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

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022000881 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerome D,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000881 Agency No. ARRRAD20JUN01731 DECISION On December 6, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 19, 2021 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Painter Supervisor at the Red River Army Depot in Texarkana, Texas. On October 29, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to hostile workplace discrimination on the basis of age (35) and disability (physical) when: 1. Between June 2018 and June 3, 2020, his fellow supervisor repeatedly bullied him, called him an idiot, disrupted his work operations, and made comments to him and his subordinate employees that Complainant did not know his job; 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is publihed to non-parties and the Commission’s website. 2022000881 2 2. On October 7, 2019, his fellow supervisor made false and defaming allegations that he prepared the resume of a Depot employee during duty time; 3. In May 2020, his fellow supervisor made false allegations that he misused a government vehicle and caused him to be disciplined via an Official Written Reprimand and lose 25 percent of the Net Operating Results (NOR) award for fiscal year (FY) 20; and 4. On August 10, 2020, his fellow supervisor made false allegations that he misused a government vehicle. Record of Evidence Complainant stated he has a speech impediment that impacts his ability to communicate with others. His condition does not impact his ability to perform his duties. He has not reported his condition to management or provided medical documentation to management and has not requested a reasonable accommodation. Complainant stated that he and his co-worker have worked around each other for 13 years. This co-worker was a paint inspector but is currently a “fellow supervisor” (“Fellow Supervisor”). Complainant claimed that between June 2018 and June 3, 2020, Fellow Supervisor repeatedly bullied him, called him an idiot, disrupted his work operations, and made comments to him and his subordinate employees that Complainant did not know his job. Complainant stated he “normally would just walk away from him.” Complainant claimed that on October 7, 2019, Fellow Supervisor made false and defaming allegations that he prepared the resume of a Depot employee during duty time. Complainant denied the claim. He stated that following an investigation, it was determined that Fellow Supervisor had made a false allegation. Complainant further stated that Fellow Supervisor “was trying to get myself and the Surface Support 412B Painter and Painter Worker Supervisor (“PW Supervisor”) into trouble because he was mad that I got his old job and PW Supervisor got a job that he applied for.” Complainant also stated that Fellow Supervisor “was removed from a previous position for misuse of a government vehicle and I got his job.” Complainant noted that Fellow Supervisor constantly put him down “making comments that my mother got me my job, constantly downgrading my mother, saying I didn’t know what I was doing, calling me an idiot.” Complainant stated he contacted his second-level supervisor and the Management Services Representative on several occasions about Fellow Supervisor’s conduct. Complainant claimed that in May 2020, Fellow Supervisor made false allegations that he misused a government vehicle and caused him to be disciplined via an Official Written Reprimand and lose 25 percent of the Net Operating Results (NOR) award for fiscal year (FY) 20. Complainant was initially given a proposed 30-day suspension notice. However, he was subsequently issued a letter of reprimand. As for the NOR award, Complainant stated that everyone receives it unless they have a written reprimand or an AWOL. Complainant asserted that in addition to Fellow Supervisor claiming that he misused a government vehicle in May 2020, he also claimed Complainant misused a government vehicle in August 2020. 2022000881 3 Complainant also asserted that in May 2020, Fellow Supervisor said that PW Supervisor used a government vehicle to drop Complainant off at his personal vehicle so he could move it closer to the building. Complainant stated that in August 2020, Fellow Supervisor claimed that he drove a government vehicle to one of the paint buildings and then walked to the credit union. Complainant stated that he reported the harassment by fellow supervisor to management, but nothing was done until August 2020, when he and Fellow Supervisor were separated from one another. Complainant noted that management separated them because he and Fellow Supervisor were supposed to have shared an office and management knew this was not feasible. Complainant claimed that this did not stop Fellow Supervisor from continuing to harass him. Complainant’s second-level supervisor stated that at the time of the matters at issue, he was a Machinist Supervisor. He stated that he was aware that Complainant has a speech impediment, but it does not impact his ability to perform his job. Complainant’s second-level supervisor stated that Fellow Supervisor previously received a reprimand for misuse of a government vehicle and was essentially removed from supervision by the Deputy Director of Maintenance. When Fellow Supervisor was moved back to a supervisory position in the Quality Division, the Director for Production (“Production Director”) decided to separate Fellow Supervisor and Complainant so they would not be working in the same building. At this point, there was rumor that the two did not like one another and there had been arguing between them. Complainant’s second-level supervisor denied that Complainant told him Fellow Supervisor was bullying him. While Complainant claimed that in May 2020, Fellow Supervisor made false allegations that he misused a government vehicle and caused him to be disciplined via an Official Written Reprimand and lose 25 percent of the NOR award for FY 20, Complainant’s second-level supervisor stated he was made aware of this and that written statements were provided to him. The statements were turned over to the Civilian Personnel Advisory Center for review and they recommended that Complainant be issued a proposed 30-day suspension. Complainant was subsequently issued disciplinary action (a letter of reprimand). He noted that Agency policy requires a reduction in the award for any employee receiving disciplinary action. He further noted that he was unaware of Complainant misusing a government vehicle on August 10, 2020 and does not recall being informed of this incident. Complainant’s second-level supervisor stated he was never made aware that Complainant prepared the resume of a depot employee during duty time. He also stated such action “is strictly against government regulations.” Production Director stated that prior to September 2018, he was the Chief, Master Data Division, GS-1101-13. In September 2018, he became the Director for Production, GS-1101-14. He stated that if an employee receives a letter of reprimand, they forfeit 25% of their NOR award. “This applies to everybody on the Depot.” He further stated that he followed command guidance by reducing Complainant’s NOR award by 25%, based on Complainant having been issued a letter of reprimand. Production Director also stated that Complainant met with him and told him he was being subjected to harassment. He noted this is what caused him to separate the two of them and they remain separated to this day. Production Director further noted that “since then the harassment stopped.” 2022000881 4 Fellow Supervisor stated that during the period at issue, he was a Paint Inspector, WG-4102-10. He further stated that he “inspected in Complainant’s area and in January 2020 worked under the same branch & division chief.” Fellow Supervisor also stated that “Complainant did not know his job based off his knowledge & length of experience.” He denied calling Complainant an “idiot, disrupting his work operations, or making any other comments referenced to Complainant.” He noted that Complainant has a history of causing trouble within his department without it coming to the attention of higher-level supervisors. Fellow Supervisor further noted that he was a witness to Complainant preparing the resume of a depot employee during duty time. He also noted that this occurred during overtime, and based on his observation, he spoke to the Inspector General concerning waste, fraud and abuse of power. Fellow supervisor stated that PW Supervisor was subsequently selected for a position for which he also applied but was not selected. In response to the claim that Complainant was falsely accused in May 2020, of misusing a government vehicle, he noted that “Complainant was reported for misuse of a Gov’t vehicle because it had been going on for about a couple of months and the other supervisor in the vehicle confirmed this was happening.” Fellow Supervisor also stated that he became aware of the misuse of a government vehicle by way of Complainant’s employees and he reported the matter to his chain of command. He noted that he also personally observed it on one occasion. Fellow Supervisor claimed that PW Supervisor drove Complainant in a government vehicle to his privately owned vehicle, so that he could move it closer to the building and be able to leave the depot quicker. He also claimed that he saw Complainant using a government vehicle to conduct personal business on August 10, 2020. Fellow Supervisor stated that Complainant drove halfway across the depot to the paint department building, got out and walked to the credit union to conduct personal business. He noted that he reported his observation to his chain of command. The record reflects that the Agency conducted an internal investigation concerning Complainant’s harassment claims. The case file contains a memorandum for the Commander, Red River Army Depot, Subject: Supplemental Legal Review Regarding AR 15-6 Report of Investigation (Concerning whether a Hostile Work Environment Exists in the Paint Prep Section of the Directorate of Production), dated August 31, 2020. The Attorney/Advisor, states it is the conclusion of this Legal Review that the IO’s [Investigating Officer’s] assessment of the collected documents and his observations of the credibility of witnesses and his consideration of the statements provided could reasonably lead the IO to weigh the evidence and reach the following findings with respect to the stated issue: …it is my finding that there was pervasive harassment and a disruptive environment within the Paint Prep branch of the Surface Support Division during the period that [Fellow Supervisor] was the inspector. Also, there was and still is a lack of trust within the chain of authority from the Division chief down to the leader. I find that root cause was a failure of management to take proper action to defuse a conflict between [Fellow Supervisor] and [Complainant] when it was first reported. The Legal Office noted that the finding of a “pervasive harassment and a disruptive environment” was described as mutual - rather than a type of harassment of a perpetrator on a victim. This finding, the Agency maintains, is legally supported by the evidence. 