0120181550
08-23-2018
Shane L.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Shane L.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120181550
Agency No. ARFTSAM17DEC04642
DECISION
On April 2, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated March 16, 2018, dismissing his complaint of unlawful 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
At the time of events giving rise to this complaint, Complainant worked as an Accountant, GS-0510-13 at the Agency's Headquarters Installation Management Command (IMCOM), G8, Financial Operations (FINOPS) Division, on a team therein in Fort Sam Houston, Texas.
On January 24, 2018, Complainant filed an EEO complaint which the Agency defined as alleging he was subjected to discrimination and a hostile work environment based on his national origin (German-American) and age (54) when:
1. In July 2017, Co-worker 1 refused to assist or provide him information on the Joint Review Program (JRP), one of his major performance objectives;
2. In July 2017, his first line supervisor (S1), a Chief within FINOPS, stated that she would prefer to have Co-worker 2 instead of Complainant in FINOPS; and
3. On December 19, 2017, S1 provided him a memorandum with a notice of failing multiple elements of his performance objectives for his mid-term review.
After a five-year tour in Japan, in late June 2017, Complainant returned to IMCOM, FINOPS Division in Fort Sam Houston, Texas. Before leaving for Japan, he worked in IMCOM, Budget Division, in Fort Sam Houston, Texas.
Co-worker 1 previously performed the JRP function, and Complainant was assigned to take over. Regarding issue 1, Complainant contended that Co-worker 1 showed him the JRP standard operating procedures document, which he described as 61 pages and complex, but would not answer his questions. He related to the EEO counselor that he never felt welcome or able to talk to anyone regarding the JRP requirements and duties. S1 related to the EEO counselor that Coworker 1 created a training document with a hands-on overview for everyone in FINOPS, which Complainant accessed on his computer. The Chief of the FINOPS Division, Complainant's second line supervisor (S2), related to the EEO counselor that Coworker 1 provided Complainant some hands on JRP training, and around October 2017 created the referenced training. S2 added that when asked a question, he gladly provides guidance. Coworker 3, an Accountant, GS-12, in FINOPS who Complainant cited as a supporting witness, related in January 2018, to the EEO counselor that she trained Complainant on several JRP function items. Coworker 4, an Accountant on his FINOPS team who Complainant cited as a supporting witness, related in January 2018, to the EEO counselor that Coworker 1 provided some "on the fly" JRP training to Complainant during the JRP process.
Coworker 2 was on a tour in Europe and returned around the same time as Complainant. Before she left, she was assigned to the FINOPS Division. On incident 2, Complainant wrote that in July 2017, Coworker 3 advised him that before he arrived S1 told FINOPS that she did not want Complainant in FINOPS, and when he later had a conversation with S1 about this, she said that what she said was taken out of context, but acknowledged saying she preferred to have Coworker 2 since she can do a lot (knowledgeable and capable in relevant areas). Complainant indicated that this showed he is working in a hostile environment. Coworker 3 related to the EEO counselor that S1 told several people in FINOPS that they were getting a new employee, she did not want him, but was forced to take him.
S1 related to the EEO counselor that in June 2017, shortly before Complainant and Coworker 2 were scheduled to return from their overseas assignments, S2 conducted a FINOPS Division meeting and informed the participants, including herself, that Coworker 3 would be assigned to IMCOM, Budget Division. S1 related that one team member angrily asked why Coworker 2 was not returning to the FINOPS Division since before they left Coworker 2 was there and Complainant was in the Budget Division. S1 related to the EEO counselor that to calm things down she said she was not happy either, but the decision was made. She related that when she said this she meant that she said she was unhappy they were not getting Coworker 2, not that she was unhappy to receive Complainant. Coworker 4 related to the EEO counselor that he heard rumors that S1 did not want Complainant in FINOPS, and believed she may have preferred to have Coworker 2 there because she had a proven track record in FINOPS and IMCOM Europe.
Regarding the unfavorable mid-term review, Complainant wrote that he received no effective training or support from FINOPS, and related to the EEO counselor that the mid-term evaluation was one-sided and inaccurate.
The Agency dismissed the complaint for failure to state a claim. It reasoned that Complainant was not aggrieved because he was not harmed. Citing Commission case law, the Agency found that periodic performance reviews not recorded in employee's official personnel folder do not constitute an adverse action. The instant appeal follows.
