[Redacted], Dean Y., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Nov 30, 2022

Appeal No. 2022000281 (E.E.O.C. Nov. 30, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dean Y.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2022000281 Agency No. P6-20-0050 DECISION On October 20, 2021, 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 September 23, 2021, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Divisional Administrative Contracting Officer (DACO), 1102, GS-13 at the Agency’s Northrop Grumman Group in McLean, Virginia. On September 3, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2022000281 2 1. From March 17, 2020, to April 22, 2020, Complainant’s first line manager (Manager) harassed and treated him differently than others. Complainant provided the following incidents to support his claim2: a. On March 17, 2020, Manager informed Northrop Grumman contractors he was leaving the Agency because he accepted a position with the Federal Emergency Management Agency (FEMA); b. On March 31, 2020, Manager attempted to deter him from taking a position with FEMA by sending him negative information about FEMA; c. On April 5, 2020, Manager sent him a text message on a weekend and asked that he extend his departure date from the Agency; d. On April 20, 2020, Manager sent multiple text messages to him while he was responding to the protection of human life and property at FEMA; e. On April 22, 2020, Manager directed other Agency employees to call and text his phone to intimidate and threaten Complainant regarding turning in his Agency laptop computer; f. On April 23, 2020, Manager denied his request for contact information for the Equal Employment Opportunity (EEO); g. On June 19, 2020, he was made aware that Manager denied his performance award for his 2019 performance evaluation; and h. On June 26, 2020, and September 2, 2020, Manager instructed other employees to contact Complainant regarding Agency work products. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. During the relevant period, Group Director, NH-1102-04, was Complainant’s second level supervisor (Supervisor-2). On March 16, 2020, Complainant gave notice that he was separating from the Agency with a planned release date of April 11, 2020. Agency employees had been instructed to work from home due to the COVID-19 National Emergency. Complainant and his team were 100 percent telework. Agency employees, including Complainant, had government issued computers, Common Access Cards (CAC) cards, and hard drives. Agency Out-Processing procedure requires employees to turn in all government-issued work equipment and product by their separation date. An Out-Processing Check List is completed by the employee and supervisory personnel. 2 For purposes of making references clear to the parties, we maintained the formatting of the claims as contained in the Agency decision despite there not being a second numeral in the claims list. 2022000281 3 Agency policy states the Out-Processing Check List must be uploaded within 15 days of release of the notification to the employee. Complainant received the notification email on April 2, 2020. Complainant reports that Manager informed Northrop Grumman contractors of Complainant’s planned departure from the Agency to join FEMA without his consent. He stated that such communication undermined and embarrassed him while also breaching his privacy. Manager denied informing Northup Grumman contractors of his departure. Manager noted that she was on vacation the day Complainant emailed notice that he was leaving. She further indicated that she did not have any meeting with Northrop Grumman contractors the following day, March 17. On March 31, 2020, Manager sent Complainant news coverage regarding FEMA via text and email. Complainant asserts that the messages were inappropriate and offensive while Manager stated that she offered the information as a sincere gesture regarding his new work. Manager reported that she did not perceive it to be negative. On April 5, 2020, Manager sent Complainant the following text: Thinking about you and your having to go to new office to get set up. Do you want me to see if postponing your EOD is possible for another pay period or 2? I know your raise is a consideration and not sure if even possible but just thinking of your health and your father’s so I can ask if a possibility if you want. Complainant characterized the foregoing text as unwanted and inappropriate. Manager reported that she did not ask Complainant to extend his departure date but offered him the possibility of adjusting his date due to Complainant’s having worked so hard to complete all outstanding projects. Complainant left the Agency on April 12, 2020. On or prior to April 20, 2020, the following conversation between Manager and Complainant occurred via text: Manager: Did you get your laptop to [Information Technology Worker]? [Mission Support Operations (MSO)] is bugging me :-) Complainant: No Manager: Ok. Any date planned? Complainant: Hopefully by the end of the month. Or if MSO is in a rush to get it, they can send a fedex box. On April 22, 2020, Cost Price Analyst, a coworker of Complainant (Coworker-1), wrote the following in a text to Complainant: 2022000281 4 Just want to give you a heads up, just got off the phone, [Manager] is going to send you a text. She said she will get in trouble if either I don’t collect your work stuff or she does by the end of the weekend. She was talking about stopping by your house on Saturday. On April 22, 2020, Acting IT Chief Mid-Atlantic (IT-1), had the following text conversation with Complainant: IT-1: Hey [Complainant], its me [IT-1]. Just text me the game plan for this weekend regarding