[Redacted], Mathew R., 1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Dec 7, 2020

Appeal No. 2020003855 (E.E.O.C. Dec. 7, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mathew R.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2020003855 Hearing No. 570-2019-01033X Agency No. ARUSAR18SEP03349 DECISION Complainant filed a timely appeal with this Commission from a decision issued by an EEOC Administrative Judge (AJ), dated May 13, 2020, 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 relevant time, Complainant worked as a Senior Budget Analyst, GS-0560-12, at the Agency’s GS-8 (Budget) Office, Military Intelligence Readiness Command (MIRC) in Fort Belvoir, Virginia. On October 27, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), national origin (African- American), and color (black) when: a. from January 2017 through March 2017, Complainant’s first line supervisor made disparaging remarks about him, and negatively spoke about African-American staff; 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. 2020003855 2 b. on June 25, 2017, Complainant was the only employee coded on the Table of Distribution and Allowances (TDA) as excess; c. on September 19, 2017, the supervisor asked a co-worker (Co-worker 1), “so do I need to throw you to the wolves to get you a GS-12 position?”; d. from approximately October 17, 2016 through August 7, 2018, the supervisor funneled work issues related to Complainant and his job through Co-worker 1; e. in January 2018, Complainant’s performance evaluation was overdue, and he did not receive performance standards from the supervisor; f. on or about January 21, 2018, the Lieutenant Colonel (LTC), his second-line supervisor, failed to act on his concerns regarding the supervisor; g. in May 2018, after Complainant was accepted for a temporary GS-13 position, the Command Executive Officer of MIRC denied him Return Rights; h. on July 24, 2018, Complainant received a Proposed Suspension; i. on August 7, 2018, after the Command Executive Officer of MIRC indicated he would grant Complainant Return Rights when he accepted a permanent position overseas, he later revoked them; and j. on August 23, 2018, the supervisor made a remark that Return Rights should only be given to employees whom she wants to return. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Decision Without a Hearing. Complainant did not respond to the motion. On May 13, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency did not issue a final order, and the AJ’s decision became the final decision in this matter. It is the from this decision that Complainant now appeals. 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). 2020003855 3 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 in Complainant’s favor. Disparate Treatment - Claims (b), (e), (g), (h) and (i) A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he 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). Here, the evidence of record fully supports the AJ’s conclusion that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. The Supervisory Budget Analyst (Caucasian/American, white) was Complainant’s supervisor and the Lieutenant Colonel (LTC), Deputy Comptroller (Caucasian/American, white) was his second- line supervisor. Regarding claim b, Complainant asserted that on June 25, 2017, Complainant was the only employee coded on the Table of Distribution and Allowances (TDA) as excess. The record shows that in June 2017, the United States Army Reserve Command restructured the unit and a number of positions, including Complainant’s position, were eliminated. 2020003855 4 However, Complainant was retained by the unit in the same GS-12/Budget Analyst position as an “excess” position, which indicated that the position would not be filled if he left. Another named GS-11 Budget Analyst (“Co-worker 1”) was also moved to an excess position due to the restructuring. Regarding claim e, Complainant claimed that in January 2018, his performance evaluation was overdue, and he did not receive performance standards from the supervisor. The record shows that all the employees, including Complainant, supervised by the supervisor received their performance standards on October 31, 2017. Complainant’s performance evaluation, however, was delayed because he refused to sign it when first presented with it. Complainant disagreed with the comments and style of the evaluation even though he received a “1,” which was the highest evaluation. Regarding claim g, Complainant alleged that in May 2018, after Complainant was accepted for a temporary GS-13 position, the Command Executive Officer denied him return rights. The record reflects that in May 2018, Complainant applied for and was selected for a temporary promotion to GS-13 in Korea. However, Complainant was under investigation for time card fraud at the time that the decision whether to grant Complainant return rights was being made. Because the investigation was pending, the decision was made not to grant Complainant return rights until the results of the investigation were available. Regarding claim h, Complainant alleged that on July 24, 2018, Complainant received a Proposed Suspension. The record contains a copy of Complainant’s Notice of Proposed Suspension dated July 24, 2018, in which the supervisor proposed to suspend him from duty, without pay for a period of seven calendar days for “erroneous time card submission and failure to follow leave procedures.” The record reflects that the length of the proposed suspension was based upon a recommendation from the Army Reserve Personal Advisory Center. The record further reflects that on September 12, 2018, a named Colonel issued Complainant a non-concurrent four-day suspension for erroneous time card submission and failure to follow leave procedures. Complainant was found to have been paid regular duty pay while simultaneously receiving additional pay for military duty. Regarding claim i, Complainant asserted that on August 7, 2018, after the Command Executive Officer indicated he would grant Complainant Return Rights when he accepted a permanent position overseas, he later revoked them. During the August/September 2018 period, Complainant was granted return rights after his third- line supervisor moved him into a vacated permanent GS-12 position. 