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

Equal Employment Opportunity Commission

Oct 4, 2021

Appeal No. 2020003530 (E.E.O.C. Oct. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020003530 Agency Nos. ARPEOSTRI18MAY0117, ARPEOSTRI18MAY03244 DECISION Complainant filed an appeal2, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 10, 2020, final decision 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. The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS the final decision. BACKGROUND At the time of the events giving rise to this Complaint, Complainant worked as an Electronics Engineer, NH-0080-03, with the Agency’s Program Executive Office-Simulation, Training and Instrumentations (PEO STRI) in Orlando, Florida. The Senior Intelligence Officer was his first- level supervisor (S1) and his second level supervisor was the Colonel, Chief of Staff (S2). Complainant learned he received an Overall Contribution Score of 78 on his Fiscal Year (FY) 2017 Contribution-Based Compensation and Appraisal System (CCAS). The appraisal system was a contribution-compensation based system, where the score or rating was based on what 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 This initially premature appeal has since been cured by the Agency's issuance of its final decision. 2020003530 2 contributions the employee made for that rating cycle. The rating received determined whether an employee received an increase in compensation and an employee that contributed higher than the specified range was performing appropriately. At the beginning of the rating cycle the supervisor and employee developed expected contributions and objectives. During the mid-year review, they discussed the employees’ contributions, and at the end of the rating cycle, the employee reported accomplishments, which the supervisor reviewed. A review panel (Pay Pool Review Panel) then determined the rating and compensation. Complainant’s Expected Contribution Score was 82. The Pay Pool Review Panel’s contribution score of 78 resulted in Complainant not receiving a bonus or a salary increase. Complainant claimed that his CCAS lowered rating was a result of S1 retaliating against him for a prior EEO complaint. S1 attempted to meet with Complainant to discuss his FY2017 CCAS appraisal; however, S1 wanted a witness present for the meeting. Complainant objected to having a witness present, so S1 emailed the appraisal to Complainant. Around January 30, 2018, Complainant filed an administrative grievance regarding the FY2017 CCAS rating. On March 13, 2018, a decision on the grievance was issued, which did not find any procedural or substantive error in his appraised contribution and there was no basis to revise the factor scores. The decision upheld his FY2017 CCAS rating. On May 29, 2018, Complainant filed a formal EEO complaint (Agency No. ARPEOSTRI18MAY0117) alleging that he was discriminated against in reprisal for prior protected activity when: 1. On March 19, 2018, he became aware he did not receive an accurate performance rating from his first-level supervisor during the Fiscal Year (FY) 2017 Contribution- Based Compensation and Appraisal System (CCAS) rating cycle. Complainant claimed that S1 created a hostile work environment when he repeatedly went out of his way to lie about Complainant, which made him feel disrespected and not appreciated. Complainant alleged that he was constantly walking around on eggshells. For example, Complainant claimed that he was assigned the Games for Training (GFT) tasker as an act of reprisal, then admonished in front of a co-worker saying he did not apply the correct security measures when he transmitted the document. Complainant claimed that the document was no different than previous documents he had sent to S1, and he does not understand why there was an issue with this document, other than it is further evidence S1 lied about him and changed the classification to retaliate against him. Complainant added that S1 constantly said Complainant’s work was unprofessional because he used cutting and pasting methods to help drive his message, but the practice was consistent with Agency policies. In addition, in June 2018, Complainant was assigned an overdue tasker that S1 stated had been erroneously assigned to a coworker (CW1). Complainant and S1 exchanged a series of emails regarding this tasker. 2020003530 3 Complainant informed S1 that based off of the instruction template which stated CW1 was responsible for the tasker, that CW1 was the person responsible for the tasker, and that from the beginning he had not been involved with the tasker. Complainant stated S1 harassed him when he lied to Complainant stating it was incorrectly assigned to CW1. Additionally, Complainant was asked if he had Secure Internet Protocol Router Network (SIPR) access in order to access documents for this tasker. Complainant replied he thought he still had a token, but that it might have been revoked for lack of use. S1 informed Complainant he was required to maintain SIPR access to conduct the tasks of his position, to which Complainant thanked S1 for finally informing him after four plus years of being under S1’s supervision that he was required to maintain a SIPR account. In August 2018, S1 issued Complainant an informal counseling based on Complainant’s disrespectful email, noting S1’s concern over the response because “SIPRNET token is an accountable item attributed to a classified network” and the token was assigned to Complainant. Complainant claimed that the hostilities made the work environment difficult and co-workers avoided him. Complainant alleged that his work reputation was tarnished and no one wanted him on their team. On August 28, 2018, Complainant filed a second formal EEO complaint (Agency No. ARPEOSTRI18MAY03244) alleging the Agency subjected him to discrimination and a hostile work environment on the basis of reprisal for prior protected EEO activity when: 2. On May 29, 2018, S1 harassed and intimidated him when he openly criticized the quality of complainant’s work, and openly discussed complainant’s work with other coworkers and certain management officials in his chain of command; and 3. On June 7, 2018, S1 assigned complainant additional workload with an overdue suspense date. The Agency consolidated the two complaints for processing. At the conclusion of 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final agency decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency found that Complainant was not subjected to reprisal or a hostile work environment as alleged. The instant appeal followed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (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, 2020003530 4 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”). 