U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Levi P.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120181207
Agency No. 16-00421-03288
DECISION
On March 5, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the
Agency’s January 30, 2018 final decision concerning an equal employment opportunity (EEO)
complaint claiming 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., and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as an Electronics Engineer at the Agency’s
Aircraft Prototype System Division (APSD), Air Vehicle Modification and Instrumentation
(AVMI) facility in Patuxent River, Maryland.
On November 28, 2016, Complainant filed a formal EEO complaint claiming he was subjected
to harassment/a hostile work environment based on race (Jamaican), national origin (Jamaican),
sex (male), disability, and in reprisal for prior EEO activity when:
a. in or around the late part of 2015, two co-workers (Co-worker 1 and Co-worker 2,
respectively) came to Complainant’s house and then at work talked about how big his
house was and tried to obtain his financial and medical information;
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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b. in or around the late part of 2015, Co-worker 1 sent him a text with his property
value;
c. in or around the late part of 2015 and continuing into 2016, Co-worker 1 and Co-
worker 2 commented on the vehicle of Complainant’s wife;
d. on or around March 16, 2016 and continuing to present, Complainant’s first-line
supervisor (S1), second-line supervisor (S2), third-line supervisor (S3), and the Naval
Air Warfare Center Aircraft Division (NAWCAD) EEO office ignored his ongoing
concerns;
e. in or around July 2016, S1 and S2 denied his request for advanced leave;
f. in or around summer of 2016, S1 refused approving him payment for a semester at
Johns Hopkins University in pursuit of a master’s degree, even though his previous
supervisor, the fourth-line supervisor (S4), had approved the payment;
g. on or around August 1, 2016, S1 removed him from a project (426-14) with no
explanation for the removal;
h. on or around August 1, 2016, he was asked to work on a lesser project (103-10
Avionics Obsolescence Upgrade (AOU)) which he felt was inferior to his level of
expertise;
i. on or around August 5, 2016, during a meeting with S1 to discuss Complainant’s
promotion rating, Complainant was informed that due to his performance (with no
explanation of what it was about his performance) he would only receive an 8 percent
increase;
j. on or around August 5, 2016, S1 asked Complainant where he was from which he
found offensive and made him feel like a lesser person;
k. on or around August 23, 2016, he was assigned to inventory electrical tools which is
not part of his current job description;
l. in or around September 2016, while not sexual in nature, another co-worker (Co-
worker 3) told him to “go back to Jamaica;”
m. on or around September 30, 2016, S1 ignored Complainant’s concerns that his work
was being affected by unauthorized tasking (sabotage) done on his drawings;
n. in or around fall 2016 to present, Human Resources Specialist (HR Specialist)
collaborated with S1, S2 and S3 to terminate Complainant;
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o. on or around October 5, 2016, S3 questioned Complainant because he assumed that
Complainant had the Deputy Assistant Commander (DAC), Senior Executive, initiate
a management inquiry;
p. on or around October 14, 2016, he received a Letter of Caution from S1;
q. on or around October 24, 2016, S3 and HR Specialist ignored his concerns that his
work was being affected by unauthorized tasking (sabotage) done on his drawings;
r. on or around October 27, 2016, the stress of S1, S2, and S3, and others, HR
Specialist, Co-worker 3, and another co-worker (Co-worker 4), caused Complainant
to have a heart attack and incur almost $80,000 in medical expenses;
s. on or around October 28, 2016, S1 visited Complainant and his wife uninvited, in the
hospital, prayed with Complainant and asked him questions about his medical
disability;
t. in or around October 2016 and November 2016, he was not given the opportunity by
S1, S2, and S3 to rebut false claims against him, which resulted in a Letter of Caution
and Letter of Reprimand;
u. on or around November 3, 2016, upon Complainant’s return to work, S1 asked him
about his medical situation;
v. on or around November 7, 2016, S3 called Complainant into his office with HR
Specialist which made him go into cardiac attack, and on or around November 7,
2016, he received an official Letter of Reprimand from S1;
w. on or around November 8, 2016, he was placed on administrative leave by S3;
x. on or around November 8, 2016, S1, S2, and S3 tried to terminate him from his
position;
y. on or around November 8, 2016, S1, S2, and S3 defamed Complainant’s character
during a meeting where he was told that he was a threat to the organization;
