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

Equal Employment Opportunity Commission

Feb 8, 2022

Appeal No. 2020004441 (E.E.O.C. Feb. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Milton D.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004441 Agency No. ARWSMR18MAY01846 DECISION 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 July 7, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND During the relevant time, Complainant worked as a Supervisory Installation Transportation Specialist at the Agency’s Logistics Readiness Center (LRC), Army Sustainment Command, White Sands Missile Range in Las Cruces, New Mexico. On June 8, 2018, Complainant filed an EEO complaint alleging that he was subjected to discrimination and non-sexual harassment on the bases of race (African American), sex (male), and in reprisal for prior protected EEO activity, by his first-line supervisor, the Director (male, Hispanic), between October 2016 and April 26, 2018. 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. 2020004441 2 Complainant’s harassment claim included 19 incidents, including: the Director failing to support Complainant’s hiring actions and canceling personnel actions; telling Complainant to “shut up” during a meeting; and issuing Complainant a letter of concern, following an “AR 15-6” investigation.2 Complainant further claimed that the Director stated during a meeting that he considers himself to be Hispanic; met with employees who made false accusations against Complainant, regarding being bullied, harassed and intimidated by him; and failed to address Complainant’s concerns about a hostile working environment for Black employees by Hispanic/Latino employees. Complainant also alleged that, since April 2018, the Director only appointed a coworker (CW) (female, White) to serve as the Acting Director in the Director’s absence and to represent LRC at official functions.3 Report of Investigation (ROI) at 60-1. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed a prima facie case of discrimination and found that management provided reasonable and nondiscriminatory explanations in response to Complainant’s claim that, commencing in April 2018, the Director appointed only CW to serve as the Acting Director in his absence and to represent LRC at official functions. Specifically, the Director explained that, because CW was new to the organization, these rotations were essential to helping familiarize her with the LRC and becoming acquainted with members of the higher command channels. The Director stated that Complainant neither asked to serve as Acting Director, nor voiced concern over not being placed in the Acting Director position. Further, the Director added that, when Complainant was in a position to represent the organization, there had been multiple issues and problems stemming from his conduct and actions towards other employees. The Agency then found that Complainant did not establish that the reasons were pretext for discrimination. The Agency noted that Complainant admitted he never requested to be placed in the Acting Director role and conceded that CW was “not unqualified” for the position. Moreover, according to the Agency, the record contained statements from employees who testified that they feared reprisal, or verbal or physical altercations, if Complainant were to be placed in the Acting Director position. The Agency determined that Complainant did not establish that he was subjected to harassment, because he could not show that his protected bases were motivating factors in any of the incidents. The Agency also found that, even if the alleged conduct was true, they were not so severe or pervasive as to rise to the level of an unlawful hostile work environment. The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. 2 The Agency investigated allegations of a toxic climate and employee misconduct at the LRC. ROI at 632-60. 3 In its final decision, the Agency noted this claim was the only timely discrete claim and that the other incidents would only be considered as part of Complainant’s harassment claim. 2020004441 3 Complainant filed the instant appeal and submitted a brief in support of his appeal. The Agency opposes Complainant’s appeal. CONTENTIONS ON APPEAL Complainant’s Contentions On appeal, Complainant argues that Agency employees targeted him with false accusations, such as spying on employees and privately meeting with another manager to influence how the manager leads his division. Complainant asserts that the Director lied, and that he was subjected to a hostile work environment by the Director and his staff. Complainant states that he received a letter of concern following the AR 15-6 investigation, which showed that the Director and his staff were the primary distributers of false accusations against Complainant and proved that they colluded to harass him based on his race. Complainant avers that a witness statement shows that the Director’s response to the incident, when he told Complainant to “shut up”, is fabricated and this incident was a continuation of the Director’s racial harassment. Complainant also argues that the Director’s statement, that he is Hispanic, was an admission that he did not affiliate with his African American side and an expression of “racial preference.” Complainant maintains that the Agency’s articulated nondiscriminatory reasons were false and that he was subjected to severe and pervasive harassment. Agency’s Contentions The Agency argues that Complainant failed to make any argument warranting reversal of the final decision. The Agency asserts that Complainant only offered conclusory statements and supposition on appeal, and offered no compelling evidence, either throughout the investigative phase or on appeal, that establishes any connection between the allegedly hostile work environment and his various protected classes. According to the Agency, Complainant largely reiterated his allegations but failed to address the final decision’s specific findings and underlying rationale. It requests that the Commission affirm the Agency final decision. ANALYSIS AND FINDINGS Standard of Review 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 Chap. 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 2020004441 4 parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, sex, and reprisal for prior protected EEO activity, we find that the Director proffered legitimate, nondiscriminatory reasons for appointing only CW to serve as the Acting Director since April 2018. The Director stated that CW was new to the organization and he appointed her to act in his absence in order to introduce her to the LRC. The Director averred that he had given Complainant opportunities to act in his absence a number of times since 2016, and that there were concerns with Complainant’s conduct and level of professionalism. Moreover, the Director had received feedback from staff members expressing fear of reprisal if Complainant was assigned the Acting Director role. ROI at 875, 884. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant alleges that the Director and other staff members lied. We note that Complainant did not request a hearing, therefore we do not have the benefit of any credibility determinations by an Administrative Judge. However, Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. 2020004441 5 When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Here, Complainant provided no evidence in support of his assertion that witnesses lied. Rather, the evidence in the record supports the Director’s proffered reasons. A Management and Program Analyst (MPA) corroborated that the Director appointed CW to act since she was new and the Director wanted to integrate her quickly. MPA noted that Complainant had the same opportunity when he transitioned to LRC in 2009. MPA also claimed that leaving Complainant as the Acting Director “could potentially create and incite a situation of a verbal or physical confrontation where someone might get hurt!” ROI at 1007. In addition, two witnesses, who did not work in LRC, provided memorandums regarding encounters with Complainant. One witness believed that Complainant threatened her when he stated that he would “handle” her, and that he intended to “physically handle” her. The other witness stated she was threatened when Complainant stated, “I can be a hard ass and you don’t want to cross me.” ROI at 574, 576. The record also contains an April 9, 2018 memorandum, based on the AR 15-6 investigation into allegations of a toxic command climate and employee misconduct at the LRC. The investigator concluded that a toxic climate existed and that Complainant, as well as another division chief, fostered this environment for years. Based on the findings the investigator recommended that Complainant and the other division chief be relieved of their duties, and offered the opportunity to retire or be eliminated from government service. ROI at 652, 657. While Complainant argues the accusations against him were false and the investigation established that employees colluded to racially harass him, he has failed to present any supportive evidence. Complainant did not establish that the Director’s proffered reasons are not worthy of belief, and his bare assertions that he was discriminated against are insufficient to prove pretext or discrimination. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his protected classes, when the Director appointed only CW to serve as the Acting Director in his absence and to represent LRC at official functions since April 2018. Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant's employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had 2020004441 6 the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to a statutorily protected class based on his race, sex, and prior protected EEO activity, and that he was subjected to unwelcome conduct. However, we do not find that some of the incidents occurred as alleged, such as Complainant’s claim that the Director failed to respond to Complainant’s February 27, 2018 e-mail alleging a hostile working environment for Black employees by Hispanic/Latino employees. Rather, the record shows that the Director responded to Complainant’s email on March 6, 2018, noting that Complainant’s concerns were addressed at an earlier meeting. The Director added that he did not believe that it was a “race” issue, and that people needed to treat each other with respect. Case File at 407-9. In addition, Complainant did not show that any of the incidents were due to a protected basis. For example, MPA stated that she was the subject matter expert regarding LRC personnel matters, and that Complainant wanted to handle hiring actions in a manner that was not in compliance with the rules and guidance established by Headquarters. MPA averred4 that Complainant refused to comply with the Director’s directives. ROI at 1002. The Director admitted that he said “shut up” to Complainant during a meeting on December 7, 2017. The Director explained that Complainant was being highly disrespectful to him in front of the other division chiefs by arguing and yelling and, in response, the Director blurted out “shut up” and asked Complainant to leave. ROI at 876. On appeal, Complainant disputes the Director’s explanation, citing a statement from a retired coworker. According to the witness, Director would often tell division chief to “shut up” and the Director told Complainant to “shut up” when he tried to respond to a question. ROI at 718-9. However, even crediting Complainant’s version of events, we find that this witness confirmed that the Director treated all the division chiefs in the same manner. The cited witness statement did not support Complainant’s assertion that the Director’s action was due to his race. Complainant only makes broad generalizations that he was harassed based on a protected category, but he does not identify any supporting evidence to prove a connection between his race, sex, or prior EEO activity, and the alleged incidents. 4 The record contains evidence that it was Complainant, and not the Director, who made comments exhibiting discriminatory animus. Specifically, MPA testified that Complainant referred to her as “Mexico” and stated that “Mexicos don’t have anything better to do than stand in the Welfare Line”. Another employee corroborated that Complainant called them “Mexicos” and “Squaws.” Yet another individual asserted that Complainant stated, “I hate women.” ROI at 1012, 972, 577. 2020004441 7 While Complainant argues that the Director’s statement, that he is Hispanic, was an admission that he did not affiliate with his African American heritage and a statement of his “racial preference,” we find such assertions to be purely speculative. The Director’s disclosure of his self-identified race does not impute a racial motive for his actions. Further, the Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. U.S. Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010). Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and that it was taken in order to harass Complainant on the basis of his protected class, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep’t of Veterans Affs., EEOC Appeal No. 0120130465 (Sept. 12, 2014). In this case, we find that most of the allegedly harassing conduct occurred within the normal course of business, and that there is no evidence that the incidents were abusive or offensive, or taken in order to harass Complainant on the basis of a protected class. Accordingly, we find that Complainant did not establish that the Agency subjected him to harassment based on race or sex, or in reprisal for prior protected EEO activity. 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 finding no discrimination. 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). 2020004441 8 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). 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. 2020004441 9 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 8, 2022 Date