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

Equal Employment Opportunity Commission

May 13, 2015

01-2013-1291-0500 (E.E.O.C. May. 13, 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. 0120131291

Agency No. ARCESAV11JAN04975

DECISION
On February 8, 2013, Complainant filed an appeal from the Agency’s January 18, 2013 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 Systems Engineer at the Agency’s Program Executive
Office, Simulation, Training and Instrumentation (PEOSTRI) Command in Orlando. Florida.
On April 6, 2011, he filed an EEO complaint in which he alleged that members of his chain of
Command and others on his project team harassed him because of his race (African-American)
throughout 2010. He identified his Program Manager (PM) who was his nominal first-line
supervisor, his Project Director (PS), and a Support Contractor (SC) as the responsible
officials.

PEOSTRI was responsible for implementing a number of gunnery-related programs that fell
within the broad classifications of Bradley and Abrams. Complainant was the Lead Engineer
for two of the Bradley projects: BATS and COFTE. Investigative Report (IR) 13. SC was the
logistician and subject matter expert on the COFTE team. In essence, Complainant alleged
that his management chain created a hostile work environment by appointing a Lead Systems
Engineer (LSE) over him in January 2010, and by allowing a personality conflict between him
and SC to worsen between January and December 2010, which resulted in his removal as the
Lead Engineer for the COFTE program.

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In January or early February 2010, Complainant’s second-line supervisor, the Deputy Director
(DD) of the Engineering Virtual Division informed PM that she wanted an organizational
structure within which the Bradley and Abrams gunnery programs would report through a
single lead who could keep track of everything that was going on in both programs and identify
leveraging opportunities in order that expertise gained within one program might be shared
with the other. IR 421-22, 424. In accordance with this objective, DD appointed LSE into the
position, noting that her extensive experience in gunnery programs made her the natural
candidate for that particular position. IR 475-76, 484-85.

The crux of Complainant’s harassment allegation is that PM and PD allowed SC to ignore his
prerogatives as the lead on the COFTE project, and that they ultimately removed him from
COFTE rather than remove SC. IR 84, 89, 295. In emails to PM, PD, and LSE,
Complainant complained that SC constantly showed him disrespect and would communicate
internal disagreements to outside parties, thereby undermining his authority as team lead. He
asked PD and PM to intervene and take action to “stop SC’s negative behavior.” IR 83, 85,
87, 96, 290-91, 397-400. In response emails, SC accused Complainant of challenging his
subject matter expertise as a master gunner and logistician, of exercising authority that he did
not have, and making numerous errors in implementing the COFTE project. IR 85-86, 97-98,
291-92, 308-10. PM, PD, DD, and LSE all testified that the conflict between Complainant
and SC had negatively impacted the COFTE team’s performance to such an extent that the only
viable solution was to separate the two, and that SC’s gunnery expertise and logistics
experience made him indispensible to the COFTE team. IR 397-98, 415-17, 419, 429, 443-
46, 448-49, 460-61, 469-72, 483-87, 509-13.

At the conclusion of the ensuing investigation, the Agency notified Complainant of his right to
request a hearing before an Equal Employment Opportunity Commission 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 race, 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 elements, motive and hostility, will the
question of Agency liability present itself.
It is Complainant’s burden to establish the existence of an unlawful motivation on the part of
the responding management officials by a preponderance of the evidence, and more is required
to meet that burden than merely expressing one’s belief. While Complainant asserts that the
actions taken by PM and PD engendered a racially hostile work environment, he has not
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presented any sworn statements from other witnesses or documents that contradict the
explanations provided by these officials or which call their veracity into question. Their
testimony at a fact-finding conference has been corroborated by testimony from LSE, SC, and
DD, along with extensive emails showing the depth of hostility that existed between
Complainant and SC. In none of the documents or testimony provided were we able to discern
any indications of a racial animus on the part of PM or PD, a point which Complainant appears
to concede. IR 412. We therefore agree with the Agency that Complainant failed to satisfy his
burden to prove the existence of a discriminatory motivation on the part of PM, PD, or any
other individual within his chain of command or on his team in connection with any of the
matters at issue in his complaint.

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

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).
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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
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
May 13, 2015