Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.Download PDFEqual Employment Opportunity CommissionAug 14, 201501-2013-2040-0500 (E.E.O.C. Aug. 14, 2015) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 , Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120132040 Hearing No. 570-2009-00827X Agency No. ARBELVOIR08OCT04243 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the Agency’s April 8, 2013 final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Telecommunications Specialist at the Agency’s U.S. Army Intelligence and Security Command in the Nolen Building in Fort Belvoir, Virginia. On May 1, 2008, the Acting Project Management Branch Chief (BC) reported to Complainant’s supervisor (S1) that Complainant had not reported to work. S1 then sent Complainant an email regarding his time and attendance advising that in the future, in the absence of his supervisor, Complainant needed to inform his senior rater or colleagues of his leave status. Complainant arrived at the building at approximately 1:00 p.m. that day, and initially said that he was returning from a late lunch, but later admitted that he had not reported to work that morning. On May 5, 2008, Complainant acknowledged his absence and informed S1 that it would not happen again. On May 16, 2008, Complainant was counseled by S1 about several matters, including Agency policy, expectations, training needs, and other issues. 0120132040 2 On August 13, 2008, Complainant submitted a letter of grievance to the Deputy Director (DD) alleging that BC was harassing him. The letter alleged that BC was keeping track of his time and attendance. Complainant noted that BC held no supervisory role over him and did not need to monitor his time. Further, Complainant stated that he believed that BC’s harassment of him was either “sexual in nature or racially motivated as she doesn’t seem to have any ‘issues’ or difficulties with co-workers that are Caucasian.” Complainant did not claim that BC made any sexual or racial comments to him nor did he allege that BC made any sexual advances on him. From August 25, 2008 through August 28, 2008, Complainant was scheduled to attend a training course at Fort Belvoir. Complainant failed to report to the course on August 28, 2008, did not request leave, and did not have an approved leave for the day. On August 29, 2008, Complainant failed to report to work and did not have approved leave. Complainant was charged absence without leave (AWOL) for his unexcused absence. On September 25, 2008, Complainant was terminated from his position with the Agency. Complainant began working for a contractor, Science Applications International Corporation (SAIC), on or around November 17, 2008 at the Nolen Building. Complainant’s presence caused discomfort for himself and his former colleagues. On December 4, 2008, the Chief of the Contract Management Office contacted the Contracting Officer to advise SAIC that Complainant had been removed from his position with the Agency. On or about December 4, 2008, the SAIC Manager directed Complainant to look for another position within SAIC and to leave the Agency’s premises. On December 26, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (Bi-Racial), color (Brown), and in reprisal for prior protected EEO activity under when: 1. On September 25, 2008, his supervisor (S1) terminated his employment during his probationary period; 2. His co-worker (BC) was allowed to single him out and track the times he would arrive at his desk in the morning on post-it notes while his first and second-level supervisors allowed this to continue from April 2008 until his termination on September 25, 2008; 3. After he presented a letter of grievance on August 18, 2008 to the Deputy Director (DD) in which he asked for help and guidance with what he described as harassment on the part of BC, he was fired on September 25, 2008, despite his having a “stellar” interim review less than one month prior; and 4. He was employed as a contract employee with SAIC, and as of November 19, 2008, was assigned to work back at the facility where he had previously worked. On the morning of December 4, 2008, his site leader informed him that Agency 0120132040 3 officials had called down and complained about him working in the building and that they wanted him off the contract and out of the building.1 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ1). Complainant timely requested a hearing, but AJ1 granted summary judgment in favor of the Agency, and issued a decision on March 27, 2013.2 In the decision, AJ1 determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, Complainant was charged AWOL and ultimately terminated during his probationary period based on numerous unauthorized and unexcused absences and his lack of candor with his supervisors. The Agency explained that Complainant was expected to demonstrate his suitability for federal employment as a probationary employee, and it was clear that he failed to show that he could report for work or be candid with his supervisors. In addition, according to the Agency, Complainant’s objectionable conduct called into question his personal integrity and his fitness for continued employment with the Agency. Regarding his claim that he was removed from the building as a contractor, the Agency asserted that it was simply common sense for Agency officials to question whether it would receive appropriate services from a contractor the Agency found unsuitable as an employee. Complainant acknowledged that his presence in the building was uncomfortable for himself and others. Finally, AJ1 determined that Complainant failed to present sufficient evidence showing that he was subjected to a hostile work environment. Specifically, AJ1 found that the alleged incidents were not sufficiently severe or pervasive to rise to the level of a hostile work environment. Furthermore, AJ1 concluded there was no evidence that any of the alleged incidents were based on discriminatory or retaliatory animus. AJ1 found that the record showed that 1 On January 8, 2009, the Agency dismissed one additional claim for failure to state a claim. Complainant raised no challenges to the Agency's dismissal at the hearing stage or on appeal; therefore, the Commission will not address this claim in this decision. 