Deon C.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Mar 30, 2017

0120150372 (E.E.O.C. Mar. 30, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Deon C.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120150372

Hearing No. 430-2013-00168X

Agency No. DLAR-12-0201

DECISION

On October 31, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a),
from the Agency’s September 30, 2014, 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. 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 order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Weapons System
Support Manager (WSSM) at the Agency’s Defense Supply Center in Richmond, Virginia. On
July 11, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Hispanic)2, national origin (Panamanian), color (black), age

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.
2 We note that the Commission considers the term “Hispanic” to denote a national origin rather
than a race. In any event, the same analytical frameworks apply to claims of race
discrimination as to claims of national origin discrimination.

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(55), and in reprisal for prior protected EEO activity when: (1) on April 16, 2012, he was
denied ample time to complete Acquisition Level I training certification whereas allegedly his
co-workers were allotted sufficient time; (2) his first-line manager’s (S1) decisions regarding
his working terms and conditions are continually questioned and scrutinized; (3) he believes he
is constantly monitored by his second-line supervisor (S2); (3) he was told S2 believed his
request to telework on June 1, 2012, should have been denied by S1; (4) in or around April
2012, he was harassed by S2 when he left work five minutes early; and (5) in or around June
2011, it was requested that he drive eleven hours for Temporary Duty (TDY) to Jacksonville,
Florida, when his reasonable accommodation permitted him to fly business class.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation and notice of his right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing on
July 14, 2014, and issued a decision on September 4, 2014. The Agency subsequently issued a
final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

FACTUAL BACKGROUND

At all relevant times, Complainant worked in the Navy Weapons System Cell (QABW) within
the Navy Facing Customer Division (QAB) of the Customer Operations Directorate (QA),
Defense Logistics Agency (DLA) Aviation in Richmond, Virginia. Throughout the relevant
time period, Complainant’s performance was rated as Fully Successful.

In late 2010 to early 2011, Complainant and the other Weapon Systems Support Managers in
QA began the process of transitioning to new positions as Weapon Systems Program Managers
(WSPMs). The new WSPM position required employees to complete certain Defense
Acquisition Workforce Improvement Act (DAWIA) training. WSPMs were required to obtain
certification at Level III Life Cycle Logistics no later than two years after their official
transition to the WSPM position. The Deputy Director of Customer Operations (S4) originally
required that all QA WSSMs and WSPMs complete their Level I training requirement by
October 2011. S4 subsequently extended the deadline to complete such training until January
2012. S4 allowed WSSMs two hours per day (or a total of 10 hours a week) to work on
DAWIA training. Complainant did not complete the Acquisition Level I training by January
2012. At that time, Complainant was using the allotted two hours each day to work on training
and was failing the DAWIA classes.

On January 9, 2012, S4 sent an email to S2 and other supervisors, expressing concern about
the WSSMs’ progress in completing Level I training. He stated that he expected these
supervisors to “reconcile why [their] team members ha[d] not yet completed the training” and
to take “appropriate action” with regard to those employees. S1 and S2 spoke with
Complainant in or around January 2012 to discuss his lack of progress towards completing
Acquisition Level I training. Management directed Complainant to use his eight-hour telework
day solely for Level I Training, so he could focus on passing the classes without interruption.
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Management directed Complainant to use the remaining two hours (of the ten-hour weekly
allotted training time) on Fridays. The undisputed record shows that under this arrangement
Complainant made more progress in completing the required training. Complainant claims
(without corroboration) that other employees used more than 10 hours per week to complete
their training.

On or about July 15, 2012, Complainant was officially reassigned from a WSSM position to a
WSPM position. As a result, Complainant’s position description and performance standards
changed. Complainant’s grade, organization code, and supervisors remained the same.

From about July 15, 2012, until his retirement on November 26, 2012, Complainant was a GS-
0301-13, WSPM. As of about May 31, 2012, all QABW WSSMs, except for Complainant,
had completed their Level I training. On or about July 16, 2012, seven months after
employees were expected to complete Acquisition Level I training, Complainant completed the
training. He was the last QABW employee to do so.

Complainant claimed that S2 was monitoring his training progress. Complainant did not
establish that S2’s supervision was inappropriate or how often S2 allegedly monitored him.
Complainant claimed that on one occasion, in April 2012, S2 noticed that he had left five
minutes early. S2’s parking space was located near Complainant’s parking space. From his
own parking space, S2 could see whether or not Complainant’s car was in Complainant’s
parking spot. On occasion, S2 noticed that Complainant took lunch breaks exceeding the
allotted lunch time (i.e., 30 minutes). When S2 made such an observation, he would inform
S1.

In April 2012, Complainant left work at least five minutes early on at least one occasion.
Complainant alleged (without corroboration) that, around that same time, a co-worker (C1) left
work early to meet her husband. Complainant did not establish that S2 required or requested
that S1 take action against Complainant for leaving early. Management did not charge
Complainant as being absent without leave (AWOL) in April 2012. Management took no
formal disciplinary action against Complainant for leaving work early.

In the fall of 2010, Complainant was scheduled to travel to Jacksonville. Complainant needed
adequate leg room on his flight as a reasonable accommodation for his partial leg amputation.
Although the Agency regulations allowed for first-class travel for medical reasons in certain
circumstances, Complainant only requested this accommodation two weeks before his
scheduled travel date. Accordingly, it was not enough time to obtain approval for this request.
Complainant also looked into flying coach but obtaining a seat with more leg room. However,
such a seat could not be guaranteed on such short notice. Management suggested that
Complainant and his co-worker drive to Jacksonville. However, Complainant did not want to
do that. Complainant’s co-worker ultimately drove to Jacksonville without Complainant.

