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

Equal Employment Opportunity Commission

Feb 27, 2023

Appeal No. 2021003649 (E.E.O.C. Feb. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Augustine P.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021003649 Agency No. AREUWIES18APR01282 DECISION On June 10, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 11, 2021 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Contracting Officer Representative (COR) at the Agency’s Army Garrison in Wiesbaden, Germany. On May 22, 2018, Complainant filed a formal EEO complaint alleging, between March 8, and May 10, 2018, the Agency subjected him to hostile work environment harassment on the bases of race (African American), sex (male), age (YOB: 1968), and reprisal for prior protected EEO activity (2016 and 2017 EEO complaints) when the following occurred. 1. A Supervisory Contract Specialist (“SCS”) (Caucasian, female, YOB: 1959) sent him an email with “disrespectful and demeaning” content. 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. 2021003649 2 2. Complainant’s supervisor (Caucasian, male, YOB: 1977) informed him that Lieutenant Colonel (“LTC”) (Caucasian, male, YOB: 1977), the Regional Cyber Center Europe (RCC-E) Director, was actively looking for ways to penalize Complainant for prior EEO activity. 3. On April 13, 2018, a Sergeant Major (“SGM”) (male),2 the RCC-E Senior Enlisted Advisor, yelled at, cursed at, and walked aggressively toward Complainant because he refused to make an unauthorized purchase using a government credit card. 4. LTC manipulated the results of an investigation into the April 13, 2018 incident between Complainant and SGM. 5. LTC counseled Complainant about the April 13, 2018 incident with SGM, but did not counsel SGM. 6. SCS informed Complainant that his appointment as COR for a Microsoft Support Services contract was revoked, and the Chief of Staff concurred. 7. LTC distributed an updated Telework policy that contained certain information thar restricted Complainant’s ability to telework. The evidence developed during the investigation into the complaint showed a February 28 - March 6, 2018 email exchange between Complainant and SCS during which Complainant alleged that SCS’ staff participated in events that prompted his prior EEO complaints and SCS’ staff was misleading her about what occurred. He requested patience as he tried to “catch his second wind” following his parent’s passing and suggested that she reassign some staff to different contracts. SCS replied that she was unaware of the contents of the forms her staff completed, but her office needs “a COR who submits regular timely COR reports, timely and complete packages, and someone who is prompt in taking actions.” SCS stated that was not the case and her office suffers when matters are not handled in a timely manner. LTC stated that he became the RCC-E Director on June 23, 2017, and that he had a “cordial/friendly” relationship with Complainant. He stated that he became aware of Complainant’s prior EEO activity in July 2017, but said he did not act, and does not believe others acted, against Complainant based on protected bases. LTC said he did talk to SCS about the tone of her email exchange with Complainant. LTC also stated that he did not witness the disagreement between Complainant and SGM, but he requested an investigation of the incident, including questioning those within earshot and view of the incident. Further, LTC said he issued a new telework policy to address the fact that some personnel were teleworking based on verbal 2 While the record does not identify SGM’s race or age, we are presuming he is a different race than Complainant and younger. 2021003649 3 authorization and without a written telework agreements in place. He said this was for all staff and not directed at Complainant. Management witnesses also stated that Complainant did not submit a nomination for himself to continue as COR on the Microsoft Task Order, until well beyond all deadlines. Complainant’s Supervisor was then asked to train for the position and self-nominate. Management noted that a Contracting Officer reached out to Complainant to assist with his self-nomination, to no avail. Management stated that the original revocation letter did not provide details as to why Complainant’s COR was revoked, but Complainant started asserting the failure to nominate was not his fault, so the Agency issued a more detailed letter formally documenting the reason. Complainant asserted that he had a new supervisor who should have approved his nomination in the COR system. Management cited general lack of responsiveness by Complainant as a reason for his removal as Microsoft Task COR. Following the investigation into the complaint, the Agency informed Complainant of the right to request a hearing before an EEOC Administrative Judge (AJ) or an immediate final agency decision (FAD). The Agency stated that it issued a FAD after Complainant either requested a final decision or failed to make an election. The Agency’s FAD concluded Complainant failed to establish discriminatory harassment. The Agency determined that management’s actions “constituted normal and routine managerial responses to an ordinary workplace problem.” The Agency stated further, “A suspicion or mere allegation of a discriminatory motive is not enough.” The instant appeal from Complainant followed. On appeal, Complainant stated that a June 19, 2018 Army Regulation (AR) 15-6 investigation found in his favor and the Agency did not include it in its EEO investigative summary.3 3 The appellate record contains the June 19, 2018 AR 15-6 report, in which the investigator stated, “The [April 2018] confrontation and actions taken as a result of the altercation between [Complainant] and SGM [] underline leadership’s failure to (1) implement unbiased and fair investigation, and (2) reach fair, unbiased, and objective decision.” The investigator noted that LTC did not issue a Letter of Intent to discipline to SGM. The investigator stated that witness statements of the April 2018 altercation were inconclusive, but LTC still chose to reprimand Complainant. The investigator stated that LTC admitted that he would stand with SGM, who is a Senior Enlisted Advisor. In addition, the investigator noted that Human Resources suggested that LTC not discipline Complainant until after his complaint investigations are finalized. The investigator stated that LTC prompted the investigation to protect himself and the Agency. The investigator suggested investigation by a neutral party external to the command and stated that the Agency needs to address Complainant’s concerns and address internal issues. 