[Redacted], Murray C., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Jun 24, 2021

Appeal No. 2019005961 (E.E.O.C. Jun. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Murray C.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2019005961 Agency No. P8-18-0088 DECISION On August 23, 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 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Computer Engineer, GS-12, at the Agency’s Space Park facility in Redondo Beach, California. On September 12, 2018, Complainant filed an EEO complaint alleging the Agency discriminated against him on the bases of race (Asian), national origin (Asian), sex (male), religion (Buddhist), color (Yellow), disability (Post Traumatic Stress Disorder and Major Depressive Disorder), age (53), and reprisal for prior protected EEO activity (instant July 3, 2018 pre-complaint) 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. 2019005961 2 1. since March 27, 2018, the Supervisory General Engineer (S1) consistently assigned Complainant an excessive workload consisting of four programs and Contract Receipt and Review (CRR) tasks; 2. between August 2017 and October 2018, S1 subjected Complainant to hostile work environment harassment by making it difficult for Complainant to receive approval for leave without pay (LWOP) requests and to manually submit Office of Workers’ Compensation Programs (OWCP) claims, by calling Complainant “unprofessional” for referring a client to him, and by giving Complainant a “hard time” for asking for research help and then opening all files on Complainant’s computer without permission; 3. since 2017, S1 consistently assigned Complainant a workload that requires a Software Professional Development Program (SPDP) certification but denied Complainant the ability to obtain SPDP certification or a mentor; 4. in July 2018, S1 ignored the Federal Occupational Health Report, disapproved Complainant’s request for twelve weeks of LWOP under the Family and Medical Leave Act, and demanded Complainant return to work after six weeks of leave or submit medical certification; 5. on June 25, 2018, S1 ordered Complainant to complete a CRR task, ignored Complainant’s concerns about the assignment, and contacted Complainant numerous times via email and phone throughout the day; and 6. between January 2018 and May 2018, S1 failed to assist Complainant in obtaining an Agency laptop for training classes. The Agency accepted Complainant’s complaint, as amended, for EEO investigation. During the investigation, S1 stated that the Agency uses 1760 hours of work as a full-time equivalent and hours beyond those are either reassigned to other staff or eliminated if low risk. S1 stated there was a redistribution of workload due to changes in staffing and addition of new programs. S1 stated that Complainant’s team supports various programs throughout the course of the year and team members are cross-trained for multiple tasks. S1 stated that CRR is a duty that all functions perform. S1 added that Complainant has not been asked to perform overtime (except travel compensatory time for two training events) or weekend work and his workload is not excessive. S1 stated that Complainant began leave July 14, 2018 and had leave approved through December 4, 2018. S1 stated that he was on leave between October and December 2018 so another supervisor reviewed Complainant’s leave in his absence, and there were times he had to confer with Human Resources for guidance on Complainant’s request. S1 stated that he completed the OWCP forms for Complainant and submitted them to the designated point of contact. S1 stated that he suggested Complainant use an alternative approach to positive customer relations rather than telling a client about his excessive workload and referring the client up the supervisory chain to S1. S1 stated that he does not give his staff a “hard time” and encourages them to contact their delegators to ensure they are providing needed support. S1 stated that Complainant was assigned a mentor and was working on SPDP certification, completing portions in March 2018 and June 2018. 2019005961 3 S1 stated that Complainant was scheduled to complete SPDP certification in August 2018. S1 stated that Complainant initially requested LWOP for July 10, 2018 through August 20, 2018 and he informed Complainant that if he needed additional time, he could request an extension. S1 stated that requests for laptops for training classes are processed by the Office of Information Technology (OIT) and he elevated Complainant’s request once he learned OIT was unresponsive. S1 denied discriminating against Complainant. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision. 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 Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. On appeal, Complainant stated that he essentially requested reasonable accommodation of normal work hours and cessation of assigning work for which he had not been trained. Complainant stated that the Agency subsequently removed his security clearance in an attempt to remove him from employment.2 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco 2 The EEOC database contains a separate active appeal for Complainant docketed as 2021003307, which was filed May 20, 2021. In the underlying complaint in that case, Complainant alleged that, since 2019, the Agency discriminated against him based on reprisal for prior EEO activity when it harassed him and took actions to remove him from federal service, such as suspending his security clearance and proposing indefinite suspension from his position. 2019005961 4 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, non-discriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find that Complainant failed to show that the Agency’s articulated reasons for its actions were a pretext for discrimination. Harassment To establish a claim of hostile environment harassment, 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 (March 8, 1994). In other words, to prove his harassment claim, 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, color, sex, religion, disability, age or unlawful retaliatory animus. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 2019005961 5 Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on race, national origin, sex, religion, color, disability, age, or reprisal. Even if we consider, individually and in total, the incidents occurred as alleged, we conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris, supra. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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). 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. 2019005961 6 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 June 24, 2021 Date