[Redacted], Joel P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Mar 14, 2023

Appeal No. 2022000580 (E.E.O.C. Mar. 14, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joel P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2022000580 Hearing Nos. 550-2019-00450X 550-2019-00451X Agency No. DCAA-CASE-BH17-006 DECISION On November 12, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 14, 2017 final order concerning the captioned equal employment opportunity (EEO) complaints claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Auditor, GS-0511-11, at the Agency’s Defense Contract Audit Agency, Boeing/Honeywell CAD, Boeing Puget Sound, in Tukwila, Washington. The Supervisory Auditor served as his supervisor from 2014 through December 2016. In December 2016 or early January, the Resident Auditor, became his second level supervisor. 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. 2022000580 2 On September 14, 2017, Complainant filed a formal complaint alleging that he was subjected to discriminatory harassment and a constructive discharge based on his disability2 and prior EEO activity. The subject claims were identified in the following manner: Claim 1, Incident 1: Reassignment to New Supervisor. In December 2015, Complainant was reassigned to a different team. Claim 1, Incident 2: Lack of Training. In February 2016, the Agency denied him training that would have made him eligible for a promotion. Claim 1, Incident 3: Minimally Successful Performance Appraisal. On May 15, 2017, Complainant was rated “minimally successful” for the rating period of July 1, 2016-March 31, 2017. Claim 1, Incident 4: Missing Meetings While Telecommuting. As recently as June 1, 2017, while telecommuting, Complainant has missed receiving pertinent job information during team meetings because of the inadequate phone system and because he has properly notified or invited to participate in the meetings by his supervisors, Insurance/Pension Examiner and Supervisory Auditor. Complainant alleges because of this he has been isolated from his team. Claim 2: Constructive Discharge: Complainant alleges that due to his disability and reprisal for prior EEO activity, he was constructively discharged and reassigned from Agency employment, effective September 2, 2017. After its investigation of the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. However, as noted above, Complainant claimed that on September 2, 2017, he was forced to resign from Agency employment, and was therefore constructively discharged. On September 28, 2018, the Agency issued a final decision on the claim of constructive discharge, considering it a “mixed case” claim. Complainant appealed the final decision finding no discrimination to the Merit Systems Protection Board (MSPB). The MSPB issued a decision on December 10, 2018, finding that Complainant was not constructively discharge because his resignation was not involuntary. Regarding the EEOC hearing request, the Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency.3 2 Complainant stated that he experiences severe back and neurological pain that continually affects his ability to walk long distances, stand too long, stoop, and concentrate. He did not allege a failure to accommodate his disability. See ROI pp. 407-408. 2022000580 3 The Agency issued its final order adopting the AJ’s finding of no discrimination or unlawful retaliation. The instant appeal followed. 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 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). To successfully oppose a decision by summary judgment, a complainant must identify, with specifically, 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 factor of Complainant, a reasonable fact-finder could not find for Complainant. Claim 1: Harassment/Hostile Work Environment To prove his harassment/hostile work environment 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 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). 3 The EEOC AJ addressed the constructive discharge claim, noting that the MSPB had not explicitly addressed Complainant’s disability discrimination or retaliation allegations. 2022000580 4 Reassignment to New Supervisor Complainant alleged that, in December 2015, the Supervisory Auditor requested that he be reassigned to a different team because she wants a more experienced auditor who did not require so much training. The Program Manager stated he decided to reassign Complainant and that he did so to provide Complainant with a “clean slate” upon his return from a temporary reassignment. Reassigning Complainant due to his level of experience or training is neither discriminatory nor retaliatory. Lack of Training Complainant asserts that he did not receive sufficient training to be successful in his position. However, the record contains abundant evidence of Complainant’s training. For instance, Complainant took the core DCAA training courses for a GS-11 such has Technical Indoctrination and Intermediate Contract Auditing. Complainant also took numerous online DCAA training courses that were applicable to his job and was assigned several coworkers as coaches to assist in learning his job. There is no evidence that Complainant was provided less training than other similarly situated employees. Minimally Successful Performance Appraisal Complainant alleges that he had been denied a promotion to a GS-12 after informing the Supervisory Auditor that he was not ready to be promoted to GS-12 and, if promoted, he would be getting “set up for failure.” The Supervisory Auditor stated that Complainant told him that he (Complainant) did not have enough opportunity to develop his skills. The Supervisory Auditor stated that several of the assignments he offered to Complainant were intended to help him prepare for the GS-12 level. The Supervisory Auditor stated that when Complainant joined his team, his performance was not in line with the performance standards at the GS-11 level. The Supervisory Auditor therefore spent an extensive amount of time attempting to teach Complainant the auditing skills required in the GS-11 Auditor position. The Supervisory Auditor shared his concerns with his manager and Human Resources as he did not have the authority to downgrade Complainant’s GS level. He stated that he denied Complainant’s promotion to GS-12 level because Complainant was still struggling to perform his duties and meet the performance standards at the GS-11 level. Missing Meetings While Telecommuting Complainant asserted that as recently as June 1, 2017, while telecommuting, he missed receiving pertinent job information during team meetings because of the inadequate phone system. Complainant asserted further that the Supervisory Auditor did not properly notify or invite him to participate in the meeting. The Supervisory Auditor stated, however, that Complainant participated in numerous meetings. The Supervisory Auditor stated that Complainant’s missing pertinent information may be reflected in the following circumstance. The Lead Auditor sent an Outlook meeting notice with explicit instruction on how to call into the meeting. 2022000580 5 However, Complainant failed to follow the instructions and called a separate, incorrect phone number through the Agency computer system. For all four allegations, the image which emerges from considering the totality of the record is that there were conflicts and tensions with Agency management style that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against all adverse. 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. Here, the preponderance of the evidence does not establish that the matters Complainant proffered to support his complaint were motivated in anyway by discriminatory or retaliatory animus. His claim of harassment is precluded based on our findings that Complainant failed to establish 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). Claim 2: Constructive Discharge The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) the conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. Clemente M. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120160661 (March 11, 2016), citing Walch v. Dept. of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Complainant claimed that on September 2, 2017, he was forced to resign from Agency employment. First, we again note that the MSPB AJ issued a decision on December 10, 2018, finding that Complainant was not constructively discharge because his resignation was not involuntary. Specifically, the MSPB AJ found that the Agency did not engage in action which made Complainant’s “working conditions so difficult or unpleasant that a reasonable person in his position would have felt compelled to resign. Instead, Complainant alleged a stressful work environment where he was dissatisfied with his work assignments and training, where he felt excluded from meetings and where he disagreed with his supervisor’s assessment of his performance. While the EEOC AJ noted that the MSPB had “left open” the question of whether the Agency’s conduct was discriminatory or retaliatory, we have already determined, as discussed above, that the EEOC AJ correctly determined that none of the events Complainant asserted led to his decision to resign involved discriminatory or retaliatory motivations. Therefore, Complainant cannot prove a discriminatory constructive discharge. 2022000580 6 CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s summary judgment decision finding no discrimination or unlawful retaliation was established. 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. 2022000580 7 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 March 14, 2023 Date