[Redacted], Ralph P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.

Equal Employment Opportunity Commission

Dec 2, 2021

Appeal No. 2020004331 (E.E.O.C. Dec. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ralph P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2020004331 Agency No. DOD-OIG-200-02 DECISION On July 26, 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 June 30, 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 At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511- 11, at the Agency’s Audit Component Readiness and Global Directorate in Alexandria, Virginia, until he resigned his position on February 7, 2020.2 On October 25, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African- American), sex (male), 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. 2 Complainant did not raise his resignation as a claim in the instant complaint. 2020004331 2 1. from March 4, 2019 through September 10, 2019, his supervisor (S1) called him out by name during a team meeting in front of his team for mistakes made on a workpaper; 2. on June 4, 2019, S1 made disparaging remarks about Complainant’s performance on a performance evaluation; 3. on March 21 and April 24, 2019, S1 harassed Complainant about taking leave; 4. on March 20, 2019, S1 included a Human Resources representative (HRO), during his performance discussion; 5. on March 8, 2019 and numerous other occasions, S1 criticized and berated Complainant; 6. on March 4, 2019, S1 accused Complainant of being missing from his desk; and 7. on March 4, 2019, S1 sent an intimidating/harassing email because he requested a meeting with his mentor. Regarding Claim (1), Complainant claimed that S1 called him out during a routine meeting to criticize specific mistakes he made in his work paper. Complainant asserted that he had been on the team for 10 months, and S1 never subjected any other team member to similar criticism. Complainant believed S2 made the comments to undermine, harass, and embarrass him. S1 responded that she has weekly team meetings, and that her team leaders provide her with a list of documents to review that support the report S1’s team was preparing. During the meeting in question, Complainant’s work paper was the first on the list. S1 wanted to use the work paper “as a broader lesson on how we should underline classified information in our workpapers, how we should not over classify information, in our workpapers, and how we should complete all written products using proper grammar and punctuation.” S1 believed that by establishing consistent patterns, writing the report becomes easier. S1 insisted that she started the conversation by stating that her concerns were in no way a reflection of Complainant’s work product. S1 asserted that had she reviewed another employee’s work paper first, she would have had a similar conversation with the team to ensure uniformity among the work papers. Complainant’s second-level supervisor (S2) noted that S1’s identification of common mistakes in work papers, particularly with respect to classified information, is a common practice during team meetings. S2 referred to it as a way to develop lessons learned and build efficiency in writing and signing off on reports. A coworker (CW1) provided testimony relevant to the meeting in question. CW1 said that S1’s discussion of Complainant’s work paper was not done inappropriately or with malice. Rather, “[s]he was simply pointing out what she believed was an inconsistency or error and was telling the whole team so that we did not have the same issue.” CW1 said other managers have called him out in a similar manner and while uncomfortable, CW1 did not take it personally. In Claim (2), Complainant explained that he has high blood pressure and high blood sugar. As a result, he needed to frequently use the restroom, sometimes during meetings. 2020004331 3 Complainant alleged that S1 mentioned Complainant’s frequent restroom use during his performance appraisal, even though Complainant told S1 that he had a medical condition. S1 denied disparaging Complainant. Regarding Claim (3), Complainant said that S1 sent him emails every time he took leave to say that Complainant was earning and burning leave. Complainant asserted S1’s emails were harassment because he earns leave and has the right to use it. S1 denied harassing Complainant about his leave usage. Rather, Complainant was still within his probationary period, which is used to evaluate whether the probationary employee is a good fit. S1 considered Complainant’s tendency to burn leave as it was earned to reflect negatively on his suitability for employment; it gave the appearance that Complainant did not want to be at work. S1 said she was trying to coach Complainant so he would not be labeled as an “earner and burner.” The record contains a contemporaneous email from S1 to this effect. Further, S1 provided several emails in which she questioned her other employees regarding their leave usage and timesheet coding. In Claim (4), Complainant argued that he requested a performance discussion with S1, but S1 had HRO sit in on the discussion. Complainant asserted that HRO’s presence was an intimidation tactic. S1 said that she had previously discussed Complainant’s performance issues with HRO. Thus, when Complainant asked for a performance discussion, HRO asked to be in the meeting. S2 noted that human resources officials routinely make themselves available for meetings between managers and employees. HRO affirmed that her presence was to ensure that the discussion remained oriented on Complainant’s