[Redacted], Tim H., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Apr 28, 2022

Appeal No. 2021001714 (E.E.O.C. Apr. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021001714 Agency No. DON-20-00052-01735 DECISION 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 January 4, 2021, final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Security Specialist, GS-13, Force Operations Branch, Commander, Navy Installations Command (CNIC) Headquarters, in Washington, DC. The record reveals that on February 24, 2020, Complainant submitted a request for reasonable accommodation for his migraine headaches. In an April 14, 2020 Notice signed by S1, Complainant was notified his requested accommodation was granted. 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. 2021001714 2 On March 14, 2020, Complainant initiated contact with an EEO Counselor. When the matter was not resolved, Complainant filed a formal EEO complaint on April 24, 2020, alleging the following: 1. Complainant was subjected to discrimination by his first level supervisor (S1), second level supervisor (S2), and Coworker 1 (CW1)2 based on race (African American), disability (migraine headaches), and in reprisal for protected EEO activity when on March 10, 2020, Complainant was issued a Letter of Caution signed by CW1 after Complainant requested a reasonable accommodation. 2. Complainant was subjected to discrimination based on reprisal (current complaint) by S1 and CW1 when on or about April 24, 2020, Complainant received an unsatisfactory performance appraisal. 3. Complainant was subjected a hostile work environment by S1, S2, and CW1 based on race (African American), when, in addition to the incidents set forth in Claims 1-2: a. On February 14, 2020, S1 took a gold color chair from Complainant’s workspace; b. On February 5, 2020, CW1 assigned a task that Complainant had not been trained to do with an unrealistic suspense time; c. On November 25, 2019, S1 and S2 did not acknowledge in a meeting that Complainant managed the Antiterrorism Program; d. On December 2019, Complainant felt harassed when S2 said he would be transferred to another work location; and e. After being appointed as the Antiterrorism Officer (July 16, 2019) and the Operations Security Coordinator (May 31, 2019) by the Commanding Officer, S2 did not allow Complainant to serve in those capacities. 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). 2 During the relevant time, CW1 served as the Acting Force Protection Operations Supervisor; however, he operated at a non-supervisory level and thus, did not have supervisor authority over Complainant. CW1 was ultimately promoted into a supervisory position on a permanent basis on July 6, 2020. 2021001714 3 When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, non- discriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). 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 Service Board of Governors v. Aikens, 460 U.S. 711. 713-714 (1983); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, the Agency provided legitimate, nondiscriminatory reasons for its actions. Regarding claim 1, CW1 stated he issued the Letter of Caution to Complainant as a result of Complainant not getting his work done in a timely manner and two instances of Complainant circumventing the chain of command. 2021001714 4 CW1 explained the failure to timely provide information for a dog team request to the United States Fleet Force (USFF) was the incident that led to the issuance of the Letter of Caution. CW1 noted that he asked a Labor and Employee Relations Specialist whether S1 should sign the Letter of Caution instead of CW1; however, it was decided since the Letter of Caution was not disciplinary, it did not require a supervisor to sign it. S1 clarified that the Letter of Caution stemmed from Complainant’s collateral duties. He noted that Complainant had been hired as a Security Specialist but had been appointed to collateral duties as an Antiterrorism Officer and an Operations Security Coordinator. S1 noted that collateral duties are volunteer positions that employees may take on; however, their primary responsibilities are paramount and the collateral duties do not supersede them. S1 noted that while Complainant claimed he had a separate chain of command for his work as an Antiterrorism Officer and Operations Security Coordinator, he had only one chain of command. CW1 stated although Complainant should have included his chain of command on Antiterrorism Program and Operations Security Coordinator work, he circumvented his chain of command. We find that Complainant failed to show by a preponderance of evidence that the Agency’s actions were a pretext for discrimination. Regarding claim 2, S1 stated that on Complainant’s final 2020 appraisal, he was rated “Fully Successful” in three of his five critical elements and rated “Unacceptable” in the two critical elements of Regional/Installation Engagement and Management Internal Control Program Manager. S1 explained it was Agency policy that if a civilian received an “Unacceptable” rating in any one of their critical elements, the score for the overall performance rating is “Unacceptable.” S1 stated that Complainant’s rating in Regional Installation Engagement and Management Internal Control was based on Complainant’s self-assessment in which he only provided a summary of work in the two areas, but he did not cite any of his accomplishments in those areas that would have warranted a higher rating. We find that Complainant failed to establish that the Agency’s actions were based on discriminatory animus. Harassment To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to 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 his 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 Agency. 