Complainant, his co-worker and S2 discussed what accommodation Complainant would need to
travel by air in the future. They agreed Complainant should be provided with bulk head airline
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seating. They agreed that Complainant would submit his travel request for approval 30 days
prior to traveling. That way Complainant should be able to reserve bulk head seating with the
airline.

Complainant alleges (without corroboration) that in or around June 2011, S2 requested that he
drive 12 hours to Jacksonville, Florida, for TDY. The record shows that Complainant was not
required to drive to Jacksonville, Florida, for TDY in June, 2011. Rather, in June, 2011, he
flew on a commercial flight to Jacksonville, Florida for TDY pursuant to travel orders and
vouchers approved by S2.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

To establish a claim of harassment a 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 to the employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

The AJ noted in her decision that the record supported the finding that Complainant and S2 had
a strained professional relationship and that the two tried to avoid each other. The AJ also
noted that the record was devoid of evidence establishing that S2 was aggressive or hostile in
his interactions with Complainant. We agree with the AJ’s assessment of the evidence and the
conclusion that when viewing such evidence separately or cumulatively, Complainant’s
allegations are not sufficiently severe or pervasive enough to create a hostile work
environment. We also agree with the AJ’s conclusion that although a reasonable person in
Complainant’s position may find some of the actions he endured to be difficult or frustrating,
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the actions alleged are common workplace occurrences and not shown to be motivated by
discriminatory or retaliatory animus.

Complainant’s first allegation concerned being denied adequate time to complete the DAWIA
training. At the hearing, Complainant testified he initially did not work on the DAWIA
training certification because he planned to apply for disability retirement. It is undisputed that
by February 2012, Complainant was the only WSPM who had not completed any of the
training modules. Complainant initially agreed to work on the training for eight hours on his
telework day. However, Complainant later changed his mind. The AJ concluded that S2
credibly testified that he wanted Complainant to continue the same arrangement because
Complainant was making progress on completing the training. The evidence also shows that
by the end of April 2012, Complainant was the only WSPM who had not completed the Level
I Life Cycle Logistics certification and was one of three WSPMs who had not completed the
Level I Program Management certification.

Complainant’s second allegation concerned S2 questioning and scrutinizing S1’s actions and
monitoring Complainant’s activities. The AJ did not find Complainant’s testimony on this
issue credible because it was vague and conclusory. The AJ noted that generally, Complainant
alleged S2 asked questions related to Complainant’s time and attendance. Complainant also
alleged S2 would walk by Complainant’s cubicle to check on what Complainant was doing. S2
testified that if he saw incidents of time/attendance abuse by any employee, he would report it
to the employee’s supervisor. S2 further testified that he noticed that Complainant took a
longer lunch on a few occasions because Complainant’s parking space was across from his own
parking space and he reported the incidents to Complainant’s supervisor. The AJ noted that
Complainant had not alleged that S2 was fabricating his reports on Complainant’s time and
attendance and there is no evidence that S2 directed S1 to counsel or discipline Complainant.
In addition, the AJ noted that Complainant’s co-worker (C1), who sat next to Complainant,
testified that S2 did not walk down their aisle very often. As such, the AJ concluded that
Complainant failed to show that S2 was spying on him or trying to harass him.

Complainant’s third allegation concerned S2 telling S1 that S1 should have denied
Complainant’s request to telework on June 1, 2012. The AJ concluded that S2 credibly
testified that he told S1 that he should have requested medical documentation from
Complainant to support approving the request to telework. However, as the AJ noted, the
record is devoid of evidence that S2 rescinded S1’s approval. In fact, the undisputed record
shows that Complainant’s request to telework was approved. Accordingly, the AJ concluded
that Complainant failed to establish that S2 was attempting to harass Complainant.

Complainant’s fourth allegation concerned S2 harassing Complainant for leaving work five
minutes early. As the AJ noted, the undisputed record shows that Complainant left work
early. The record further shows that S2 spoke to S1 (not Complainant) who said he had given
Complainant permission to leave early. The AJ further noted that the undisputed record shows
that S2 did not take any action after that. The AJ concluded that the record is devoid of
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evidence of harassment or discriminatory/retaliatory animus on the part of S2 with respect to
this claim.

Complainant's last allegation concerns S2 requesting Complainant to drive to Jacksonville,
Florida rather than fly. The AJ does not find Complainant's testimony on this issue to be
credible because Complainant's testimony was confusing and inconsistent. During the
investigation, Complainant testified that S2 did not approve his travel to Jacksonville in June
2011 and he had not gone to Jacksonville. During the hearing, Complainant testified that S2
had approved his travel in June 2011 and he had gone to Jacksonville. The record shows that
Complainant did not go to Jacksonville in the fall, 2010 because an accommodation was not
available on such short notice. However, an accommodation plan was put into effect after that
and in June, 2011 Complainant did fly to Jacksonville.3 The AJ concludes that Complainant
failed to show that S2 acted with discriminatory or retaliatory animus with respect to the
alleged employment actions.

We agree with the AJ’s analysis and findings that when considered individually or
cumulatively, the actions complained of are not severe or pervasive enough to create a hostile
work environment. Rather when viewed objectively, the alleged employment actions are
ordinary workplace tribulations. We also agree with the AJ’s finding that the record does not
support a finding that any employment action was motivated by Complainant’s race, color,
national origin, age or reprisal.

CONCLUSION

Accordingly, based on a thorough review of the record we AFFIRM the Agency’s decision
adopting the AJ’s finding that Complainant failed to prove discrimination or retaliation as
alleged.4

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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:

3 We note that Complainant does not raise a claim of disability discrimination or failure to
accommodate a disability.
4 We note that Complainant has not presented any argument in support of his appeal.
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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 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. The requests 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 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 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
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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

March 30, 2017
Date