performance standards and expectations. In Claim (5), Complainant argued that S1 made “a lot of general statements that could not be measured. For example, she stated that I was missing milestones, or I was taking too long to complete assignments.” Complainant said he did not have any deadlines. S1 denied that she criticized or berated Complainant. Rather, she had discussions with Complainant “regarding his timeliness, timesheet issues, insubordination, and his extended absences.” S1 cited examples of each issue. Regarding timeliness, S1 acknowledged discussions with Complainant about completing his tasks in a timely manner, such as providing S1 his training information, which should have taken a few minutes, but took an hour and half. On January 15, 2019, S1 noted that Complainant charged five hours of his time to the project on a day the team was awaiting comments from management. Therefore, Complainant could not have been working on the project. S1 raised the issue with Complainant, who said he was told by a higher-level supervisor to “add his information (name, time, work experience, and independence documentation).” S1 believed this should not have taken five hours, but rather an hour and a half. In Claim (6), Complainant asserted he was simply trying to get his computer fixed and had to return to the Information Technology (IT) department a second time because the problem was not solved the first time. The March 4, 2019 email at issue in Claim (7) is in the record. Therein, S1 alludes to a discussion with Complainant and allows an unscheduled mentor meeting lasting no more than 30 minutes. 2020004331 4 S1 noted that Complainant was assigned two tasks that morning by his team leader and expressed her preference that Complainant make his assignments a priority. Therefore, S1 expected Complainant to have the two tasks completed by the end of the day, as discussed with the team leader. Complainant asserted that S1’s tone in this email was harassing. Complainant said that he needed to meet with his mentor because he believed that S1 was accusing him of being Absent Without Leave (AWOL) during the day. Complainant believed S1 was trying to build a case for his termination and he did not understand why he was being targeted. S1 responded that she had multiple conversations with Complainant between November 25, 2018 and March 8, 2019, about him being absent from his desk for extended periods during the day. S1 noted that other employees informed her that Complainant had taken several extended breaks during meetings. When she learned that Complainant was having stomach issues, S1 considered that Complainant may be seeking reasonable accommodation and contacted HRO and another employee. Thereafter, Agency officials reached out to Complainant to discuss accommodation, but Complainant never responded. S1 noted that Complainant told her he was having computer problems on March 4, 2019, but when she visited the IT department, they told her that Complainant had left. The sign in sheet showed that Complainant arrived at 10:46 a.m., even though he left S1’s office at 9:54 a.m., almost an hour earlier. S1 was concerned about the nearly one hour of time that was unaccounted for. Complainant told S1 that he had an unscheduled meeting with his mentor and that under the Pathways Program he could go to mentor meetings whenever he could. S1 asserted that meetings with mentors was a “non-issue” if Complainant did not have work that was due by the end of the day. Therefore, as stated in her email, S1 told Complainant that, going forward, he would need to ask to attend unscheduled meetings with his mentor. 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). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. The instant appeal followed. On appeal, Complainant contends that he submitted definitive evidence demonstrating he was being harassed. 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 2020004331 5 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”). 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; and (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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 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 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 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 alleged incidents were 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. For example, as more fully detailed above, S1 explained, with support from other employees and supervisors, that Complainant’s whereabouts were not always accounted for; he took excessive bathroom breaks; and that he had timekeeping issues. Moreover, S1 explained that because Complainant’s work paper was the first one S1’s team reviewed, she used Complainant’s work paper to highlight issues that would impact every employee within the team, which would lead to a more efficient work product. Further, S1 included HRO in the performance discussion because she had previously discussed Complainant’s performance with her and wished to ensure the discussion was focused on Complainant’s performance and expectations. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that 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 or reprisal. Accordingly, we find that Complainant has not shown that he was subjected to discrimination, reprisal, or a hostile work environment. 2020004331 6 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. 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). 2020004331 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 December 2, 2021 Date