equipment. Thanks [IT-1] Complainant: Hey [IT-1] - I got your text. I’m hoping to be in the clear. We recently found out that the people visiting my dad from Medicare had been exposed to other patients in PG county with CoVID 19. We’ve been following the guidelines from CDC and Medicare, which is why I could not make it last week. I’m [Remainder of the text is unavailable] IT-1: Okay, I understand and your safety comes first by all means. Please let me know, I’m sure we can work out some kind of arrangement to obtain the equipment Complainant: Ok…thanks for understanding. Trying to keep, me, myself, and [Remainder of text unavailable] On April 22, 2020, Manager and Complainant had the following exchange over text: Manager: Hi [Complainant], I have been working every option possible through C&P MSO & IT to facilitate safe return of [Agency] equipment in these challenging times. I understand through [IT-1] you have a plan for this Sat after last Saturday fell through. Please keep [Supervisor-2] and I directly informed for our MSO supervisor informed us that if equipment, CAC and GTC are not returned this week that I as supervisor have to personally ensure of equipment return. So please ensure you can turn in Saturday as planned or sooner. Thank you. Complainant: [Manager], please send me an email. Also, before actions is taking on this, please send over DCMA EEO contact. Thank IT-1 obtained the Agency equipment from Complainant’s home. She signed off on all the outstanding government-issued equipment on April 24, 2020. Coworker-1 reported that Manager was “constantly being on [Complainant] to return his laptop.” He stated that Manager favors women over men. He stated that a female employee departed shortly after Complainant without the same treatment regarding equipment. 2022000281 5 A DACO also in the Northrop Grumman Group (Coworker-2) stated that he was aware Manager asked those with Complainant’s contact information to email and text him about getting the laptop back. Coworker-2 stated that he has seen Manager “aggressive and overly argumentative with males in the office.” Mission Support Operations (MSO) Chief (MSO Chief) reported that there was no budget for FedEx boxes. She characterized the equipment return process as “hodgepodge for everyone and no clear direction.” She stated that there is always a sense of urgency to obtain a departing employee’s government equipment, regardless of who the person is. MSO Chief described the equipment return process related to four other former Agency employees following the work-from-home orders related to COVID. She noted that an employee who retired at the end of March completed out-processing on his last day of March 31. She indicated that the employee turned in the equipment on the same day to his Contract Management Office (CMO). She reported two employees left on April 11 in addition to Complainant. She noted that the completed out-processing check sheet for one employee was received on April 8 and that the second employee signed his out-processing check sheet on April 9. She reported that an employee retiring on April 30 completed the process, without signing, on April 29. Complainant indicated that on June 26, 2020, and September 2, 2020, he was contacted by Coworker-1 regarding work Complainant had completed for the Agency prior to his departure. He reported that Coworker-1 stated that Manager had requested that Coworker-1 contact Complainant. Complainant agreed to two conference calls, which he believed would be brief, but that they ended up being more substantial. Complainant characterized the contact as being badgered about his prior work and that there were policies directing a different course for obtaining information from a former employee. Coworker-1 and Coworker-2 reported that Manager had directed them to contact Complainant. Manager stated that Complainant told Coworker-1 to contact Complainant if Coworker-1 had any questions. Manager and Coworker-1 noted that Coworker-1 was new to the position. Manager reported that she may have suggested Coworker-1 contact Complainant on a few occasions about work but only because Complainant offered. Supervisor-2 indicated that employees are frequently contacted once they leave the Agency if they are still government employees. Regarding claim 1(g), Manager issued Complainant’s performance rating on April 10, 2020, indicating overall outstanding performance. Recommendations for performance awards were due no later than May 22, 2020, for the performance evaluation period. Complainant did not receive an award. 2022000281 6 Complainant reported that Manager verbally informed him that he would be getting a performance award. Complainant stated that a former employee (Former-Employee) with the same job grade, series, function, and evaluation scores departed in 2019 and received a performance bonus after his departure. Former-Employee confirmed via text that he received a performance bonus after his departure. Former-Employee’s text messages in the record do not contain specific dates for his departure or receipt of the award. Human Resources Specialist/Labor Employee Relations reported that an individual must be employed by the Agency at the time the Agency allocates the bonuses to be eligible. She stated that even if the individual was part of the payroll for the evaluation period, if they were not part of the rolls for the allocation, then they would not be entitled to a bonus. She clarified that Complainant was not denied a bonus but that Complainant was not eligible for one because he was no longer on Agency rolls. Manager reported that first line supervisors only make recommendations for awards based on the eligible employee list provided to them by upper management. She stated that Complainant was no longer employed as of the date of recommendations and was therefore not eligible for any performance award. She noted that Complainant was on the employment roster along with four other employees who had separated from the Agency and all had an eligible bonus amount of zero. In multiple emails, Manager noted that Former-Employee separated from the Agency later than Complainant. She noted in one email that Former-Employee did not separate from the Agency until June 8, 2019. She noted that the rating cycles are from April 1 to March 31 of the following year. Supervisor-2 reported that planning for awards was done in May. She also stated that Complainant was noted to no longer be employed on the allocation award sheet. