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

Equal Employment Opportunity Commission

Apr 19, 2022

Appeal No. 2021000320 (E.E.O.C. Apr. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Deandre C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021000320 Hearing No. 550-2011-00414X Agency No. ARCEHONO10JUN03415 DECISION On October 12, 2020, 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 29, 2020 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq BACKGROUND During the period at issue, Complainant worked as a mechanical engineer, GS-11/12, at the Agency’s Far East District (FED) facility in Pyeongtaek, Republic of Korea. 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. 2 2021000320 On July 18, 2010, Complainant filed a formal EEO complaint. Complainant claimed that the Agency subjected him to discrimination and a hostile work environment based on national origin (Korean American) and disability (heart condition) when:2 1. On May 25, 2010, Complainant’s first level-supervisor (S1) called a potential employer (within Corps of Engineers, FED) who was interested in hiring Complainant and the first level-supervisor made negative comments about Complainant, which caused the hiring official to rescind the Corps of Engineers job offer. 2. On April 23, 2010, S1 made negative comments about Complainant to the Directorate of Public Works (DPW) Yongsan, which caused the hiring official to select another applicant. 3. On April 7, 2010, S1 accused Complainant of sleeping in a meeting, when Complainant just closed his eyes out of frustration during the discussion. 4. On January 15, 2010, because of S1’s discrimination and retaliation in the work environment, Complainant requested a transfer to another division or section to Deputy Engineer. 5. On November 17, 2009, S1 never discussed any concerns about Complainant’s performance until May 17, 2010. This is clearly retaliation because Complainant is a degreed Mechanical Engineer, Licensed Professional Engineer with 25 years of engineering work experience. 6. On November 5, 2009, S1 verbally denied Complainant’s request for a second Privately Owned Vehicle (POV) with anger and yelling. Most co-workers were aware of S1’s shouting and yelling in the office. 7. On September 30, 2009, S1, in a shouting manner, verbally denied Complainant’s 30- day Temporary Quarters Subsistence Allowance (TQSA) extension even though Complainant had a 60-day TQSA authorization in his employment contract. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ decided Complainant’s disability claim by summary judgment and held a hearing on the national origin claims. The hearing was conducted on August 24-27 and September 1, 2020. 2 Complainant withdrew the basis of reprisal during a fact-finding conference on January 13, 2011. 3 2021000320 The AJ issued a bench decision on September 3, 2020, and entered his order of judgment in favor of the Agency on September 24, 2020. 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. ANALYSIS AND FINDINGS Summary Judgment - Disability Discrimination Claim 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. 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. 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. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. With regard to Complainant’s disability discrimination claim, the evidence of record shows that while Complainant testified to having a “heart problem,” he provided no evidence that he was limited in any way by his medical condition beyond taking regular medication. The record is also unclear that management officials were even aware of this medical condition. The AJ concluded that Complainant was not an individual with a disability within the meaning of the Rehabilitation Act. On appeal, while Complainant makes mention of his medical condition, he does not make any arguments regarding his coverage under the Rehabilitation Act as an individual with a disability. Instead, Complainant focuses on his arguments on appeal on his claim of discrimination on the basis of national origin, as discussed below. 4 2021000320 Moreover, Complainant does not provide any evidence to demonstrate that he was subjected to discriminatory animus on the basis of his medical condition. As such, we discern no error in the AJ’s summary judgment determination that Complainant failed to establish discrimination on the basis of disability. Hearing - National Origin Discrimination Claims Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). To prove his national origin 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 national origin. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. 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). Claim 1 Some time prior to May 25, 2010, Complainant applied for a project engineer position within FED, the area in which he was currently employed. Complainant was determined to be the top applicant for the FED position, and it was recommended to the Area Engineer (“AE”) (“Caucasian”) that Complainant be selected for the FED position. While pursuing the FED position, Complainant received his Notice of Separation During Probationary Period, on May 17, 2010 and effective June 16, 2010, from his current position. AE was informed by Complainant’s supervisor (“S1”) (Korean American) that steps were being taken to remove Complainant from his current position and, as a result, decided Complainant would not be selected for the FED position. Another individual (Korean American) was selected for the FED position. The record supports the AJ’s determination that S1’s communications with the Area Engineer, regarding Complainant’s consideration for a project engineer position, was not motivated by discriminatory animus but rather a legitimate reference from a supervisor to a hiring official. 