Complainant argues that the Agency mischaracterized his complaint. He argues that he also alleged discrimination when he was stalked and spied upon, humiliated in front of others, was not invited to a meeting, his physical presence was not acknowledged, and he was threatened with discipline and termination.
ANALYSIS AND FINDINGS
In his complaint, Complainant only listed issues 1, 2 and 3. A review of what Complainant submitted to the EEO counselor and her report does not show that he alleged he was stalked and spied upon and humiliated in front of others. Accordingly, the Agency correctly did not define these later matters as being part of his complaint.
We find that Complainant's claims that he was threatened with discipline and termination is part of issue 3 - he related to the EEO counselor that in his mid-term review memorandum, S1 advised they would meet again on January 29, 2018, and if he had not made progress he would be placed on a Performance Improvement Plan (PIP).
A review of what Complainant submitted to the EEO counselor and her report shows he raised not being acknowledged and excluded from a meeting. He wrote that upon his arrival in FINOPS, he met with S1 and S2, but was not greeted by FINOPS employees, nor received a warm welcome when he was in a class with new Coworker 1. He alleged that he was ignored by FINOPS employees, and not formally introduced by S1 to FINOPS employees until four weeks after he arrived. He alleged that he rarely saw S1, and she did not greet him with a "good morning." He related to the EEO counselor that he was not invited to a meeting regarding a possible change in the due date for the JRP submission because of Hurricane Harvey. We find that Complainant not being sufficiently acknowledged and nor invited to a specified meeting are part of his complaint.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive" and the complainant subjectively perceives it as such. Harris, at 21-22. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment.
The Commission has held that periodic performance reviews which are not recorded in the employee's official personnel folder do not constitute adverse actions. See Licari v. Department of Transportation, EEOC Appeal No. 0120093405 (Nov. 17, 2009) (because there is no evidence in the record that complainant's mid-year performance review was recorded in the complainant's official personnel folder, the Commission finds that the alleged claims fail to state a claim. Moreover, the Commission finds that the agency's alleged conduct was not sufficiently severe or pervasive to alter the conditions of the complainant's employment to establish a claim of harassment).
Here, Complainant alleges that in July 2017, Coworker 1 did not provide him effective training on an important project. He does not contest the representation of his supporting witness Coworker 3 that she trained him on several JRP functions items. He does not contest the representation of his supporting witness Coworker 4 that Coworker 1 provided Complainant informal training during the JRP process. Nor does Complainant contest S2's assertion that he was happy to provide guidance when asked, nor claim S1 rebuffed requests for guidance.
At this point it is unclear whether S1 in a meeting prior to Complainant's arrival said that she was not happy with the decision to assign him to FINOPS but the decision was made, or whether she said she would have preferred Coworker 1 to have been assigned there and some listeners took this to mean she did not want Complainant. In any event, Complainant was not at the meeting so S1 did not say the comment to him there as an insult, and after Complainant later complained about the comment and talked to S1 about it, she explained to him that she only meant that she would have preferred Coworker 2 to be assigned to FINOPS based on her knowledge and capabilities (she previously worked in FINOPS). While we understand that this did not make Complainant feel welcomed with open arms, this was not a severe comment.
Complainant felt that he was not sufficiently acknowledged and made to feel included. But he also wrote that upon his arrival to FINOPS, he met with S1 and S2, and that four weeks later S1 formally introduced him to FINOPS staff. Complainant's writings also suggest that he felt comfortable approaching S2. Coworker 4 is on the same FINOPS team as Complainant, and related that S1 was filling in since the previous supervisor for their team took an assignment in Europe. Coworker 4 related that it was not uncommon for them not to have ongoing communication with S1. Complainant wrote that S1 was just filling in, and he rarely saw her. Also, since Complainant asked the EEO counselor to get supporting information from two FINOPS coworkers, who provided some support, the record strongly suggests positive interaction with some coworkers. While Complainant upon his arrival to FINOPS did not feel embraced, his description of his interactions overall don't rise to the level of being abusive. Likewise, not being invited to a meeting regarding scheduling is not harassing in nature.
Complainant did not contend below or on appeal that his mid-year review was recorded in his official personnel file. Further, given the low temperature of Complainant's other allegations, even when the mid-year review is added to the harassment claim, all the incidents together are not sufficiently abusive, severe or pervasive to rise to the level of actionable harassment.
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
August 23, 2018
__________________
Date
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.
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