Cary R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 23, 2020

2019003972 (E.E.O.C. Sep. 23, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cary R.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2019003972 Agency No. NGAE-0029-2017 DECISION 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 May 1, 2019 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as a Police Officer, Pay Band 2, in the Security and Installation Directorate, Office of Protective Services, Protective Services East in Springfield, Virginia. On November 7, 2017, Complainant filed an EEO complaint in which he alleged that several management officials subjected him to discrimination and a hostile work environment because of his race (African- American), religion (Christian), age (55), and in reprisal for prior protected EEO activity when: 1. On August 30, 2017, Complainant was told to take remedial use-of-force training and placed on administrative leave following an active shooter training exercise; and 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. 2019003972 2 2. In December 2017, he had been told by several colleagues that he had been placed in “be-on-lookout” (BOLO) status while on administrative leave between August 30 and November 13, 2017. At the conclusion of the ensuing investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an EEOC 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 decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Witnesses: Complainant identified the following individuals as witnesses, some of whom he claimed were responsible for the alleged discrimination (not every witness is referenced herein): • Acting Chief Trainer (ACT); • Supervisory Police Officer (SPO1); • Director Office of Protective Services (DOPS); • Law Enforcement Instructor (LEI); • Tactical Response Team Commander (TRTC); • Detective Sergeant (DS); • National Geospatial Intelligence Agency Police Support Services (NGA-PSS); • Senior Law Enforcement Advisor (SLEA) • Policy, Programs and Readiness Director (PPRD) • Police Lieutenant (PL1) • Police Sergeant (PS) • Police Lieutenant (PL2) • Executive Officer to NGA Executive Director (EO) • Supervisory Police Officer (SPO2) • Police Officer One (PO1) • Police Officer Two (PO2) • Police Officer Three (PO3) • Police Officer Four (PO4) • Police Officer Five (PO5) • Police Officer Six (PO5) • Police Officer Seven (PO6) • Police Officer Eight (PO7) Incident (1): On August 30, 2017, Complainant and several other police officers were engaged in an active-shooter training exercise. During the training, Complainant shot LEI in the face with a pistol that was loaded with blank ammunition. Complainant had held the gun between six and ten inches from the LEI’s face. Complainant stated that after the incident was reported, he was called into a meeting with SPO1, TRTC, and LEI and told that the remainder of his training would be cancelled. 2019003972 3 Complainant was also informed that he would have to enroll in remedial use-of-force training before he would be allowed to repeat the active-shooter training. In addition, he was placed on administrative leave pending an investigation into the incident. IR 112. According to LEI, ACT, SPO1, DOPS, and DS, Complainant had committed a safety violation by holding his weapon so close to LEI’s face. Consequently, LEI recommended that Complainant be given remedial firearms safety training. LEI reported that when he tried to explain to Complainant the nature and extent of his error, Complainant became defensive, arguing that he had done nothing wrong. SPO1 reported the incident to his superiors, SLEA and DOPS, who gave the order that Complainant be placed on temporary administrative leave pending further investigation into the incident. IR 135, 148, 150, 160-62, 172-74, 194, 430-32, 436, 448-49, 459. Incident (2): Complainant claimed that on an unspecified date in December 2017, he found out from several of his fellow officers that he had been placed in BOLO status between August 30 and November 13, 2017. He averred that BOLO status was usually reserved for criminals and that to his knowledge, no other officer who had committed safety violations or had otherwise made mistakes in training were treated that way. He further alleged that SPO1 had directed DS to place him on the BOLO list. IR 113, 118-19. SPO1 denied that he had ever issued a BOLO order for Complainant. He averred that after he received the order from SLEA to put Complainant on administrative leave, he directed DS to issue a badge block notification, not a BOLO notice. He further averred that this was a standard internal practice that was done in order to alert the police workforce of personnel who were not allowed to enter the facility. The DS confirmed that a BOLO notice was not issued, and that after he had printed up the badge block notification, he distributed it to all of the Agency’s facilities. IR 141, 154, 202, 206. 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, 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, 802 (1973). His first step would generally be to 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 Const. Co. v. Waters, 438 U.S. 567, 576 (1978). 2019003972 4 The prima facie inquiry may be dispensed with in this case, however, since the management officials named in the complaint articulated legitimate and nondiscriminatory reasons for ordering Complainant to take remedial firearms training, placing him on administrative leave for several months, and issuing a badge block notification. