Ervin A.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (Defense Security Service), Agency.

Equal Employment Opportunity Commission

Aug 19, 2020

2019002009 (E.E.O.C. Aug. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ervin A.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (Defense Security Service), Agency. Appeal No. 2019002009 Agency No. DSS-18-002 DECISION On December 20, 2018, 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 November 27, 2018, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issue presented is whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment and discrimination based on his sex and in reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Industrial Security Specialist, at the Agency’s field office in Cypress, California. 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. 2019002009 2 On January 10, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the basis of sex (male) and in reprisal2 when: 1. from October 1, 2017 through October 15, 2017, Complainant was suspended for failure to perform; 2. since March 2016, he was denied opportunities to serve on Industrial Security Representative (ISR) teams, and denied the same opportunities as two female employees, who are receiving preferential treatment; 3. from 2012 to present, Complainant requested from his leadership to be allowed to telework and perform regular duties from the Pasadena Field Office, but was denied and reassigned duties at the Cypress Field Office location; and, 4. from January 2012 to present, Complainant notified management of interference and unknown access of his government issued laptop. On February 2, 2018, the Agency issued a partial acceptance and dismissal. The Agency dismissed claim 4 pursuant to 29 C.F.R. § 1614.107(a)(4) in that this matter was previously raised before and decided by the Merit Systems Protection Board (MSPB); it was not filed as a mixed case complaint pursuant to 29 C.F.R. § 1614.302, and a court of competent jurisdiction decided the case pursuant to a Petition for Review of MSPB No. SF0432100852-I-1 on the same facts. The investigative record reflects the following pertinent matters relating to the subject claims. Complainant was removed from his previous position as an Industrial Security Specialist for the Pasadena, California office effective July 12, 2010. He was removed for unacceptable performance. Complainant appealed to the Merit Systems Protection Board (MSPB) on July 19, 2010 and claimed sex discrimination. Complainant noted that his computer was constantly getting tampered with causing him performance issues. A decision was rendered to return Complainant to his position with back pay. The MSPB decision stated Complainant failed to support his sex discrimination defense and computer tampering claims, but that the reinstatement decision afforded him all available relief anyway. Complainant was reinstated to the Cypress Field Office. From 2012 to present, Complainant asserted that he had requested from management (his first- and second-line supervisors) to be allowed to work and perform regular duties from the Pasadena Field Office. However, Complainant asserted that he was denied this request, and reassigned duties at the Cypress Field Office location instead. 2 For his previous 2010 Merit Systems Protection Board (MSPB) complaint, and subsequent 2012 MSPB appeal. 2019002009 3 He noted that the allegation wasn’t that he was prevented from teleworking3, just from regularly working out of the Pasadena office. Complainant asserted that he was being discriminated against and subjected to unfair treatment and continuing harassment on the bases of sex and reprisal for his previous MSPB complaint. Complainant stated that two female employees (CW1 and CW2) were allowed to work out of either office whenever it was convenient for them. Complainant testified that another employee, CW3 (male) was reassigned from the San Diego office to the Pasadena office. Complainant’s first line supervisor was the Los Angeles Field Office Chief (S1) (male). S1 stated that following the reassignment, Complainant had never requested to perform regular duties from the Pasadena office. S1 noted that after his transfer to the Cypress office, Complainant requested to work from the Pasadena office once, after a meeting was held there. S1 noted that he had approved of Complainant’s request. S1 asserted that he is not aware of Complainant requesting a permanent reassignment from the Cypress office to the Pasadena office. S1 testified that CW3 applied to vacancy announcement number DSS-18-10181152-P, after having served a detail in the Pasadena office, and was selected for the Pasadena office. S1 noted that Complainant had the same opportunity to apply if he wanted to. Complainant’s second line supervisor was the Western Region Director (S2) (male). S2 noted that he encouraged Complainant to apply for the Pasadena position that CW3 applied for, but Complainant chose not to. Complainant acknowledged S2’s suggestion but stated that he did not apply for it “because [he] would have validated them not moving me.” Since March 2016, Complainant asserted that he was denied opportunities to serve on Industrial Security Representative (ISR) teams based on his sex and in reprisal. Complainant asserted that he was clearly denied the same opportunities as two female employees, CW1 and CW2, who he alleged received preferential treatment. S1 stated that CW1 and CW2 both performed at satisfactory levels, and therefore could serve. S1 testified that due to Complainant’s declining performance, he had reduced Complainant’s workload on ISRs. He noted that Complainant never complained to him about this reduction. S1 testified that due to Complainant’s declining work performance, Complainant was placed on an Opportunity to Improve Period (OTIP) on May 2, 2016. After failing to successfully perform during the OTIP, Complainant was issued a Notice of Proposed Fourteen Day Suspension, dated July 21, 2017. The Notice provided specific examples of deficiencies. The Notice also specified that despite having over a year to improve his work, Complainant still failed to improve to acceptable standards. Complainant was suspended from October 1 - 15, 2017, based on his failure to improve during the OTIP. The proposing official for Complainant’s suspension was the Chief of Human Capital Management Office (female). The deciding official for Complainant’s suspension was the Director of Industrial Security Field Operations (male). 3 Since Complainant acknowledged that the claim was not regarding teleworking approval, we will not address the teleworking portion of the claim further. 2019002009 4 The Director stated that he was provided paperwork with Complainant’s poor performance dating back to FY2015 as well as Complainant’s unsuccessful performance ratings. Based on the information provided, Complainant was suspended for poor performance. Complainant believed the suspension was retaliation for his successful 2010 MSPB complaint. S1 noted that Complainant has a history of saying his computer has been tampered with to justify his work containing errors. He stated that the IT department did a formal investigation on Complainant’s computer to ensure no one was tampering with Complainant’s system. S1 stated that he even had Complainant submit paper copies of his reports to help mitigate computer tampering concerns. S1 noted that the hard copy reports would contain the same errors. Complainant disagreed and argued that his laptop was in fact tampered with. