[Redacted], Royce O., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Nov 15, 2021

Appeal No. 2021001172 (E.E.O.C. Nov. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Royce O.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001172 Hearing No. 420-2019-00365X Agency No. ARAND18OCT04003 DECISION Complainant timely filed an appeal on December 7, 2020, with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 5, 2020, final order 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 order. ISSUES PRESENTED The issues presented are: (1) whether Complainant established that the Agency's proffered explanations for its actions were pretext to mask discrimination based on his race, sex, and color; and (2) whether Complainant established that he was subjected to a hostile work environment based on his protected classes, as alleged. 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. 2021001172 2 BACKGROUND Complainant, a transgender man, worked as a Machine Tool Operator at the U.S. Army Materiel Command, Tank-Automotive and Armaments Command, Anniston Army Depot in Alabama. Report of Investigation (ROI), at 6. According to Complainant, in July 2014, he notified the Agency of his transition by forwarding his name change decree to Human Resources (HR) and requested that the Agency use male pronouns when referring to him. ROI, at 308. On June 25, 2018, Complainant’s first-level supervisor (S1) issued him with a rating of “4” on his performance appraisal for the rating period of July 1, 2017, through May 31, 2018. Complainant received “successful” ratings in the areas of: Technical Competence; Adaptability and Initiative; and Working Relationships and Communication. But he received a “Needs Improvement” rating in the area of Responsibility and Dependability. Id. at 31-32. According to S1, Complainant was provided with the Needs Improvement rating because he had been marked with Leave without Pay (LWOP) on occasions, and when he did report to work, he would leave early. Id. at 329. S1 explained, moreover, that Complainant had been placed on leave restriction for the past three years, so Complainant requested to build-up his leave. Id. S1 attested that despite Complainant’s efforts to build-up his leave, he was still on the LWOP list. Id. Complainant attested, however, that S1 handed him his performance appraisal on June 25, 2018, and said, “Your leave finally caught up with you this year,” while laughing. Id. at 317. Complainant also maintained that he provided a doctor’s note to justify his absences and S1 never denied his leave requests. Id. at 318. Complainant believed that S1 should not have considered his absences in providing him with the Needs Improvement rating in the area of Responsibility and Dependability. Complainant additionally attested that on August 1, 2018, S1 called him and his coworker (female), saying “I need you two ladies to sign this first.” Id. at 316. Complainant maintained that he returned to sign the document but was upset that S1 referenced him as a lady along with his female coworker. Complainant averred that another employee (male) corrected S1 saying, “Um…don’t you mean sir and ma’am?” Id. According to Complainant, S1 then corrected himself and apologized, but did so with a smirk. Id. Complainant further maintained that he was improperly charged with Leave without Pay (LWOP) in July 2018. Id. at 314. Complainant specifically stated that on July 16, 2018, he called-in 15 minutes before his shift and requested six hours of annual leave and two hours of compensatory leave, which S1 approved. Id. Complainant believed that he had earned enough compensatory time to cover his request but was nevertheless charged with 1.9 hours of LWOP. Id. In response, S1 attested that the Agency’s time and attendance system automatically converted Complainant’s leave to LWOP because the system recognized that Complainant’s leave balance was too low to cover his absence. Id. at 325-327. 2021001172 3 Complainant attested, moreover, that on October 10, 2018, S1 instructed him to “sign off on his stuff.” Id. at 309-312. Complainant thought S1 meant certifying his time and attendance, but the Administrative Assistant clarified that S1 was referring to his mid-point performance appraisal. Id. Complainant averred that while he was signing into the computer system, S1 entered the room and rushed him to complete the task since the due date had passed. According to Complainant, S1 stood over him, instructing him where to click and insisted on overseeing the process. Id. Complainant maintained that he did not have sufficient time to review his mid-point appraisal due to S1’s actions. Id. On November 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (bi-racial - African-American/Caucasian), sex (male, transgender2), and color when: 1. On June 25, 2018, he received a rating of “4” on his performance review; 2. On August 1, 2018, S1 dismissed all employees from a meeting then called him and a female coworker back by raising his voice and saying, “I need you two ladies to sign this first”; 3. In August 2018, he was charged with LWOP; and 4. On October 10, 2018, he was instructed to sign his mid-point performance appraisal electronically without the opportunity to read and understand it.3 Following 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing in the Agency’s favor and issued a decision without a hearing on October 8, 2020. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 3 Three additional claims raised by Complainant were dismissed by the Agency in a Notice of Acceptance/Dismissal dated November 30, 2018. We decline to address the Agency’s partial procedural dismissals herein, as Complainant does not challenge them on appeal. 2021001172 4 CONTENTIONS ON APPEAL On appeal, Complainant, through his representative, contends that management subjected him to discrimination and a hostile work environment during his gender transitioning process. Complainant maintains that the Agency did not follow any policy or procedures to protect him during his transition, and instead sought to embarrass him using gender identity, gender expression, and gender non-conforming terms. Complainant further maintains that the Agency did not protect his confidential medical information4 and did not provide training to management with respect to what to expect during the transitioning of employees while working in the workplace. He additionally contends that the Agency did not try to assist him with requesting leave under the Family Medical Leave Act (FMLA), as he was not aware of how to apply for FMLA at that time during his transition.5 Complainant believes that a hearing is necessary because there are genuine issues of material fact in dispute and the record before the AJ was not adequately developed.6 In response to Complainant’s appeal, the Agency requests that we affirm its final order finding no discrimination. 4 Complainant contends on appeal that the Agency did not protect his confidential medical information. Complainant raised the issue of medical confidentiality for the first time on appeal. The issue, however, was never investigated. The Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, we will not visit an issue raised for the first time on appeal. 