U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Matt A.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120180985
Agency No. ARCENAS16JAN00790
DECISION
On January 24, 2018, 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
December 27, 2017 final decision concerning an equal employment opportunity (EEO)
complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts
the appeal in accordance with 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Regulatory Specialist in the Regulatory
Branch, Regulatory Division of the Nashville Engineer District, U.S. Army Corps of Engineers,
located in Nashville, Tennessee. Believing that he was he was subjected to unlawful
discrimination based on disability (speech impediment due to cleft lip and palate) and in reprisal
for prior EEO activity, Complainant contacted an EEO Counselor. Informal efforts to resolve
Complainant’s concerns were unsuccessful.
On April 27, 2016, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against when:
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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1. On January 25, 2016, he received a Level 4 (Fair) annual performance
rating for the period November 1, 2014 through October 31, 2015;
2. After receipt of his performance rating, he asked his supervisor when the
reprisal against him for his prior EEO complaint would stop, and his
supervisor responded that he should think long and hard about doing
anything because he was going to be his boss for a long time;
3. On March 1, 2016, his supervisor penalized him by requesting a doctor’s
note from him for 3.5 hours of sick leave; and,
4. On March 3, 2016, his supervisor bullied him by calling him out in front
of his peers during a branch meeting.
After an 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). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).
In its December 27, 2017 final decision, the Agency found no discrimination. The Agency
reasoned that management provided legitimate, non-discriminatory reasons for its actions.
Regarding the performance rating (claim (1)), Complainant’s supervisor explained that much of
Complainant’s work contained substantial technical inaccuracies, there were times when he did
not follow instructions which resulted in processing delays, he omitted any discussion of one of
his most important projects from a status meeting, and he often took a “cut and paste”
approached to his analysis and decisions. Further, the manager stated that when he discussed the
rating with Complainant he did so in the hopes of helping him improve his future performance.
Complainant alleged that his supervisor threatened him (claim (2)) The manager stated,
however, that the rating was an honest assessment and that he simply imparted to Complainant
that “I want you to understand that I’m going to be working with you for a long time and to trust
that I want to help you.”
Regarding the doctor’s note, Complainant’s supervisor stated that following supervisor training
on time and attendance, he informed employees that they should request leave in advance and
promptly advise him when they were going to be late and provide an arrival time. According to
the supervisor, on March 1, 2016, Complainant texted him saying he was sick and would be in
later. When the supervisor asked when he could expect Complainant, Complainant responded
that he was at a doctor’s office. Based on that message, the supervisor contends he believed
Complainant was at a previously scheduled appointment and asked him to provide a doctor’s
note. While acknowledging that he did not usually seek documentation for absences of less than
three days, the supervisor did so as a result of the exchange with Complainant.
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Further, Complainant’s second-line supervisor attested that the supervisor had previously
described his frustration with Complainant’s tendency to take leave without formally requesting
it first.
Finally, regarding the March 3, 2016 meeting, Complainant’s supervisor stated he called
Complainant’s name and told him to pay attention because they were reviewing errors, many of
which were made by Complainant and he was not focused on the discussion.
The Agency concluded that Complainant failed to present any evidence that the Agency’s
actions were motivated by discriminatory animus or that the proffered reasons were pretextual.
Complainant filed the instant appeal.
ANALYSIS AND FINDINGS
Standard of Review
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, at Chapter 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,
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). 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 Affairs, 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. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley,
supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
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On appeal, Complainant disputes his performance rating, reiterating his belief that it was reprisal
for his 2013 prior EEO complaint. While acknowledging that his current supervisor did not join
his office until 2014, Complainant argues that he previously received rating of 2 and suddenly
was scored a 4 when he was working just as hard. He also contends that his new supervisor
failed to mentor him. Complainant has not shown that the Agency’s proffered reasons were false
nor that the lower rating was related to his disability or his prior EEO activity. Therefore, we find
that the Agency’s finding of no discrimination was proper.
Regarding the doctor’s note, Complainant contends his previous supervisor never complained
about his absences for regularly scheduled doctor’s appointments. He believes the request for a
note was “harassment and bullying.” As noted above, the supervisor acknowledged that seeking
the note was not required by Agency policy, but the result of Complainant’s explanation that he
was at a doctor’s office. This, along with Complainant’s history of requesting leave after (rather
than prior to) an absence, motivated the supervisor’s request. Complainant has not established
that the manager sought the document because of his disability or earlier EEO complaint.
Further, we do not find that Complainant was harmed as a result of the incident, for example he
was not denied sick leave. Although Complainant asserts the request was harassment, we do not
find it was sufficiently severe or pervasive to rise to the level of discriminatory harassment. Cobb
v. Dep’t of the Treasury, EEOC Request No. 05970077 (Mar. 13, 1997).
During the March 1, 2016 meeting, Complainant recalls that his supervisor called his name
twice. Complainant responded “Sir, paying attention sir.” While he may not have been looking
directly at his supervisor, neither were other individuals who were not called out. Complainant
found the incident to be humiliating and embarrassing. We find, however, that a reasonable
person in such circumstances would not find the exchange to have created a hostile work
environment.
The instant complaint appears to reflect Complainant’s struggles with the changes that come
with a new manager, rather than incidents of discrimination. He has not met burden in showing
that the supervisor’s legitimate reasons were pretext to mask unlawful discriminatory animus.
The Agency’s decision finding no discrimination was proper.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding no discrimination.
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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
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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 9, 2019
Date