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The November 27, 2018 Final Agency Decision (FAD) affirmed the Agency’s prior procedural dismissal of claim 4, in part. However, it determined that the Agency’s prior procedural dismissal of claim 4 based on reprisal was inappropriate. The Agency stated that it was undisputed that Complainant made a prior complaint of discrimination which he pursued with the MSPB, and that the Agency was aware of this proceeding. The Agency noted that what Complainant was asserting in claim 4, was that his participation in the MSPB proceeding resulted in retaliation against him. The Agency determined that the procedural dismissal was erroneously based on the concept that because Complainant won his MSPB proceeding on other grounds, not on discrimination claims, that he could not pursue a retaliation claim. The Agency further noted that because the factual underpinnings of this complaint are identical to Complainant’s claim of sex discrimination and reprisal discrimination, the report of investigation was sufficient for both bases to be addressed in the November 27, 2018 FAD. The Agency ultimately concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL Complainant argued that the procedural dismissal of claim 4 was inappropriate. Specifically, that the claim was different from the MSPB claim, noting that the MSPB did not consider evidence because MSPB had determined it was moot. Regarding the reprisal portion of claim 4, Complainant asserted that it was erroneously decided because it was clear that the Agency was treating him differently based on his sex and in reprisal, and that a finding should have been made in his favor. Regarding his other claims, Complainant asserted that he was clearly subjected to disparate treatment based on his sex, and that a finding should be made in his favor. The Agency did not provide an appellate brief. 2019002009 5 STANDARD OF REVIEW 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 (EEO MD- 110), 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”). ANALYSIS AND FINDINGS Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802, n. 13; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). Unlawful Harassment Complainant also alleged that he was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in 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 (Mar. 8, 1994). To establish this claim, 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 2019002009 6 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. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all the circumstances, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Disparate Treatment With respect to Complainant’s disparate treatment claims, assuming arguendo, that Complainant established a prima facie case of discrimination, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The record demonstrated that Complainant had a record of declining performances. Complainant was informed of this both informally and formally. When Complainant’s performance did not improve, he was placed on an OTIP in May 2016. After over a year of being on the OTIP, Complainant’s performance still did not improve to acceptable standards and he was subsequently suspended for two weeks in October 2017. The record further demonstrated that Complainant was not denied the opportunity to serve on the ISR teams because of his sex or in reprisal, but because of his performance records. Additionally, Complainant argued that he was treated differently from CW1 and CW2 who were allowed to work from the Pasadena office whenever they chose. In this regard, S1 explained that when Complainant had asked to work from Pasadena on occasion, he allowed it, but noted that he had to apply for any type of permanent reassignment position. The record also demonstrated that despite encouragement from S2 to apply for a Pasadena position, Complainant chose not to. While Complainant argues that the position was unfairly given to CW3, he also acknowledged that he was encouraged to apply, but chose not to. 2019002009 7 Regarding claim 4, we acknowledge the Agency’s decision in its November 27, 2018 FAD to reverse its previous decision to procedurally dismiss claim 4 in its entirety. While the computer tampering portion of claim 4 was previously addressed in Complainant’s MSPB proceeding, Complainant’s claim was one of continued tampering. Therefore, it exists as a new and continuing claim that continued after the MSPB proceedings. In this matter, even though the Agency dismissed the portion of claim 4 regarding computer tampering, the record still contained information to address the tampering allegations. The record demonstrated that following Complainant’s allegations of computer tampering, the Agency’s internal Information Technology department investigated and determined that there was no evidence to support Complainant’s allegations. Complainant has failed to demonstrate that the Agency’s internal findings were influenced by discriminatory animus and that his computer was tampered with based on his protected class or in retialiation. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Regarding adverse actions, the Agency articulated legitimate, nondiscriminatory reasons for its actions for which Complainant has failed to show were pretext for discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. Hostile Work Environment Complainant alleged that he was subjected to a hostile work environment based on his sex and in reprisal. As an initial matter, Complainant has established parts 1 and 2 of a prima facie case of harassment. To establish part 3 of his prima facie case of harassment, Complainant argued that he was treated differently based on his protected class and in retaliation for his 2010/2012 MSPB proceedings. Here, Complainant asserted that he was subjected to unfair criticism of his work, suspension because of a perceived lack of performance, denial of ability to work out of the Pasadena office at his choosing, and denial of ISR opportunities. However, based on what Complainant has provided, we find that he has not established part 3 of his prima facie case. Assuming, arguendo, that Complainant did establish part 3, we turn to part 4 of the prima face case of harassment. Complainant argued that management’s actions created a hostile work environment for him. However, analyzing the record as a whole, we find that the record demonstrates that the incidents do not demonstrate that Complainant was subjected to a hostile work environment, or discrimination. In sum, the evidence does not support a finding of discrimination on any basis, the presence of discriminatory animus, or the existence of a hostile work environment. 2019002009 8 The Commission notes that a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final decision finding no discrimination. 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). 2019002009 9 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. 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 August 19, 2020 Date