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). 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. Corp. 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, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Burdine, 450 U.S. 248, 253 (1981). 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Assuming arguendo Complainant established a prima face case of reprisal, we find that the Agency articulated, legitimate, non-discriminatory reasons for its actions. S1 explained that on various occasions, he expressed to Complainant he needed to step up and take responsibility and ownership of the technology protection mission. S1 explained that issues identified during Complainant’s mid-point assessment were still ongoing and had not improved by the end of year, which is why the narratives on the FY17 year-end CCAS were the same as statements used in his midpoint assessment. S1 further stated that Complainant first began showing issues with communication and teamwork in 2016, such as not communicating or coordinating with program managers, developing inaccurate reports, and using data that was several years out of sync. However, because Complainant was still contributing in 2017, it did not affect his rating. S1 stated that he has explained to Complainant for the past three years that Complainant’s evaluations lacked an analytical analysis and an assessment of his evaluations when it came to technology protection. Instead, Complainant ‘cut and pasted’ documents into an evaluation, which he used as reference material, but did not integrate the materials into any analysis that lead to a decision or conclusion. S1 stated that he used Complainant’s score from the previous year as the benchmark for the subsequent year and submitted a recommended score to the Pay Pool Review Panel, who gave the final score in the CCAS rating process. The Pay Pool Review Panel consisted of all senior leaders that had contact or knew Complainant, or whose employees worked with Complainant. They discussed and compared an employee’s performance and contribution measured against their previous FY year-end report. S1 recommended a score minus three (compared to the expected score) to the Pay Pool Review Panel, but the Pay Pool Review Panel changed the score to a minus four, for a final overall contribution score of 78 for FY2017. 2020003530 5 The final approval of the overall contribution score was the Pay Pool Manager (PPM), the Deputy Program Executive Officer. PPM explained that there was concern over Complainant’s lack of engagement, not taking an active role in assigned work with the Project Managers, unwillingness to work through differences in the workplace and the impact of delays of documents he was responsible for managing. Additionally, PPM stated that Complainant’s rebuttal evidence submitted when he grieved his CCAS rating failed to provide new information and did not address actual projects he was assigned to perform and analyze, which is why her decision on Complainant’s FY2017 CCAS grievance concluded the rating would not be revised. PPM maintained the evidence supported the CCAS rating, and “probably even supported a lower rating. I think the supervisor was trying to rehabilitate him, and believe he was trying to get him back on track as a better employee.” The Commission finds no persuasive evidence that Complainant's protected class was a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of retaliatory animus. Complainant failed to carry this burden. Aside from conclusory statements and his subjective belief, Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for reprisal. As a result, the Commission finds that Complainant was not subjected to reprisal as alleged. Hostile Work Environment To establish a hostile work environment claim, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). Therefore, 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 protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. The Commission finds that the Complainant failed to show he was subjected to conduct so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. 2020003530 6 Even assuming arguendo that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, Complainant failed to show that the Agency’s actions were based on retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. For example, with regard to Claim 2, S1 denied openly criticizing Complainant, but stated he typically responds “Reply All” in emails Complainant sends to his peers stating S1 is untruthful. S1 stated Complainant was the one who revealed the nature of their discussions regarding Complainant’s work quality when Complainant sent out a calendar invite to the entire workforce that attached all of Complainant’s suspension documents. S1 stated he discussed Complainant’s work quality with leadership and addressed concerns he received from program managers and Complainant’s coworkers. Regarding Claim 3, S1 explained he reassigned the tasker because he realized it was better suited to Complainant’s abilities and Complainant should have had readily available the information required. S1 stated the tasker was not considered late because it was delivered past due from Headquarters. S1 further explained that Complainant was never counseled when he did not complete it after he fought accepting responsibility for the tasker. There is no evidence aside from conclusory statements that Complainant’s protected basis was the reason behind the Agency’s actions. As a result, the Commission finds Complainant has not shown he was subjected to a hostile work environment. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. 2020003530 7 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). 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. 2020003530 8 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 4, 2021 Date