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

Equal Employment Opportunity Commission

Apr 18, 2022

Appeal No. 2021005248 (E.E.O.C. Apr. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shane L.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021005248 Hearing No. 410-2021-00224X Agency No. ARGORDON20JUL02106 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 24, 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. At the time of events giving rise to this complaint, Complainant worked as a Supervisory Police Officer, GS-0083-09, at the Agency’s Directorate of Emergency Services at Fort Gordon in Georgia. On August 21, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African- American) and in reprisal for prior protected EEO activity when: 1. on or about May 26, 2020, the Chief of Police (Chief) instructed Complainant to pay to make his uniform reflect his new position; 2. on or about May 26, 2020, Chief gave a promotion party to a Lieutenant, but did not give Complainant a promotion party; 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. 2021005248 2 3. on May 27, 2020, Chief approved a Captain for training at the Drug Recognition Expert (DRE) course while Complainant’s request to attend the same course was denied; 4. on June 1, 2020, Chief and the Directorate of Emergency Services lowered Complainant’s approval rating for refusing to change an Officer’s evaluation; 5. on June 29, 2020, Chief publicly accused Complainant of stealing ammunition for his personal firearm and verbally threatened him with termination; 6. on July 17, 2020, Complainant was informed that he would be removed from his desk to make room for another employee; 7. on July 29, 2020, management failed to ensure Complainant’s safety after the Lead Police Officer verbally threatened Complainant with physical violence during a supervisor’s meeting; 8. on August 14, 2020, Chief informed Complainant and his peers that training was delayed due to COVID-19 lack of funding, but approved a training request for the Captain; and 9. on August 21, 2020, the Deputy Director of Directorate of Emergency Services notified Complainant that he was being investigated for stealing hours in the Army Time and Attendance Program. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. For example, regarding the purchase of rank, the Chief asserted that officers are responsible for purchasing their rank if their new rank changes after the issuance of their uniform. Moreover, the Chief noted that he provided all the new Watch Commanders, including Complainant, with new badges with the correct rank. With regard to the promotion party, the Chief stated that the event was an “impromptu badging ceremony” and stated that Complainant was not the only newly-promoted Watch Commander who was not publicly recognized. As to the denial of training, the Deputy Chief affirmed that Complainant’s request for the training had occurred two years prior and it was he who told Complainant that the unit did not have a need for the skills at the time. The Chief added that the training the Captain attended had been funded when it was requested and approved in late 2019. The Captain attended the first phase of the training in March 2020 but could not attend the second phase until August after the Agency lifted travel restrictions. Furthermore, the Chief stated that Complainant’s training had to be postponed due to a lack of funds resulting from the 911 center requiring the remaining funds for new hires. With regard to the lower rating that Complainant received on his appraisal, the Deputy Chief affirmed that he gave Complainant a “3” on his appraisal, because he felt that Complainant needed to work on improving his supervision and management of his subordinates as well as his administrative obligations (i.e., failing to meet suspense dates). 2021005248 3 Additionally, the Deputy Chief asserted that Complainant acknowledged that he needed to work on these items and that the score was fair. The Agency provided evidence to show that the investigation into Complainant’s time and attendance issues was initiated by the U.S. Army Criminal Investigation Command and that Complainant’s hours were being analyzed as early as August 2018, long before the opposition that Complainant believes resulted in reprisal. According to the Chief, Complainant was told to move desks, because his original desk was in a room with Deputy Chiefs and Complainant was a Watch Commander. The Chief affirmed that he needed the desk for an incoming military officer and believed Complainant should be sitting in the same room as the other Watch Commanders. With regard to the verbal threat incident, the Chief stated that he did not witness any threats made by the Captain to Complainant. When the Deputy Chief learned about the alleged threats, he conducted an inquiry into the matter but could not locate any witnesses to the threats. The AJ concluded that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. Further, the AJ determined that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. The instant appeal followed. 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). In order 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 or retaliatory animus. Here, however, Complainant has 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. 2021005248 4 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was subjected to discrimination, reprisal, or a hostile work environment as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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). 2021005248 5 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 18, 2022 Date