U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elden R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. and Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004895 Hearing No. 570-2019-01628X Agency No. AFGHAN11NOV180002 DECISION On September 6, 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 August 6, 2021 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. 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. 2021004895 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Advisor at the Agency’s Combined Security Transition Command-Afghanistan Resource Management facility in Bagram, Afghanistan. On December 23, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), age (YOB: 1956), and reprisal for protected EEO activity when: 1. On June 27, 2018, the Procurement Advisor (PA) placed Complainant on a Performance Improvement Plan.2 2. On August 15, 2018, the Senior Procurement Advisor (Senior PA) and PA removed Complainant from his post awards duties and assigned him to do administrative duties, such as mail movement tracker, telephone calls and other office functions; and threatened to send him home if he did not do the office work. 3. In August 2018, the Senior PA denied Complainant’s request for a one-year deployment extension. 4. On October 30, 2018, the PA placed comments regarding Complainant’s performance standards and feedback on an unprotected shared drive. 5. On November 12, 2018, the Senior Resource Management Advisor (Senior RMA) reassigned Complainant from Camp RS Headquarters to New Kabul Compound.3 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. The AJ initially assigned to the case granted the Department of Defense’s motion to join the Department of the Army as a party to this complaint.4 The AJ now assigned to the case granted the Agency’s March 1, 2021 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on July 30, 2021. The AJ found that responsible Agency officials articulated legitimate, nondiscriminatory reasons for each of its actions and that Complainant did not submit any evidence to support his assertions of a discriminatory motive. 2 Complainant later clarified that it was not a Performance Improvement Plan but rather an Employee Performance Plan and he signed it with the understanding that it was not negative in nature. See Report of Investigation (ROI) at 279. 3 Complainant alleged reprisal was a basis only for claim 5 as it was the only one which occurred after his initiating EEO contact with a counselor which is his only EEO activity. Complainant retired from federal service on June 13, 2020. See ROI at 277. 4 This case was later reassigned to another AJ on October 1, 2020. 2021004895 3 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 The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Complainant first challenges the adequacy of the investigation, contending the investigator erred by not giving him an opportunity to rebut the Agency’s explanations and by not interviewing all of his suggested witnesses. EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that the agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id.; EEO MD-110 at Chap. 6, § IV.B. An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the Complainant’s group as compared with the treatment of similarly situated employees...and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.” Id. at Chap. 6 § IV.C. Also, an investigator must identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” Id. at Chap. 6 § VI.D. 2021004895 4 Initially, we note that the record contains multiple emails sent to Complainant by the investigator giving him the opportunity to rebut the Agency’s statements and requesting Complainant identify additional witnesses, to which Complainant did not respond. See Report of Investigation (ROI) at 299-300; 333-69. There is neither evidence in the record that Complainant did not receive the emails nor does Complainant make such an argument on appeal. In addition, we are not persuaded by Complainant’s complaint regarding his witnesses as by Complainant’s own account, those witnesses would only provide information concerning their own experienced of alleged discrimination and misconduct at the hands of the same management officials, which is neither relevant nor material to Complainant’s own claims. We find that, under the circumstances of this case, the record is adequately developed such that we can draw conclusions as to whether discrimination occurred. Complainant has also accused the AJ of being biased. However, we conclude that aside from Complainant’s bare assertion, there is no evidence to support Complainant's allegation of bias on the part of the AJ. See Catheryn P. v. U.S. Postal Serv., EEOC Appeal No. 2021002386 (Feb. 28, 2022) (noting that an allegation of bias without more is not sufficient reason to reverse an AJ’s decision by summary judgment). Finally, Complainant contends the AJ erred by denying his motion for sanctions in the form of default judgment against the Agency for its failure to complete the investigation in a timely manner. EEOC Regulation 29 C.F.R. § 1614.108(e) provides that an Agency shall complete its investigation within 180 days of the date of filing of an individual complaint. Here, it took the Agency over a year and a half to issue the report of investigation. In denying Complainant’s motion for sanctions, the AJ noted that the delay was caused in part by some confusion as to which agency was the proper respondent and there were