James R.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Dec 4, 2018

0120172507 (E.E.O.C. Dec. 4, 2018)

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

James R.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120172507

Agency Nos. DON 13-62473-02860
DON 14-62473-00804

DECISION

Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June
14, 2017 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Remedial Project Manager/Environmental
Engineer, GS-0819-12 at the Agency’s Desert Integrated Product Team (IPT), Naval Facilities
Engineering Command (NAVFAC) Southwest (SW) facility in San Diego, California.

Complainant filed two formal complaints on November 8, 2013 and February 6, 2014,
respectively. The Agency consolidated the two formal complaints. In the complaints,
Complainant claimed that the he was subjected to harassment/a hostile work environment based
on race (African-American), national origin (African-American), sex (male), color (black),
disability, and in reprisal for prior EEO activity when:2

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 For ease of reference, the Commission has re-numbered Complainant’s claims as claims 1-15.
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1. during the week of September 16, 2011, the Supervisory Contract Specialist sent him
an email regarding the content, quality, and integrity of a contract analysis he
completed (Agency No. DON 13-62473-02860, hereinafter referred to as “Complaint
1”);

2. on March 12, 2013, the Supervisory Contract Specialist reassigned one of his
contracts to a Contract Specialist stating she was “the only one who could handle
[Complainant] (Complaint 1);”

3. on April 10, 2013, the Supervisory Contract Specialist instructed the Contract
Specialist to cancel N6247313-R-4614 and N6247313-R-4613 (Complaint 1);

4. on June 11, 2013, he was singled out by his first level supervisor (supervisor), the
Environmental Business Line Team Lead, when he indicated in a team meeting that
Complainant was the only team member having problems and he was not interested
in hearing his feedback (Complaint 1);

5. on July 15, 2013, he informed the supervisor he felt harassed and discriminated
against by his second level supervisor, the Deputy Assistant Operations Officer and
his third level supervisor, the Assistant Operations Officer but the harassment
continued (Complaint 1);

6. on July 22, 2013, the supervisor refused to tell him why management removed his
authority to approve invoices (Complaint 1);

7. on July 30, 2013, he was informed that a contractor’s bid on his Request for Proposal
was within 3% of his estimate and fraud was suspected (Complaint 1);

8. on August 6, 2013, the supervisor sent an email accusing him of violating
Congressional Environmental Legislation, unethical project management, and
violating federal acquisition requirements (Complaint 1);

9. on August 13, 2013, the supervisor removed his project management duties and
refused to explain why (Complaint 1);

10. on October 16, 2013, the supervisor suspended his telework privileges (Complaint 1);

11. on November 21, 2013, the supervisor assigned him unequal and less desirable work
than his peers (Complaint 1);

12. on January 7, 2014, the supervisor directed him to not participate in a video
conference regarding the Semi-Annual Budget and Remedial Project Management
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Summit (Agency No. DON 14-62473-00804, hereinafter referred to as “Complaint
2”);

13. on January 7, 2014, the supervisor directed him not to participate in the Contractor
Performance Assessment and Department of Defense State Memorandum of
Agreement (Complaint 2);

14. on January 7, 2014, the supervisor violated his Privacy Act rights and sent an email
containing his private medical information to peers (Complaint 2);

15. on January 28 and 29, 2014, the supervisor requested everyone on the Coastal IPT
team be on the “lookout” for him to verify his arrival and report his communications
regarding work assignments (Complaint 2); and

16. on January 29, 2014, the supervisor sent an email to him accusing him of not being
accounted for at the Coastal IPT office for approximately two hours on January 8,
2014 (Complaint 2).

After the investigation of Complaints 1 and 2, the Agency provided Complainant with a copy of
the report of investigation and notice of the right to request a hearing before an EEOC
Administrative Judge (AJ). Complainant initially requested a hearing. Complainant, however,
subsequently withdrew the hearing request. The Agency issued the instant final decision on June
14, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3

The instant appeal followed.

ANALYSIS AND FINDINGS

To establish a claim of hostile environment harassment, 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982).

In other word, to prove his harassment claim, Complainant must establish that he was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s
position would have found the conduct to be hostile or abusive.

3 Complainant identified his disabilities as anxiety and depression. For purposes of this analysis,
we assume, without so finding, that Complainant was a qualified individual with a disability.

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Complainant must also prove that the conduct was taken because of his protected bases – in this
case, his race, national origin, sex, color, disability, and prior protected activity. Only if
Complainant establishes both of those elements – hostility and motive – will the question of
Agency liability present itself. Here, as discussed below, Complainant simply has provided
inadequate evidence to support his claim that his treatment was the result of his race, national
origin, sex, color, disability, and prior protected activity.

