[Redacted], Randolph A., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Human Resources Activity), Agency.

Equal Employment Opportunity Commission

Oct 17, 2022

Appeal No. 2022000680 (E.E.O.C. Oct. 17, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randolph A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Human Resources Activity), Agency. Appeal No. 2022000680 Agency No. DHRA-011-2020 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 October 12, 2021, final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Traffic Management Specialist, GS-13, at the Agency’s Travel Programs and Services Division - Travel Service Branch in Alexandria, Virginia. On June 1, 2020, Complainant filed a formal EEO complaint, subsequently amended, claiming that the Agency discriminated against him and subjected him to a hostile work environment based on sex (male), age (59), and in reprisal for prior protected EEO activity2 when on April 14, 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 testified that he filed two prior EEO complaints on October 5, 2016, and October 31, 2018. 2022000680 2 2020, Complainant’s second-line supervisor issued Complainant a Decision to Suspend on April 15, 2020.3 After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant initially requested a hearing but subsequently withdrew his request. On October 12, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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, she must first establish a prima facie 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 Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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, nondiscriminatory 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). 3 The record indicates that Complainant’s amended complaint included additional claims which the Agency dismissed on procedural grounds. On appeal, Complainant does not dispute these dismissed claims, and therefore, we need not address them further in our decision. 2022000680 3 Our review of the record supports that the Agency articulated legitimate, non-discriminatory reasons for suspending Complainant. Complainant testified that his immediate supervisor and the Travel Programs and Services Division Chief (TPSD Chief) collectively determined that he should be suspended for one day for quarreling with a co-worker (CW1) via email. Complainant explained that he tried to inform CW1 that he was not trained to conduct contract modifications and that this task should be completed by the contracting officer representative. However, Complainant asserted that CW1 became “belligerent” and Complainant tried to diffuse the situation, but the email exchange between him and CW1 escalated. Complainant stated that management was aware that he lacked training on contract modifications and Complainant believed that management “set him up” and “ambushed” him when he tried to explain the situation to CW1. Complainant indicated that he felt targeted by management with the suspension because his supervisor and the TPSD Chief did not suspend other younger and female employees for email quarreling. Complainant’s Supervisor testified that he was the management official who proposed Complainant’s suspension after consulting with General Counsel and Employee Relations. The Supervisor explained that he proposed the suspension for unprofessional behavior, sending incendiary emails to CW1, and choosing not to deescalate or disengage the email exchange between him and CW1. The Supervisor noted that he had direct knowledge of the email exchange as he was copied on the correspondence. Although immaterial to the matter at issue, the Supervisor acknowledged that Complainant had received a sample of a contract modification to assist him in completing the modification during the period at issue. Nevertheless, the Supervisor clarified that Complainant’s suspension was based on the way he communicated with CW1 via email. The Supervisor further explained that he determined that a suspension was warranted given Complainant’s prior discipline (a suspension in 2017 and a written reprimand in 2018). While Complainant disputed that his prior discipline should not have been a factor for the instant discipline, the Supervisor explained that past disciplinary actions are still considered a legitimate factor when considering new disciplinary actions. Lastly, the Supervisor denied that Complainant’s protected bases factored into his decision to propose the one-day suspension. The TPSD Chief testified that he approved the proposal to suspend Complainant for one day for Complainant’s actions regarding the email exchange between Complainant and CW1. Specifically, the TPSD Chief explained that he upheld the suspension because Complainant failed to take any responsibility for his unprofessional and unacceptable conduct. The TPSD Chief found Complainant’s behavior “troubling” for a GS 13 employee with numerous years of federal experience. The TPSD Chief indicated that he considered Complainant’s prior disciplinary actions, and according to the Table of Penalties, Complainant could have been subjected to a range of penalties from a 14-day suspension to removal for his third offense of misconduct. 2022000680 4 Consequently, the TPSD Chief reasoned that a one-day suspension was well below the established range of penalties given Complainant’s prior disciplinary actions.4 A copy of the March 30, 2020 notice of proposed suspension charged Complainant with quarreling and engaging in an inappropriate email exchange with CW1. The notice further indicated that the exchange included insults that were disrespectful and not mission/business orientated. A copy of the April 14, 2020 decision suspending Complainant for one day indicated that Complainant had not taken any responsibility for his contributions toward the unprofessional email exchange he had with CW1 which escalated the confrontation. The decision further noted that as a third offense of misconduct, Complainant could have been subjected to a penalty ranging from a 14-day suspension to removal, however, the TPSD Chief imposed a one-day suspension. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s sex, age, and in reprisal for prior protected EEO activity. Hostile Work Environment To prove his claim of hostile environment harassment, 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 sex, age, and in reprisal for prior protected EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). Complainant’s additional claim of discriminatory harassment as evidenced by the sole incident at issue is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his sex, age, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). 4 The TPSD Chief explained that the Supervisor issued a proposed suspension for CW1, however, the TPSD Chief reduced this disciplinary action to a Letter of Reprimand because CW1 did not have a history of prior discipline. 2022000680 5 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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. 2022000680 6 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 October 17, 2022 Date