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). Several management officials, including LEI and SPO1 stated that shooting LEI in the face during a training exercise was a serious safety violation, and that placing him on administrative leave and issuing a badge block notification were within the Agency’s standard safety protocols. 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); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). When asked why he believed that his race, religion, age, and prior EEO activity were factors his being told to take remedial firearms training, being placed on administrative leave, and being the subject of a badge block notification, Complainant claimed that two other officers, including SPO1 had shot a dummy that had the same vest on as LEI and were praised. He maintained that the incident was a continuation of efforts to fire him. IR 117-20. As for the actual act of shooting LEI, Complainant maintained that he followed the protocols he was supposed to follow. IR 114- 15. In addition, he averred that another officer had shot ACT in the back during another training exercise, but that nothing was done in that situation, and that he was the only trainee who was told to take remedial training and placed on administrative leave. IR 115-16. In addition to his own affidavit, Complainant presented affidavits from several of his fellow officers, most of whom were African-American. PO3 averred that while Complainant did fire at LEI, he did not do so intentionally or in a dangerous manner, and that the training in firearms tactics helped them to identify and correct their mistakes. IR 325, 330. PO4 affirmed his belief that Complainant was treated differently than any other trainee who had committed a safety violation. He stated that it was expected that officers would routinely make mistakes during firearms training and echoed PO3 that the purpose of the training was to correct mistakes. 2019003972 5 He further claimed that no one else, either inside or outside of Complainant’s protected groups, was ever placed on administrative leave for a training mistake and that the Agency’s Police Department had a reputation of bias, favoritism, racism and bullying. IR 334, 337. PO5 stated that he had been shot in a live training session and that the officer who shot him was not disciplined for it. He also averred that there had been many safety violations committed by officers since he entered on duty in 2011, and that no one was ever given a desk job for committing a safety violation. He maintained that standard operating procedures were not followed in addressing the safety violation that Complainant was charged with and opined that it was a punishment for Complainant. Finally, PO5 opined that Complainant had been discriminated against by ACT and LEI, pointing out that in another training exercise, he was not allowed to use his hand for support while attempting to stand while white officers were. IR 348-50, 353-54, 360. PO7 averred that he and other officers were notified at a roll call that Complainant had been placed in BOLO status and that he had seen the BOLO notice. IR 373. The evidentiary record, particularly the affidavit and documentation from SPO1 and DS supports the Agency’s assertion that Complainant was never placed in BOLO status. Rather, he was placed on administrative leave and a block badge notification was issued informing personnel at the Agency’s various facilities that Complainant was not eligible to enter the premises without an escort. IR 166. This appears to have been standard procedure whenever an officer was placed on administrative leave. IR 166. PS, ACT, and SPO1 all averred that the safety violation committed by Complainant, shooting LEI in the face point blank, had never happened before. IR 138, 151, 260. Moreover, both PO6 and PL1 confirmed that officers both inside and outside of Complainant’s protected groups have been placed in BOLO and “do not admit” status. IR 252, 373. As Complainant chose not to request a hearing, the Commission does not have the benefit of an Administrative Judge's credibility determinations after a hearing. Therefore, the Commission can only evaluate the facts based on the weight of the evidence presented. Based upon the evidence now before us and the specific circumstances present in the instant case, the record is not sufficient to establish that LEI, ACT, SPO1 or any other management official identified in the complaint were motivated by unlawful considerations of Complainant’s race, religion, age, or previous EEO activity when they directed Complainant to take remedial firearms training, placed him on administrative leave, and issued a badge block notification identifying him. Complainant has not established that management’s reasons for its actions in the instant matter were pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To the extent that Complainant is alleging that s/he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2019003972 6 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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). 2019003972 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 September 23, 2020 Date