Marcos S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 10, 2020

2020002613-2020002615-2020002616 (E.E.O.C. Sep. 10, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marcos S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Request Nos. 2020002613, 2020002615, 2020002616 Appeal Nos. 2019004777, 2019004778, 2019004779 Hearing Nos. 410-2017-00082X, 410-2017-00527X, 410-2018-00267X Agency Nos. ARIMCOMHQ16MAY01798, ARIMCOMHQ16DEC04752, ARIMCOMHQ17MAR00957 DECISION ON REQUEST FOR RECONSIDERATION Complainant requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its consolidated decision in EEOC Appeal Nos. 2019004777, 2019004778, 2019004779 (Feb. 6, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). During the period at issue, Complainant was employed as an EEO Specialist, GS-11, at Fort Benning, Georgia. 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. 2020002613, 2020002615, 2020002616 2 Complainant filed a formal EEO complaint on June 16, 2017, alleging discrimination by the Agency based on race (African-American), national origin, (Nigerian), sex (male), age (56), and in reprisal for prior protected EEO activity when, on April 27, 2016, he became aware that he was not selected for the position of EEO Officer, GS-13, under Vacancy No. 158048, Announcement No. SCEA 161518541584082. Complainant filed a second EEO complaint on January 27, 2017, alleging discrimination and harassment by the Agency based on race (African American), national origin (Nigerian), sex (male), age (56), disability, and in reprisal for prior protected EEO activity when: 1. On October 31, 2016, he became aware he was not selected for the position of EEO Specialist, GS-12 under Vacancy Announcement No, SCEA 165484671703088. 2. Between August 8, 2016 and January 4, 2017, the Colonel appointed the Captain as an investigating officer under Army Regulation (AR) 15-6 to investigate whether Complainant was practicing law without a license, illegally charging clients for services and using public office equipment for private gain. The investigation report was sent to the State of Georgia Bar and U.S. District Attorney Office for prosecution. 3. On September 12, 2016, the Colonel authorized the search and seizure of his government computer which led to his inability to perform the functions of his position and violated his reasonable accommodation request. 4. His first level supervisor (S1) denied his request to move to a larger office as accommodation for sessions with customers. 5. S1 denied him key access to the storage/file room, microwave, and refrigerator to store food/medicine. 6. S1 treated him rudely, talked down to him and disrespected him in front of co- workers/counselors. 7. On October 13, 2016, S1 verbally counseled him for not providing a leave slip in an emergency situation (mother’s illness resulting in her death). 8. On or about November 11, and November 17, 2016, S1 continuously undermined his professional judgment by going behind his back to counsel his appointments, sat in on his appointments, and stated he did not know how to do his job to management officials. 9. On November 15, 2016, S1 denied him a lunch break after returning from a job fair. 2020002613, 2020002615, 2020002616 3 10. On November 16, 2016, S1 verbally humiliated, degraded, and demeaned him in front of other co-workers when she stated he was acting like a child for wanting to sit in his regular seat across from her during a staff meeting. Complainant filed a third EEO complaint on May 9, 2017, alleging discrimination and harassment by the Agency based on race (African American), national origin (Nigerian), sex (male) age (56), disability, and in reprisal for prior protected EEO activity when: 1. From October 1 2016, to March 24, 2017, S1 and the Commander failed to complete and provide him with his 2015-2016 performance evaluation, unlike other co-workers. 2. From January 23, 2017 to March 24, 2017, S1 harassed and retaliated against him after he advised her and the Complaints Manager that a complaint naming S1 as a responding management official could not be processed through their office as that would be a possible conflict of interest. 3. On Janaury 23, 2017, S1 requested that he provide her with a leave slip for coming in 20 minutes late. 4. On February 7, and 8, 2017, S1 stated he was a liar and incompetent in the performance of his duties, followed him to his office, became upset with him when he asked for updates on his accommodation request, and slammed the door on the way out of the office. 5. On February 8, 2017, S1 removed him from the performance of his duties in violation of the Army Table of Penalties, accused him of being insubordinate, placed him on administrative leave with the recommendation of Civilian Personnel Advisory Center and hired an intern to perform his duties. 6. Between February 8, 2017 and March 24, 2017, S1 had the lock to his office changed and prevented him from accessing his office. 7. On February 7, 2017, the Commander refused to intervene on his behalf, despite his efforts in asking for assistance to resolve the issues of harassment and disparate treatment by S1. 8. On February 28, 2017, he became aware his performance evaluation for 2012-2013 (rating of Excellence) was never placed in his Official Personnel record by the Commander or his previous supervisor. After the investigation into the three complaints, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ consolidated all three complaints. 2020002613, 2020002615, 2020002616 4 The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued a final order implementing the AJ’s decision. Complainant filed an appeal with the Commission. In the initial decision, the Commission affirmed the Agency’s final order implementing the AJ’s decision without a hearing finding no discrimination. The Commission found that “[e]ven construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainants favor.” EEOC Appeal Nos. 2019004777, 2019004778, 2019004779 (Feb. 6, 2020). Complainant filed the instant request for reconsideration. Complainant, through his attorney, asserts that he established a prima facie case of discrimination. Complainant argues that the Agency’s articulated reasons for his non-selections were pretext for discrimination. Complainant also reasserts that he was subjected to an unlawful hostile work environment. Regarding the two non-selections at issue, we find that the AJ properly found that even assuming Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding the GS-13 position at issue, the AJ found that the Agency stated that Complainant lacked the requisite time-in-grade at the time he applied for the GS-13 position. Regarding the GS-12 position, the AJ found that the Agency asserted that Complainant’s interview performance was not as strong as the selectee’s. In addition, we find that the AJ properly found that Complainant did not establish that the Agency’s articulated reasons for his non-selections were pretext for discrimination. We further find that the AJ properly found that Complainant did not establish a prima facie case of harassment. The AJ properly found the “requisite link between the acts of alleged harassment and a discriminatory motivation is missing in this case. There is no evidence that any of the incidents in question involved or were based on Complainant’s protected classes.” We remind Complainant that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (Aug. 5, 2015), Chapter 9. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to deny the request. The decision in EEOC Appeal Nos. 2019004777, 201904778, 201900477 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. 2020002613, 2020002615, 2020002616 5 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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 10, 2020 Date