0120170550
08-23-2018
Nigel S.,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
Nigel S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120170550
Agency No. ARWSMR14SEPT03222
DECISION
On November 12, 2016, 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 October 13, 2016, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that management subjected him to harassment with respect to eleven (11) work-related incidents.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisory Security Guard, GS-0085-07 at the Agency's U.S. Army Garrison White Sands facility in White Sands Missile Range (WSMR), New Mexico. On October 9, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Hispanic), age (58), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 the Age Discrimination in Employment Act of 1967 when he was subjected to harassment by S2, Supervisory Security Officer, when:
1. S2 insisted Complainant wear his guard uniform;
2. On May 5, 2014, S2 instructed him to occupy Post 18;
3. He was assigned as the supervisor of employees who were not permanently disqualified from the Personal Reliability Program (PRP);
4. He did not have access to "building 21221;"
5. On April 23, 2014, S2 denied him access to the computer rooms in building 21221;
6. He was not assigned an office with a key;
7. He was instructed to count vehicles;
8. On February 23, 2015, S2 did not allow him to go to the gym as he allowed other employees on their last hour of duty;
9. On February 23, 2015, S2 did not allow him to walk outside the immediate area of his post as he does his staff;
10. On March 3, 2015, S2 accused him of making false statements for reporting a suspicious object near his post initiating an investigation by the WSMR Police; and
11. On August 29, 2014, S2 accused him of creating a disturbance and initiated an investigation from the WSMR Police.
In April 2014, Complainant stated that his immediate supervisor (S1) held a meeting and informed Complainant and a co-worker (M1) (white male) they would be "supervisors for personnel at Post 18." Complainant stated that they both were to wear uniforms. On May 5, 2014, Complainant appeared for work in uniform, but M1 did not wear his uniform and did not report to Post 18. When Complainant asked why M1 was not in uniform, S1 advised Complainant that M1 was in a different situation and was put on a different assignment. Complainant acknowledged that this event occurred before he had engaged in EEO activity, but he believed this change was "motivated" by his Office of Special Counsel and Merits Systems Protection Board activity. Complainant was required by S2 to "occupy" Post 18 that day.
Complainant alleged that the building was not suitable for occupancy, did not have a restroom, drinking water, computers and other items Complainant believed should have been provided. Complainant raised other complaints about the building, i.e., its cramped conditions, his assignment, and indicated that he was treated less favorably than M1 who was allowed to remain in the administration building.
According to Complainant, he was assigned as the supervisor of employees who are permanently disqualified from the Personal Reliability Program (PRP). Complainant stated that he was waiting for a decision about whether he was permanently qualified and therefore should not be assigned supervisory duties. He maintained that M1, who had a temporary medical disqualification, should have been the person assigned to supervise individuals at Post 18.
Complainant stated that he did not have access to building 21221. The building had a door code/access badge system, but Complainant had to knock on the door to gain access. Complainant complained that at times no one is in the building, and that Post 18 personnel had to drive their personal vehicles several miles to another building. Complainant asserted that S1 told him that S2 did not want Post 18 personnel to have access to the building because he did not want other employees to overhear conversations in the office.
Complainant claimed that on April 23, 2014, S2 denied him access to the computer room in building 21221. He was told that S2 made the decision to keep the doors locked and that Post 18 personnel would need to drive to a building about five minutes away to check their email and compete mandatory online training. Complainant stated that this restriction applied to all Post 18 personnel, but did not apply to M1. According to Complainant, he was not given a key to the computer room. He said, however, that M1 was given a key.
Complainant stated that he was given the "menial task" of counting vehicles on May 5, 2014. He "contended that the drivers, not their vehicles, should have been checked. Complainant also stated that, on February 23, 2014, S2 did not allow him to go to the gym, but did allow another employee (white and younger) to go during his last hour of duty.
