Jeremy S.,1 Complainant,v.Robert M. Speer, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 23, 2017

0120141218 (E.E.O.C. Feb. 23, 2017)

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

Jeremy S.,1
Complainant,

v.

Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.

Appeal No. 0120141218

Hearing No. 550-2011-00322X

Agency No. ARSIERRA10AUG04052

DECISION

On January 24, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s January 7, 2014, 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, the Commission AFFIRMS the Agency’s final order.

BACKGROUND

Complainant worked as a Management Analyst at the Sierra Army Depot in Herlong,
California. On September 9, 2010, Complainant filed an EEO complaint in which he set forth
the following claims:

1. Between June and August of 2010, the Supervisory Logistics Management Officer, his
immediate supervisor (S1), and other individuals at the Depot had harassed him and
deprived him of employment terms, conditions, and benefits to which he was entitled,
and had done so because of his race (Caucasian), sex (male), color (White), disability

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.
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(unspecified visual impairment), and in reprisal for protected EEO activity, as
evidenced by the following incidents:

a. Between July and August 2010, S1 had not presented Complainant with official
performance objectives;

b. On July 2, 2010, one of Complainant’s coworkers (C1) made a comment that
Complainant needed glasses;

c. On July 20, 2010, management failed to ensure that tasks that entailed heavy
lifting were equally shared by men and women, and that C1 had referred to
heavy lifting as “men’s work;”

d. On August 10, C1 used her authority to openly advocate that her son be placed
into a trainer position into which Complainant was to be placed;

e. On August 16, 2010, S1 and an African-American male Information Technology
Specialist (ITS) intentionally utilized a command center vehicle knowing that
Complainant needed a ride, which resulted in Complainant having to walk for
three miles in desert heat;

f. On August 17, 2010, C1 required Complainant to move filing cabinets when
there were three female employees available to move those cabinets; and

g. On August 19, 2010, S1 ensured that everyone except Complainant had a ride to
a mandatory picnic celebrating “Employee Appreciation Day.”

2. On August 2, 2010, S1 retaliated against Complainant by threatening to “banish him
from the Depot” if he followed through on filing his EEO complaint.

Complainant averred at a fact-finding conference that he never received any performance
objectives for his position, and that he considered this to be a serious issue because he was not
made aware of what he was supposed to be doing. Fact-Finding Conference Transcript (CT).
21-22, 40. S1 admitted that Complainant had not been given his performance objectives within
30 days, as was typically done, but attributed this oversight to the fact that Complainant had
been sent on a detail from which he did not return until September. Both Complainant and S1
acknowledged that Complainant was given his performance objectives on September 20, 2010.
CT 39-40, 120.

Complainant averred that C1 made fun of his visual impairment. He stated that when he and
C1 were reviewing a spreadsheet on a computer monitor, he had asked for a larger font,
whereupon C1 said to him, “maybe you need glasses.” CT 66-68. C1 admitted making the
comment, which the ITS characterized as “random.” CT 182, 222.

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Complainant averred that several females were present while he and another male employee
were moving office furniture but did nothing to assist. CT 70-74. S1 denied that men were
disproportionately assigned lifting tasks. CT 131-132. C1 denied making the comment that
Complainant had attributed to her, noting that she helped move desks and boxes around as
well. CT 185.

Complainant accused C1 of nepotism, using her position to ensure that her son was selected for
the instructor position that he applied for and had been awarded. CT 32-33, 55-57, 59.
However, when asked who had actually made the decision to place C1’s son in the instructor
position, Complainant replied that he had “no idea.” CT 57-58. C1 denied that this was the
case, emphasizing that she had no authority to influence a selection process and that her son
had applied for the position via the normal avenues for doing so. CT 179. S1 likewise averred
that C1 had never advocated on her son’s behalf and the ITS opined that C1’s son was selected
because he had certain experience for the position that Complainant did not. CT 128, 130,
218-19.