5 2021000320 Claim 2 Several days after Complainant was interviewed for a position in Yongsan (hereinafter referred to as “Yongsan position”), S1 informed Complainant that he was aware that Complainant had applied for the Yongsan position and that Complainant should not expect to get the Yongsan position. On May 5, 2010, Complainant was notified that he was referred, but not selected for the Yongsan position. The record indicates that S1 did not intercede in the selection for the Yongsan position. Complainant does not address this claim on appeal. Therefore, we discern no error in the AJ’s conclusion that national origin discrimination was not established with regard to this claim. Claim 3 Complainant admitted to closing his eyes during a project review meeting but stated that he was not asleep. S1’s supervisor, Complainant’s second-level supervisor (“S2”) (Korean American), informed S1 that the deputy commander observed Complainant sleeping in the meeting. The Agency had sufficient evidence, through individuals witnessing the event, that S2 instructed S1 to make an official documentation of the incident. Subsequently, S1 issued Complainant a counseling letter regarding the matter. Regardless of whether or not Complainant was actually sleeping, the weight of the evidence fully supports the AJ’s determination that S1 issued the counseling letter because he was directed to after higher level officials complained that he appeared to be sleeping during the meeting. Claim 4 On January 15, 2010, Complainant met with the Acting Deputy Chief of Engineering Division (Korean American) (ADCED) and requested a transfer to a different division. ADCED told Complainant to continue doing a good job where he currently is, and the Agency would thereafter see about a transfer. ADCED then informed S1 that Complainant had been in contact with him and had requested the transfer. S1 angrily asked Complainant why he had contacted ADCED without S1’s permission. Complainant testified that he believed that S1 spoke to him in this angry manner because S1 wanted to demonstrate that he was in a position above Complainant. Complainant does not provide evidence that S1 treated him differently based on Complainant’s protected basis because of S1’s purported outburst, as described above. Claims 6 and 7 Employees were required to obtain authorization to register a second POV (vehicle), under Agency regulations. Complainant submitted the request to S1, who did not have the authority to approve the request, but who could indicate his approval. When Complainant submitted the request to S1, he alleges S1 yelled at him and asked why he needed two POVs. There were some witnesses to S1 raising his voice during this incident. 6 2021000320 Complainant’s employment contract authorized him TQSA (temporary housing allowance) for up to 60 days, but the FED policy was to grant only 30-day allowances. Complainant requested a 30-day extension to his TQSA. S1 responded that two other employees, who were hired at the same time as Complainant, did not require extensions and had already found housing in Pyeongtaek. Complainant alleged S1 raised his voice at Complainant during this interaction, and S1 informed Complainant that he would not approve the extension, and any such approval had to come from the deputy commander. Complainant found that S1’s demeanor during this incident to be insulting. In his decision, the AJ reviewed the hearing testimony and concluded that there was nothing in evidence that supported Complainant’s allegation of discriminatory harassment by S1 or any other Agency official. The AJ specifically found that Complainant and S1 interacted less than two hours every week. Therefore, all of S1’s knowledge of Complainant’s performance, conduct, and attendance came from his work leader (“WL”) and the team leader (“TL”) (both “Caucasian”). The AJ also discussed two reprimands issued by S1 to Complainant, on February 24, 2010. The first incident was alleged to have occurred on December 30, 2009 when Complainant created a disturbance and displayed unprofessional behavior with WL. Then on January 5, 2010, Complainant and WL had a tense interaction regarding Complainant’s lunch time and work schedule. The other letter asserted that Complainant claimed to work eight hours when he worked fewer hours than documented, and this occurred on several occasions. Additionally, on April 2, 2010, S1 discussed Complainant’s performance with him, and indicated it was below the expected level, Complainant was insubordinate, and he had absences that failed to follow leave policy. On appeal, Complainant only offers statements reiterating his claims. However, he does not provide evidence, beyond mere assertions, to demonstrate that he was subjected to harassment on the basis of his national origin. Complainant argues that S1’s appointment of his work leader (WL) was insulting to Complainant and the other team members because he did not have an engineering degree or license. Complainant further asserts that WL bribed S1 to be hired. Here, a finding of a hostile work environment is precluded by our determination that substantial evidence of record developed during the investigation of the complaint and the hearing fully support the AJ’s conclusion that Complainant failed to establish that any of the disputed actions were motivated by discriminatory animus based on Complainant’s national origin. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s decision to adopt the AJ’s conclusion that no discrimination was established. 7 2021000320 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. 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). 8 2021000320 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 April 19, 2022 Date