[Redacted], Ross H.,1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 27, 2021

Appeal No. 2020001237 (E.E.O.C. Jul. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ross H.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001237 Hearing Nos. 510201800044X, 510201800125X Agency Nos. DON166945002494, DON176945001633 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 15, 2019 Final Order concerning an 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., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time frame, Complainant worked as a Site Transportation Manager, GS-12, at the Agency’s Naval Facilities Engineering Command Southeast (“NAVFAC SE”) Public Works Department (“PWD”), Base Support Vehicles and Equipment (“BSVE”), for the Naval Support Activity (“NSA”) in Panama City, Florida. Complainant filed two EEO complaints (“Complaint 1” and “Complaint 2”) on September 17, 2016 and May 12, 2017, respectively, which were consolidated for administrative convenience and include the following accepted claims: 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. 2020001237 2 Complaint 1 Complainant alleged that the Agency subjected him to discrimination and a hostile work environment/harassment on the bases of sex (male), race (Caucasian), color (White), and age (63) when: 1. On June 2, 2016, he received a Notice of Temporary Assignment from his position as Site Transportation Manager, 2. On May 18, 2016, his request to become a part of the assessment team was ignored, 3. On May 15, 2016, a pre-action investigation was initiated against him when he entered a restroom while cleaning staff were present and a complaint was filed, 4. On May 18, 2016, he received a letter revoking his certifying official designation, 5. On September 26, 2016, he received a Notice of Temporary Reassignment dated September 22, 2016, 6. On November 16, 2017, the Deputy Public Works Officer (“DPWO”) told Complainant that his certifying official designation was revoked as the result of an internal investigation which prompted the initiation of two additional investigations. Complaint 2 Complainant alleged that the Agency subjected him to a hostile work environment/harassment for engaging in protected EEO activity (Complaint 1) when, on March 23, 2017, the DPWO, denied him the opportunity to participate in the site audit conducted by the NAVFAC SE PWD Product Line Team. After its investigation into the complaint, 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 timely requested a hearing. The Agency submitted a motion for a decision without a hearing, and on September 4, 2019, the AJ issued a decision by summary judgment. The record reveals the following facts: Complainant’s first level supervisor (“S1”) was the Supervisor Facility Management Specialist and Production Director, GS-13, and Complainant’s second level supervisor was DPWO. The Public Works Officer, GS-14, (“PWO”) was Complainant’s third level supervisor. 2020001237 3 As the Panama City PWD BSVE Commodity Manager (also referred to as the Transportation Manager), Complainant had five direct reports: two Transportation Equipment Specialists, GS- 09 and GS-11, a Heavy Mobile Equipment Mechanic, WG-11, and two Work Leaders, GS-11. Complainant was second level supervisor to approximately 9 Heavy Mobile Equipment Mechanics and Operators at levels ranging from WG-07 to WG-11. According to the Transportation Manager, GS-12, position description, Complainant was the certifying official and weight handling equipment administrator for the NSA.” He was “responsible for the economical, efficient and timely accomplishment of the administration, operation, maintenance, acquisition and disposition of a fleet of over 300 pieces of automotive, construction materials handling/weight handling equipment.” Complainant also served as the certifying official for the NSA Panama City Crane Program. On April 24, 2015, following a number of complaints by Complainant’s subordinates, the Union filed an informal grievance alleging that Complainant created an ongoing hostile work environment. As this was not the first complaint about Complainant’s conduct toward his subordinates, DPWO responded to the informal grievance by ordering a Command Climate Investigation. An investigator was assigned, and, along with input from Human Resources, conducted one on one interviews with 14 out of the 15 BSVE Transportation Division employees, including Complainant. A June 28, 2015 pre-action investigative report responding to the informal grievance, and in a formal Command Climate Report for BSVE issued July 29, 2015 revealed five findings of fact: (1) overall morale in the transportation department is low, (2) on multiple occasions, Complainant has used foul language, yelled, and been disrespectful toward personnel in the transportation department, (3) prior to the informal grievance that led to this investigation, there have been multiple internal complaints among personnel, to the union, and to Complainant’s superiors regarding Complainant’s behavior, (4) multiple employees are searching for another job in order to leave the transportation department and (5) the transportation department has fewer personnel than it did 5 years ago. The investigator recommended removing Complainant from his position as Transportation Manager. Meanwhile, on June 30, 2015, Complainant and one of his subordinates engaged in a “loud and emotional disagreement,” that escalated to such an extent that S1, who was out on leave, was called multiple times and DPWO told both parties to leave the premises to cool off. DPWO met with PWO and both agreed that it would be best if Complainant was reassigned. PWO further explained, “leadership within NSA Panama City expressed unified concern for his ability to effectively manage and lead BSVE.” Also, PWO wanted to avoid additional grievances and conflict, as “there had been several instances involving [Complainant] and BSVE personnel that could have resulted in a physical altercation.” 