[Redacted], Adam D., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Aug 24, 2022

Appeal No. 2020005290 (E.E.O.C. Aug. 24, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam D.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005290 Agency No. ARJACKSON15JUL02779 DECISION On September 18, 2020, 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 September 14, 2020, 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. At the time of events giving rise to this complaint, Complainant worked as a Facilitator at the Agency’s U.S. Army Master Resilience School Victory Brigade in Fort Jackson, South Carolina. On September 8, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to discriminatory harassment on the bases of sex (male), age (born 1961), and in reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 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 In Adam D v. Dep’t of the Army, EEOC Appeal No. 0120161695 (Apr. 24, 2018), the Commission found that the executed settlement agreement between Complainant and the Agency was valid as to the closure his Title VII claims. As such, the Agency’s final decision was proper to not further analyze Title VII in its final decision. 2020005290 2 1. As due to sex (male), age (born 1961), and reprisal when on July 9, 2015, Complainant reported he was being harassed by his coworker (CW) and his supervisors failed to take appropriate corrective action; and 2. In reprisal when, on numerous dates, Complainant was issued various forms of counseling, was given an assignment outside of agency policy, and he was assigned an adverse evaluation. At the conclusion of 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 (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency, in its final decision, concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. 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 Chap. 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”). On appeal, Complainant appears to argue, through submission of numerous documents, that the Commission should consider new evidence in the instant appeal and that he should have had the option to obtain a hearing before an AJ. The Commission does not agree. As to the issue of obtaining a hearing, Complainant had the option to request a hearing, and he did not do so. 29 C.F.R. § 1614.108(f). As to considering new evidence, “[w]hile the Commission retains the right to supplement the record on appeal, it is intended that this right will be exercised only in rare instances to avoid a miscarriage of justice.” EEO-MD-110 at Chap. 9, § V.A. “As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. The Commission may request supplementation of the record.” EEO-MD-110, at Chap. 9, § VI.A.3. We find that there is no indication of any such specific evidence in this case. To the extent that Complainant asserts new issues to be considered on appeal, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep't of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). If Complainant wishes to pursue these claims through the EEO process, he is advised to contact an EEO Counselor, as we decline to change long-standing precedent in this case. 2020005290 3 Upon careful review of the record, we find that the Agency’s final decision accurately recounted the relevant material facts and legal standards in this case. It is well-settled that harassment based on an individual’s race, national origin, and sex is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) he belongs to the statutorily protected classes; (2) he was subjected to unwelcome conduct; (3) the harassment complained of was based on his protected bases; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance 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). 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 Sys. Inc., EEOC Notice No. 915.002 (March 8, 1994). With regard to claim 1, Complainant has not proved that the alleged harassment occurred. CW specifically denied all but hugging Complainant, asserting that she hugged many people. ROI at 194. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). Therefore, Complainant has failed to establish that he was discriminated concerning these issues. As to hugging, Complainant purportedly asserted that he never told CW that hugging was unwanted, and Complainant affirmatively stated that he did not want CW moved to another team. ROI at 295. As CW was unaware that her conduct was unwanted and did not rise to the level of sexual harassment. Sotomayor v. Dep’t of the Army, EEOC Appeal No. 01A43440 (May 17, 2006) (affirming that being greeted with a hug “simply [does] not rise to the level of harassment). An Agency need not take action against harassment which has not been proven to occur. See Burlington Indus. Inc. v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). Moreover, Complainant has not provided any evidence that any action, or lack thereof, on the part of the Agency was related to any of his protected classes. It has not escaped the Commission’s attention that the filing of the complaint against CW was after a separate tense incident between CW and Complainant. CW averred that Complainant spoke to her in a hostile manner and, immediately after, she spoke with two team leads. CW stated she told the team leads that she did not feel comfortable working with Complainant because he was hostile and came off as very threatening. 2020005290 4 ROI at 195. This incident was corroborated by other Agency employees. ROI at 204-5. Supervisor noted that, after Complainant requested a meeting with Brigade Commander, she spoke with Complainant and asked if there was anything that she could do to help him. Supervisor stated that he replied that he “felt like he needed to ‘cover himself’ and so he wanted to inform the command of a problem he had been dealing with for over a year.” ROI at 199. When Supervisor asked about the specific nature of the issue, Complainant declined to provide such information, but reiterated that it was about CW and that he “felt like he needed to ‘protect himself’ after the incident [that] happened last week. He said that someone called him and told him that [CW] was…writing a statement about the incident…and so he’s doing what he has to do to ensure he is ‘covered.’” ROI at 199. As to claim 2, Complainant has offered no evidence that any action that the Agency took in the claims above was based upon his protected classes, beyond his own suppositions, speculations, and uncorroborated assumptions. Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. At all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The Commission finds that the file is devoid of such evidence in this case. Insomuch as Complainant asserts that being asked to do work on specific tasks outside of his pay grade and that his supervisors counseled him for activities such as being absent from work without notifying his supervisors as to the reason and duration and failing to communicate through a proper chain of command, the Commission finds that these are regular activities to be expected by all adults in any work environment, certainly in the armed forces. ROI at 172, 285, 312, 314, 316, 323. It is well-founded that Title VII does not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.” See Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). The Commission has held that such grievances, “while sometimes unpleasant, do not constitute harassment, even if done in a confrontational manner.” Felton M. v. Dep’t of Agric., EEOC Appeal No. 0120171203 (June 23, 2017). The Commission has long held that Title VII is not a civility code but is intended to prevent discriminatory behavior. Dolly H. v. Dep’t of Agric., EEOC Appeal No. 0120150414 (May 3, 2017); see also Eileen S. v. Dep’t of the Army, EEOC Appeal No. 0120170721 (Mar. 20, 2019) (finding no hostile work environment when, among other things, Complainant was told she “sucked” and that she “did not perform [her] job worth a damn,” and Complainant was told in front of other employees “you are ignorant and do not know what the hell you are talking about”). 2020005290 5 While the scope of retaliation claims may be broader than claims of discrete acts of discrimination, the challenged activity must still rise to the level of materiality and be sufficiently serious that it “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57, 68 (2006); see also Flagg v. Soc. Sec. Admin., EEOC Appeal No. 0120073631, (July 7, 2010). Materiality is key because “it is important to separate significant from trivial harms.” Burlington N., 548 U.S. at 68. There must be a distinction made between discriminatory action on the part of the Agency, versus a combination of occasional personality clashes, common workplace grievances, and legitimate administrative actions with which Complainant disagrees, in order for a claim to be actionable. “Otherwise, the [Commission] will become a court of personnel appeals.” Alfano v. Costello, 294 F. 3d 365, 377 (2d Cir. 2002). Where Complainant has “adduced no evidence that he was harassed because of his protected class characteristics,” Complainant’s claims of harassment must fail. Davis v Dep’t of the Army, EEOC Appeal Nos. 01A22812, 01A24469, 01A30558 (Nov. 2003). We find that his claims of harassment have so failed here. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the final decision correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 2020005290 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020005290 7 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 August 24, 2022 Date