0120172352
08-16-2018
Gerard M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gerard M.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120172352
Hearing Nos. 531-2014-00268X, 531-2014-00269X
Agency Nos. ARMEADE13JUL02381, ARMEADE13AUG02849
DECISION
On June 28, 2017, 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 May 23, 2017, final order 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.
At the time of events giving rise to this complaint, Complainant worked as an Inspection Specialist Operations, IA GG/0132/13, at the Agency's 780th Military Brigade facility in Fort Meade, Maryland.
On August 23, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. From March 12, 2012, to August 7, 2013, the Agency did not place Complainant in the Intelligence Specialist (Operations), GG/0132/13 position that he was hired to perform;
2. From March 12, 2012 to August 7, 2013, the Agency did not transfer Complainant to Georgia;
3. Beginning in June 2013 and continuing until August 7, 2013, Complainant's then supervisor (S1: Caucasian, white), questioned Complainant regarding his time and attendance:
4. Around December 2012, a management official (MO: African American, black) informed Complainant that he should resign or he would be terminated; and
5. On August 7, 2013, the Agency terminated Complainant's employment.
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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency's January 26, 2015, motion for a decision without a hearing and issued a decision without a hearing on April 27, 2017. Specifically, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. With regard to claim 1, the AJ found that the Agency explained that Complainant was not placed in the position because he failed the Remote Operations Center (ROC) assessment and various interviews. With regard to claim 2, the AJ found that Complainant did not apply for any positions in Georgia. With regard to claim 3, the AJ found that S averred that despite receiving counseling about his tardiness, Complainant continued to arrive late to work. With regard to claim 4, the AJ found that MO averred that Complainant having failed the ROC assessment and having turned down alternative placements, he should resign or be terminated. With regard to claim 5, the AJ found that Complainant's then-second level supervisor (S2: African American, white2) averred that Complainant was terminated because of persistent tardiness, lack of compliance with security procedures, and an unwillingness to take a leadership role. The AJ next found that Complainant failed to establish that the Agency's articulated reasons for its actions were pretextual.
The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
ANALYSIS AND FINDINGS
We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate.
Upon review of the record we find that the AJ properly found that the instant complaint was suitable for summary judgment. The record is adequately developed and there are no disputes of material fact.
Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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. See St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.
This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of disparate treatment with regard to claims 1 and 5.
The burden next shifts to the Agency to articulate legitimate, non-discriminatory reasons for its actions. Following a review of the record, we find that the Agency has met this burden. With regard to claim 1, MO averred that Complainant was not placed in the Intelligence Specialist position that he was hired to perform because he failed the Remote Operations Center (ROC) test and that when someone failed the ROC "that means they're not going to be an ION". Report of Investigation, (ROI), Transcript, Vol 1, p. 142, Bates Stamp 000855. We note that the record shows that ION stands for Interactive On-Net Operator, and Complainant's position description states that the incumbent in his position "serves as an Interactive On-Net Operator." With regard to claim 5, the termination letter stated that Complainant was being terminated for the following offenses: Complainant's repeated attendance issues such as arriving late to work and not showing up for work; his violation of security protocol by bringing his cellphone into a secure area as well as escorting individuals without "unescorted access privileges" into the secure area and then leaving them unattended; and for his failure to "demonstrate any initiative" while needing "close supervision to accomplish your assigned duties" when "as a GG-13 step 10, employee you are expected to take charge with little to no supervision."
The Agency having articulated reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency's articulated reasons are pretextual. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has not met this burden. With regard to claim 1, Complainant maintains that he should have been placed into the Intelligence Specialist (Operations) position without having to take or pass the ROC test. We note, however, that Complainant conceded that he did not know of anyone who was exempted from taking the test, see ROI, Transcript, Vol 1, p. 109, Bates Stamp 000822, nor did he know anyone else who had failed the test. See id., pp. 115-16, Bates Stamp 000828-29. On appeal, Complainant argues that the Brigade Commander (BC: white, white) said that taking and passing the ROC test was not a requirement for Complainant's position. We note, however, that this misrepresents BC's statement. A review of the transcript shows that BC stated that the test is "not a requirement for an intelligence specialist. It's a requirement for a number of different work roles that intelligence specialists would perform." See id, p. 215, Bates Stamp 000928. The investigator did not ask BC to elaborate on that comment but instead moved on to another topic. Because BC did not specify whether Complainant's position included such "work roles that intelligence specialists would perform," thus necessitating the test, Complainant has not shown that taking and passing the ROC was not required.
Complainant next argues on appeal that another Intelligence Specialist (CW1 - African American, black) testified that he was not required to take the ROC test. We note again that such a claim misrepresents CW1's testimony. The only reference to an examination that can be found in CW1's testimony occurs when CW1 was asked whether he had any knowledge or evidence to support Complainant's claim of discrimination or reprisal. CW1's response was:
Honestly, in real life its hard to prove this stuff. I told him they asked him to take a test that was not required but he did not pass. I know for a fact there was a person who was hired that did take the test, failed, and they kept him. I cannot recall his name but he was a white guy in his 20's. They moved him to Delta Company. This was sometimes in 2012.
ROI, Exhibit F-1, p. 3, Bates Stamp 000161.
