[Redacted], Tuan P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Dec 23, 2021

Appeal No. 2020004264 (E.E.O.C. Dec. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tuan P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020004264 Hearing Nos. 530‐2016‐00312X 530‐2018‐00455X 530‐2018‐00456X 530‐2018‐00177X 530‐2019‐00012X 530‐2019‐00148X 530‐2019‐00195X Agency Nos. DLAN-15-0220 DLAN‐16‐0270 DLAN‐17‐0071 DLAN‐17‐0107 DLAN‐17‐0162 DLAN‐17‐0268 DLAN‐18‐0070 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 June 18, 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, 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. 2020004264 2 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Distribution Process Worker at the Agency’s Distribution Center in New Cumberland, Pennsylvania. Complainant stated that on May 15, 2015, he did not receive an award when his name was raised for an award because the Branch Chief (Caucasian, white) responded, “no and never.” Report of Investigation (ROI) 1 at 65. The Branch Chief explained that a supervisor outside of Complainant’s area suggested Complainant for an award, but he denied it because Complainant’s supervisor did not nominate him. The Branch Chief added that Complainant’s supervisor nominated another employee for an award, and he did not recall anyone providing a reason to justify an award for Complainant. ROI 1 at 118. On September 9, 2016, Complainant learned that a Caucasian coworker (CW) was similarly charged in a U.S. Magistrate Court but did not receive any disciplinary action, while Complainant received a two-day suspension, which he served on March 22-23, 2016. Complainant averred that CW was cited for disorderly conduct; plead guilty and paid a fine; and was not issued any disciplinary action. ROI 2 at 56-63. Complainant was suspended for a charge of Defiant or Contemptuous Behavior Toward Constituted Authority when Complainant flicked cigarette ashes onto a police officer’s pants and shoes and used profane language during a traffic stop. ROI 2 at 142-6. Complainant stated that in May 2017, the Union President and the Site Director had an email discussion regarding another employee, during which the Site Director stated that if police reports were used outside of the police department, they had to be substantiated by a judge. ROI 5 at 152. EEO Complaints 1. On September 1, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), and color (Black), and in reprisal for prior protected EEO activity, when on May 15, 2015, he did not receive an award. (EEOC No. 530‐2016‐00312X; Agency No. DLAN 15‐0220).2 2. On September 9, 2016, Complainant filed an EEO complaint alleging race discrimination when on June 9, 2016, Complainant learned that a Caucasian employee, who pled guilty to disorderly conduct in U.S. Magistrate Court, did not receive any disciplinary action while Complainant was suspended for his alleged conduct during a stop for speeding. (EEOC No. 530‐2018‐00456X; Agency No. DLAN 16‐0270). 2 The associated EEOC and Agency case numbers for each complaint are consistent with how they were presented in the Administrative Judge’s decision. 2020004264 3 3. On February 28, 2017, Complainant filed an EEO complaint alleging race discrimination and retaliation when on December 30, 2016, Complainant learned that the Agency failed to properly investigate an allegation of assault from another employee. (EEOC No. 530‐2019‐00148X; Agency No. DLAN 17‐0071). 4. On March 22, 2017, Complainant filed an EEO complaint alleging race discrimination and retaliation when on December 30, 2016, the Agency informed Complainant that it conducted an internal inquiry and his harassment claim was not substantiated. Complainant alleged that the investigation was not conducted quickly; the proper people were not interviewed; the outcome was not proper; and he did not receive a copy of the investigation report. (EEOC No. 530‐2018‐00455X; Agency No. DLAN 17‐0107). 5. On June 16, 2017, Complainant filed an EEO complaint alleging race discrimination and retaliation when on May 17, 2017, Complainant learned from the Union President that the Site Director sent an email to the Union President on April 6, 2017, which stated that police reports used outside the department had to be validated/substantiated. (EEOC No. 530‐2018‐00177X: Agency No. DLAN 17‐0162). 6. On October 28, 2017, Complainant filed an EEO complaint alleging race discrimination and retaliation when in June 2017, Complainant did not receive a group award that was awarded to other peers and he was denied administrative leave. (EEOC No. 530‐2019‐00012X; Agency No. DLAN 17‐0268). 7. On February 16, 2018, Complainant filed an EEO complaint alleging retaliation when on December 11, 2017, the Agency did not allow Complainant to volunteer for a place to work and instead assigned Complainant to a less desirable work area; and on February 4, 2018, Complainant learned that he was charged with 15 minutes of absent without official leave on January 28, and 29, 2018. (EEOC No. 530‐2019‐00195X; Agency No. DLAN 18‐0070). At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notices of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. Over Complainant's objections, the AJ assigned to the case granted the Agency’s March 13, 2019, motion for a decision without a hearing and issued a consolidated decision without a hearing on June 4, 2020. The AJ found that Complainant did not establish a prima facie case of discrimination based on race or color. The AJ noted that Complainant only identified one comparator, CW; however, CW was not similarly situated to Complainant. The AJ also found that Complainant did not establish a prima facie case of reprisal for Complaint 1 because he was not eligible for an award. The AJ also determined that Complainant did not show that he was subjected to harassment because he did not show that the Agency’s conduct was severe or pervasive, nor demonstrate a causal connection between his protected status and the Agency’s adverse conduct. 2020004264 4 The AJ concluded that Complainant failed to establish, by preponderant evidence, that he was discriminated against on the bases alleged. 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. Complainant filed the instant appeal and submitted a brief in support of his appeal. The Agency did not respond to Complainant’s appeal. CONTENTIONS ON APPEAL Through his representative, Complainant states that he does not dispute the AJ’s decision for Complaints 3, 4, 6, and 7. However, Complainant disputes the AJ’s finding and/or proffers facts which he claims were omitted or misrepresented by AJ and/or the Agency pertaining to the three remaining cases: Complaints 1, 2, and 5.3 For Complaint 1, Complainant asserts that witnesses contradicted the Branch Chief’s statement, “I know I said no, but I’m pretty sure I did not expand on that or say never.” For example, Complainant avers that a witness stated that the Branch Chief stated, “no and never” during the discussion of Complainant’s award. Regarding Complaints 2 and 5, Complainant argues that the AJ erred when she found that he did not establish his claim of a hostile work environment because the two reports of investigations show that he was a victim of harassment due to the Branch Chief’s “negative opinions” and comments about Complainant to other supervisors and staff members. ANALYSIS AND FINDINGS 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 3 We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant only challenged the AJ’s findings for Complaints 1, 2, and 5; as such, we will only address these complaints in the instant decision. 