other issues relating to investigating a complaint filed in Afghanistan in a multinational and interagency environment. The AJ further noted that some of the delay was also attributable to Complainant’s own failure to maintain updated contact information with the Hearings Office. The AJ concluded that under the circumstances, sanctions were not warranted. Under the unique circumstances of this case, we find that the AJ did not abuse their discretion in denying Complainant’s motion for sanctions. Disparate Treatment On the merits of Complainant’s claims, we find that the AJ’s Decision correctly identified the legal standards for Complainant to prove that he was subjected to disparate treatment on the bases of his race, color, sex, age, and/or reprisal. We further find that, even assuming arguendo that Complainant has established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The PA stated that the performance plan was intended to assess skills and abilities and help an individual assess his accomplishments. See ROI at 230. The Senior PA and the PA both asserted that because the office had no Admin or Operations support, everyone was required to chip in and perform various administrative duties as required. See ROI at 234; 248-49. 2021004895 5 The Senior PA explained that he did not have the authority to grant or deny Complainant request for an extension of his deployment but that Complainant improperly sent his request directly to the Resource Management’s Headquarters office rather than following the proper procedure and for that reason, Complainant’s request was sent back with instructions for Complainant to follow the proper procedure, which Complainant failed to do.5 See ROI at 249. The Senior RMA explained that he had originally planned to send another contractor from Procurement to the New Kabul Compound (NKC) but then learned that the NKC did not have any proper billeting available for females with her special needs. See ROI at 219-20. He stated that Complainant was then the next best option and would provide Complainant an opportunity to use his years of procurement experience to show the staff at NKC “how to get things done.” See ROI at 219-20. We further find that Complainant did not establish that any of the Agency’s legitimate, nondiscriminatory reasons for its actions were a pretext for discrimination. Contrary to Complainant’s contentions, there is no evidence in the record to support his assertions of discriminatory animus based on any of his protected classes. The mere fact that one of Complainant’s former co-workers agreed that there is a culture of discrimination at the base is not evidence of pretext because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). Hostile Work Environment We further find that the AJ correctly concluded that Complainant did not establish that he was subjected to a hostile work environment. Contrary to Complainant’s argument, the mere fact that Complainant asserts he was the only African-American on staff at the time is not enough, absent more, to establish any discriminatory animus. The Commission declines to simply presume discriminatory animus based upon the race, color, or any other protected class of the management officials in question. See Carney v. U.S. Postal Serv., EEOC Appeal No. 0120092851 (Nov. 20, 2009). Moreover, although we acknowledge that one of Complainant’s former co-workers stated that the PA “was short-tempered, made snide remarks, [and] talked down to [Complainant] like he was an idiot,” see Supplemental ROI at 10, we do not find that any of the claims taken together are sufficiently severe or pervasive to establish a hostile work environment. 5 With respect to claim 4, the PA explained that after the staff was directed by the Network team to move all documents from their desktop onto the shared drive in preparation for upcoming network maintenance, he inadvertently failed to move the files related to Complainant back onto his desktop but noted that the shared drive was protected and access was limited to 10-12 people. See ROI at 239. To the extent that Complainant alleges that claim 4 was a violation of the Privacy Act, such violations are exclusively within the jurisdiction of the United States District Courts and therefore, an EEO complaint is not the proper forum for such a claim. See Winford M. v. Dep’t of Veterans Affs., EEOC Appeal No. 2022000340 (Feb. 7, 2022). 2021004895 6 The Commission has long held that Title VII is not a civility code and not every unpleasant or undesirable act which occurs in the workplace constitutes an EEO violation. See Dolly H., v. Dep’t of Agric., EEOC Appeal No. 0120150414 (May 3, 2017); see also Eileen S. v. Dep’t of the Army, EEOC Appeal No. 0120170721 (March 20, 2019) (no hostile work environment found when, among other things, Complainant was told she “sucked” and she “sucked as a supervisor,” and was admonished in front of other employees by her supervisor that she “did not perform [her] job worth a damn.”). Lastly, regarding the events which constituted discrete acts of disparate treatment, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., 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 final order finding that Complainant did not establish that he was subjected to discrimination as alleged. 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 2021004895 7 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. 2021004895 8 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 14, 2022 Date
