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

Equal Employment Opportunity Commission

Oct 19, 2020

2020001942 (E.E.O.C. Oct. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hollis B.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2020001942 Hearing No. 560-2017-00058X Agency No. NGAV-16-S101 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 14, 2019, final order 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as a Police Officer in St. Louis, Missouri. On February 18, 2016, Complainant a formal EEO complaint alleging the Agency had discriminated against him based on disability (extreme stress) and age (66) when: 1. on or about January 20, 2016, Complainant was issued a three-day suspension; 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. 2020001942 2 2. Complainant was subjected to harassment based on age when, on June 22, 2016, he was presented with a list of charges which he believes were vicious attacks against him. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s July 23, 2019, motion for a decision without a hearing. The AJ issued a decision by summary judgment in favor of the Agency on December 11, 2019, finding no discrimination. The Agency subsequently issued a final order adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. To successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates a dispute of material fact necessitating a hearing. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 2020001942 3 Disparate Treatment - Suspension A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). It is undisputed that, on December 6, 2015, Complainant turned in his weapon at the end of his shift, and a round of ammunition fell from his weapon. The Watch Commander (WC) and Sergeant were present when this occurred, and the ammunition was not of a type approved by the Agency for the weapon. The Sergeant and WC testified that when Complainant was asked about the ammunition, he initially responded that he must have used the wrong ammunition when he used his government-issued work weapon at a private shooting range. The Sergeant and WC testified that they advised Complainant that he was not permitted to use his work weapon at a public range. The Sergeant and WC testified that Complainant responded that he had only done it once. The Deputy Chief of Police (DCP) testified that the WC reported that Complainant used his government-issued weapon at a private range, which violated established Agency policy. DCP issued Complainant a proposed three-day suspension letter for misuse of government property. According to DCP and Complainant, however, it was not until the issuance of the proposed three- day suspension letter that Complainant then informed DCP that he had, in fact, used his government-issued ammunition in his personal weapon, at the private range. Complainant alleged that his solution was to put some of his personal ammunition into his government- issued weapon to make up for using some of his government issued ammunition in his personal weapon. The record also indicated that Complainant had previously received a letter of reprimand for breach of security in 2014. 2020001942 4 On January 20, 2016, DCP issued Complainant a three-day suspension for misuse of government property, and an additional charge for lack of candor, based on Complainant’s alleged inconsistent statements. Complainant objected to the lack of candor charge and testified that he made a mistake when he used his government issued ammunition in his personal weapon. The AJ noted that Complainant’s explanation does not explain how his personal ammunition was in his government- issued weapon. In his decision, the AJ determined that the Agency articulated its legitimate, nondiscriminatory reason for its action of three-day suspension for misuse of government property and lack of candor. DCP relied on the eyewitness accounts of the Sergeant and WC regarding Complainant having different ammunition in his government-issued weapon, along with Complainant initially stating that he used his government issued weapon at a private range, led to the charge of misuse of government property. Complainant’s differing account of why his ammunition was in his government-issued weapon varied then led to the lack of candor charge. Complainant bears the burden of proving, by a preponderance of the evidence. that the Agency’s articulated legitimate, non-discriminatory reason is pretext for discrimination against him. Complainant does not provide evidence and the record does not support an inference of discrimination by the Agency based on Complainant’s age and/or disability. Harassment To establish a claim of harassment 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 classes; (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); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). In other words, 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 - in this case, his age. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant testified that he was subjected to harassment based on his age when, on June 16, 2016, Complainant was issued a proposed five-day suspension for breach of security and Absent Without Leave (AWOL). The suspension was recommended by DCP, and the suspension was approved by the Chief. The breach of security allegation stemmed from Complainant leaving his assigned post at the Main Gate entrance to walk to his personal vehicle. Complainant argued that his personal vehicle was close enough to the Main Gate to be within his area of responsibility. 2020001942 5 However, DCP stated that Complainant should have requested permission to leave the Gate and ensure that another officer covered his post for him. Complainant was also charged AWOL for failing to report to work for scheduled overtime. Complainant admits to failing to report for overtime, and explained that when one of his overtime assignments was canceled he thought the other assignment was canceled, too. In the decision, the AJ determined that the Agency provided legitimate explanations for its actions. Complainant was charged for leaving his post, resulting in the breach of security charge. Complainant was also charged for being AWOL when he failed to report for his overtime assignment. Complainant admits to both of these actions, he left his post to go to his personal vehicle and he failed to report for his overtime assignment. Beyond his bare assertions, there is simply no evidence that the disputed actions were motivated in any way by Complainant’s age. CONCLUSION The Agency’s final order adopting the AJ’s decision by summary judgment concluding no discrimination was established is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2020001942 6 In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020001942 7 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 October 19, 2020 Date