Melvin S.,1 Complainant,v.Ryan D. McCarthy, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 13, 2020

2019004998 (E.E.O.C. May. 13, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melvin S.,1 Complainant, v. Ryan D. McCarthy, Secretary, Department of the Army, Agency. Appeal No. 2019004998 Agency No. ARCEJAPAN17JUN03092 DECISION On June 28, 2019, 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 21, 2019 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Engineering Technician, GS-12, in the Agency’s Japan Engineering District (JED) - Okinawa Area Office (OAO). In JED-OAO, Complainant’s first-level supervisor was the Resident Office Mechanical Engineer (S1), his second-level supervisor through June 2016 was the OAO Resident Engineer (S2) and beginning June 2016 was the replacement OAO Resident Engineer (S3), and Complainant’s third level supervisor was the JED Construction Division Chief (S4). The end of May 2017, Complainant transferred to a position as a Construction Control Inspector, GS-12, in the Agency’s Resident Area Office-Galveston District, located in Corpus Christi, Texas. 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. 2019004998 2 On July 19, 2017, Complainant initiated EEO contact alleging that the Agency discriminated against him on the bases of disability (Depression, Tinnitus, Hypertension, Chronic Obstructive Pulmonary Disease, poor eyesight, hearing loss, partial paralysis/neuropathy), age (65), and reprisal for prior protected EEO activity (September 2013 complaint and civil action) when: 1. on July 8, 2017, the JED Construction Division Chief, S4, copied Complainant’s new supervisor and a former supervisor on an email regarding Complainant’s Permanent Change of Station Travel Voucher although the new supervisor was not involved in the matter and the former supervisor did not have a need to know; 2. on July 15, 2017, OAO leadership humiliated Complainant at his farewell luncheon when it failed to give him any awards and Safety and Area Engineer group leaders, S3 and S4, did not attend the event; 3. on December 9, 2016, management issued Complainant a score of “2” on his Senior System Civilian Evaluation Report; 4. on June 3, 2015, the OAO Area Engineer, S2, admonished Complainant for contacting the Criminal Investigation Command (CID) about a contractor’s deficiencies, rather than utilizing Agency-Contractor protocol; and 5. in early 2016, S2 instructed Complainant, in front of others, to move his vehicle from a parking spot for individuals with disabilities (accessible parking) although he had an appropriate decal. On September 1, 2017, Complainant filed a formal EEO complaint reiterating the same. The Agency accepted claims (1) and (2) for EEO investigation, and dismissed (3) through (5) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO contact. During the EEO investigation, regarding (1), S4 stated that Complainant wanted to depart for his new position quickly and got a little “rude and disruptive” with the processing clerk for personnel matters. S1 stated that he just wanted to resolve the matter of Complainant’s travel voucher quickly so he sent emails to those he thought were Complainant’s supervisors. S4 stated that both the OAO and Texas Office were paying a portion of Complainant’s travel voucher costs. S1 stated that he was not previously aware of Complainant’s prior EEO activity. For (2), Complainant’s Direct Supervisor, S1, stated that he was unaware that the safety award process required him to initiate a request. S1 stated, by the time he learned of the process, it was too late to have an award by Complainant’s departure. He stated that the process requires about 30 days and he learned of the process about 10 days before Complainant’s departure. S1 stated it was more a lack of knowledge on the subject than a decision. S1 stated that OAO leadership does not attend all farewell luncheons, but will attend depending upon their hectic schedules or physical distance from the event. S1 stated that he was able to have an appreciation plaque made prior to Complainant’s departure but not prior to his luncheon. Additionally, S4 stated that his office is in Mainland Japan, which is a two-hour flight from Okinawa, so he generally does not attend farewell events outside of his immediate office. In addition, S4 stated that he and S3 were at a meeting that particular week. 2019004998 3 Regarding (4), S2 stated that he knows Complainant utilized accessible parking, but he does not recall instructing Complainant to move his car from such parking. Further, for (5), S2 acknowledged instructing Complainant to use Agency Quality Assurance Process and Procedures, rather than CID, to address contractor deficiencies. S2 stated that he also informed Complainant to inform the applicable Resident Engineer of systemic concerns with contractors. Following the EEO investigation, 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. On appeal, Complainant stated that incident (3) should be viewed as supporting evidence and incidents (4) and (5) are incidents in a claim of hostile work environment with (1) and (2). ANALYSIS AND FINDINGS 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, 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”). Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For 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. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, non-discriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981). 2019004998 4 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, non-discriminatory 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, we find, assuming arguendo, Complainant established a prima facie case of discrimination based on age, disability, or reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions in (1) and (2). For (1), the Agency stated that it informed Complainant’s departure and arrival offices of issues regarding his travel voucher as both offices were to pay related costs. Further, the Agency stated that Complainant was giving the personnel processor some problems regarding the travel voucher and wanted to resolve the concerns quickly. Regarding (2), the Agency stated that Complainant’s supervisor was not familiar with the process and time required to request farewell awards. The Agency stated that Complainant was given an appreciation plaque prior to his OAO departure. The Agency stated that S3 and S4 attend employee events based on their hectic schedules and physical distance from the office. Harassment To establish a claim of harassment 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 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 to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Here, we find that Complainant failed to establish discriminatory harassment. Specifically, we find that Complainant failed to prove, by a preponderance of the evidence, that the actions complained of were based on age, disability, or reprisal. We conclude that a finding of harassment is precluded by our determination that Complainant failed to establish that the Agency’s actions were motivated by discriminatory animus. See Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993). 2019004998 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency 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). 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. 2019004998 6 “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 May 13, 2020 Date