2 On July 8, 2010, AJ1 dismissed Complainant’s hearing request without prejudice at the Agency’s request because it appeared Complainant’s complaint could be subsumed into a class complaint (Complainant v. Dept. of Army, Agency No. ARBELVOIR07JUN03161, Hearing No. 570-2008-00073X). On August 6, 2010, the AJ assigned to the class complaint (AJ2) found that the class agent failed to establish that it discriminated against a class of employees. The Agency subsequently issued a final action fully implementing AJ2’s decision. AJ1 reopened adjudication of Complainant’s individual complaint on January 6, 2011. The Commission notes that on appeal, Complainant raises challenges regarding the class action claim; however, the Commission dismissed his individual appeal of the Agency’s final action implementing AJ2’s decision. See Complainant v. Dept. of Army, EEOC Appeal No. 0120103395 (July 12, 2013). 0120132040 4 Complainant was terminated for his failure to follow proper attendance procedures and lack of candor. AJ1 noted that the record was devoid of any indication that Complainant was singled out by management or that his leave was scrutinized based on his protected classes. As a result, AJ1 found that Complainant had not been subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully implementing the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency has failed to offer a legitimate explanation for his termination or for its later “black balling” of him as a contract employee. Complainant contends that the record evidence does not substantiate his termination either as a federal employee or a contract employee. Additionally, Complainant claims that AJ1 failed to address his class action claims and raises arguments related to other employees’ individual and class action EEO complaints. Complainant alleges that there is ongoing racism at the Agency and that he has been unfairly denied the opportunity to have his claims heard before an AJ. Accordingly, Complainant requests that the Commission reverse the final action. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Disparate Treatment To prevail in a disparate treatment claim, 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. Tx. Dep't of Cmty. Affairs v. 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 pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). In the instant case, the Commission finds that the AJ properly issued summary judgment as the material facts are undisputed. The Commission agrees with the AJ that assuming arguendo 0120132040 5 that he established a prima facie case of discrimination and reprisal, Complainant failed to present evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. More specifically, management terminated Complainant’s employment based on his failure to comply with the Agency’s leave policies and his lack of integrity. ROI, at 121; ROI, Fact- Finding Conference (FFC), at 258-59, 386. With respect to Complainant’s claim that BC harassed him and management failed to do anything about it, S1 explained that Complainant and BC had personality conflicts and both accused each other of harassment. ROI, FFC at 282-84. S1 added that since there was no evidence BC had violated any Agency policies, he had no reason to take action. Id. at 286-87. Finally, as to his claim that Agency officials had him removed as a contractor, DD felt it was inappropriate for Complainant, as a former employee terminated during his probationary period, to be working back in the building. ROI, at 128. DD had also received reports that Complainant had returned to his former work area and tried to harass management officials and employees. Id. The Chief of the Contract Management Office contacted the Contracting Officer about the matter, and contractor employing Complainant removed Complainant from the premises. Id. at 119. Construing the evidence in the light most favorable to Complainant, the Commission finds no evidence that Complainant's protected classes were 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 discriminatory or retaliatory animus. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Hostile Work Environment Harassment 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 a protected basis, i.e., in this case, race, color, and/or prior protected activity. Only if Complainant establishes both of those elements, does the question of Agency liability present itself. As discussed above, the Commission finds that Complainant did not prove that the Agency's legitimate, non-discriminatory reasons for its actions were pretext for unlawful discrimination. Therefore, under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), 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). A finding of a hostile work environment is precluded by our determination that Complainant has not established that any of the actions taken by the Agency as set forth above were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 0120132040 6 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 order, because the Equal Employment Opportunity Commission Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of the record evidence does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0610) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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. 0120132040 7 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 Complainants 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 14, 2015 Date Copy with citationCopy as parenthetical citation