Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 11, 2015

0120123290 (E.E.O.C. Mar. 11, 2015)

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

,
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120123290

Agency No. ARJACKSON11MAY02056

DECISION
On August 13, 2012, Complainant filed an appeal from the Agency’s July 18, 2012 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. The Commission deems the appeal timely and accepts it for de
novo review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND
Complainant worked as a Computer Assistant at the Moncreif Community Hospital in Fort
Jackson, South Carolina. On June 20, 2011, Complainant filed an EEO complaint in which he
alleged that the Computer Services Branch Chief, his immediate supervisor (S1) and the Chief
Technical Officer, his second-level supervisor (S2) subjected him to a hostile work
environment between August 2010 and July 2011, because of his national origin (Nigerian) and
in reprisal for prior protected activity (previous complaint filed against S1 and S2 in January
2010).

Complainant alleged that in August 2010, S1 and S2 had his workstation moved into Room
435, a secure computer room and located near a Common Access Card (CAC) machine, but
did not give him an explanation for the transfer. Complainant characterized the move as
demeaning. S1 responded that Complainant’s job-functions relating to computer support had
increased from 50 percent to 90 percent, and that a decision had been made to consolidate all
of the support personnel in a single area. He further stated that the move was necessary for
Complainant to keep his job. S2 averred that Complainant was moved to Room 435 so that he
could be close to the work benches and tools he would need to carry out his new support
0120123290

2
duties. Fact Finding Conference Transcript (TR) 25-33, 38-43, 93-95m 114015, 121-25, 142-
43, 152-53, 170-75.

Complainant next alleged that on February 22, 2011, S1 demeaned him further by making him
serve as the “official door opener” for Room 435. He testified that S1 told him that part of
his job was to answer the computer room door. S1 explained that when a customer knocks on
the door, he expects staff members to answer it, and that the matter had been addressed in
meetings. He denied that he ordered Complainant to serve as the designated person to open
the door. S2 averred that Complainant’s location was close to the CAC machine because one
of his duties what to perform the CAC personnel identification number reset function. He also
stated that Complainant misunderstood the instructions, which were to answer the door only if
he was available to do so. TR 31, 74-78, 123-24, 144, 176-77, 197-99, 208-09.

Third, Complainant alleged that S1 and S2 had allowed his co-workers to speak to him in a
condescending manner, and that the harassment he experienced was typified by an incident that
occurred on April 4, 2011, in which one of his co-workers (C1), in a harsh tone of voice,
demanded that he answer the door. C1 testified that he was in the process of booting up for
the day when someone knocked at the door repeatedly. C1 then shouted from across the floor,
“is anyone going to answer the door?” Complainant reacted by shouting back that he did not
have to answer the door. Both C1 and C2, another co-worker, stated that C1’s comment was
not directed at Complainant. C1 and C2 also testified that there were tensions between them
and Complainant, and that they avoided social contact with Complainant because of his volatile
temper. Investigative Report (IR) 101, 169-70; TR 67, 70-73, 97, 156, 218, 195-98, 270-71,
299-303, 307-08, 327, 335, 339-40.

Fourth, Complaint alleged that on April 26, 2011, S2 verbally harassed him by threatening him
with termination if he did not obtain “A+ certification. S2 explained that Complainant needed
A+ certification to do his job, and that although he had taken the training in 2008 and 2010,
he had yet to pass the test. Without A+ certification, Complainant would lose his eligibility
for continued employment. S2 had sent out a mass email notifying his staff that everyone in
his organization needed to obtain A+ certification. He held a meeting with Complainant and
S1 in his office in which he presented Complainant with a copy of the memorandum from his
superiors ordering the certification and informed him of the consequences of not getting
certified. S2 testified that he told Complainant, “Please do not put me in a position of having
to execute this.” S1 testified that Complainant became angry and in a loud voice, accused S2
of trying to get him fired. IR 213-14, TR 44-47, 49-57, 63-65, 95-98, 108-09, 126-38, 181-
91.

On July 11, 2011, Complainant received a memorandum from S2 proposing a 10-day
suspension. According to the charges and specifications of the proposed suspension,
Complainant told S1 that, “God will strike down people like him,” and “I know people who
could take [S2] out.” S1 and S2 both averred that they decided to take action against
Complainant because the Agency had a zero tolerance policy toward workplace violence.
0120123290

3
Paragraph (3) of the proposed suspension indicated that Complainant was suspended in January
of 2011, for discourtesy and creating a disturbance. IR 32, 138, 142, TR 145-48, 200-06.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an EEOC Administrative Judge. 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.

ANALYSIS AND FINDINGS
To prevail on his claim of discriminatory harassment, Complainant would have to prove, by a
preponderance of the evidence, that because of his national origin and previous EEO
complaint, he was subjected to conduct so severe or pervasive that a reasonable person in
Complainant’s position would have considered it hostile or abusive. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22 (1993); Wibstad v. U.S. Postal Service, EEOC Appeal No.
01972699 (Aug. 14, 1998). Only if Complainant satisfies his burden of proof with respect to
both of those elements, hostility and motive, will the question of Agency liability present itself.
Complainant v. Department of Transportation

, EEOC Appeal No. 0120131581 (July 18,
2014).
The testimony of S1 and S2 at the fact-finding conference has been corroborated by sworn
statements from C1 and C2 and by the emails and contemporaneously prepared memoranda
documenting each of the incidents comprising Complainant’s claim of discriminatory
harassment. Complainant’s job functions had changed to primarily computer support, and he
was assigned to a work area that had been designated for that purpose. He was never forced to
serve as a doorman for Room 435, and the source of his difficulties with his colleagues
stemmed from his own inability to interact with them without becoming angry at the slightest
provocation. Both C1 and C2 were afraid of socializing with him. Complainant was told by
his supervisors in no uncertain terms that he needed to attain his A+ certification in order to
keep his job, and he reacted by making threats. While Complainant expressed his belief that
the actions taken by S1 and S2 were discriminatory, he has not presented any sworn
statements from other witnesses or documents that contradict the explanations provided by
these officials or call their veracity into question. The Commission has long held that
unsupported assertions by a Complainant are not sufficient evidence of discriminatory
motivation. Porter v. Department of the Navy

, EEOC Petition No. 03800087 (January 14,
1981). We therefore find, as did the Agency, that Complainant failed to satisfy his burden of
proof as to the existence of discriminatory harassment.

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

0120123290

4
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 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.

RIGHT TO REQUEST COUNSEL

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
0120123290

5
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

Date
March 11, 2015