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. 2022000281 7 Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. For purposes of the element of adverse employment action in complainant’s prima facie case, an “adverse employment action” is an action by the employer “resulting in a material change in [a complainant’s] work duties or working conditions,” as well as “tangible personnel actions” (such as hiring, firing, demotion, promotion), or “significant change[s] in [a complainant’s] responsibilities.” Complainant v. Dept. of Education, EEOC Appeal No. 0120064678 (July 22, 2008). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. 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. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant must prove that the employer’s reasons are not only pretext but are pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 and 516 (1993). A factual issue of pretext cannot be established merely on personal speculation that there was discriminatory intent. Lyles v. U.S. Postal Service, EEOC Appeal No. 01A11110 (May 22, 2002); Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008). Pretext means that the reason offered by management is factually baseless, is not the actual motivation for the action, or is insufficient to motivate the action. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000). To establish a claim of harassment, a complainant must establish that: (1) she or he belongs to a statutorily protected class: (2) she or 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 her or 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. 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). 2022000281 8 The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Comments that, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of the EEOC regulations and can establish what is sometimes referred to as a “per se” violation of the law. See Leisa C. v. Dep't of Defense, EEOC Appeal No. 0120132212 (Nov. 8, 2013). When a supervisor's behavior has a potentially chilling effect on use of the EEO complaint process -- the ultimate tool that employees have to enforce equal employment opportunity - the behavior can be a violation of the anti-retaliation provisions of the employment discrimination statutes. Binseel v. Dep't of the Army, EEOC Request No. 05970584 (Oct. 8, 1998). Assuming we find that Complainant established a prima facie case on all bases for all claims, we find that Complainant failed to meet his burden to show by a preponderance of the evidence he was discriminated against. Regarding claims 1(a) through 1(e) and 1(h), we find that the alleged activities do not constitute adverse employment actions. Complainant’s work duties or work conditions were not materially changed. There were no tangible personnel actions such as hiring, firing, demotion, or promotion. Taken together, we find that the incidents are also insufficiently severe so as to constitute a hostile work environment. Also, we find that the Agency’s legitimate, nondiscriminatory reasons such as getting the laptop returned to the Agency and closing out Complainant’s employment have not been shown to be a pretext for discrimination. Also, the record also does not reflect that any negative information was sent by the Agency to anyone. Regarding claim 1(f), Manager reported that Complainant requested the EEO contact information in a text when they were discussing the return of the Agency laptop. Manager reported that she understood “before actions is [taken] on this” to mean any kind of legal action to get the equipment back. She stated that there was no plan for that sort of action, thus Complainant did not need the contact information. Manager also reported that Supervisor-2 instructed her not to contact Complainant further and that EEO contact information is public knowledge that Complainant could access. Supervisor-2 provided a different statement regarding claim 1(f). Supervisor-2 stated that she instructed Manager to provide the EEO contact information. Supervisor stated to have believed Manager had provided the contact information. While each member of the management team had a different reason, both constitute legitimate, nondiscriminatory reasons for the course of action. Furthermore, we find that Complainant has not shown that he was dissuaded from pursuing the EEO process. Regarding claim 1(g), we find that Complainant has not shown that the Agency’s assertion that Complainant was not eligible for an award (because he was not employed by the Agency at the time the Agency allocates the bonuses) to be a pretext for discrimination. 2022000281 9 CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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. 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. 2022000281 10 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. 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 November 30, 2022 Date