evidence that the incident occurred and there is also no evidence that Complainant reported any alleged touching incident. To the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that, as discussed above, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for discrimination. 2020003086 7 CONCLUSION Accordingly, for the reasons stated herein, and based on our application of the appropriate federal statement of law, 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. 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. 2020003086 8 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 June 14, 2021 Date