2020001237 4 Complainant was temporarily reassigned to Building 126, instructed to report to DPWO as his first level supervisor, and ordered “not to initiate any contact, by telephone, email, or other means, with any BSVE personnel either during or after work hours,” and “absent the specific approval of [DPWO], Complainant could not enter the BSVE work-spaces in Building 5.” Complainant’s title, grade and pay were not impacted. On August 28, 2015, S1 issued a Notice of Proposed Suspension to Complainant, citing “Unprofessional Conduct by a Supervisor” based on the recommendation in the pre-action investigation and Command Climate Investigation findings. DPWO, as the concurring official issued a Notice of Decision on September 29, 2015, and Complainant was suspended from October 13, 2015 through October 27, 2015. On May 18, 2016 (and other dates), Complainant emailed S1 asking "to be returned to full duty as Panama City Public Work Transportation commodity assigned to building in my old office with all access and rights.” DPWO testified that Complainant also brought up the idea of resuming his former role multiple times in conversation, and that he repeatedly told Complainant that this would not happen because he was “no longer an effective supervisor for the BSVE Branch.” DPWO also told Complainant that working from Building 126 instead of Building 5 was “the best thing for him, the employees in BSVE, and the PWD. S1 testified that based on Complainant’s continued requests, he “felt it necessary to formally assign him to a set of duties.” On June 2, 2016, Complainant received a Notice of Temporary Assignment from the PWO, reiterating the conditions of his initial reassignment, but also specifying Complainant’s duties. According to S1, DPWO and PWO, the Notice addressed Complainant’s requests to return to his former position and rendered his requests to participate in assignments that involved accessing Building 5 or interacting with his former subordinates “moot.” S1, DPWO and PWO had “lost confidence in Complainant’s ability to effectively supervise the BSVE workforce,” and they obtained concurrence from Leadership to assign Complainant other duties rather than return him to Building 5. PWO has continued to issue similar 120-day details since then. On or about the week of July 6, 2015, at least two of Complainant’s subordinates revealed that they foraged another employee’s name as the NSA Panama City Crane Inspector on at least one Certification of Load Test and Condition Inspection Form, calling into question the integrity of the NAVFAC SE PWO Crane Program. On July 31, 2015 the Commanding Officer of NAVFAC SE ordered an investigation into the certification of cranes at NSA Panama City and the support provided by the BSVE staff. At a cost of nearly $150,000, 61 cranes were removed from service to be re-certified, and it was determined that 19 of the cranes, which all listed Complainant as the certifying official, should not have been certified. The investigator recommended Complainant’s removal from the program. Based on the findings of the Crane Project Investigation, the Commanding Officer of NAVFAC SE revoked Complainant’s designation as a certifying official for weight handling equipment and elevated crane trackage an August 16, 2016. Likewise, the Commanding Officer of NSA Panama City revoked Complainant’s certifying official designation September 16, 2016. 2020001237 5 The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s Final Order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment - Claims 1.1, 1.4, 1.5, 1.6 and 2 A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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. 2020001237 6 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency, as the employer, has broad discretion to set policies and make personnel decisions, absent evidence of unlawful motivation. See Burdine at 259, Furnco at 567, Vanek v. Dep’t of the Treas., EEOC Request No. 05940906 (Jan. 16, 1997) In other words, the Commission "does not second-guess the business judgment of Agency officials regarding personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice, EEOC Appeal No. 0120093506 (Jul. 27, 2012) recon. den. EEOC Request No. 0520120603 (Jan. 31. 2013). The Commission has held that allegations of harassing conduct that include discrete acts that would independently state claims outside of a harassment framework, assuming that they are timely, are properly reviewed in the context of disparate treatment. Conlin v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120055310 (Dec. 5, 2006). Therefore, we have analyzed Claims 1.1, 1.4, 1.5, 1.6 and Complaint 2 as disparate treatment claims. While the Agency’s legitimate nondiscriminatory reasons for reassigning Complainant (Claims 1.1 and 1.5), revoking his certifying official designation (Claims 1.4 and 1.6) and denying him the opportunity for fully participate in an audit (Complaint 2) all fall within the scope of its business judgment, they are ultimately a response to Complainant’s conduct. The record contains resounding and emphatic testimony by management officials, both in and outside Complainant’s chain of command, who, having witnessed Complainant’s conduct as a supervisor in Building 5, contend that he should not return to Building 5 or any supervisory role. This combined testimony, as well as the findings of the Crane Project Investigation, its resulting investigations, and the Command Climate Investigation, which recommend removing Complainant from his supervisory roles, are more than sufficient evidence to support the Agency’s assertions about Complainant’s conduct. For Claims 1.1 and 1.5, the Agency issued the June and September 2016 Notices of Temporary Reassignment because leadership and Complainant’s immediate chain of command had lost confidence in his ability to effectively supervise his former subordinates at BSVE or work in Building 5 without causing conflict. The Agency also reasons that Complainant’s reassignment in response to the findings in the Command Climate Investigation, to continue to foster the improvements to morale and productivity in BSVE since Complainant’s departure. Complainant has not shown that a question of fact exists regarding the reasonableness of the Agency’s business judgment in this matter. 