Ollie N.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 29, 2019

0120180569 (E.E.O.C. May. 29, 2019)

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

Ollie N.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120180569

Agency No. ARMIAMI16JUL03687

DECISION

Complainant timely 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 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

The issues presented are: (1) whether Complainant established that the Agency’s proffered
explanation for its actions was pretext to mask discrimination based on reprisal for protected EEO
activity; and (2) whether Complainant established that he was subjected to hostile work harassment
and a constructive discharge, as alleged.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Political Military
Affairs Analyst, GS-14, at the Agency’s Political Military Affairs Division, J5 Directorate in
Miami, Florida. Report of Investigation (ROI), at 19.2 Complainant was assigned to his position
on June 29, 2015, and was subject to a one-year probationary period. Id. at 370.

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 The page numbers refer to the “bates stamp” numbers on the bottom right of each page.
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The Colonel (also known as the Chief of Political Military Affairs) served as Complainant’s first-
level supervisor (S1) and the Deputy Director served as Complainant’s second-level supervisor
(S2). Id. at 4-5.

According to Complainant, shortly after he began his assignment with the Political Military Affairs
Division, S1 began to subject him to harassment and verbal abuse. As a result, in a memorandum
to S2 dated October 13, 2015, Complainant wrote, in pertinent part, that S1 had been subjecting
him to harassment and verbal abuse since he began his position with the Political Military Affairs
Division. Id. at 147-148. Complainant wrote that S1’s unprofessional and disrespectful behavior,
which included being chastised over an email he wrote to the “XO,” was causing him to have
emotional stress. Id. Complainant further indicated in the memorandum that a coworker could not
believe that S1 spoke to Complainant in such an arrogant and demeaning tone of voice. Id.
Complainant wrote that while working on a project that demanded lots of preparation, S1 said to
him, “Don’t Patronize Me,” while raising his voice. Id. Complainant additionally maintained in
the memorandum that after he instructed a coworker to contribute language to a “Ghost email,” S1
started scolding him, saying he (Complainant) had no respect for him, and that he was a Colonel
and demanded to be respected like the rest of the Colonels. Id. Complainant also noted that S1
continued the abuse towards him by pointing his fingers at him and by pushing his (Complainant’s)
personal belongings on his desk to the side in a demeaning fashion. Id.

According to S2, a week after receiving Complainant’s October 13, 2015, memorandum, he had a
discussion and counseling session with S1 about his treatment of his subordinates. Id. at 348. S2
averred, however, that he did not mention Complainant’s memorandum or that Complainant had
complained about him. Id. S2 explained that his message to S1 was about how harsh language and
aggressive behavior is not the best method to promote production within the office. Id.
Notwithstanding, S2 attested that S1 did mention how disappointed he was with Complainant’s
work performance and that the Deputy Division Chief was spending an inordinate amount of time
correcting Complainant’s work. Id.

On June 24, 2016, days before the end of Complainant’s probationary period, S1 issued
Complainant with a Notice of Termination dated June 22, 2016. Id. at 205-207. Therein, S1 noted
that Complainant had been counseled on several occasions regarding his unacceptable
performance and lack of progression as a Political Military Affairs Analyst. Id. S1 specifically
noted that Complainant submitted incorrect work regarding the Commander’s Conference in
Uruguay, and Complainant’s work had to be re-written despite the fact that Complainant was
presented with sample documentation demonstrating the expected quality of the work product. Id.
S1 moreover noted that Complainant continuously failed to attend the Commander’s morning
Operation and Intelligence brief, which was critical for the Political Military Branch Chief. Id. S1
also noted that Complainant continued to ignore his directive to copy him on emails to leadership,
among other things. Id.

Rather than being subject to the Notice of Termination, Complainant submitted a Letter of
Resignation dated June 24, 2016. Id. at 200. In the letter Complainant only wrote:

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I would like to inform you that effective today 24 June 2016, I will resign from my
employment . . . . The reason is seeking future employment and other opportunities.

Id.

