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

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 2021005012 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hershel B.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021005012 Hearing No. 531-2019-00287X Agency No. ARCEBALT18MAR01283 DECISION On September 13, 2021, 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 August 6, 2021, final action 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 action finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Water Treatment Plant Operator, WS-5409-10, at the Department of the Army Corps of Engineers Water Aqueduct located in Washington, D.C. During the relevant time, the Assistant Water Treatment Plant Supervisor (S1) was Complainant’s first level supervisor. The Water Treatment Plant Supervisor was Complainant’s second level supervisor (S2). The Supervisory Environmental Engineer was S2’s first level supervisor (S3). On April 27, 2018, Complainant filed a formal EEO complaint alleging that the Agency subjected him to a hostile work environment in reprisal for prior protected EEO activity when: 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. 2021005012 2 1. On January 9, 20162, he was placed on a leave restriction that was to be reevaluated by management on January 8, 2018, and was rescinded on March 23, 2018; 2. On May 17, 2016, S3 presented verbal attacks and threatening hand gestures in the presence of witnesses and stated Complainant would get what’s coming to him; 3. On July 12, 2017, he was subjected to ridicule when the MCM (McMillan) Schedule Tour of Duty was posted with the statement “[Employee 1’s last name] & [Complainant’s last name] cannot work the desk until license is renewed.” 4. On September 4, 2017, he was charged with Absent Without Leave (AWOL) for calling out on a holiday; 5. On March 8, 2018, he requested 240 hours of advanced leave to care for his wife and father, but Person A (Administrative Branch Chief) and S3 only approved 120 hours of advanced leave; and 6. On March 22, 2018, he received a text message from S1, Water Treatment Plant Supervisor, requesting documentation for two consecutive missed days of work while caring for his pregnant wife. 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). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on June 28, 2021. The AJ found Complainant failed to establish that the alleged incidents were sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment. Further, the AJ found even if Complainant was able to establish a prima facie case, the Agency had legitimate, nondiscriminatory reasons for its actions. The AJ found Complainant did not show he was subjected to a hostile work environment on the basis of reprisal for prior EEO activity in any of the claims alleged. The Agency subsequently issued a final action on August 6, 2021. The Agency’s final action fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. 2 Although the leave restriction letter is dated January 9, 2016, the record reveals the letter was issued on January 9, 2017. 2021005012 3 ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Regarding claim 1, the record reveals that during fiscal year 2016, Complainant used 344 total hours of leave, called out of work on multiple occasions with little to no advance notice (often immediately before or after a prior approved absence), and was late to work on several occasions. Complainant’s excessive use of leave placed a burden on the Agency to require other individuals to work Complainant’s shifts. In April 2016, management discussed Complainant’s excessive leave of absence/tardiness with him. In June 2016, Complainant was moved from first to third shift in an attempt to reduce the tardiness issue. However, Complainant’s attendance still suffered. The Agency placed Complainant on leave restriction on January 9, 2017, due to his excessive absences and issued guidance on the requirements for future leave requests. The Memorandum stated Complainant’s leave requests needed to be submitted through his supervisory chain of command in person or by telephone. The leave restriction was to be reevaluated on January 9, 2018. S1 noted that there was some confusion around this time when S2 left his job. S1 stated he was under the impression that S3 would handle whether or not the leave restriction would be rescinded since S2 and S3 were the lead on issuing the leave restriction. However, S1 stated when it ultimately came to his attention in February 2018, he reviewed it, and had the leave restriction rescinded. The leave restriction was removed on March 23, 2018. Regarding claim 2, Complainant alleged that on May 17, 2016, S3 made threatening hand gestures towards him and said, “Do it again and see what I do to you.” Complainant claimed Employee 2 overheard the conversation. Employee 2 did not recall hearing the statement. 2021005012 4 S3 stated on that day Complainant was trying to explain why he was late to work by showing video footage of traffic he encountered. S3 stated he told Complainant he had to be to work on time regardless of traffic. S3 stated he did not raise his hands in front of Complainant. Regarding claim 3, Complainant claimed that the Association of Board of Certification (ABC) allows a grace period of six months and that he was still within that period when his name was posted. Complainant claimed Employee 3 had an expired license but was still allowed to work. The record reveals an expiration date is listed on the license and is posted where employees walk in the building. S1 stated that employees are notified a few months before their license is set to expire. S1 noted at this time, Complainant and Employee 1 were the only employees without a valid license. S1 stated that Employee 3 had renewed her license and that he had Employee 3’s license in his office but had not yet displayed it. S1 stated the Agency had issues with expired licenses in the past and decided not to have people work the desk until their license is renewed. Employee 1 noted that during this time, the Environmental Protection Agency (EPA) had come in and looked at all the licenses on the board and noticed two people’s licenses had expired (Employee 1 and Complainant). S1 stated that because the EPA came in and saw it, the Washington Aqueduct had to do something and as a result, it was decided that they could not operate until their licenses were renewed. Regarding claim 4, Complainant called out on September 4, 2017 (a holiday), requesting emergency leave. He claimed he was unable to get a hold of management. He acknowledged he did not contact the individuals who were on the leave restriction instructions to request leave. The Agency stated Complainant, who was under leave restriction at the time, was charged AWOL as he was not on preapproved leave and did not speak to one of the designated persons in accordance with the leave restriction. Regarding claim 5, Complainanted request 240 total hours of advanced leave. At the time Complainant had very little leave saved. The Agency granted him 120 hours of leave with the suggestion that he utilize advanced leave and the voluntary leave program to prevent him from owing a significant amount of leave to the government. The Agency stated the full amount was not advanced because it worried about him being able to pay it back given previous time and attendance concerns. Regarding claim 6, Complainant stated that on March 22, 2018, he received a text message from S1 requesting documentation for two consecutive missed days of work while caring for his pregnant wife. S1 stated it was the day after Complainant was taken off of leave restriction, a day on which it was snowing, and he suggested providing documentation so there was something to show why Complainant had called off right after having his leave restriction eased. He stated it was a suggestion and not a request. He noted Complainant provided the documentation and the request was not disproved. S1 explained that he was “under heat” because upper management was questioning why the leave restriction had been removed and that the suggestion he made was to cover both S1 and Complainant. 2021005012 5 Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final action fully implementing the AJ’s 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). 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. 2021005012 6 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. 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 September 29, 2022 Date