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

Equal Employment Opportunity Commission

Dec 6, 2022

Appeal No. 2021004054 (E.E.O.C. Dec. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Timothy M.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004054 Hearing No. 570-2019-01662X Agency No. ARMEDCOM18MAY02373 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 13, 2021, final order 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Affairs Specialist, GS-1035-12, at the Agency’s Defense Health Headquarters in Falls Church, Virginia. On July 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment based on race (Black) when: 1. On May 16, 2018, Complainant’s second-level supervisor (S2), Deputy Director, charged him with 8 hours Absent Without Leave (AWOL) for not following proper leave procedures; 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. 2021004054 2 2. On May 16, 2018, S2 denied Complainant leave; 3. On June 6-8, 2018, Complainant’s supervisor (S1B), Division Leader of Media Relations & Communications Division, charged him 24 hours AWOL for not following proper leave procedures; 4. On June 11-12, 2018, S1B charged Complainant 16 hours AWOL for not following proper leave procedures; 5. S1B changed Complainant’s assigned duties; 6. On or about March 26, 2018, Public Affairs Office Director (Director), S1B, Complainant’s former temporary supervisor, Writer-Editor (S1A), and S2 started harassing him after he filed a grievance on the change of his telework days; 7. On or about March 26, 2018, he felt harassed, threatened, and intimidated at the office by Director; 8. On or about the first week of April 2018, S2 told Complainant that he needed more training, and his work was not up to standards; 9. On April 5, 2018, while Complainant was on leave, S1A called to inform him of changes within the Directorate and told him that he was required to attend a meeting to discuss his telework schedule; 10. On April 11 and 13, 2018, Complainant received emails from S1A regarding time and attendance issues; 11. On or about April 25, 2018, Complainant was harassed, threatened, and physically assaulted by S1A; 12. Ongoing from April 25, 2018, Complainant alleged his leadership made regular and recurring disrespectful remarks about his character and abilities as a Public Affairs professional; 13. On or about the first week of May 2018, Complainant alleged he was told by S2 that his position description was outdated and would be changed to reflect his current job; and 14. On or about the first week of May 2018, Complainant felt alienated in his work environment because no one speaks to him, and he does not feel safe. As defined by the Agency, claims 1 through 5 constitute allegations of disparate treatment and claims 6 through 14 constitute allegations of a hostile work environment. 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. When the Complainant did not object, the AJ assigned to the case granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. The AJ first found that the Agency articulated legitimate, nondiscriminatory reasons for the discrete employment actions identified in claims 1 through 5 that Complainant failed to rebut. 2021004054 3 Regarding the leave issues in claims 1 through 4, the Agency sent Complainant a Memorandum of Counseling regarding his use of leave and explanations for various denials of his leave requests and charges of AWOL. For claims 1 and 2, S2 charged Complainant AWOL on May 16, 2018, because his leave request was not approved due to the short notice of the request, but Complainant was nonetheless absent for 8 hours that day. For claim 3, Complainant was charged AWOL for leave he took on June 6 through 8, 2018, because his supervisors found he was not eligible for bereavement leave and had denied his leave requests, but Complainant was absent those days anyway. The reasons for their denial of bereavement leave stemmed from Complainant’s supervisors’ concerns regarding Complainant’s credibility for prior leave requests. Based on his prior behavior, they had asked him to provide proof that he was “solely responsible for making the funeral arrangements” or that he was attending the funeral of a “close family member,” as required for bereavement leave. The evidence Complainant provided indicated to S2 and S1B that the funeral was for his ex-wife’s first cousin, so S2 upheld the decision to charge Complainant AWOL. For claim 4, Complainant told S1B that he was taking sick leave on June 11 - 12, 2018, but S1B requested further information. In response, Complainant told her that “medical conditions are private.” Furthermore, because Complainant was traveling to Mississippi during this time period for the funeral as discussed in claim 3, Complainant’s supervisors doubted that Complainant was in fact sick. S1B therefore charged him AWOL for June 11 and 12. Regarding claim 5, the AJ found that the record showed Director was responsible for changes in the division’s assignments due to some organizational and personnel changes that had then recently occurred. Several employees had left without replacements while mission standards increased, and so Complainant and others were informed that there would be an increase of print, broadcast, and social media communications. This required increased daily work for staff and more briefings. As to the remaining claims, which the AJ analyzed under the harassment framework, the AJ found that Complainant had failed to provide any evidence that proved by a preponderance of the evidence that the alleged harassment was due to his protected bases or that management acted with a discriminatory motive. As his temporary supervisor, S1A sent Complainant an email informing him that changes would be made to every employee’s telework schedule. He also requested that Complainant attend a weekly meeting on Mondays “if at all possible.” After S1B was Complainant’s supervisor, she informed him of several deficiencies in his submissions, which included articles for publication. One of these articles required a complete rewrite, and another was submitted late and with mistakes. During the period in which Complainant’s division was undergoing organizational changes due to personnel departures, S2 emailed Complainant reminding him of the organizational structure and minor changes in his position description. The AJ concluded that Complainant could not prove that he was singled out due to his race or that the alleged incidents were based on discriminatory motive, and he therefore found that Complainant’s claim of harassment must fail. 2021004054 4 ANALYSIS AND FINDINGS As an initial matter, we note that Complainant submitted a considerable number of documents on appeal. Many of these submissions appear to be duplicates of documents in the report of investigation. Regardless, all of Complainant’s submissions are untimely, even considering the extension of time he received from the Commission to submit a statement in support of his appeal. We therefore do not consider Complainant’s untimely submissions herein. 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, at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing that an AJ’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 factfinder could not find in his favor. We also find that several of Complainant’s claims of harassment are not supported by the record. For example, S1A’s alleged assault on Complainant, based on Complainant’s own statements, did not involve any injury or threats of injury, and Complainant provided no affidavit statements regarding the alleged disrespectful remarks made by leadership. Upon careful review of the AJ’s decision and the evidence of record, 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 AJ’s decision, which became the Agency’s final order, finding no discrimination. 2021004054 5 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. 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). 2021004054 6 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 December 6, 2022 Date