Complainant stated that on or about March 5 or 6, S2 did not allow him to walk outside the immediate area of his post, as he allowed other staff to do. Complainant stated that S2 falsely accused him of reporting a suspicious object that day. The report resulted an investigation by the WSMR Police Investigator. S1 came to Post 18 and informed the employees that S2 stated that due to concern over the suspicious object, if they wanted to talk on their cell phones or smoke a cigarette, they could not do that in the area immediately outside the post, but could go to the parking lot. Complainant contends that the staff in building 21221 could walk in the area and use their cell phones, while the employees assigned to Post 18 were restricted from doing so. Complainant stated that it was an imposition to have to go to the parking lot to make a phone call.
Complainant stated that on March 3, 2015, S2 accused him of making false statements for reporting a suspicious object near his post and initiating an investigation by the WSMR Police Investigator. Then on August 29, 2014, S2 accused him of creating a disturbance and initiated an investigation from the WSMR Police. He stated that both investigations were dropped and were found to be a waste of time. Complainant explained that, on March 3, 2014, he saw a suspicious object near his post and reported it. A few days later, S2 accused him of making a false statement by saying that the object had wires attached to batteries and a 203 round. Complainant stated that he never described the object that way. On July 15, 2014, Complainant was questioned about an object he made from scrap foam and metal, because S2 told the investigator that he was offended by it. The object was destroyed by S2 and his staff after the investigation was dropped.
Complainant stated that everyone assigned to Post 18 was subjected to harassment. He reported the alleged intolerable working conditions to the IG, and the EEO and Safety offices in addition to the union and medical personnel.
According to S2, in June 2014, Complainant began telling him about an OSC complaint he filed. S2 stopped Complainant from divulging details of the complaint and told him he did not want to hear about prior complaints.
S2 stated that when he came aboard, there were employees in the unit that were temporarily and permanently disqualified from the PRP. He maintained that individuals who were disqualified from PRP could wear civilian clothes and report to the Education Center, unsupervised. Because of this, the Random Anti-Terrorism Measure (RAM) program was developed to allow him to use these employees in accordance with their skills. M1, who was temporarily disqualified for medical reasons, had the qualifications to perform the duties of a Security Assistant, so he was detailed to that position.
Complainant was asked to wear his uniform, because that was a requirement of the position to which he was assigned. M1, however, retained his access to sensitive and classified material, while Complainant no longer had clearance to sensitive, classified and nuclear material information because he was permanently disqualified. Consequently, M1 was placed in a non-supervisory position, while Complainant was placed in a supervisory position.
S2 stated that before Complainant and others occupied Post 18, it was inspected by Safety, Environmental and DPW to ensure it was functional and that all necessary service orders were submitted. He maintained that any complaints or issues identified about the building condition were addressed.
In response to Complainant's claim that he was assigned as the supervisor of employees who are not permanently disqualified from the PRP, S2 stated that there was no requirement for a supervisor to be in a PRP program. S2 indicated that Complainant was placed at Post 18 to put him in a position that was similar to the one he occupied prior to his disqualification. M1's disqualification was temporary and, therefore, did not subject him to the same restrictions as Complainant.
In the matter of Complainant not having access to building 21221, S2 stated that there are times when classified discussions are held in that building and Complainant and others were not authorized access. He stated that there were several facilities in the area that personnel assigned to Post 18 could use. He stated that building 21225 was the same distance from Post 18 as building 21221 and that Port-o-Pots were located near Post 18.
In response to Complainant's claim that, on April 23, 2014, he denied Complainant access to the computer rooms in building 21221, S2 stated that he implemented that restriction because he witnessed Complainant using the computer for more than 2 - 2.5 hours doing non-Government schooling/training on two consecutive days. He stated that if Complainant observed M1 entering the computer room, it was likely for setting it up for a meeting. M1 had a computer at his desk and had no need to use the computer room. S2 denied that Complainant was subjected to employment harm in this matter, because he and the others at Post 18 could use computers to take care of government related business at established times. S2 stated that Complainant was not given a key to building 21221, because he was assigned to Post 18. M1 was given a key to that building because he was assigned to an office in the building.