2020003855 5 There is no evidence to show that the Command Executive Officer, also Complainant’s third-line supervisor, ever revoked those return rights. The Command Executive Officer (Caucasian, American/European, white) explained that he granted Complainant return rights and “was informed return rights could not be granted because he was in a surplus status. What I did was move [Complainant] into a required and authorized GS-0560-12 position when it became available due to another employee’s departure. This removed him from surplus status, which allowed him to proceed to his current position in S. Korea in late October 2018 with return rights granted/approved. [Complainant] is obligated to this position and can return upon the completion of his overseas assignment.” In sum, after careful consideration of all Complainant’s allegations and the evidence of record, there is adequate support the AJ’s determination that the responsible management officials clearly articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare assertions, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, national origin or color. Harassment/Hostile Work Environment To prove a discriminatory harassment/hostile work environment 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 race, national origin or color. 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). With regard to claims (b), (e), (g), (h) and (i), discussed above, we have already found no evidence of a discriminatory motive involved in these matters. Therefore, we will not consider them further as part of Complainant’s allegations of discriminatory harassment/hostile work environment. With regard to claim a, Complainant alleged that the alleged disparaging remarks made by the supervisor about Complainant were that he was “difficult to deal with” and “I prefer to avoid conversations with him.” The supervisor denied making these remarks. However, she acknowledged that she and Complainant “sadly had a personality conflict in my opinion, and that’s it.” We find that even assuming the remarks were made, there is no evidence to suggest that the supervisor was motivated by discriminatory animus in making the remarks. With regard to remarks made about staff, the record shows they concerned issues raised by the supervisor concerning the performance and accountability of certain military staff to their own supervisor. Again, there is no evidence of a discriminatory motivation. 2020003855 6 Regarding claim c, Complainant alleged that on September 19, 2017, the supervisor asked Co- worker 1 (Caucasian, white), “so do I need to throw you to the wolves to get you a GS-12 position?” The remark was not directed at Complainant and allegedly occurred in a discussion between the supervisor and Co-worker regarding his frustration about a lack of promotion. The LTC (Caucasian, white, American) stated that he had a long conversation with Complainant about the comment that he apparently overheard. The LTC said that he, “explained to the Complainant that [Co-worker 1] had been applying and interviewing for a number of different open GS-12 positions as he was looking to get promoted from a GS-11 to a GS-12. [Supervisor] had been encouraging him to keep applying and interviewing for opportunities and offered to be a reference for him as part of the government application process. [Supervisor’s] comment ‘Throw to the Wolves’ was made in general frustration after [Co-Worker 1] was not selected to a recent position to which he applied.” Furthermore, the LTC asserted Complainant that the supervisor’s comment was in no way directed toward him and that it should not be taken out of context. Regarding claim d, Complainant alleged that from approximately October 17, 2016 through August 7, 2018, the supervisor funneled work issues related to him and his job through Co-worker 1. The supervisor asserted that she did not funnel work or information for Complainant through the Co-worker 1. She did note that Co-worker was assigned to cover for Complainant when he was not in the office. Regarding claim f, Complainant claimed that on or about January 21, 2018 the LTC failed to act on his concerns regarding supervisor. The LTC asserted that he conducted an informal inquiry with the supervisor relating Complainant’s concerns “to get her perspective of the situation. Over the next several months I held numerous meetings and discussions with the Complainant in my office to help him work through and address his concerns. Emphasis was placed on the fact that it takes both parties to make a relationship work and that he and [supervisor] needed to improve their communication in order to effectively move the organization forward.” Regarding claim j, Complainant alleged that on August 23, 2018, the supervisor made a remark that Return Rights should only be given to people that she wants to return. The supervisor admitted to making the statement in frustration to a Human Resources Specialist, who ended up telling Complainant about the remark. In sum, after careful consideration of the evidence of record, beyond Complainant’s bare assertions, there is no evidence to link his race, national origin or color to the events at issue. A case of harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, even assuming the events occurred as alleged by Complainant, they appear isolated in nature and of relatively minor severity. As such, they are not sufficient to create a hostile work environment in violation of Title VII. 2020003855 7 CONCLUSION We AFFIRM the AJ’s decision, which became the Agency’s final decision, because the preponderance of the evidence of record does not establish that unlawful discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2020003855 8 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 December 7, 2020 Date