Kelsie T.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 9, 2020

2019005425 (E.E.O.C. Sep. 9, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kelsie T.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2019005425 Hearing No. 570-2018-00126X Agency No. ARBELVOIR17JAN00378 DECISION On July 25, 2019, 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 June 25, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology Specialist, 2210, NH-4, at the Agency’s Program Executive Officer (PEO) Enterprise (EIS), Reserve Component Automation Systems (RCAS) facility in Fort Belvoir, Virginia. On March 2, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of race (Black), age, and reprisal for prior EEO activity when: 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. 2019005425 2 a. Complainant was verbally informed by the Deputy Project Lead that his supervisor (Supervisor1) no longer wanted him to work on the Distributed Learning Project (DLP) and those duties were removed and reassigned; b. Complainant was removed from the supervision of another supervisor (Supervisor2) and was reassigned under the supervision of another supervisor (Supervisor3), as retaliation for a previous EEO complaint and hostile work environment; c. Management set up Complainant for failure and made up work assignments as other duties as assigned as retaliation for a previous EEO complaint; d. Complainant was in a hostile work environment due to no respect, toxic environment, due to regenerated air pollution inside the work area, and one toilet stall and one urinal in men’s restroom; e. Complainant was not informed that he did not have to accept an appointment that was abruptly terminated on December 22, 2016; f. Complainant was conspired against due to his seniority in RCAS that prevented others from being promoted; g. Every day at work, even when Complainant was not at work at his duty station at the Agency’s facility, management’s constant harassment, creating a hostile work environment, as reprisal for prior EEO complaint ARBELVOIR09MR01007, resulting in mental stress, high blood pressure, and chronic kidney disease (stage 4); and h. Management issued Complainant a negative “CCAS” performance appraisal, which was previously reconsidered in the CCAS grievance process. On March 24, 2017, the Agency issued a final decision dismissing the complaint in its entirety. Complainant appealed to the Commission and, on June 26, 2017, the Commission reversed the Agency’s dismissal and remanded the complaint to the Agency for further processing. Complainant requested reconsideration, and, in a September 20, 2017 decision, the Commission denied the request and decided that the June 26, 2017 remand for further processing remained the Commission’s decision. On remand, the Agency conducted an investigation of the complaint, which produced the following pertinent facts: Complainant’s prior EEO activity consisted of two EEO complaints filed on April 15, 2009 and September 30, 2009. Complainant believed he was subjected to a hostile work environment because of his working conditions. His allegations relating to this included that his co-workers do not respect seniority; the building is not well-ventilated, has poor air circulation, and only one bathroom stall for 15 male employees; he was labeled a trouble-maker and not a team player because he does not have prior military service; and he was conspired against because of his seniority that prevents others from being promoted. 2019005425 3 Complainant asserted that, when Supervisor1 left the Agency, his position was not filled because no one had as much education and experience as Complainant and the position is normally filled by the next senior employee in the division, which was him. Complainant also asserted that he was disrespected, noting that meetings were held in his work area instead of in a conference room and employees with less seniority than him were left in charge of the office. Complainant also asserted that he was subjected to harassment every day, even when not at work, based on his prior EEO activity. As an example of harassment, Complainant noted that his computer was quarantined in July 2016. The Deputy Project Manager attested that the Directorate of Public Works was consulted and found the air quality and facilities to be in accordance with OSHA standards. He disagreed that Complainant was conspired against and attested that he was prohibited by Human Resources from advertising Supervisor1’s position after he left because the Agency already had a large number of non-supervisory NH-4s assigned and, as a result, he combined divisions and made Supervisor3 the supervisor for the new division. Several managers attested that they disagreed with Complainant’s allegations that he had been subject to a hostile work environment, disrespected, and made to work in inadequate facilities. They acknowledged Complainant’s computer had been quarantined, but this was not unique to him, as other employees’ computers were quarantined as well. Complainant also made allegations regarding duty assignments. He attested that he was notified by the Deputy Product Lead, sometime between May 12, 2016 and September 21, 206, that Supervisor1 no longer wanted him to work on the DLP and his duties were removed and reassigned. Complainant disagreed with the decision because he had been working on the project since 2006 and was never given a reason for his removal. Complainant also believed the decision was discriminatorily motivated because he did not have prior military service. Complainant also believed that he was retaliated against when he complained to management that he was removed from Supervisor2’s supervision and reassigned to Supervisor3. Complainant asserted that he should not have been removed from Supervisor2’s supervision because Supervisor2 was the lead and the senior person over him. Complainant contended that the decision was done in retaliation because the vacant position was a NH-4 and was filled by Supervisor3, who was not in the appropriate series to fill the position. Complainant also alleged that management set him up for failure and made up a work assignment as the primary Hand Receipt Holder for RCAS as retaliation for his prior EEO activity. He asserted that the job series or the position was not his current job series. He was assigned this position in August 2016 and it was terminated in December 2016. Complainant considered the assignment to be reprisal because he was a senior employee with an advanced degree and over 35 years of government experience, and no one respects his contributions or work. Complainant attested that he was never informed that he did not have to accept the assignment when he was appointed. 