[Redacted], Otis B., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency.

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2021003427 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Otis B.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 2021003427 Agency No. DFAS-00087-2020 DECISION On May 27, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from an April 26, 2021 final Agency decision (FAD) on 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 During the period at issue, Complainant was employed by the Agency as a Civilian Pay Technician, GS-0544-07, at Civilian Pay Operations, Processing Division, Processing Branch Section 1 until he was reassigned to the Audit Section on April 26, 2020. Both jobs were in Cleveland, Ohio. On November 12, 2020, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment based on his race/color (Caucasian/white), sex (male), disability (Crohn’s disease), and age (50 & 51) 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. 2021003427 2 1. On or about August 21, 2019, the Director of Civilian Pay Operations (“Operations Director” Caucasian/white female, age 51), who was his fifth line supervisor, placed him on paid administrative leave due to comments he made in the workplace regarding guns, illness, suicide and frustrations with management. 2. On or around September 2019, the Director of the Processing Division (“Division Director” Black female, age 56), who was his third line supervisor, gave the Berea, Ohio police his wife’s and his personal cell phone numbers without their consent. 3. On or around September 2019, Division Director told the above police he was a threat to his family, resulting in police inquiry on him. 4. On or around December 2019, he had to undergo a security redetermination. 5. On or around January 2020, Operations Director directed all employees that they were not to interact with him when he came to the office to pack and move his belongings. 6. On April 26, 2020, Operations Director reassigned him from the Processing Branch Section 1 to the Audit Section to the different supervisor there (Caucasian white male, age 51) and later his acting successor, a Supervisory Financial Specialist (Black female, age 46), who since April 1, 2020, was also his second line supervisor. 7. On or about July 28, 2020, the Audit Section acting successor supervisor issued him an inaccurate negative quarterly performance review, stating his productivity was low. After the Agency completed an EEO investigation, Complainant requested a FAD without a hearing. The Agency then issued a FAD finding no discrimination was established. The instant appeal followed. On appeal, the parties make no comment. ANALYSIS AND FINDINGS To prove a hostile work environment, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in his 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 - race/color, sex, disability, and age. Only if he establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Incidents 1, 3 and 3 On August 1st or 2nd, 2019, Complainant complained to his second line supervisor then that his team lead sent him an email with an aggressive and disrespectful tone. On August 13th or 14th 2019, the Division Director met with Complainant to discuss his concern, and Complainant 2021003427 3 related that his team lead harassed him by speaking differently to him than women, and he feared that since he complained it was possible the team lead could react by falsely accusing him of calling a “bitch” or something, and with the me-too movement this could endanger his career. After the Division Director tried to assure Complainant, they chatted for a few minutes. According to the Division Director, Complainant then mentioned his Crohn’s disease, which lead to saying his mother-in-law was in a nursing home and he would rather kill himself than be in one, his father committed suicide, and this runs in the family. The Division Director stated Complainant brought up mass shootings, speculated this could happen in the building, that he needed to purchase assault style rifles before the Democrats got into office because they would take away the right to purchase them, and cited the looting after Hurricane Katrina as a reason for their usefulness. She stated Complainant did not threaten anyone. Complainant countered that the Division Director already knew his father committed suicide in 2011, and he did not raise this in their August 2019 conversation. He wrote that he had suicidal thoughts for 1½ years after his father’s suicide, which he expressed in the office, but not in the above conversation. He stated he did not believe that in the above conversation he discussed he would rather kill himself than become a resident of a nursing home. Complainant acknowledged that he said to the Division Director that with the possibility of Democrats coming into office he was looking to purchase firearms they may ban. The Division Director stated that in the past Complainant told her he had a concealed carry firearm permit and talked about guns and weapons, and this did not concern her. But the August 2019 conversation concerned her and made her feel uneasy because it came on the heels of his saying he was worried the team lead would harm his career, said he needed to purchase assault style rifles before Democrats took office, and raised recent shootings and Hurricane Katrina. The Division Director reported the comments to the Operations Director who, effective August 19, 2019, placed Complainant on administrative leave pending an investigation on the comments he made to the Division Director about guns, illness, suicide, and frustrations with management. The Operations Director stated she did this