2022000881 5 At the conclusion of the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request either a final agency decision or a hearing before an EEOC Administrative Judge (AJ). Consistent with Complainant’s election, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to demonstrate that the alleged examples of unwelcome conduct constituted unlawful harassment. Complainant specifically failed to produce preponderant evidence that the alleged incidents were motivated by his membership in a protected class. Complainant filed the instant appeal. ANALYSIS AND FINDINGS ADEA Claim On his formal complaint, Complainant alleged discrimination based on age and indicated his age was 35. The Age Discrimination in Employment Act provides that all personnel actions taken by a federal agency with regard to an employee, who is “at least forty years of age . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a. See also 29 C.F.R. §1614.103(a) (processing of discrimination complaints from aggrieved individuals “at least 40 years of age”). The record reveals that Complainant acknowledged that he was under 40 years old at the time of the alleged incidents, and therefore he does not fall under the protection of ADEA. Harassment Claim To prove his 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 disability. 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). Furthermore, an employer is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998). However, where the harassment does not result in a tangible employment action (e.g., a discharge, demotion, or undesirable reassignment) the employer can raise an affirmative defense, which is subject to proof by a preponderance of the evidence, by demonstrating that it exercised reasonable care to prevent and correct promptly any harassing behavior; and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. See Burlington Industries, supra; Faragher, supra; Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 2022000881 6 In the case of co-worker harassment, an employer is responsible for acts of harassment in the workplace where the employer (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. Id. Here, Complainant failed to establish that he had been subjected to discriminatory harassment based on his disability. The record evidence shows that conflicts and hostility arose between Complainant and Fellow Supervisor after Complainant assumed Fellow Supervisor’s previous supervisory position. The AR 15-6 investigation found that there was “pervasive harassment and a disruptive environment within the Paint Prep branch of the Surface Support Division during the period that [fellow supervisor] was the inspector.” Fellow Supervisor had been relieved from his position and Complainant was subsequently assigned to that position. The investigation states that Complainant immediately began reporting that Fellow Supervisor was openly making remarks about him not being qualified to be the supervisor. Over the years this developed into open hostility between the two of them. By the time Fellow Supervisor was reinstated as a paint prep supervisor both parties had equal dislike/disrespect for each other. The memorandum states, “The Legal Office notes that the finding of a ‘pervasive harassment and a disruptive environment’ is described as mutual - rather than a type of harassment of a perpetrator on a victim. This finding is legally supported by the evidence.” Beyond conjecture, Complainant has not shown that he was subjected to a hostile work environment based upon his claimed basis. Notably, in Complainant’s appeal statement, he states, “I did nothing to [Fellow Supervisor] to make him start harassing me. He started it because he feels I took his job.” Complainant again fails to show that he was harassed because of his disability. In sum, the preponderance of the evidence does not establish that fellow supervisor was motivated by discriminatory animus. The statutes under the Commission's jurisdiction do not protect an employee against all adverse treatment. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Upon careful review of the evidence of record, as well as the parties’ arguments on appeal, we conclude 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. 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 2022000881 7 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 togethis with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of anothis 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 his request for reconsideration, and any statement or brief in support of his or his request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or his 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). Eithis party’s request and/or statement or brief in opposition must also include proof of service on the othis party, unless Complainant files his or his 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 togethis 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 his 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. 2022000881 8 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 March 13, 2023 Date