2019005425 4 The Deputy Project Manager attested that he was aware that Supervisor1 no longer wanted Complainant to work on the DLP project and wanted him reassigned because he lost all confidence in Complainant’s ability, due to his unprofessionalism and demeanor with stakeholders. The Deputy Project Manager attested that he assigned Supervisor2 as the Acting Division Chief based on his capabilities and once Supervisor3 was the permanent Division Chief, all members of that division fell under her supervision. The Deputy Product Lead attested that the Agency’s leadership has given Complainant many opportunities to afford him a good fit within the organization. He offered an example of Complainant being appointed the Trusted Associate Sponsorship System and Joint Personnel Adjudication System Officer, but Complainant broke security protocols and put the Government’s network at risk. He also that they had a requirement for a Property Book/Hand Receipt Holder and Complainant accepted the duties without raising any concern but later indicated he was having a hard time accomplishing the property accountability requirements. Supervisor3 attested that she had no knowledge of Supervisor1 no longer wanting Complainant to work on the DLP project and played no role in his reassignment. She disagreed with Complainant’s allegation that he was assigned a made-up position to set him up for failure. She attested that Complainant went to the Product Lead and Deputy Product Lead and expressed his desire to do something else and the Project Lead gave him that assignment. She attested that no one spoke to her about the reassignment prior to the decision and she has no knowledge of a meeting during which he was informed he did not have to accept it. The Agency employs a Contribution-Based Compensation and Appraisal System (CCAS) to annually assess an employee’s level of contribution to the organization. Based on this, salaries are adjusted accordingly. The Overall Contribution Score (OCS) represents the employee’s contribution to the Agency’s mission and is computed by the rater/pay pool panel. Complainant alleged that he received a negative CCAS rating for FY 2016. His OCS rating for the FY 2016 was 81 but Complainant believed he should have received a score of 83 on each of the six job elements he was rated on because he successfully completed all assigned tasks and assignments on time, within budget, and during the rating period. Supervisor3 was Complainant’s supervisor and rater in CCAS for the rating period at issue. She disagreed that Complainant deserved a higher overall CCAS rating. She attested that she provided Complainant verbal feedback during the midpoint assessment, including that he needed to improve his leadership skills and be more attentive and proactive to assigned tasks. She attested that Complainant’s self-assessment was not clearly written and did not contain specific accomplishments. She attested that, although she directed him to review his assessment for grammatical errors and content, he continued to submit the same generic statements. She noted that, during the rating period, Complainant was counseled about sending out Personally Identifiable Information via email and had been counseled on similar issues previously; he was involved in a serious incident where he tried to reinstate a revoked Common Access Card against the guidance of leadership and, as a result, his Trusted Associate Sponsorship System and Joint Personnel Adjudication System were revoked; and she counseled Complainant on multiple 2019005425 5 occasions and implored him to exercise better professional standards and conduct. She attested that Complainant’s rating was based on his performance and his breach of security. She stated that he struggles to listen and follow directions and she has to constantly reassign his work to other team members; customers and team members have a difficult time working with him; and he does not communicate openly with others or provide feedback to her or Agency leadership. The Deputy Project Manager attested that he was aware of and concurred with Complainant’s CCAS rating. He further explained that Complainant’s CCAS was evaluated through the grievance process and the Agency’s executive agreed with the rating given by Supervisor3. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s April 12, 2019, motion for a decision without a hearing and issued a decision without a hearing on May 30, 2019. 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. The instant appeal followed. On appeal, Complainant clarifies his allegations in the complaint, asserts that there are numerous errors in the report of investigation, he requested that the summary judgment indicate “sexual” as opposed to “non-sexual” harassment bullying, and there are numerous other bases for the allegations. On appeal, the Agency notes that the AJ conducted two conferences, during which Complainant was allowed to fully explain or clarify his claims and repeatedly insisted that “the real issue” was that he was discriminated against was because he was a non-military worker surrounded by military personnel and this was the “true root” of the alleged hostile working environment and discrimination. The Agency agues that the AJ’s decision is legally and factually sound and asks that the Commission affirm the AJ’s order. ANALYSIS AND FINDINGS Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 2019005425 6 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. While Complainant has, in a very general sense, asserted that facts are in dispute, she has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. 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. Harassment Claim Complainant has alleged the Agency subjected him to harassment in numerous instances. To establish a claim of hostile environment 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 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 Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). 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 race, age, or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant’s harassment allegations can generally be described as relating to managerial decisions, such as job duties or assignments, appropriate facilities, promotions, and performance appraisals. With respect to her disagreements with managerial decisions, without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by 2019005425 7 discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). We note that Complainant has alleged that he was treated poorly and disrespected because of his lack of military service, but this is not a permissible basis for a claim of discriminatory harassment under EEO regulations. Therefore, although Complainant asserts that the Agency acted discriminately, we find there is insufficient evidence to support the allegation that his race, age, or prior EEO activity played any role in the incidents at issue. Disparate Treatment Claims Complainant’s harassment allegations give rise to claims of disparate treatment, particularly with respect to his reassignments and CCAS performance appraisal. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Constr. 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 Tex. Dep’t of Cmty. 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 Ctr. v. Hicks, 509 U.S. 502 (1993). Even if we assume that Complainant established a prima facie case of discrimination, his claims ultimately fail, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency explained that Complainant’s reassignments were due to management’s having lose confidence in him, due to his unprofessionalism and demeanor; his breaking security protocols and putting the Government’s network at risk; and Complainant’s expression of a desire for new assignments. The Agency also explained that Complainant’s performance rating was based on his performance and his breach of security. Although Complainant alleges that he was discriminated against based on his race, age, and prior EEO activity, he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to these claims. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. 2019005425 8 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). 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. 2019005425 9 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 9, 2020 Date