Regarding Complainant's claim that he was tasked to count vehicles, S2 stated that Complainant was tasked to document violators who "piggybacked" by following an authorized vehicle through the gate, rather than using their access badge to gain access. He was then required to relay that information to Post 15 so that the "piggybacking" vehicle could be stopped for verification of their authority to be on site.
In response to Complainant's claim that he was not allowed to go to the gym, but other employees could go during their last hour of duty, S2 stated that only one person could go to the gym and that was because he was going through the Guard Academy. Newly hired employees had to pass a physical agility test and this was the reason that an employee could go to the gym. S2 indicated that no employees could go to the gym while on duty unless they were participating in the Guard Academy.
S2 stated that he imposed the restriction that Post 18 personnel were not allowed to walk outside the immediate area of the post after the second occurrence of a situation at Post 18 where personnel were found in an unimproved surface area. The first incident involved a report of a snake by the conex boxes and the second incident was a report of a suspicious explosive device that was called in. S2 stated that he instructed Complainant and others at Post 18 to stay on improved surfaces for safety reasons. He instructed Post 18 personnel to use the approved area to take smoke breaks and to make personal phone calls from the parking area or other locations. S2 stated that the only reason an employee from building 21221 would have to go into that area would be to retrieve something from a conex. Everyone was subject to the same restriction not to access that area unless it was for official business.
S2 denied accusing Complainant of making a false statement on March 3, 2014. S2 called Complainant to talk about the situation and told him to stay on the improved areas for safety reasons. He stated that Complainant often picked up blank casings and other dunnage while in the unimproved areas and made figurines out of them. S2 instructed Complainant not to do this because of the danger of unexploded ordnance. S2 denied reporting one of Complainant's figurines to the police, but did remove a figurine and a calendar that had "Cell Block 18" written on it because he considered it to be derogatory.
S1 provided responses that are consistent with those set forth by S2. With respect to incidents 10 and 11, S1 testified that "Complainant made two statements, one where he identified an object as an IED (Improvised Explosive Device) and a few days later he made the statement that looked like a battery. S2 did not accuse him of making a false report, but only asked him to clarify the discrepancy between the two statements. In regard to incident 11, S2 did not initiate a report because of an object made by Complainant, S1 maintained that it was because a noose was hanging outside in back of Post 18. The calendar was removed because it was unprofessional and the other object was made from dispensed brass, which could be hazardous if it still had a charge. S1 indicated that, to his knowledge, neither case had been closed. He maintained that Complainant was not accused of making a false statement or causing a disturbance.
The record contains a memorandum for record that indicates Complainant was counseled by S2 for failing to meet standards. S2 stated that Complainant did not properly account for personnel and supervise them and was unwilling to meet organizational standards and requirements, despite numerous training attempts by S2's staff. The memorandum further stated that, as a result of Complainant's "constant failure to comply with requirements resulting in the placing of workers and the organization at risk and failing to be accountable for his actions and the location of subordinates," he could no longer authorize absences from the immediate area but could still authorize breaks.
After 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. In accordance with Complainant's request, 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.
CONTENTIONS ON APPEAL
Complainant submitted a brief that recounted the events he contended were discriminatory. The Agency submitted a brief that contended Complainant failed to prove that he was a victim of discrimination.
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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their 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).
Assuming, arguendo, that Complainant established a prima facie case of discrimination based on national origin, age, and reprisal, we find that the Agency provided legitimate, non-discriminatory reasons for its actions and that Complainant did not establish pretext. Other than speculating that his activities before the Office of Special Counsel and the Merits Systems Protection Board motivated the Agency's actions, Complainant did not provide persuasive evidence that discriminatory animus motivated the Agency.
Regarding Complainant's hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 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. United States Postal Service, 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 herein, we AFFIRM the Agency's final decision.
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
___8/23/18_______________
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.
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