[Redacted], David N., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021002021 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 David N.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021002021 Agency No. ARKNOX19MAR00782 DECISION 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 January 4, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a Safety Specialist, GS-0018-12, at the Agency’s 1st Theater Sustainment Command (TSC) in Fort Knox, Kentucky. On March 28, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race (African American) and in reprisal for prior protected EEO activity (prior EEO complaints in 2015 and 2016) when: 1. on February 13, 2019, Complainant became aware through an email that he was the only person required to fill out the form (ENG Form 6032, July 2014) for overtime and compensatory time; 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. 2021002021 2 2. on March 6, 2019, Complainant received a Fully Successful rating on his evaluation from his supervisor (S1); and 3. on May 20, 2019, Complainant received a memorandum from the Lieutenant Colonel directing him to report for a deployment physical on May 21 and 23, 2019, and to deploy on June 4, 2019. After its investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant initially requested an AJ hearing but subsequently withdrew the request. On January 4, 2021, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS 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 complainant to prevail, she must first establish a prima facie 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, nondiscriminatory 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). Our review of the record reflects that the Agency articulated legitimate non-discriminatory reasons for its actions. 2021002021 3 Requirement to Complete ENG Form 6032 (claim 1) The Deputy Chief of Staff (DCS) testified that contrary to Complainant’s belief, he sent the email at issue to all civilian employees, including Complainant. The DCS explained that he issued the email after consulting with the Chief of Staff regarding a concern that employees had stopped completing the form. Consequently, the DCS indicated that the email was a reminder for all employees to use the form to complete overtime and compensatory time requests. Similarly, the Civilian Personnel Officer (CPO) corroborated the DCS’s testimony, and the record supports that Complainant also testified that all employees, including himself, were sent the email at issue. Performance Appraisal (claim 2) S1 testified that he rated Complainant “fully successful” on his March 2019 performance appraisal, which included an initial assessment of nine critical performance elements. S1 noted that he gave Complainant four “outstanding” and five “fully successful” ratings, which generated an overall rating of “fully successful” by the Defense Performance Management and Appraisal Program (DPMAP) System.2 S1 explained that Complainant disputed S1’s ratings on two critical elements. Specifically, S1 noted that Complainant believed that his involvement with writing safety messages and attending the MCP Battle Rhythm events were outside the scope of his position description and warranted an “outstanding rating.” However, S1 asserted, and S2 concurred, that these tasks were within the scope of Complainant’s position description. The Human Resources Specialist (HR Specialist) explained that he reviewed Complainant’s appraisal and determined that Complainant’s fully successful rating was warranted. The HR Specialist noted that he had to inform management that Complainant could not be rated on critical element nine because this particular element was added later, and Complainant had not been evaluated under this rating for the required 90 days. The HR Specialist confirmed that management removed element nine from the appraisal. The DCS testified that he believed that there was adequate judication for Complainant’s fully successful rating. Additionally, the DCS clarified that a fully successful rating would still render Complainant eligible for a performance bonus. Notice of Deployment (claim 3) The Lieutenant Colonel (LC) testified that he was the management official who issued Complainant the memorandum directing Complainant to report for deployment physicals in May 2 S1 later clarified that he removed critical element nine at the direction on Human Resources. 2021002021 4 2019 in preparation for a scheduled June 4, 2019 deployment. The LC acknowledged that typically S1 would have notified Complainant of his deployment. However, S1 was in Kuwait and the LC felt that he was the next appropriate person to inform Complainant. The LC noted, and the HR Specialist confirmed, that Complainant was required to deploy as an essential function of his position, and all deployed employees are required to undergo a physical before their departure. Additionally, the DCS noted that Complainant had been with the First TSC since 2011 and had not deployed within two years of receiving the instant notice of deployment even though Complainant’s position description indicated that he could be deployed up to 50% of the time. Regarding Complainant’s assertion that he received short notice for his deployment, S1 testified that Complainant was notified as early as September 14, 2018, that he would deploy on or about December 2019 with the Blue Team. S1 further stated that he informed Complainant during his mid-year review on December 12, 2018, that Complainant’s deployment position would move to the White Team which meant that Complainant would deploy in June 2019, unless management hired another employee to deploy in his place. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race or retaliation for prior protected EEO activity. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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. 2021002021 5 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. In the absence of a legible postmark, a 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. 2021002021 6 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 April 20, 2022 Date