2021003649 4 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”). Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, religion, or prior EEO activity is unlawful if it is sufficiently severe or pervasive. Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) (Enforcement Guidance on Harris). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). To prove his discriminatory hostile work environment harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his race, sex, age or engagement in prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). Here, we conclude that Complainant failed to establish discriminatory harassment. Regarding allegation 1, the evidence shows that SCS’ response to Complainant’s email asking for “patience” might have been less than empathetic, but not necessarily “disrespectful and demeaning.” She expressed that her organization needed COR work completed in a timely manner. More importantly, there is no evidence beyond Complainant’s bare assertions, that SCS was motivated in any way by discriminatory or retaliatory animus. 2021003649 5 Regarding allegation 2, Complainant’s Supervisor stated that he had a meeting with LTC about Complainant’s performance and LTC stated, “[Complainant] is not untouchable.” However, the evidence of record does not support Complainant’s claim that this shows LTC was actively looking for ways to penalize him for his prior EEO activity. Rather, the record shows there were management discussions where LTC pushed to take action against Complainant for asserted poor work performance, and was advised by Human Resources to wait until the investigations into Complainant’s prior EEO complaints were completed. It appears that LTC argued at these meetings that the existence of those prior complaints should not be an impediment to taking action legitimately justified by Complainant’s poor work performance. Without more, we conclude such discussions do not establish that LTC was motivated by unlawful retaliatory animus towards Complainant. In allegation 3, 4 and 5, it is undisputed that there was a significant disagreement between Complainant and SGM over a purchase on a government credit card with each accusing the other of improper conduct. LTC, upon learning of the dispute, legitimately ordered an investigation of the incident. When the witness statements were inconclusive, LTC chose to “side” with SGM and counseled Complainant over the matter. However, the preponderance of the evidence does not support a finding that LTC was motivated by discriminatory or retaliatory animus in dealing with this situation. It is more likely than not that LTC, an active-duty military officer, sided with the other military employee involved in the dispute (SGM) rather than Complainant, a civilian employee. While this may not have been fair, it did not violate Title VII or the ADEA. On appeal, Complainant stated that the Agency neglected to include information about the investigation into the April 13, 2018 confrontation and did so because the investigation found in favor of Complainant. However, we do not find the statements from the June 19, 2018 report dispositive of a finding of discrimination. The statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's autocratic attitude or poor judgement. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. LTC may have been wrong in siding with SGM over Complainant regarding this matter, but the evidence does not establish that he was motivated by discriminatory or retaliatory animus in doing so. Regarding allegation 6, management explained that Complainant did not submit his COR nomination in a timely manner although prompted to do so and that his performance on the Microsoft contract was less than desirable. As a result, he was removed from that particular contract. Complainant expressed his disagreement with management’s characterization of this matter but provided no evidence that it was motivated by discriminatory or retaliatory animus. Finally, regarding allegation 7, management witnesses stated that some personnel were teleworking with verbal supervisory approval and without written telework agreements. Consequently, LTC changed the telework policy. The evidence indicates the new policy was 2021003649 6 applied to everyone rather just Complainant and again there is no evidence of a discriminatory or retaliatory motive. Here, the preponderance of the evidence does not establish that any of the management officials involved in the disputed actions were motivated by discriminatory or retaliatory animus as alleged by Complainant. Complainant’s claim of harassment is precluded based on our findings that he failed to prove, by a preponderance of the evidence, that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination or unlawful retaliation occurred. 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). 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, 2021003649 7 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 (Feeds). 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. 2021003649 8 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 27, 2023 Date