Avery R.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120170133 (E.E.O.C. Oct. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Avery R.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120170133

Agency No. ARCCAD14JAN00256

DECISION

On September 17, 2016, 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
August 10, 2016, 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether the Agency properly dismissed two allegations on procedural
grounds; and (2) whether the preponderance of the evidence in the record establishes that
Complainant was subjected to a hostile work environment based on national origin, age, and/or
reprisal.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Electroplater,
WG-3711-9, at the Agency’s Corpus Christi, Texas Army Depot.

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.
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Complainant’s first-line supervisor was an Electroplater Supervisor (S1), and his second-line
supervisor was the Division Chief (S2).

Complainant is Mexican American and was 51 years old at the time of events giving rise to the
instant complaint. Complainant averred that he filed several EEO complaints prior to this time, the
most recent of which he filed in October 2013 and resolved through a settlement agreement with
the Agency. According to Complainant, S2 was named as a responsible management official in
one of his previous EEO complaints.

Complainant stated that on at least three occasions he requested T Line Anodize/Aldine Process
Line training from S1 to refamiliarize himself with the process but that S1 refused to discuss his
training needs or the possibility of rotating job assignments. S1 denied refusing to discuss training
or job rotation with Complainant. S1 averred that he consistently provided Complainant with on-
the-job training. Complainant alleged that he complained to S2, the Director of Accessory and
Rotor Blade Productions (S3), and the Director of Manufacturing and Process Production (S4)
about the lack of job rotation. According to Complainant, around late May or early June 2014, S2
and S4 directed S1 to rotate employees, including Complainant, around different areas of the shop.

Complainant alleged that S1 ordered him to remove parts from the oven while they were still hot.
According to Complainant, even though he was wearing safety gloves, his arms and neck were
exposed and could have gotten burned. Complainant also averred that S1 was setting him up for
failure because processing hot parts can cause them to crack. S1 stated that all employees remove
hot parts from the oven and use safety gloves when doing so.

According to Complainant, at the beginning of a shift meeting, S1 threatened to lower the
performance evaluations of employees who used the computer too much. Complainant stated that
he had been using the computer the day before the meeting to look up data. Complainant believed
that S1 was threatening him, although he did not mention Complainant by name. S1 denied
threatening to lower Complainant’s performance appraisal.

Complainant alleged that S1, S2, and S3 denied him the opportunity to perform chemical
maintenance duties because there was no chemical maintenance to complete on third shift.
According to S2, Complainant requested reassignment to third shift, but no chemical maintenance
work is performed during that shift because there is no wastewater treatment support.

Complainant averred that S1 frequently assigns him the most difficult and least desirable jobs in
the shop. According to Complainant, it is more likely that he will receive a quality write up while
performing these duties. S1 stated that he did not relegate Complainant to the most difficult and
least desirable assignments. S4 averred that in May 2014 he reviewed the rotating and training
plans and determined that training and job rotation was fair.

Complainant stated that during his mid-year performance review on July 2, 2014, S1 included two
false statements on his DA Form 7223-1, Base System Civilian Performance Counseling
Checklist/Record.
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According to Complainant, S1 made it seem as though Complainant’s training was incomplete and
that he did not work independently. S1 averred that Complainant was training during this period
so he was generally working with someone and not working independently.

Complainant initiated contact with an EEO Counselor on January 29, 2014. On May 20, 2014,
Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency
discriminated against him on the bases of national origin (Mexican American), age (51), and
reprisal for prior protected EEO activity when:

1. On December 20, 2013, he received a performance appraisal with a lower rating
than the year before;
2. On January 17, 2014, he became aware that he was deceived, misled, and/or lied
to, which resulted in being denied the opportunity to continue working chemical
maintenance duties;
3. From February 10, 2014, to July 2, 2014, his supervisor refused to discuss his
training needs and rotating job assignments;
4. From February 10, 2014, to July 2, 2014, his supervisor ordered him to remove
parts from the oven that were still hot;
5. From February 10, 2014, to July 2, 2014, his supervisor threatened to lower his
appraisal rating;
6. From February 10, 2014, to July 2, 2014, his supervisor denied him the opportunity
to perform chemical maintenance duties;
7. From February 10, 2014, to July 2, 2014, his supervisor assigned him the most
difficult and least desirable jobs; and
8. On July 2, 2014, his supervisor included an erroneous statement in his DA Form
7223-1 during his mid-term review.