5 We note that Complainant improperly raised for the first time on appeal issues regarding the Agency’s handling of his transition. In addition, he raised claims regarding the processing of FMLA which fall under the regulatory ambit of the Department of Labor, not the Commission. Therefore, the Commission has no jurisdiction over challenges of the Agency's decisions on FMLA requests. See Stensgard v. U.S. Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012). 6 We note that Complainant filed a second brief in support of his appeal on February 5, 2021. We find this second brief filed by Complainant to be untimely. We note that the Commission's regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). Here, Complainant submitted his second brief, well beyond his deadline of 30 days after he filed his appeal on December 10, 2020. As such, we will not consider Complainant's arguments on appeal with respect to the second filed brief. 2021001172 5 STANDARD OF REVIEW 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and the Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chap. 9, § VI.A. (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”). ANALYSIS AND FINDINGS Summary Judgment We first determine whether the AJ appropriately issued the decision without a hearing. The Commission's regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC's decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party's evidence and must draw justifiable inferences in the non-moving party's favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. Further, an AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep't of Def., EEOC Appeal No. 01A24206 (July 11, 2003). Having reviewed the record, we find that the AJ correctly determined that there are no genuine issues of material fact or credibility that merited a hearing. Therefore, the AJ's issuance of a decision without a hearing was appropriate, as discussed further below. 2021001172 6 Disparate Treatment (Claims 1, 3, and 4) To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n. 13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on his race, sex, and color, the Agency articulated legitimate, nondiscriminatory reasons for its actions with respect to claims 1 and 3. Regarding claim 1, S1 explained that Complainant was marked with a “Needs Improvement” rating in the area of Responsibility and Dependability because he had been marked with LWOP on occasions, and when he did report to work, he would leave early. ROI at 329. S1 additionally explained that Complainant had been placed on leave restriction for the past three years, so Complainant requested to build-up his leave. Id. S1 attested that despite Complainant’s efforts to build-up his leave, he was still on the LWOP list. Id. In addressing claim 3, S1 explained that the Agency’s time and attendance system automatically converted Complainant’s leave to LWOP because the system recognized that Complainant’s leave balance was too low to cover his absence. Id. at 325-327. As for claim 4, S1 averred that he instructed Complainant to sign-off on his mid-point appraisal in the manner he did because the deadline had passed, and he assumed Complainant needed assistance because Complainant had asked the Administrative Assistant about navigating the computer system. Id. at 324. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. Upon review, we find that Complainant has not established that the Agency’s reasons for its actions were pretextual or that the Agency was motivated by discriminatory animus. In so finding, we note that Complainant has not presented any evidence in the record refuting S1’s contentions that he was unreliable due to his time and attendance issues. We note that there is no dispute that Complainant requested unscheduled leave only 15-minutes before the start of his shift on July 16, 2018, requesting leave and compensatory time. S1 nevertheless approved Complainant’s last-minute leave request for personal reasons. While Complainant may have been charged with 1.9 hours of LWOP on that day, there is no evidence in the record demonstrating that S1’s explanation that Complainant did not have enough compensatory time to cover his leave was unsubstantiated. We note that the Deputy Director averred that S1 usually granted Complainant’s request for leave, but the Agency’s time and attendance system would charge Complainant with LWOP to meet the 80-hour requirement for a given pay period. 2021001172 7 ROI at 339-340. Moreover, regarding claim 4, we note that the Administrative Assistant attested that Complainant came to her for assistance in signing his mid-point appraisal, and so she asked S1 for help because the computer system was new. Id. at 355. We find that Complainant has not established that he was subjected to disparate treatment discrimination with respect to claims 1, 3, and 4. Hostile Work Environment Finally, to the extent that Complainant is alleging that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Systems. Inc., 510 U.S. 17 (1993), Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on the Commission's finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus with regard to claims 1, 3 and 4. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). With respect to claim 2, we find that Complainant has not established that S1’s action was severe or pervasive enough to rise to the level of a hostile work environment. For example, there is no dispute that S1 apologized to Complainant for using the wrong pronoun in referring to Complainant, and we note that Complainant has not alleged that S1 used the wrong pronoun on more than one occasion. Therefore, we determine that the event described in claim 2 was an isolated incident that did not rise to the level of a hostile work environment. While isolated incidents of harassment generally do not violate federal law, a pattern of such incidents may be unlawful. We do not condone the statement made by S1 in reference to Complainant and caution the Agency against any future similar statements or conduct. We find that S1’s statement regarding claim 2 may have the potential to create a hostile work environment so we caution the Agency to advise its managers and employees about what behavior is appropriate in the workplace. See Hill v. U.S. Postal Serv., EEOC Appeal No. 0120102274 (Sept. 23, 2010). However, we find that, in looking at the totality of the circumstances, the record reflects that claims raised were not so abusive as to rise to the level of a hostile work environment. The Commission notes that Title VII is not a civility code. Rather, it forbids “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). We find that Complainant has not established that he was subjected to discrimination or harassment, as alleged. 2021001172 8 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFRM the Agency’s final order. 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. 2021001172 9 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 November 15, 2021 Date