z. on or around November 8, 2016, S1, S2, and S3 collaborated with employees HR
Specialist 1, Co-worker 1, Co-worker 3, Co-worker 4, two other co-workers (Co-
worker 5 and Co-worker 6, respectfully) to retaliate against him by instructing them
to email S1 stated that they were afraid of Complainant;
aa. on or around November 8, 2016, S1 spoke to Complainant in his office about his
medical condition and S3 joined as a witness. S1 and S3 became violent and
aggressive toward Complainant in this meeting;
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bb. on or around November 9, 2016, S3 and HR Specialist instructed him via telephone
not to communicate with the DAC, Executive Director, NAWCAD;
cc. on or around December 27, 2016, he received his FY16 STRL Performance Plan
Annual Appraisal, reference (d) which indicated that he was not awarded a bonus or a
salary increase, which he alleges was due to S1 not providing the correct information
to the pay pool;
dd. on or around April 12, 2017, S1 and S2 made false statements against him during the
fact-finding conference for the instant case;
ee. in or around April/May 2017, he was issued a psychological evaluation letter by the
Security Specialist which could result in revocation of his security clearance, which is
the intention of S1, S2, S3 and HR Specialist;
ff. in or around early May 2017, he was not given an extension of time by the
investigator to provide documentation in support of the instant case due to
miscommunication with the NAWCAD EEO office; and
gg. on an unspecified date, he alleges that the HR Specialist divulged his Personally
Identifiable Information (PII) to 5.0 management.2
After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on
January 30, 2018, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3
The instant appeal followed.
2 The record reflects that claims a – f, l - o, q – u and x – gg were later amended to the instant
formal complaint.
3 Complainant identified his disabilities as chronic spine condition, stress fracture in both legs,
and sleep apnea. For purposes of this analysis, we assume, without so finding, that Complainant
was an individual with a disability.
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ANALYSIS AND FINDINGS
Disparate Treatment (claims e, i, p, t, v, w, x and cc)
A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether complainant has shown by a preponderance of the
evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Agency management articulated legitimate, nondiscriminatory reasons for its actions.
The Branch Head (Caucasian, American male), also Complainant’s first-line supervisor (S1),
stated that regarding claim e, when Complainant requested advance leave, S1 asked for a leave
plan relating to pay back the leave and to determine how much leave needed to be requested. S1
stated that Complainant needed one hour of advance leave, which was approved.
Regarding claim i, S1 explained that during a meeting, he informed Complainant that he could
only justify an 8 percent raise using the Rising Journey Program (RJP) that was provided, along
with the RJP guidance for promotions as well as his ratings criteria, which all came out with the
same number. S1 stated that based on the worksheet he worked on, Complainant needed to
improve in categories 2–5, 7–9, and 12.
The Director of Air Vehicle Modification and Instrumental/Associate Director, NAVAIR Range
Department (Caucasian, American male, also Complainant’s third-line supervisor) (S3), stated
that he agreed with S1’s decision to give Complainant an 8 percent raise.
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S3 explained that an 8 percent pay raise “is within the normal range of individuals graduating
from the Engineer Science Development Program/Rising Journeyman Program (ESDP/RSP).
Although it was on the low end, it was within the defined range (8-15%) of what was paid out to
other individuals graduating from that program.”
Regarding claim p, t, v, w and x, S3 was the decision-making official regarding the Letter of
Caution dated October 14, 2016. S3 stated that Complainant was issued the Letter of Caution
because of his conduct with Team Lead which the Team Lead considered to be threatening.
Complainant had a confrontation with the Team Lead when he asked Complainant for a status of
his progress. According to the Team Lead, Complainant became defensive and began blaming
the drafters, and bad drawings. The Lead stated that when he asked Complainant to calm down,
Complainant responded “if I were being defensive, you would know it. I would grab you by your
shirt and pick you up.” S3 stated that he spoke to Human Resources who advised him to issue
the Letter of Caution which was the lowest level of correction level. S3 added that prior to
issuing the subject Letter of Caution, there was an incident between Complainant and the Team
Lead in which Complainant told him “you’ve called me a fool in the past, but what people don’t
understand is that this fool can turn this place upside down.”