However, according to Complainant, he was coerced into resigning by the Director of Civilian
Personnel who commented to him that “it would be in the best interest of the command if he were
to resign.” Id. at 376.

On October 20, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of reprisal for prior protected EEO activity when:

1. From October 2015 through July 24, 2016, he was subjected to constant harassment
and verbal abuse, among other things, from S1 which forced him to resign on June 24,
2016;

2. On June 24, 2016, S2 issued him a Notice of Termination for unsatisfactory
performance; and

3. On June 24, 2016, he was forced to resign after the Director of Civilian Personnel told
him that “it would be in the best interest of the command if he would resign.”

Following 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 EEOC Administrative Judge
(AJ). The Agency thereafter issued a final decision pursuant to 29 C.F.R. § 1614.110(b).3 The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged.

The Agency specifically found that Complainant failed to establish a prima facie case of a hostile
work environment because his October 13, 2015, memorandum did not allege that he was
subjected to discrimination based on a Title VII protected basis. The Agency also observed that
Complainant did not list a Title VII protected basis in his formal complaint, as well. The Agency
nevertheless assumed, arguendo, that Complainant established a prima facie case of a hostile work
environment, finding that Complainant did not establish that management was motivated by
retaliatory animus. The Agency further found that Complainant did not show that S1 created
working conditions so intolerable that a reasonable person would have felt compelled to resign.
The Agency found that the motivating reason for Complainant’s resignation was that he was issued
the Notice of Termination by management, which did not constitute a forced resignation.

3 There is no indication in the record as to whether Complainant requested a hearing, or requested
a final decision, or failed to respond to the Agency’s notice.

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The Agency further determined that it articulated legitimate nondiscriminatory reasons for issuing
Complainant the Notice of Termination, namely, that Complainant’s performance was
unacceptable, his work products required extensive revision, and he failed to follow instructions,
among other things. The Agency also determined that Complainant was offered the option of
resigning instead of being fired, so he could avoid the negative impact of a termination on his
record. The Agency found that Complainant did not establish that its legitimate reasons for his
Notice of Termination were pretextual based on reprisal.

CONTENTIONS ON APPEAL

On appeal, Complainant asserts that he was subjected to a discriminatory hostile work environment
and then terminated in reprisal due to his age and disability.4 In particular, Complainant maintains
that he was issued the Notice of Termination in reprisal for his October 13, 2015, memorandum to
S2, wherein he complained that S1 was subjecting him to harassment and verbal abuse.
Complainant states that he has suffered emotional pain and suffering due to the Agency’s actions
against him. He maintains that he has worked for the Agency for many years and his reputation
had been impeccable up until the point where he was issued the Notice of Termination.
Complainant believes that S1 took action against him because he perceived that Complainant had
engaged in EEO protected activity with regard to his October 13, 2015, memorandum. In its brief
in opposition to Complainant’s appeal, the Agency urged the Commission to affirm its final
decision.

STANDARD OF REVIEW

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”).

4 We note that for the first time on appeal, Complainant alleges discrimination in part due to his
age and disability. Based on Complainant’s arguments on appeal, it is unclear how these bases
relate to the matters raised in his complaint, as he does not provide any detail in support of his
claim. We decline to address the additional bases Complainant raised on appeal, as Complainant
did not raise these bases in his EEO complaint or in the Report of Investigation.

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ANALYSIS AND FINDINGS

Disparate Treatment (Claim 2)