Once again, we find that Complainant has not shown that taking and passing the ROC was not required for those in Complainant's position. We note that CW1 did not identify this "white guy in his 20's" or specify whether he, like Complainant, was also an Intelligence Specialist who "serve[d] as an Interactive On-Net Operator." Nor did CW1 specify whether this individual was "kept" on in an Intelligence Specialist position after failing the test, or whether he was assigned other duties, as Complainant was. As such Complainant has not shown he was similarly situated with the white coworker "in his 20's." We therefore find that Complainant has not established, by a preponderance of the evidence, that the Agency's articulated reason for its action was a pretext. Nor has he shown the presence of a material issue of fact. We note that in order to defeat a motion for summary judgment, a complainant must go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. Vague references to a "white guy in his 20's" who may or may not have been similarly situated with Complainant are insufficient to meet this standard.
With regard to claim 5, Complainant argues that he complied with office leave protocol by calling in, sending a text message, or sending an email to alert management whenever he was going to be late, and that there was therefore "no basis" to his removal. We note, however, that the removal letter does not state that Complainant was removed for failing to call in, email, or send text messages when late, but for his "repeated failures to report to work on time" which "raises significant concerns about your ability to . . . be available for the performance of our mission." Even assuming Complainant followed protocol by notifying management in advance that does not change the fact that, when late, Complainant was not available to help the agency perform its mission. Complainant next points out that other employees had flexible schedules. We note, however, that flexible schedules are set in advance and employees are required to adhere to them, they do not permit employees to come and go as they please. The fact that some employees had flexible schedules is irrelevant to the issue of Complainant's tardiness.
The removal notice further charged that "on or about 25 July 2013 you committed a security violation by bringing your personal cell phone into a Secure Compartmented Information Facility (SCIF) which is expressly prohibited." Complaint argues that he did not violate security protocol because at the time of the alleged violation, the relevant building was not a SCIF as it was under construction at the time. Complainant's claims, however, are contradicted by S2, the Deputy Commanding Officer (S3: Caucasian, white), a Network Technician (CW2: black, black), a Senior Cyber Advisor (S4: Caucasian, white), and by the Battalion Staff Communications Officer in Charge (S5: Pacific Islander, brown). See ROI Transcript Vol 1, pp. 176, 260, Bates Stamp 000889, 000972, Transcript Vol 2, pp. 294, 317-18, no Bates Stamp No. provided, and Exhibit F-1, p. 146, Bates Stamp 000167.
Complainant points to the testimony of a Network Administrator non-Federal Contractor (CW3; African American, black) who testified that the building in question was not a SCIF during the relevant period, and that he saw others with cell-phones in the facility. See ROI Transcript Vol 2, pp. 306-7 (no Bates Stamp No. provided). The AJ found that Complainant provided no evidence that S2 "did not reasonably believe that Complainant failed to follow security requirements in a SCIF." Given the abundance of testimony from management officials and others that Complainant's use of a cell phone in the building was a security violation we discern no basis to disturb the AJ's findings in this regard.
The removal notice also charged that Complainant was being terminated because of his inability to take a leadership role. On appeal, Complainant points to testimony from CW2 & 3 who praised Complainant's work attitude and abilities. See ROI Transcript Vol 2, pp. 311, 323-35, no Bates Stamp No. provided. We note, however, that neither CW2 nor CW3 supervised Complainant. Furthermore, having a good work attitude and being knowledgeable does not necessarily preclude also failing to take a leadership role. For the above reasons we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reason for terminating Complainant was a pretext. We note, in this regard, that the record shows that Complainant faced being terminated nine months earlier because of his failure to pass the ROC test but was kept on and given other duties, thus indicating that Agency officials were not looking for reasons to get rid of him. We further note that Complainant has not shown that Agency officials held any animus towards Complainant's protected bases.
Harassment
Because we find that the Agency articulated legitimate, non-discriminatory reasons for claims 1 and 5, and that Complainant has not shown these reasons to be pretextual, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) these claims may not be included in a harassment claim. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994), Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (September 21, 2000). The remaining incidents of alleged harassment consist of the fact that the Agency did not transfer Complainant to Georgia; S1questioned Complainant regarding his time and attendance; and MO informed Complainant in December 2012 that he should resign or he would be terminated.
In considering whether any of the above actions, whether individually or collectively, constitute harassment, the Commission notes that in Harris, the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), that harassment is actionable if it is sufficiently severe or pervasive that it results in an alteration of the conditions of the complainant's employment. See EEOC Notice No. 915.002 (March 8, 1994), Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3. To establish a claim of harassment a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the statutorily protected class; (4) the harassment had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
Furthermore, in assessing whether the complainant has set forth an actionable claim of harassment, the conduct at issue must be viewed in the context of the totality of the circumstances, considering, inter alia, the nature and frequency of offensive encounters and the span of time over which the encounters occurred. See 29 C.F.R. � 1604.11(b); EEOC Policy Guidance on Current Issues of Sexual Harassment, N 915 050, No. 137 (March 19, 1990); Cobb v. Department of the Treasury, Request No. 05970077 (March 13, 1997). However, as noted by the Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998): "simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment." The Court noted that such conduct "must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and . . . that the victim in fact did perceive to be so." Id. See also Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 752 (1998); Clark County School Dist. v. Breeden, 532 U.S. 268 (2001).
Following a review of the record we find that Complainant has not shown that the actions complained or either involved or were based on his protected bases. Nor has Complainant shown that such actions were sufficiently severe or pervasive to alter the conditions of Complainant's employment. We therefore discern no basis to disturb the AJ's findings.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing the presence of a material issue of fact, or that discrimination or reprisal occurred. We therefore AFFIRM the Agency's final order.
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.
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 16, 2018
__________________
Date
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.
2 S2 describes her race as African American and her color as white.
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