Further, S3 asserted that he issued Complainant a Letter of Reprimand less than an hour after
handing him the Letter of Caution, as he spoke to his supervisor in a loud aggressive tone. S3
also stated that Complainant “repeated the behavior he was cautioned on to both his first and
second line supervisors, who reported the conduct to me.” S3 stated that on the same day,
Complainant was placed on Administrative Leave due to his inappropriate behavior.
Regarding claim cc, S2 testified that Complainant did not receive a bonus or salary increase
based on the STRL review conducted by S1, who gave Complainant a rating of 3.0 (all
performance elements were “met”). S2 attested that, in order to get a salary increase or a bonus,
an employee needs to get at least a 3.1 on the STRL appraisal.
S1 attested that he was the rater for Complainant’s performance. S1 indicated that for
Complainant to be rated at 3.1, Complainant needed to be able to perform his work
independently. S1 testified that, in addition to feedback from others, his rating of Complainant
was based on his observation that Complainant was not proactive in going after and trying to
solve problems, always deferring problems to someone else, not providing solutions, and coming
in over cost and over schedule on his designs.
S3 declared that he knew S1 was not planning to give Complainant a bonus or salary increase
and he supported that decision. S3 indicated that S1 did not provide him with any documentation
and no documentation was required. S3 explained that not receiving a bonus or salary increase is
not a negative, but an indication of minimally successful performance. S3 asserted that, over the
course of several weeks prior to Complainant’s personnel review, S3 had received information of
Complainant’s marginal performance. For example, S3 was told that on more than one occasion,
Complainant asked coworkers for assistance on basic engineering work.
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After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that the legitimate reasons proffered by management for the
actions at issue were pretextual designed to mask discrimination on the bases of his race, national
origin, sex, disability or the result of retaliatory animus.
Hostile Work Environment
To establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).
In other words, 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 bases – in this case, his race, national origin,
sex, disability, and prior protected activity. Only if Complainant establishes both of those
elements, hostility and motive, will the question of Agency liability present itself. Here,
Complainant simply has provided no evidence to support his claim that his treatment was the
result of his race, national origin, sex, disability, and prior protected activity.
As an initial matter, there is no evidence indicating the Complainant’s allegations regarding the
comments of his two coworkers was in any way connected to his protected classes or his prior
EEO activities. As such, we find no violation of the anti-discrimination statutes with regard to
these allegations.
With the allegations concerning the actions of management, S1, S2, and S3 denied subjecting
Complainant to harassment and collaborating to terminate him from Agency employment.
Regarding claims g and h, S1 explained that he routinely checks on how his employees are doing
and what their workload is like. In August 2016, he was looking for someone who was available
to help out on the AOU which was a number two priority of the division. The supervisor stated
at that time, management was getting considerable pressure to meet the schedule on the project.
Management officials needed someone to take care of some of the redline that was coming
through and at the same time they were getting behind. S1 noted that Complainant told him he
was waiting for his work to come back from drafting Therefore, S1 went to see Complainant’s
Lead who asserted that Complainant’s work was completed enough that the Lead could take it
over and complete it. S1 explained that Complainant had previous experience on the AOU
project and felt that he would be the right person to take the project over.
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Regarding Complainant’s allegation that on November 8, 2016, S1, S2, and S3 defamed his
character during a meeting when they claimed he was a “threat to the organization,” S1
explained he received multiple comments and emails from several employees concerned about
their safety “due to the actions and comments by [Complainant]. I investigated the situation and
[Complainant] started to raise his voice and I ask him into my office to discuss privately. He
then made a statement that was very concerning. [Complainant] look me in the eyes and stated
‘some believe that he could shoot them in the leg and [S3] would not do anything about it.’”
Furthermore, S1 told Complainant that he should not make that kind of comment in the
workplace in which Complainant “didn’t seem phased by what he said.” S1 stated that he then
reported the incident to S2.
S3 recalled that during a meeting in November 2016 with S1, S2 and HR Specialist, S1
expressed his concerns how to approach giving Complainant his performance appraisal and he
asked S1 if he felt physical unsafe meeting with Complainant for this purpose and “he said ‘yes.’
[S2] also stated that she did not feel safe having this discussion with [Complainant]. The topic of
[Complainant] presenting a threat to the workplace was first discussed at this meeting…this topic
was discussed many times with only the participants listed above during the duration of the
situation with [Complainant] continued. The topic was not how to remove him. The topic was
what is the next step to address the situation.”