The Agency dismissed allegation 1 pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO
Counselor contact. The Agency dismissed allegation 2 pursuant to 29 C.F.R. § 1614.107(a)(1) for
stating the same claim as one that had already been decided by the Agency. The Agency reached
this determination concerning allegation 2 because Complainant claimed that he was deceived,
misled, and/or lied to prior to reaching a settlement agreement to resolve another EEO complaint
because he believed the terms of the settlement agreement meant that he would be able to continue
performing chemical maintenance work.

At the conclusion of the investigation into the accepted claim, the Agency provided Complainant
with a copy of the report of investigation and notice of his right to request a hearing before an
EEOC Administrative Judge (AJ). In accordance with Complainant’s request, 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. The instant appeal
followed.

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CONTENTIONS ON APPEAL

Complainant makes no timely contentions on appeal.

In response to Complainant’s appeal, the Agency requests that its final decision be affirmed.

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”).

Procedural Dismissals

The Agency dismissed allegation 1 for untimely EEO Counselor contact. EEOC Regulation 29
C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a
complaint that fails to comply with the applicable time limits contained in § 1614.105, § 1614.106
and § 1614.204(c), unless the Agency extends the time limits in accordance with § 1614.604(c).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 45 days of the effective date of the
action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to
extend the time limit if the complainant can establish that complainant was not aware of the time
limit, that complainant did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence complainant was prevented by
circumstances beyond him control from contacting the EEO Counselor within the time limit, or
for other reasons considered sufficient by the Agency or Commission. Here, Complainant
contacted an EEO Counselor more than 45 days after receiving the performance appraisal, and he
has not provided any explanation for the delay. Accordingly, we affirm the dismissal of this claim.

The Agency dismissed allegation 2 because it found that it stated the same claim that had been
previously resolved by the settlement agreement Complainant entered into with the Agency. The
regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a
complaint that states the same claim that is pending before or has been decided by the agency or
Commission. Upon review, in allegation 2 Complainant alleged that he learned that he had been
deceived, misled, and/or lied to by the Agency when he signed the settlement agreement because
he believed that he would be allowed to perform chemical maintenance duties. In other words,
Complainant alleged that the Agency had breached an implied term of the settlement, so the
Agency properly dismissed this claim as alleging a breach of settlement, which is addressed
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through a different process. See 29 C.F.R. § 1614.504. Further, after the Agency dismissed this
allegation, Complainant notified the Agency that he believed that it was in breach of the settlement
agreement. The Agency issued a final decision dismissing Complainant’s breach claim for
untimely filing and finding in the alternative that the Agency had fully complied with the terms of
the settlement agreement. Complainant appealed to the Commission, and the Commission found
that Complainant could not establish a breach of the settlement agreement regarding the Agency’s
failure to provide him with full-time chemical maintenance duties because this was not reduced to
writing as part of the settlement agreement. Avery R. v. Dep’t of the Army, EEOC Appeal No.
0120170201 (March 7, 2017). Therefore, the Agency properly dismissed this claim, and the
Commission has already decided that the Agency did not breach the terms of the settlement
agreement as alleged by Complainant.

Hostile Work Environment

To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further,
the incidents must have been “sufficiently severe or pervasive to alter the conditions of
[complainant's] employment and create an abusive working environment.” Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the
objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance
on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994).

Here, there is no evident connection between the alleged harassment and Complainant’s age,
national origin, or prior protected EEO activity. Moreover, the alleged harassment, which consists
primarily of minor disagreements between S1 and Complainant regarding the distribution of work,
is neither severe nor pervasive. Accordingly, Complainant has failed to establish that he was
subjected to a hostile work environment.

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 decision because the Agency
properly dismissed two allegations on procedural grounds and because the preponderance of the
evidence in the record does not establish that discrimination occurred.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
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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

October 24, 2018
Date