2020001237 7 For Claims 1.4 and 1.6, Agency leadership revoked Complainant’s certifying official designations in September and August 2016, to maintain safety, prevent unnecessary costs, and ensure the integrity of its certification process, which were all undermined by Complainant’s conduct. The reasonableness of the Agency’s business judgment is fully supported by the findings of the Crane Project Investigations. While the assigned investigator identified multiple causes for the program’s deficiencies, he specifically noted that Complainant, in his role as Crane Certifying Official, displayed “poor management and abusive behavior, [which] created a negative work climate,” resulting in undue pressure on his subordinates to accomplish tasks “regardless of whether the correct methods were employed.” The investigator recommended Complainant’s immediate removal as the Crane Certifying Official and that the Agency no longer allow Complainant access to the NSA Panama City BSVE spaces. In December 2016, Complainant was interviewed by another investigator for a follow up investigation regarding possible mismanagement of the Crane Project. By the investigator’s account, Complainant “was very frustrated that he couldn't get rid of what he called "government workers." He readily admitted to unprofessional conduct which he said resulted from his frustration….I did not talk to any [Complainant’s] former employees but I don't see any way he could be an affective supervisor in BSVE.” Complainant has not offered any evidence that would create a question of fact regarding the investigative findings, or any other aspect of the Agency’s decision that would indicate that its business judgment was unreasonable and therefore pretext for discrimination. For Complaint 2, the Agency denied Complainant an opportunity to participate in the audit conducted by the NAVFAC SE PWD Product Line Team in order to prevent conflict and lowered morale among his former subordinates, as participation in the audit entailed speaking with them and accessing Building 5. Alternately, the Agency reasoned that the audit was no longer relevant to Complainant’s duties. Even assuming, arguendo that Complainant’s contention that in order to accurately complete his duties, he had to fully participate in the audit, was correct, he would not overcome summary judgment. Complainant has not shown that DPWO, who is responsible for assigning Complainant’s duties, acted unreasonably in terms of business judgment when he denied Complainant’s request out of consideration for the morale of the employees in Building 5. Harassment/Hostile Work Environment - Claims 1.2 and 1.3 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 prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). We have repeatedly found that isolated incidents of alleged harassment are usually not sufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Health and Human Serv., EEOC Request No. 0594081 (Feb. 16, 1995). 2020001237 8 Similarly, it is well established that a supervisor discussing or assigning an employee work duty is a “common workplace occurrence” which does not constitute harassment. See Odis D. Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). We emphasize to Complainant, that while an employee may prefer to perform certain duties, among others within his or her work assignment, or may have a different idea about how operations should be run, these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day to day operations of an Agency for that of the managers involved. Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). As Complainant is unable to show that a question of fact exists as to whether the Agency’s legitimate nondiscriminatory reasons were pretext for discrimination or retaliation for Claims 1.1, 1.4, 1.5, 1.6 and 2, they will not be included in this analysis. As for Claims 1.2 and 1.3, even considering the allegations together, they lack the necessary severity or pervasiveness to constitute harassment. The allegation in Claim 1.2, concerns a common workplace occurrence, namely, a managerial decision made by S1, DPWO and PWO within the scope of their authority. Assuming events occurred as Complainant alleged, by “ignoring” his request to participate in an audit, the Agency effectively denied Complainant’s request. According to the Agency, the denial was confirmed when it issued a Notice to Complainant addressing the subject of his request by explaining his duties, which did not include the audit. Complainant’s allegations describe his disappointment with Management’s decision-making, not harassment. The allegation in Claim 1.3 concerns an isolated incident, as the pre-action investigation was the Agency’s response to a contractor reporting a negative encounter with Complainant, as opposed to Complainant’s actions during the course of his duties. The investigation did not result in a finding or disciplinary action against Complainant. The Commission has held that merely conducting an investigation into purported improper or illegal conduct does not cause any injury without more, for example, resulting disciplinary action. Shelly v. Dep’t of the Treas., EEOC Appeal No. 01996655 (Oct. 27, 2000). Complainant reasons that because he received satisfactory performance appraisals while on his reassignments, the Agency has been subjecting him to a hostile work environment/harassment and discrimination by failing to grant his requests to be reassigned to Building 5 and his prior duties as the Transportation Manager. With respect to the alleged discriminatory acts before us, he has not provided sufficient evidence to establish that a question of fact exists regarding the Agency’s portrayal (supported by evidence) of his conduct. A question of fact does not arise merely because Complainant feels that “he did his time.” 2020001237 9 CONCLUSION After thoroughly reviewing the record and the Parties’ contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s Final Order adopting the AJ’s 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. 2020001237 10 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 July 27, 2021 Date