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

Equal Employment Opportunity Commission

Oct 14, 2021

Appeal No. 2021004001 (E.E.O.C. Oct. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tyson A.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004001 Hearing No. 480-2020-00449X Agency No. ARIMCOMHQ19JUL02929 DECISION On July 7, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 14, 2021 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. BACKGROUND During the relevant time, Complainant worked as an EEO Counselor at the Agency’s United States Army Garrison in Okinawa, Japan. On September 24, 2019, Complainant filed a formal complaint, which he later amended, claiming that the Agency unlawfully retaliated against him for his prior protected EEO activity when: a. In late January/February 2019, the EEO Manager contacted Collateral Duty EEO Counselors assigned to U.S. Army Garrison Okinawa, Japan, prior to making initial contact with Complainant. 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. 2021004001 2 b. On or about April 5, 2019, the EEO Manager instructed Complainant not to provide required sustainment training to Collateral Duty Counselors assigned to U.S. Garrison, Okinawa, Japan, which was done with the intent to undermine him in the workplace. c. On June 5, 2019, the EEO Manager directed Complainant to “coach” an inexperienced Collateral Duty EEO Counselor who had been assigned to process a pre-complaint that was 49 days old. d. On June 7, 2019, the EEO Manager falsely informed an EEO Assistant that Complainant deliberately hung up on her. e. On June 10, 2019, Complainant became aware the EEO Manager attempted to change his position description. f. On unspecified dates, EEO Manager 2 failed to select Complainant and failed to forward his multiple requests to be certified as a collateral duty EEO Counselor trainer. g. From June 4-8, 2018, when EEO Manager 2 served as instructor for Department of Army EEO Counselor Certification Course, Tori Station, Okinawa, and declined to certify Complainant as a trainer. h. In early August 2018, Complainant applied for EEO Manager position, Vacancy Announcement Number FEFC180190350214, Control Number 507506800, open from August 8-20, 2018 on USDJOBS website; the vacancy was withdrawn and posted within days, requiring Complainant to re-apply for the position a second time. i. On or around November 6, 2018, EEO Manager 2 interfered in the hiring process for Vacancy Number FEFC 1801903508269, resulting in the Complainant’s non- selection for the position. j. In late 2018/early 2019, the Colonel did not select Complainant for EEO Manager position, Vacancy Announcement Number FEFC1801903508269, Control Number 509515000. k. On July 10, 2019, EEO Manager 2 blamed Complainant for failure to issue a Collateral Duty Counselor a certificate of completion (delayed by more than one year), although Complainant had followed up with EEO Manager 2 about the matter several times. l. On August 19, 2019, EEO Manager 2 contacted the IMCOM EEO official, and other U.S. Garrison Okinawa, Japan employees, regarding Complainant’s attendance to the 2021004001 3 Federal Dispute Resolution Conference (FDR) in Philadelphia, Pennsylvania, conducted August 12-19, 2019. m. From November 14, 2019 to present, EEO Manager 2 used his influence to manipulate Agency Officials in the appointment/non-appointment of an Acting EEO Manager for USAG Japan and interfered with communications between the USAG Japan and USAG Okinawa EEO offices. n. On November 14, 2019, EEO Manager 2 accused Complainant of not doing his “due diligence” in ensuring the LTC Garrison Command, was not named in four EEO complaints and asked members from the Staff Judge Advocate Office (Agency representative, USAG Japan and the Chief of the Administrative and International Law Division, USAG Okinawa) to review Complainant’s work. o. On January 15, 2020, EEO Manager 2 deemed Complainant’s request for documents for EEO cases as inappropriate and accused Complainant of malpractice/wrongdoing when he elected not to use collateral duty counselors. p. On January 16, 2020, EEO Manager 2 did not invite Complainant to a meeting to discuss EEO cases Complainant was processing. q. On January 17, 2020, the Deputy to the Garrison Commander (Deputy), on the recommendation of EEO Manager 2 did not invite Complainant to a meeting on EEO cases Complainant was processing. r. Between September 9, 2019 and January 17, 2020, EEO Manager 2 and the Deputy issued Complainant and EEO Specialist conflicting instructions which had an impact upon the EEO process and efficiency. s. On January 16, 2020, EEO Specialist informed Complainant that the Deputy wanted him to cease his role as the administrative processor for six complaints. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the case issued a Notice of Intent to Issue a Decision Without a Hearing on May 4, 2021. Both Complainant and the Agency responded to the Notice of Intent. On May 20, 2021, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. 2021004001 4 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). 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 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. In his formal complaint and investigative affidavit Complainant identified his role as an EEO counselor, his settlement recommendations in three complaints, and the pursuit of the instant complaint as his relevant protected activity for which he believes he was being subjected to harassment based on retaliatory animus. 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 a protected basis - in this case, based on his claimed protected 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 applied to be an EEO Manager, GS-13, in late 2018. He was not selected and another candidate was chosen. Both the selectee and Complainant were interviewed by a panel, who recommended the selectee because they believed she better articulated her prior supervisory experience. The Colonel accepted the recommendation of the panel and stated that he did not know the selectee at the time he chose her. In addition to his non-selection, the essence of Complainant’s claims are that after her selection and arrival in the office the selectee (“EEO Manager”), with ill intent, attempted to change his position description and engaged in a pattern 2021004001 5 of harassing him about his work and wrongly accusing him of petty misconduct like hanging up on her. Complainant also alleged that the EEO Manager, IMCOM-Pacific, GS-14 (“EEO Manager 2”) interfered with the selection process to ensure he was not selected and, on various occasions, blamed/accused Complainant of various work problems. In his decision, the AJ determined that while Complainant raised a variety of issues, including being removed from a single group of cases, being subjected to work performance criticisms, and experiencing a lack of communication, such actions would not have obstructed Complainant’s ability to perform his duties as an EEO Counselor. The AJ further noted that Complainant failed to provide any specific example, supported by competent evidence, to establish that management’s actions had the actual effect of unreasonably interfering his duties as an EEO Counselor or were motivated by retaliatory animus. The image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes only prohibit harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that any of the management officials involved in the disputed matters were motivated by retaliatory animus. Based on the evidence of record, it is highly unlikely that the EEO officials accused by Complainant of retaliation harbored animus towards him because of his role as an EEO counselor or his participation in the settlement of cases, part of his official duties. Rather, the weight of the evidence indicates that these events were common workplace disagreements regarding the organization of the office and the performance of work tasks. Complainant’s claim of harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision by summary judgment finding no discrimination was established. 2021004001 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). 2021004001 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 14, 2021 Date