Complainant averred that on August 16, 2010, another female coworker (C2) drove him to the
EEO office, which was approximately three miles from his duty station, and that C2 had
utilized the only available command center vehicle. He further stated that C2 had told him to
call her when he was ready to be picked up, and that when he did, C2 told him that she could
not pick him up as promised because S1 had commandeered the vehicle. CT 52. Finally, he
stated that he was forced to walk the three miles back to his office in 95-to-100-degree desert
heat, and that he did so because he did not want to lend credence to the perception that he was
not doing his job. CT 52-54. S1 and the ITS responded that they needed the vehicle for
business purposes, that no one had told S1 that Complainant was in need of a ride, and that had
they known, they would have told Complainant not to walk but rather to take a taxi or call
someone for a ride. CT 125-27, 178, 217-18.

When asked what the dispute was regarding C1’s request to have Complainant move some
filing cabinets, Complainant averred that C1 did not ask any of the female employees to do it,
but came to the male employees instead. CT 49. C1 denied that she gave Complainant or
anyone else orders to move the filing cabinets. She stated that she saw some cabinets that had
to be moved from one side of the room to the other. CT 176-78. The ITS averred that he had
no reason to believe that Complainant had been singled out to do excessive manual labor and
that he had observed women pitching in and helping to move furniture and other heavy objects.
CT 213-14.

Complainant averred that management failed in its responsibility to ensure that everyone had
transportation to a mandatory office event. CT 44-47. S1 averred that he had told his office
assistant to make sure that everyone had a ride, that he had personally observed his assistant
working out transportation arrangements, and that Complainant had asked if he could remain at
the Office. S1 further stated that he told Complainant that attendance at the event was
mandatory and that even he, S1, needed a ride with his supervisor. Finally, he stated that he
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had offered Complainant a ride several times, but that Complainant had refused the offer. CT
121-24.

Complainant testified at the hearing that he and S1 were having a conversation and that S1 had
turned toward him and said, “If you ever screw me, I’ll never forget it and you’ll be done at
the Depot,” or words to that effect. Complainant maintained that this was an attempt to
dissuade him from filing or otherwise taking any action related to his EEO complaint. CT 61;
Hearing Transcript (HT) 14-15. S1 not only denied making the statement but averred that he
was the one who had called the EEO Office to set up Complainant’s appointment. CT 109,
130-31. Both S1 and the ITS testified that S1 had promoted Complaint and converted him to a
permanent position. CT 220-21; HT 38-39, 59-60.

At the conclusion of the investigation, the Agency notified Complainant of his right to request
a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ).
Complainant timely requested a hearing. The Agency filed a motion for summary judgment on
August 2, 2011. The AJ who had been initially assigned the case retired in 2012 before
issuing a decision. The case was then transferred to a second AJ who granted the Agency’s
motion with respect to claim (1) only. On July 18, 2013, the AJ held a hearing on claim (2).
On December 6, 2013, she issued a decision granting the Agency’s motion for summary
judgment on claim (1) and finding no reprisal with respect to claim (2). 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

Claim (1)

In order to warrant a hearing on his claims of harassment and disparate treatment with respect
to terms, conditions, and benefits of employment, Complainant would have to present enough
evidence to raise a genuine issue of fact as to S1, C1, ITS, or any other individual involved in
the incidents comprising claim (1) were motivated by unlawful considerations of Complainant’s
race, color, sex, disability, or previous EEO activity when they took those actions. See 29
C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143
(2000); Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993).