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 retaliatory harassment, Complainant only needs to show that such actions are the type of action that would dissuade a reasonable employee from making or supporting a charge of discrimination. 2021001714 5 See Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 (August 25, 2016); Carroll v. Department of the Army, EEOC Request No. 05970939 (April 4, 2000). As an initial matter, we note that Complainant’s allegations in Claims 1 and 2 discussed above may not properly be considered as evidence supporting his harassment claim as we have already determined those actions were not motivated by discrimination or retaliation. Upon review, we find that Complainant failed to establish he was subjected to a hostile work environment as alleged. Regarding claim 3a, the record reveals that Complainant had his own separate work area and had a gold colored chair in it (which was government property). Complainant claimed that S1 removed the chair and installed it in S1’s work area. Complainant believed that his race was a factor because S1 did not have conversations with Complainant and it appeared to Complainant that S1 limited his conversations to CW1 and S2 as part of their “Irish clique.” Complainant believed that S1 felt that people of color should not have nice furniture. Witness 1 (W1) stated that he had discussions with S1 in which it was apparent that S1 was disgusted that Complainant had a corner cubicle and that S1 was going to do whatever it took to move Complainant out of the corner cubicle. W1 stated that S1 took the chair out of Complainant’s workspace after Complainant had removed his personal belongings; however, W1 did not believe that Complainant had removed everything and had not abandoned his workspace. W1 believed that S1 acted out of racial animus because W1 recalled a discussion with S1 about another African American employee during which S1 displayed the same “disdainful and condemnatory attitude” towards this other employee as he had towards Complainant. Witness 2 (W2) stated he had returned to work following a weekend and saw that Complainant’s gold chair was no longer in his workspace but had been moved to S1’s workspace. W2 stated Complainant had moved some items out of his personal workspace, but he did not recall if Complainant had moved everything out of the space. W2 stated he did not know the reason for S1’s actions. S1 stated that on a date which he cannot recall (but not on the date identified by Complainant), Complainant came into the office and cleared out his personal belongings from his cubicle. S1 stated it appeared Complainant quit and that he asked CW1 if Complainant had quit or resigned. S1 stated he heard other individuals talking about the chair; therefore, he took the chair and placed it in his cubicle because he did not want to lose the chair if Complainant was quitting. Regarding claim 3b, Complainant received a request for a dog team (the dog and its assigned handler) from USFF on February 5, 2020. Complainant notified S2 that he received the request but did not know how to fulfill it. S2 directed Complainant to work with CW1 due to CW1’s prior experience in fulfilling these types of requests, albeit, not with dog teams. CW1 stated he then showed Complainant the process step by step and told him he could adapt the process to use with dog teams. CW1 stated this was the second time he had showed Complainant how to utilize the process in late January 2020. CW1 noted he was the one who ultimately ended up processing the dog team request, because Complainant did not timely complete the task. Regarding claim 3c, Complainant scheduled a meeting on November 25, 2019, with the Operations Officer. 2021001714 6 Complainant claimed that S2 was upset that he had scheduled the meeting and canceled it. Complainant stated that was not proper since the meeting concerned the Antiterrorism Program and maintained it was outside S2’s purview, since S2 was not in his chain of command for that purpose. Complainant noted that in September 2019, S2 said the Antiterrorism job was a really “cool” job. However, Complainant stated that the comment came off more like, “hey that’s a really cool job, how did someone like you get it?” Complainant acknowledged that those were not S2’s exact words but that was Complainant’s sense of how S2 was communicating with him. Further, Complainant noted in November 2019, S2 told him he did not want Complainant serving as Antiterrorism Officer since S2 felt it took up too much of his time and took away from his duties as Security Specialist. S1 noted that prior to a meeting a brief summary was sent ahead to the meeting attendees, known as the “read ahead.” S2 determined from the “read ahead” materials that the scheduled meeting was not