for safety reasons and appointed a Human Resources Specialist (Employee Relations) to investigate. The Human Resources Specialist September 19, 2019 final report concluded Complainant was not an immediate threat to himself or people in the workplace. He returned to work on September 11, 2019. The Division Director strongly denied that she contacted the Berea, Ohio police. The Human Resources Specialist stated that per her investigation she contacted the Berea police and was informed the report on Complainant was anonymous. The Agency found that management placed Complainant on administrative leave because his remarks to the Division Director in August 2019, about guns and suicide were concerning and warranted administrative leave for safety reasons pending an investigation. The Division Director and Complainant recollected their conversation differently. It is uncontested that Complainant did not threaten himself or anyone else in this conversation. 2021003427 4 But the burden of proof is on Complainant, and he has not proven that the Division Director’s version of events is incredible. The Division and Operations Directors’ statements support the Agency’s finding above. Complainant has not shown the Agency was motivated by Complainant’s protected bases. On incident 3, the Agency found that the person who called the police has not been identified. We agree. Incident 4 The Agency found that Complainant was required to undergo a security redetermination, which he passed, because he self-reported filing for bankruptcy, not discrimination. We agree. This is supported by the statement of a Personnel Security Specialist (white male, age 66). Incident 5 The Agency found that the Operations Director denied that she directed employees not to interact with him when he came into the office to pack and move his personal belongings and his claim to the contrary was belied by the fact that he stated while there, several employees interacted with him. We agree. Incident 6 The Agency found that Complainant was reassigned per a reorganization, not discrimination. We agree. This is supported by the statements of his former Section 1 supervisor and the Operations Director. Incident 7 The Agency found that it appeared the quarterly progress review was only informational in nature. The quarterly progress review in the record was supplied by Complainant. It covered the period of April 1, 2020 - June 15, 2020. While it was presented to Complainant by his second line supervisor at the time, it was done by the Audit Section supervisor. It was not a rating. Rather, it commented that: During the quarter, you processed… 26 Remedy tickets. Your current main assignment is processing pay audits, however, you assist with other tasks. Your production numbers are low. In a reply comment in his performance review, Complainant explained that during the period in question, the office received a low number of audit ticket requests. 2021003427 5 With his EEO investigatory statement, Complainant submitted email correspondence from July 7 and 8, 2020, between him and the Audit Section lead. On July 7, 2020 the lead wrote Complainant that he had 23 audit tickets assigned to him, and to ensure they were closed. On July 8, 2020, the lead wrote Complainant that Complainant’s oldest ticket was assigned on May 5, 2020, when he asked for more work, that she had nothing else to assign then, and his next audit ticket came in early June 2020. On July 8, 2020, Complainant replied that he noticed that recently more tickets were coming his way, noting they were scraping for things to do for a bit. The lead replied “Yes! Suddenly there is a lot more….” In his late January 2021 EEO investigatory statement, the Audit Section supervisor, who was promoted to another position around July 2020, stated that as far as he could recall, remedy tickets were coming in slightly below normal then, but there was enough work to go around. Interestingly, in December 2020, likely in preparation for her EEO investigatory statement, Complainant’s second line supervisor reached out to the former Audit Section supervisor for a copy of the narrative he wrote for Complainant’s quarterly review. He replied that it should be in “DPMAP”, but he had the narrative which read: During the quarter, you processed… 26 Remedy tickets. Your current main assignment is processing pay audits, however, you assist with other tasks. In her EEO investigatory statement, the second line supervisor stated she did not recall anything in the quarterly review about low production. Complainant’s statement that his production was low because there was a drop off in audit ticket requests during this period and he was assigned a low number of them for this reason is supported by a preponderance of the evidence. But Complainant has not shown the Audit Section supervisor had a discriminatory motive. Like Complainant, the Audit Section supervisor is a Caucasian white male, and they are the same age, which points away from a discriminatory motive. Further, as found by the Agency, the quarterly progress review was only informational in nature. And while it is unclear, it appears that the Audit Section supervisor may have agreed with Complainant’s reply comment by removing the reference to low production, which suggests Complainant made him realize, without an appeal, that the comment was misleading. Complainant has failed to prove discrimination as alleged. CONCLUSION The Agency’s final decision in this matter is AFIRMED. 2021003427 6 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. 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). 2021003427 7 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 January 31, 2023 Date