[Redacted], Fredrick A., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Mar 23, 2023

Appeal No. 2022000833 (E.E.O.C. Mar. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fredrick A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2022000833 Hearing No. 410-2021-00068X Agency No. DLAN-20-0144 DECISION On December 1, 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 November 3, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency’s Anniston Building in Anniston, Alabama. On April 14, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (PTSD) and 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. 2022000833 2 1. On March 10 and 12, 2020, Complainant was dispatched twice to pick up a load and take it to shipping at 2:50 pm, despite management knowing his shift ended at 3:30 pm. On both occasions, he was not allowed to leave until after 4:00 pm, resulting in him planning for someone to pick up his daughter from school; 2. On March 2, 2020, during a telephone conversation, his Supervisor told him, “this is ridiculous,” commenting on his request for two hours of official time to meet with his EEO representative to work on his EEO complaint; 3. On February 4, 2020, Complainant’s Division Chief never met with him to discuss changing his overall work schedule and to remain on the 0630-1530 work shift; 4. In December 2019, Complainant’s verbal request for three hours of leave for repair of his home’s heating unit during the winter was denied; 5. On November 19, 2019, Complainant received a poor performance appraisal; 6. In November 2019, during a truck driver’s meeting, the Deputy Commander told Complainant, “Yeah, and if you do it again, I will fire you,” and “Yes, I can do that, do you want to challenge me?,” and told the Supervisor to “be hard on all truck drivers.”2 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. When the Complainant did not respond, the AJ assigned to the case granted the Agency’s September 17, 2021, motion for a decision without a hearing and issued a decision without a hearing on October 18, 2021. The AJ found that there were no genuine issues of material fact and that Complainant did not establish that he was subjected to discrimination. 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. Complainant appealed the Agency’s final order, arguing that the Agency did not fully investigate Complainant’s claims and that the AJ did not adequately review the evidence. In response, the Agency contends that Complainant has not identified any reversible error in the AJ’s decision and that the AJ’s decision should be affirmed. 2 We note that Complainant’s complaint also includes race, color, and sex as additional bases but a review of the pre-complaint documents and Complainant’s affidavit indicates that Complainant only argued disability and reprisal as the bases of his claim. See Report of Investigation (ROI) at 8-9; 100-109. The Agency’s notice accepting Complainant’s complaint appears to have inadvertently listed reprisal as the only basis but we further note that the investigation correctly included disability as one of the bases. See ROI at 73-75; 85. 2022000833 3 ANALYSIS AND FINDINGS 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. (Aug. 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). Upon review of the Agency’s motion for summary judgment and the record as a whole, we agree with the AJ that the Agency’s motion accurately recounted the relevant material facts and identified the legal standard for granting summary judgment.3 We find that the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. On appeal, Complainant does not appear to challenge the propriety of the AJ’s grant of summary judgment other than to argue that the AJ did not adequately consider all the evidence. Complainant does not, however, identify any evidence which the AJ did not consider. Moreover, to the extent Complainant’s brief on appeal appears to argue that the Agency did not adequately investigate disability as a basis, we reject Complainant’s argument as the investigation did include disability as one of the bases.4 We find that the Agency’s investigation was sufficient to allow us to determine whether discrimination had occurred.5 Accordingly, we find that the AJ properly issued a decision without a hearing. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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 Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 3 We note, however, that the Agency’s motion inadvertently excluded disability as one of the bases for the claim; however, disability was included in the investigation and we find that the Agency’s motion otherwise adequately recounted the material facts. 4 To the extent Complainant appears to be arguing that the Agency somehow failed to accommodate Complainant’s disability, we note that a denial of reasonable accommodation claim was never mentioned at any point before the Agency and the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004). 5 We note that the Supervisor was not available to be interviewed during the investigation because he was on leave. See ROI at 17. 2022000833 4 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 Serv. Bd. 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). Even assuming arguendo that Complainant established a prima facie case, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions.6 The Deputy Commander stated that with respect to claim 1, although he was not directly involved, the Agency could not make a person stay after the end of their shift so Complainant could have said no to the dispatcher. See Report of Investigation (ROI) at 142. The Operations Officer stated that afterwards, she ensured that Complainant received overtime for the time he stayed after the end of his shift and afterwards, Complainant “was ok with things.” See ROI at 153. The Division Chief stated that Complainant’s request for emergency leave was denied due to a shortage of drivers and if Complainant had been granted leave, they would have only had one driver available. See ROI at 165. With respect to claim 5, Complainant stated that he was given a write-up for being a poor truck driver, which he disputes. See ROI at 107. The Deputy Commander clarified that this was likely a private conversation with the Supervisor because the official record does not reflect that Complainant was written up for poor performance. See ROI at 145. We note that Complainant’s actual performance appraisal for 2019 rated Complainant as “Outstanding” in all elements and there is no evidence in the record of Complainant receiving a poor performance appraisal. See ROI at 234-39. The Deputy Commander explained that with respect to claim 6, the comments were made because Complainant was cutting through the receiving area at a high rate of speed in the dark, which was a safety issue, and that the Supervisor made the comment after Complainant referred to the safety rule as being stupid. See ROI at 147. We further find that Complainant did not establish that any of the Agency’s stated reasons are a pretext for discrimination. Complainant did not submit any evidence to support his assertions aside from the opinions of some of his coworkers that Complainant was treated unfairly and “picked on” more than other drivers. See ROI at 173; 177; 181; 185; 191. 6 For purposes of this decision, we assume without finding that Complainant was involved in protected EEO activity. 2022000833 5 However, the opinions of Complainant’s coworkers are not evidence of discriminatory animus as mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. See 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). Moreover, we note that one of Complainant’s coworkers stated that management had “a general dislike for [Complainant],” but also stated that the Supervisor created a “hostile environment for all employees” and “harassed all of the truck drivers.” See ROI at 191-94. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake and a subjective dislike is not sufficient to demonstrate discriminatory motive. See Alda F. v. Dep’t of Health and Human Srvcs., EEOC Appeal No. 0120182538 (Nov. 27, 2019). Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) 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 the 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). We find that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by either his disability or reprisal. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). While we acknowledge the evidence that truck drivers in that facility appear to feel they were treated harshly, we note that this harsh treatment appears to have affected all drivers and as such, cannot be said to be due to any particular protected class. See ROI at 194. Moreover, the Commission has held that incidents that are the result of routine supervision, managerial discipline, and general workplace disputes do not rise to the level of severe or pervasive conduct to establish a hostile work environment. See Marcie la P. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120141945 (Oct. 21, 2016). Furthermore, to the extent Complainant appears to argue on appeal that the Agency’s treatment negatively affected Complainant’s PTSD and one of Complainant’s coworkers stated that Complainant was stressed by management’s behavior, see ROI at 181, we note that harassment, as the term is used in Title VII cases, refers to more than being subjected to stress. See Morata v. U.S. Postal Serv., EEOC Appeal No. 01912775 (Oct. 4, 1991). 2022000833 6 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 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. 2022000833 7 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 March 23, 2023 Date