To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). A complainant must initially establish 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, 411 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). To ultimately
prevail, a 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 Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
After a review of the record, assuming arguendo that Complainant has established a prima facie
case of discrimination based on reprisal, we find that the Agency has articulated legitimate,
nondiscriminatory reasons for issuing Complainant with the Notice of Termination. In particular,
S1 noted that Complainant had been counseled on several occasions regarding his unacceptable
performance and lack of progression as a Political Military Affairs Analyst. ROI, at 205-207. S1
specifically noted that Complainant submitted incorrect work regarding the Commander’s
Conference in Uruguay, and Complainant’s work had to be re-written despite the fact that
Complainant was presented with sample documentation demonstrating the expected quality of the
work product. Id. S1 moreover noted that Complainant continuously failed to attend the
Commander’s morning Operation and Intelligence brief, which was critical for the Political
Military Branch Chief. Id. S1 also noted that Complainant continued to ignore his directive to copy
him on emails to leadership, among other things. Id.
The burden now shifts to Complainant to establish that the Agency’s nondiscriminatory reasons
were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant
maintains that he was issued the Notice of Termination in reprisal for his October 13, 2015,
memorandum to S2, wherein he complained that S1 was subjecting him to harassment and verbal
abuse. Complainant maintains that he has worked for the Agency for many years and his
reputation had been impeccable up until the point where he was issued the Notice of Termination.
Complainant believes that S1 took action against him because he perceived that Complainant had
engaged in EEO protected activity with regard to the October 13, 2015, memorandum.
Upon review, we find that Complainant is in essence arguing that he engaged in opposition activity
when he complained that S1 was subjecting him to harassment in the October 13, 2015,
memorandum. The anti-retaliation provisions make it unlawful to discriminate against an
individual because he has opposed any practice made unlawful under the employment
discrimination statutes. Enforcement Guidance on Retaliation and Related Issues, No. 915.004
(Aug. 25, 2016), II (A)(2) (Retaliation Guidance).
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Protected “opposition” activity broadly includes the many ways in which an individual may
communicate explicitly or implicitly opposition to perceived employment discrimination. Id. An
example of opposition includes complaining to anyone about alleged discrimination against
oneself or others. Id. at II (A)(2)(e).
We however disagree with any assertion by Complainant that his complaints about S1’s adverse
treatment of him constituted protected opposition activity and that, therefore, S1’s subsequent
adverse treatment of him was retaliatory. We specifically find that Complainant’s memorandum
is not protected opposition activity because the memorandum would not reasonably have been
interpreted as opposition to employment discrimination. A review of the memorandum shows that
Complainant complained about poor treatment by S1, but did not explicitly or implicitly
communicate that a protected EEO basis was the reason for any of the treatment. See Retaliation
Guidance. Moreover, when Complainant tendered his letter of resignation he did not list
discrimination or harassment as a reason for his resignation. Also, other than listing reprisal,
Complainant did not list a protected EEO basis in his EEO complaint.
Based on the above, we find that Complainant did not show that the Agency’s reasons for its
actions with respect to claim 2 were pretext for discrimination or were motivated by retaliatory
animus.
Hostile Work Environment

As discussed above, Complainant failed to demonstrate that the Agency’s actions in claim 2 were
based upon reprisal. Therefore, we find that under the standards set forth in Harris v. Forklift
Systems. Inc., 510 U.S. 17 (1993), Complainant’s claim of hostile work environment regarding
these claims must fail. See Enforcement Guidance on Harris v. Forklift Systems. Inc. (March 8,
1994). A finding of a hostile work environment is precluded by our determination that
Complainant failed to establish that the Agency’s actions in claim 2 were motivated by retaliatory
animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sep. 21, 2000).
Complainant further alleges that S1 subjected him to constant verbal abuse, and he was told that it
would be in the best interest of the command if he were to resign. Therefore, Complainant claims
that he had no choice but to resign due to intolerable working conditions. However, as noted above,
Complainant did not allege that a protected basis was the reason for the treatment of him, and there
is no evidence to reflect that S1 or anyone else perceived that Complainant had engaged in EEO
activity. Therefore, we find that Complainant did not establish that he was subjected a hostile work
environment, as alleged.

Constructive Discharge

To the extent that Complainant alleges that he was forced to resign, the Commission notes that the
central question in a constructive discharge case is whether the employer, through its unlawful
discriminatory behavior, made the employee’s working conditions so difficult that any reasonable
person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep't of
Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002).
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As stated above, we determine that Complainant has not demonstrated that the Agency’s actions
were motivated by retaliatory animus. Thus, the Commission finds that Complainant cannot
establish the necessary elements to prove constructive discharge.

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).
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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

May 29, 2019
Date