Complainant also asserted that he approached S2 to address his promotion but she told him that
he needed to discuss this promotion with S1. Complainant stated that S2 never followed up with
Complainant on this issue. S2 explained, however, that Complainant did not graduate from the
Entry-level Engineer and Science Development Program/RJP “because he refused to submit the
final signed Individual Development Plan (IDP). The final signed IDP is a requirement to
graduate and receive a promotion. [Complainant] was informed many times from his Z-code
supervisor and I (level 1 supervisor) but he refused.”
S2, the Division Head, Aircraft Prototype Systems (Caucasian, American female), also
Complainant’s second-line supervisor, stated that she denied Complainant’s request for payment
for a semester at Johns Hopkins University even though his previous supervisor had approved
the courses in the past, “based on financial issues.” Specifically, S2 stated “I had no available
training funds to authorize the request. I recommended that the complainant apply for tuition
through AWTAP, but it would have to be approved. Based on his administrative leave status,
AWTAP was not available either…Complainant brought this forward right before the tuition was
due.”4
Complainant also asserted that around March 2016 and continuing, his supervisors and the EEO
office ignored his ongoing concerns about his work, including his work being affected by
unauthorized tasking sabotage by a drafter. S3 denied ignoring Complainant’s concerns.
4 AWTAP is an abbreviation for Acquisition Workforce Assistance Program.
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Specifically, S3 directed S2 to investigate this complaint as I told [Complainant] I would do.”
However, S2, following her investigation, found no evidence to substantiate Complainant’s
claims.
Complainant next asserted that he told S3 he was working in a hostile environment and that the
way he was being treated was affecting his health, and that S3 stated he would look into
transferring him into another department but no action was taken. However, S3 stated “I
remember discussing that he wanted to work somewhere else. However, this discussion was not
tied to the hostile work environment. If he had asked to work somewhere else because of a
hostile work environment, I would have worked aggressively with HR to find a resolution.”
Complainant next asserted that he was issued a psychological evaluation letter by the Security
Specialist which could result in revocation of his security clearance which is the intention of his
supervisors and HR Specialist. However, the Security Specialist (Caucasian, American female)
explained that in May 2017, the Department of Defense Consolidated Adjudications Facility
(DODCAF) provided her a letter that DODCAF wanted issued to Complainant. Specifically, the
Security Specialist stated that the letter indicated the DODCAF wanted Complainant to have a
medical evaluation completed by a Department of Defense (DoD) affiliated clinical psychologist
or DoD practitioner. However, Complainant chose to use his own physician.
Further, the Security Specialist stated that on September 15, 2017, DODCAF determined that
Complainant was eligible to maintain his security clearance.
Finally, Complainant asserted that the HR Specialist divulged his Personally Identifiable
Information (PII) to 5.0 management. The HR Specialist (Hispanic, Dominican Republic female)
denied the assertion. The HR Specialist stated that in November 2016, Complainant contacted
her for a copy of his medical information letter “because he lost his copy. That’s when he
accused me of divulging his PII. He said that I was giving his PII information to people. I told
him that I was not giving his PII information to “people.” I informed him his PII/medical
documentation information was placed in a separate folder with a PII cover sheet attached and
the medical documentation information was only provided to need to know individuals.”
In sum, the evidence of record simply does not establish that the incidents either occurred as
alleged by Complainant or that his race, national origin, sex, disability and/or prior protected
activity played any role whatsoever in the events at issue. Complainant’s hostile work
environment claim is precluded based on our findings that Complainant 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 (September 21, 2000).
CONCLUSION
Therefore, after a review of the record in its entirety, including consideration of all statements on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
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Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.5
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).
5 On appeal, Complainant does not challenge the August 17, 2017 partial dismissal issued by the
agency regarding one other claim (that he was subjected to harassment/a hostile work
environment on the bases of race, national origin, sex, disability and prior EEO activity when the
Deputy EEO Officer retaliated against him due to him raising concerns in writing to a named
Agency official, and his correspondence resulted in the initiation of a management inquiry).
Therefore, we have not addressed this issue in our decision.
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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
July 18, 2019
Date