required at that time. S1 contended that S2 canceled the meeting because he felt the issues Complainant wanted to raise were not yet ripe for presentation at that level, and he wanted to bring individuals such as himself (S1) and CW1 up to speed first. S2 stated that as their organization became more structured, they found Complainant was resistant to following the chain of command. Specifically, on November 25, 2019, S2 asked S1 if he knew Complainant had a meeting scheduled with the Operations Officer that day and S1 informed him that Complainant had told S1 he did not have a meeting scheduled that day; however, S1 verified with the Operations Officer’s assistant that Complainant had scheduled a meeting that day. S2 stated that it was a recurring issue that Complainant did not feel the need to involve them because the Antiterrorism Program was a collateral duty and Complainant believed he had a separate chain of command. S2 disagreed with Complainant’s opinion and said the Antiterrorism Program and Management Internal Control Review programs are an integral part of their organization’s work. S2 explained when he received a copy of the “read ahead” for the November 25, 2019 meeting, he and S1 determined that Complainant’s meeting should not proceed because Complainant’s work product was poorly written. Regarding claim 3d, Complainant stated that he felt harassed when S2 said he would be transferred to another work location. S2 stated this move was intended to be a temporary transfer. He stated he had contacted command in another region because he needed one of their employees to come to the Washington Navy Yard for a two to three-week assignment. In order to not leave the other organization short staffed, he was considering sending someone there to cover. He knew that Complainant lived far from the Washington Navy Yard and believed that the temporary assignment might be beneficial to allow Complainant to work closer from home for the short duration of the assignment. When Complainant told S2 the assignment at Patuxent Navy Yard was even further from his home than the Washington Navy Yard, S2 dropped the subject and never raised it again. Complainant acknowledged he was never transferred. Regarding claim 3e, Complainant stated that after he was appointed as Antiterrorism Officer (July 16, 2019) and the Operations Security Coordinator (May 31, 2019), by the Commanding Officer, S2 did not allow him to serve in those capacities. Complainant incorporated his prior response to claim 3c regarding the Antiterrorism Officer duties. 2021001714 7 Further, Complainant stated that the Vice Admiral appointed him to be the Operations Security Coordinator and contended that he had a scheduled meeting at the Pentagon in February 2020; however, S2 informed him that he could not go, even though it was also a collateral duty of his. Complainant stated that S2 never removed him from that position but instructed him that he should not work on matters involving the Operations Security Coordinator and stated that he was not to attend meetings in that capacity. W2 stated that S1 and S2 were dismissive of Complainant’s role as Antiterrorism Program Officer. S2 explained their organization was being restructured and that another employee had been the Operations Security Coordinator for all of CNIC. S2 stated that initially the other employee was not familiar with the Operations Security Program and the Coordinator position, whereas Complainant had this experience and familiarity. S2 stated that as time went on, he ordered Complainant to refrain from acting as or holding himself out as the Operations Security Coordinator, because the Operations Security Coordinator needed to stand on her own in that position once she got the program up and running. S2 noted that the Deputy Director removed Complainant as the Antiterrorism Officer after an incident in which Complainant submitted substandard work product directly to the Deputy Director. S2 stated that the Deputy Director asked him for his thoughts, and S2 responded that they were having continuing difficulty with Complainant, because he felt that he did not need to submit his work product for his collateral programs to his chain of command for peer review prior to submitting them. The Deputy Director stated he decided on February 13, 2020, to remove Complainant as the Antiterrorism Officer. He stated on that date he became particularly worried when Complainant left work early that day and cleaned out his desk without notifying anyone. The Deputy Director noted that Complainant’s performance had been deteriorating up to that point and his work product had numerous errors and he was not sending his documents through his supervisors as directed including his work as Antiterrorism Officer. Upon review, we find Complainant failed to establish he was subjected to harassment as alleged. Specifically, none of the incidents were shown by a preponderance of the evidence to be motivated by discrimination or in retaliation for his protected EEO activity. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2021001714 8 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). 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. 2021001714 9 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 28, 2022 Date