Allegation 1

Complainant asserted that during the week of September 16, 2011, the Supervisory Contract
Specialist sent him an email regarding the content, quality, and integrity of a contract analysis he
completed.

The supervisor recalled that he was copied on the email in question from the Supervisory
Contract Specialist. He stated that the Supervisory Contract Specialist asked Complainant to
provide more information because his contract analysis did not adequately explain the difference
between the government’s level of effort and the contractor’s level of effort “in order for the
contract specialist to determine if the contractor’s cost proposal was fair and reasonable for the
government to accept for each line items in the cost proposals.”

Allegation 2

Complainant alleged that on March 12, 2013, the Supervisory Contract Specialist reassigned one
of his contracts to a Contract Specialist stating she was “the only one who could handle
[Complainant].”

The supervisor stated that he was not aware of Complainant’s contract being reassigned to the
Contract Specialist. The supervisor explained that if the Supervisory Contract Specialist made
the alleged statement, it was based on the contract specialists having difficulties with
Complainant and the Contract Specialist having a better working relationship with him. He
further acknowledged that no one wanted to work with Complainant including the Contract
Specialist.

Supervisor 2 stated that she was not aware of the March 12, 2013 incident “but we often reassign
contracts depending on workload, training, and leave schedules and urgency of the requirement.”
Supervisor 2 further noted that during the relevant period she was copied on emails regarding
issues between Complainant and several Contract Specialists. Furthermore, Supervisor 2 stated
“I tried to stay neutral and resolve these issues.”

Allegations 3, 9, 10 and 11 (Complainant’s contracts canceled due to suspicion of fraud)

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Complainant alleged that on April 10, 2013, the supervisor instructed the Contract Specialist to
cancel N6247313-R-4614 and N6247313-R-4613 contracts; on August 13, 2013, the supervisor
removed his project management duties and refused to explain why; on October 16, 2013, his
telework privileges was suspended; and on November 21, 2013, the supervisor assigned him
unequal and less desirable work than his peers, respectfully.

The supervisor (Asian American, Vietnamese, brown, male, no disability/prior protected
activity) stated as Complainant’s first level supervisor, he reviewed the scope of work,
independent estimates, and the contractor cost proposals for the two contracts (N6247313-R-
4614 and N6247313-R-4613) that were ultimately cancelled. He explained the two contracts
were cancelled because they contained duplicate work and Complainant’s estimates were nearly
identical to the contractor’s proposals which raised suspicion of collaboration “which is not
allowed under Federal Acquisition Regulations.”

Further, the supervisor stated that during that time there were discussions regarding the scope of
work with the Contracting Officer and Complainant regarding concerns “over the repetitive
work. However, I do not recall explaining the details of the cancellation to him because our
Contracting Officer referred the issue to and it was accepted by Navy Criminal Investigative
Service (NCIS).” The supervisors asserted that he explained to Complainant that “he should use
an Environmental Multiple Award Contract (several contractor bidding on the work promote
better pricing) to perform the work instead of sole sourcing (higher price for the government) the
work to the two contractors (N6247313-R-4614 and N6247313-R-4613) because of the
aforementioned issues.”

With respect to Complainant’s allegation that his telework privileges was suspended, the
supervisor acknowledged suspending his telework privileges because “I had lost faith in
[Complainant] as a Remedial Project Manager and his level of productivity. In addition, there
were concerns about [Complainant’s] availability while working in a telework status.”

Furthermore, the supervisor stated that he assigned Complainant appropriate work while the
NCIS investigation was pending. The supervisor stated “the work [Complainant] was given was
appropriate for an employee at the GS-12 level. [Complainant] was not happy with the projects
he was assigned.”

The Deputy Assistant Operations Officer for Desert Integrated Product Team (Filipino, brown,
American female, no disability, prior protected activity) stated that during the relevant period,
she was Complainant’s second level supervisor (Supervisor 2). Supervisor 2 stated that she
concurred with the supervisor’s decision to suspend Complainant’s telework privileges.
Specifically, Supervisor 2 stated that Complainant “refused to meet with his supervisor to receive
his updated work assignments and it was not clear what work the individual would be able to
accomplish while teleworking.”

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Supervisor 2 stated that during the relevant period Complainant was assigned “new work due to
the concern of his inability to continue to execute his original work assignments due to the NCIS
investigation. We have assigned different workloads in similar situations that do not involve
fiscal responsibility.”

Allegation 4

Complainant asserted that on June 11, 2013, he was singled out when the supervisor indicated in
a team meeting that Complainant was the only team member having problems and he was not
interested in hearing his feedback.