2020004264 5 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”). Decision without a hearing We 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. 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). We carefully reviewed the record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant argues that other witnesses contradicted the Branch Chief’s statement that he did not “say never” to Complainant’s award. However, we find that this is not material because Complainant did not establish a prima facie case of discrimination based on race or color, or in reprisal for prior protected EEO activity for Complaint 1, as discussed below. Complainant also argues that the records show that he was a victim of harassment due to the Branch Chief’s negative comments about Complainant to other supervisors and staff members, but he did not specify these “negative” comments, nor cite to any supporting evidence in the record for either Complaint 2 or 5. The Commission has found that mere allegations, speculations and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing to Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). A review of the record does not reveal any genuine disputes of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. 2020004264 6 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affs., EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). We find that Complainant did not establish a prima facie case of discrimination based on his race or color for Complaint 1. Complainant may establish a prima facie case of discrimination by providing evidence that: (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) either that similarly situated individuals outside his protected class were treated differently, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. McDonnell Douglas, 411 U.S. at 802 n.13; Reeves v. Sanderson Plumbing, 530 U.S. 133, 142 (2000); Bodett v. CoxCom, Inc., 366 F.3d 736, 743-44 (9th Cir.2004) (internal quotation marks omitted). In this case, Complainant did not identify any comparator who was outside of his protected classes and treated more favorably. Further, Complainant did not show that the circumstances surrounding the discussion of a possible award raised an inference of discrimination, and he did not provide a reason for why he believed that he was discriminated against based on his race or color. ROI 1 at 65. We also find that Complainant did not establish a prima facie case of reprisal for Complaint 1. A complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). Complainant stated that his prior EEO activity was a 2015 complaint filed against his former supervisor, and he claimed that the Branch Chief was “close friends” with this supervisor. ROI 1 at 65. However, Complainant did not provide any evidence to show that the Branch Chief was aware of his prior EEO complaint at the time he declined to give Complainant an award, and the Branch Chief affirmed that he was not aware of Complainant’s prior EEO activity. ROI 1 at 118. Accordingly, we find that Complainant did not prove that the Agency subjected him to discrimination based on race or color, or in reprisal for prior protected EEO activity, for Complaint 1. 2020004264 7 Harassment Harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of a complainant’s employment. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002, at 3 (Mar. 8, 1994). To establish a claim of harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that Complainant belongs to protected classes based on his race and protected EEO activity, but that he did not show that the complained of incidents in Complaints 2 and 5 were due to a protected class. For Complaint 2, Complainant’s then supervisor (White) stated that he proposed the suspension due to Complainant’s inappropriate behavior towards a police officer of flicking a cigarette and use of foul language, which was not the type of conduct that he wanted to see from employees.4 ROI 2 at 93. A Colonel (White), who upheld the suspension in response to Complainant’s grievance, confirmed that Complainant’s behavior of using inappropriate language; unwillingness to cooperate; and flicking a cigarette was inappropriate. ROI 5 at 157. Regarding Complaint 5, the Site Director explained that the Union President obtained a redacted police report for an incident with another employee and requested a change to some information in the report. The Site Director stated that he informed the Union President that a police officer gathers information for a report, which is then reviewed by a supervisor to ensure proper formatting, grammar, etc., but that the facts of the report are not further investigated. The Site Director averred that he stated to the Union President that if a police report is used in a formal proceeding, there would be an opportunity for facts to be validated, if the Union President felt that they were inaccurate. The Site Director further explained that the Union President has since claimed that police reports are not validated, and therefore, cannot be used. ROI 5 at 164. On appeal, Complainant argues that the AJ erred when she found that he did not establish his claim of a hostile work environment, and that the record shows that he was a victim of harassment due to the Branch Chief’s “negative opinions” and comments about Complainant to other supervisors and staff members. However, even crediting Complainant’s assertion that the Branch Chief had “negative opinions” about Complainant, we note that Complainant did not assert that the Branch Chief was responsible for the events included in Complaints 2 or 5, and he did not show evidence of a connection between the Branch Chief and the alleged harassment. As such, we find that Complainant did not establish that the Agency subjected him to harassment based on race, or in reprisal for prior protected EEO activity, for Complaints 2 or 5. 4 The deciding official for Complainant’s suspension retired in July 2016, and he did not provide an affidavit for Complainant’s complaint. ROI 2 at 107. 2020004264 8 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 order adopting the AJ’s decision without a hearing finding that Complainant did not establish that the Agency subjected him to discrimination or harassment based on race or color, or in reprisal for prior protected EEO activity. 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. 2020004264 9 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). 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 23, 2021 Date