In circumstantial-evidence cases such as this, Complainant can raise a genuine issue of material
fact as to motive by presenting evidence tending to show that the reasons put forth by his
Supervisor and Coworkers for their actions were pretexts, i.e., not the real reason but rather a
cover for discrimination. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993). If
Complainant fails to raise a genuine issue of material fact as to the existence of discriminatory
intent, no further inquiry would be necessary as to whether the incidents complained of rise to
the level of harassment or constitute separate acts of discrimination under disparate treatment
theory. Nicki D. v. Department of Veterans Affairs, EEOC Appeal No. 0120133247 (October
15, 2015).
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When asked by the investigator why he believed that his race, color, sex, disability, and EEO
activity were motivating factors in the incidents at issue, Complainant responded with vague
and conclusory assertions such as, “nobody wants to be made fun of,” “the ITS doesn’t like
me because I’m white,” “men are required to do heavy lifting and women are not,” “S1
suffers from ‘white guilt and wants to do anything to make the ITS happy.’” CT 41-42, 47-49,
54-55, 63-64, 68, 70. However, with the exception of C2, who testified that S1 tended to play
favorites with certain employees, Complainant has not submitted any sworn statements from
other witnesses or any documents that contradict the explanations provided by S1, C1, or the
ITS, or which call their veracity into question. In fact, S1, C1, and the ITS all averred that
Complainant isolated himself from the other employees, keeping to himself and not interacting
with his coworkers. CT 141, 193, 217, 232. Consequently, the AJ correctly found the
evidence of unlawful motive insufficient to raise a genuine issue of material fact on that
question.

Moreover, none of the incidents at issue in claim (1) are sufficient to raise a genuine issue of
material fact as to hostility or chilling effect. The incidents pertain to work assignments,
instructions, and admonishments which, by definition, are neither severe nor pervasive enough
to rise to a level of abuse on part with a racial epithet, or otherwise engender a hostile work
environment or create a chilling effect on EEO activity. Complainant v. Department of State,
EEOC Appeal No. 0120123299 (February 25, 2013). The anti-discrimination statutes are not
general civility codes designed to protect against the “ordinary tribulations” of the workplace.
See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of
the Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general
workplace disputes, trivial slights and petty annoyances between an alleged harasser and a
Complainant do not rise to the level of harassment). Instead, EEO laws address discriminatory
conduct that alters the work environment. See Oncale v. Sundowner Offshore Services, Inc.,
523 U.S. 75, 81 (1998). The evidentiary record before us is not sufficient to justify holding a
hearing on the question of the severity, pervasiveness, or potential chilling effect of the
incidents described in claim (1). We therefore find, as did the AJ, that no genuine issue of
material fact exists with respect to the motivation of S1, C1, or the ITS in connection with any
of those incidents, that summary judgment on Claim (1) was appropriate, and that the AJ
properly found that Complainant had not established that he had been subjected to an unlawful
hostile work environment.

Claim (2)

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.
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In finding in the Agency’s favor, the AJ credited S1’s testimony that he did not threaten
Complainant and that he had contacted the EEO Office on Complainant’s behalf. Based upon
his observations of S1 on the witness stand, the AJ found him to be a credible witness and
accorded his hearing testimony great weight. An AJ’s credibility determination based on the
demeanor of a witness or on the tone of voice of a witness will be accepted unless documents
or other objective evidence so contradicts the testimony or the testimony so lacks in credibility
that a reasonable fact finder would not credit it. See EEOC Management Directive 110,
Chapter 9, Section VI, Subsection B. (August 5, 2015).

When asked about the alleged threat made by S1, Complainant insisted that his testimony was
true. However he presented no documents or testimony from other witnesses that contradicted
S1’s sworn statements or undermined his credibility. We therefore find no basis upon which to
disturb the AJ’s credibility determination regarding S1’s hearing testimony. Ultimately, we
agree with the AJ that Complainant has not sustained his burden of proof with respect to his
claim of reprisal, and find that the AJ properly found that Complainant had not established that
he had been subjected to unlawful discrimination based on his EEO activity.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final order implementing the AJ’s decision that Complainant was not discriminated
against as alleged.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests may be submitted via regular mail to P.O. Box 77960,
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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 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

February 23, 2017
Date