The supervisor stated that during the June 11, 2013 meeting, he solicited feedback from team
members concerning their current technical analysis. The supervisor stated he does not recall
stating to Complainant “in front of the team that I was not interested in his feedback. The team
may be able to provide better recollection. I wanted to hear what feedback the team had with
their current (2013) technical analysis. [Complainant] did not have any award to make at this
time because of the aforementioned contract cancellations.”

Further, the supervisor stated that he went around the room to hear the team members’ issues and
when he got to Complainant “I skipped over him. It was at that point that [Complainant]
stormed out of the room without saying a word and he sent me series of emails after the meeting
that I was singling him out during the meeting because of ‘who he is.’ I told [Complainant]
during this meeting that we have already heard from him many times in past meetings regarding
his TA issues.”

Allegation 5

Complainant alleged on July 15, 2013, he informed the supervisor he felt harassed and
discriminated against by Supervisor 2 and his third level supervisor, the Assistant Operations
Officer, but that harassment nevertheless continued.

The supervisor stated when Complainant shared his concerns about being subjected to
harassment and discrimination by his second and third level supervisors, the supervisor advised
him “on one occasion that if he felt that I was discriminating against him, he may call the local
EEO office.” The supervisor stated that he does not recall Complainant’s response. The
supervisor stated, however, Complainant “was allowed, and has gone up the chain of command
any time. He would bypass me many times and go straight to [Supervisor 2]. He would also at
times go straight to [third level supervisor].”

With respect to Complainant’s allegation that the lack of action by management was based on his
race, national origin, sex, color, disability, and prior protected activity, the supervisor denied it.
Specifically, the supervisor stated “it is not clear what ‘lack of action’ he is complaining about,
but the actions with [Complainant] were taken because of poor performance and concerns with
the execution of his duties.”
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Supervisor 2 stated that Complainant had indicated that he felt he was being harassed by his
supervisor and contracting officer and “he did indicate he felt he was being harassed as a black
male. He did not request any specific action be taken by management that I recall.”

Further, Supervisor 2 stated that Agency management had tried to work with Complainant “over
the years to ensure he was following the appropriate environmental procedures and federal
acquisition regulations. The individual has been unwilling to work with or communicate with
his supervisor. He has been trying to bait his supervisor into losing his temper and instead of
performing the work assigned to him, spends government time harassing his supervisor and
making the work environment uncomfortable for his supervisor and the remaining personnel on
the team.”

Allegation 6

Complainant claimed that on July 22, 2013, the supervisor refused give Complainant a reason
why management removed his authority to approve invoices.

The supervisor stated at that time, he met with Complainant to discuss invoice issues. The
supervisor further stated that he and Complainant also met with the contractor “to discuss the
invoicing issue. There was an NCIS investigation, and I was limited in what I could discuss,
based on instructions from NCIS.”

Supervisor 2 stated that that she believed that Complainant’s authority to approve invoices was
related to his workload reassignment. Specifically, Supervisor 2 stated that because Complainant
would not be overseeing the contract work “it would be inappropriate for him to review and
approve the invoice.”

Allegation 7

Complainant claimed that on July 30, 2013, he was informed that a contractor’s bid on his
Request for Proposal was within 3% of his estimate, and that fraud was suspected.

The supervisor stated that during the relevant period, he reviewed Complainant’s Independent
Government Estimates and the contractor cost proposals and noted “they were extraordinarily
close. This review is normal whenever the Contracting Officer sees potential corroboration with
a contract during the contract award process, which is against Federal Acquisition Regulations.”

Further, the supervisor explained that he did not make the determination that fraud was
suspected. The supervisor stated that he had numerous discussions with Complainant regarding
his IGE and the Contractor Cost proposals “but there was nothing to inform [Complainant] [that]
this alone did not cause the [Contraction Officer] to engage NCIS. The primary reason the
[Contracting Officer] contacted NCIS was he included contract work that has been done or is
being done already and [Complainant] was approving duplicate payment for that same work.
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He was duplicating work that was not necessary to be duplicated. The cost estimate that
[Complainant] was working was incredibly close to the contractor proposals with regard to
discipline, hours, and costs for each work element. It is impossible to get this close without
collaboration with the contractor.”

Allegation 8

Complainant alleged that on August 6, 2013, the supervisor sent an email accusing him of
violating Congressional Environmental Legislation, unethical project management, and violating
federal acquisition requirements.

