Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 14, 2015

01-2013-2040-0500 (E.E.O.C. Aug. 14, 2015)

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.

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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
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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).
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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
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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).
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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.
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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