[Redacted], Zachery V., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2021005281 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachery V.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021005281 Hearing No. 451-2013-00221X Agency No. 8Z0J12028 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 25, 2021 final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as an Electrician, WG- 2805-10, at the Agency’s 802 Civil Engineering Squadron at Lackland Air Force Base in Texas. On October 23, 2012 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (physical) and in reprisal for prior protected EEO activity when: 1. on September 18, 2012, Complainant’s supervisor (S1) announced in a special meeting that a coworker (CW1) would be assigned a half-ton truck and another coworker (CW2) would get S1’s old truck without having a medical request; 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. 2021005281 2 2. on September 6, 2012, S1 assigned Complainant an unsafe half-ton truck and when Complainant advised S1 of the flat and dry-rotted tire, S1 told him to “fix it or walk;” 3. on June 29, 2012, and August 12, 2012, Complainant has required computer technicians to come out and clean up the overloaded inbox without losing important information because S1 shows favoritism and allows certain employees the opportunity to use the computer; 4. on June 26, 2012, S1 assigned Complainant to do maintenance duties at certain buildings, which is usually a four-man job and accused Complainant that he was taking too long at one of the buildings, by stating “you are making it a homestead;” 5. on June 12, 2012, while S1 was showing off his new safety shoes to Complainant and five other employees, he again denied Complainant’s request for new shoes; 6. on May 30, 2012, Complainant was rated unfairly on his performance appraisal; 7. on May 23, 2012, during a 0745 meeting, S1 threatened Complainant when he said, “watch out, I’ll be out and about looking for you, I’ll be driving a different truck;” 8. from April 19, 2012, to the present, unlike other employees, S1 harassed Complainant by denying him use of the computer even when he was advised he was completing an Agency survey; 9. since September 2011, to the present, S1 was aware that Complainant’s doctor felt driving the small compact mini truck was creating a medical concern; however, S1 repeatedly denied the request for the next largest truck (half-ton); 10. since September 2011 to present, S1 has repeatedly denied Complainant’s request for safety steel-toe shoes; 11. on October 24, 2012, S1 provided Complainant a negative performance feedback and stated, “he must mind his own business;” and 12. on October 24, 2012, S1 did not provide Complainant a closeout performance appraisal in accordance with the AFI 36-1001 prior to S1’s retirement.2 2 The Agency dismissed several additional claims. Complainant raised no challenges regarding these matters on appeal and the Commission can find no basis to disturb the dismissal of those claims. We further note that S1 retired in March 2013 and did not participate in the EEO investigation. 2021005281 3 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 alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. The AJ found that this case was about Complainant’s beliefs and personality conflicts and, although such conflicts may have been unprofessional and discourteous and ultimately resulted in Complainant feeling humiliated or embarrassed, the conduct at issue was insufficient to rise to the level of prohibited harassment. Further, the AJ found that there was no evidence that any of the alleged actions were based on Complainant’s protected classes. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued a final order fully adopting the AJ’s decision. 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). 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. Hostile Work Environment To establish a hostile work environment claim, 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; and (4) the harassment affected a term or condition of employment 2021005281 4 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. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Therefore, to prove his harassment 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. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, we find that the totality of the alleged conduct was not sufficiently severe or pervasive to establish a legally hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, the Commission finds that Complainant failed to show that the Agency's actions were based on discriminatory or retaliatory animus. Rather, the evidentiary record reflects that the alleged incidents were more likely the result of routine supervision, managerial discipline, and general workplace disputes and tribulations. For example, regarding Complainant’s claims regarding his appraisals, the record reveals that S1 completed two appraisals for Complainant, and both were rated “met”. Complainant’s second-level supervisor concurred in Complainant’s rating based on his observations of Complainant's performance and S1’s assessment. Management stressed that most of the staff were recommended for time-off awards because there were little funds available for monetary awards. Regarding his closeout appraisal, S1 subsequently retired without completing any performance appraisals for anyone under his supervision. With respect to Complainant’s claims regarding safety shoes, the record reveals that the process to receive new shoes took some time and Complainant resisted bringing in his old shoes to verify that they were worn out. Further, the record demonstrates that management eventually provided Complainant the requested safety shoes. As to his claims regarding the larger truck, the record reveals that Complainant requested a larger truck based on the recommendation of his physician. Complainant does not dispute that he received the larger truck, but challenges that other employees received larger vehicles without needing to provide medical documentation. S2 noted that while he was not at the meeting where S1 assigned the vehicles, he made the decision who would get a vehicle because he needed to free up a vehicle for Complainant’s use. Regarding the remaining allegations, we find, as the AJ did, that Complainant failed to provide evidence of actions undertaken by management that would fall outside the category of routine instructions and admonishments or ordinary workplace interactions between supervisors and subordinates. 2021005281 5 While Complainant may have found management’s actions unwelcome, he has failed to describe any verbal or physical management conduct that meets the requisite level of severity or pervasiveness to constitute actionable harassment. The Commission has held that routine work assignments, instructions, and admonishments do not rise to the level of discriminatory harassment. See DiFruscio v. Soc. Sec. Admin., EEOC Appeal No. 01982006 (Sept. 13, 2000); Wolf v. U.S. Postal Serv., EEOC Appeal No. 01961559 (Jul. 23, 1998); and Bennett v. Dep't of the Navy, EEOC Request No. 05980746 (Sept. 19, 2000). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. The Commission finds that there is no evidence demonstrating that Agency officials were motivated by discriminatory or retaliatory animus. Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the Commission finds that Complainant has not proffered any evidence demonstrating that the Agency's explanation for its actions was pretext for discrimination or reprisal. Accordingly, we find that Complainant has not shown that he was subjected to discrimination, reprisal, or a hostile work environment. 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. 2021005281 6 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. 2021005281 7 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 31, 2022 Date