The supervisor stated that after reviewing Complainant’s project, he sent Complainant emails
stating that “he was mismanaging the project and he was not following the Comprehensive
Environmental Response compensation and Liability Act (CERCLA) process per Navy
guidance.” Specifically, the supervisor explained that Complainant was spending over a million
dollars for work under contract for a certain project and another million dollars to be awarded to
another contract “that was just based on screening risk numbers (very preliminary), which is a
violation of CNO guidance and, perhaps, the CERLCA process per the Defense Environmental
Restoration Program Guidance.”

Further, the supervisor stated that a review of the Engineering Evaluation/Cost Analysis
(EE/CA) by the Technical Manager and legal counsel “confirmed that this action should not be
taken as we do not have imminent threat at the site. A Remedial Investigation (RI) had not been
completed to better understand the risks. Doing this work without better risk data, such as an RI,
[Complainant] would likely waste government funds on cleanup that may be unnecessary.”

Allegation 12

Complainant alleged that on January 7, 2014, the supervisor directed him to not participate in a
video conference regarding the Semi-Annual Budget and Remedial Project Management
Summit.

The supervisor stated at that time, Complainant asked him if he needed to be present at the
budget videoconference, and the supervisor explained to Complainant that his current assignment
did not require him to attend but he was welcome to do so.

Supervisor 2 stated that she was aware that the supervisor told Complainant “that he did not need
to participate in the teleconference. It was not based on discrimination or harassment.”
Supervisor 2 explained that because Complainant’s current work assignment did not include
environmental restoration projects due to the NCIS investigation “it didn’t make sense for him to
participate in the teleconference.”

Allegation 13

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Complainant asserted that on January 7, 2014, the supervisor directed him not to participate in
the Contractor Performance Assessment and Department of Defense State Memorandum of
Agreement.

The supervisor explained that Complainant was notified that he had no action with the
Contractor Performance Assessment (CPARS) and Department of State Memorandum of
Agreement (DDMOA) based on his current assignment. Moreover, the supervisor stated that
Complainant was never told he could not participate in the CPARS or DDMOA.

Allegation 14

Complainant alleged that on January 7, 2014, the supervisor violated his Privacy Act rights and
sent an email containing his private medical information to peers.

The supervisor stated that on January 7, 2014, Complainant sent him an email stating he was ill,
following the team meeting. The supervisor further stated that email did not contain any medical
information. The email solely included a statement that Complainant was using sick leave and
would not be at the meeting. The supervisor stated the reason he sent an email to team members
“was because during that team meeting [Complainant] kept interrupting me and causing
disruptions. He sent me a series of emails following the meeting in which I felt he was being
passive-aggressive. He sent an email saying he felt sick after the meeting. He has accused me of
making him sick in the past…I told him the team meeting was very calm and collected and I do
not know why he felt that way. I wanted to include the team to document the situation. There
was no specific medical information in the email other than his email stating that he is not
feeling well. I also approved his leave after the meeting.”

Supervisor 2 contented that the supervisor copied other team members on his response to
Complainant “indicating he felt the team meeting was claim and collected and felt that
[Complainant] was implying the meeting made him unwell. No other medical information was
included.” Supervisor 2 further stated that she counseled the supervisor “that is was
inappropriate for him to copy other team members in his response to [Complainant].”

Allegation 15

Complainant alleged that on January 28 and 29, 2014, the supervisor requested everyone on the
Coastal IPT team be on the “lookout” for Complainant, to verify his arrival and report his
communications regarding work assignments.

The supervisor acknowledged sending emails to the Coastal IPT and Central IPT supervisors
asking them to notify him when Complainant reported to work. Specifically, the supervisor
stated that there were concerns with Complainant “not following through with his work and
concerns about his attendance. He had a record of not following through with direction given by
management. This has been happening for about three years.”

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Allegation 16

Complainant asserted that on January 29, 2014, the supervisor sent an email to Complainant,
accusing him of not being accounted for at the Coastal IPT office for approximately two hours,
on January 8, 2014.

The supervisor explained that while he was on leave, the Environmental Restoration Branch
Head (ERN Branch Head) assigned Complainant to meet with the Central and Coastal IPT
employees. The supervisor stated, however, Complainant sent an email to the Central and
Coastal IPT employees requesting the information. Specifically, the supervisor stated that the
ERN Branch Head expressed concerns about Complainant not meeting “with people like he is
supposed to for the assignment and as scheduled. It is my responsibility as his supervisor to
make sure [Complainant] follows through with his work assignments.”

After careful review of all the evidence of record, as summarized above, we conclude that
Complainant is unable to meet his burden of proving, by a preponderance of the evidence, a
discriminatory motive with regard to any of the incidents making up his claim of a hostile work
environment.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination concerning Complaints 1 and 2 because the
preponderance of the evidence of record does not establish that discrimination occurred.

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.
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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.

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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

December 4, 2018
Date