EEOC Appeal 2020001010

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Leandro P.,1
Complainant,
v.
Ryan D. McCarthy,
Secretary,
Department of the Army,
Agency.
Appeal No. 2020001010
Hearing No. 420-2017-00363X
Agency No. ARREDSTON16OCT04169
DECISION
On November 14, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 30, 2019 final action concerning an equal employment opportunity (EEO)
complaint 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.
BACKGROUND
During the period at issue, Complainant worked as a Logistics Management Specialist at the
Agency’s Army Material Command, Logistics Support Activity (LOGSA), Global Support Center
(GSC), Production Support Center in Redstone Arsenal, Alabama.
On October 12, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve
his concerns were unsuccessful.
On February 8, 2017, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment/a hostile work environment based on race (African-American) and
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.

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a. 	from April 2016 to June 2016, he submitted five or six requests for Compressed Work
Schedule (CWS) in writing or verbally, and each was returned by his first-level
supervisor for corrections, i.e., date, office symbol, signature block in the wrong place;
b. 	from July 2016 to present, his co-workers did not want to be around him because they
believed he was challenging the supervisor;
c. 	sometime in July 2016, the Team Lead tracked him leaving for and returning from
breaks and lunch;
d. 	sometime in July 2016 or August 2016, another Team Lead (“Team Lead 2”) told him
he should not wear jeans to work unless it was a Friday;
e. 	on October 18, 2016, during a meeting with his second level supervisor, the Chief of
GSC, LOGSA, he was told he would not be approved for an Alternate Work Schedule
(AWS)/CWS; and
f. 	on an unknown date, he was assigned a second trainer to train him on items that he did
not need to know.
After an investigation, Complainant was provided a copy of the investigative file, and requested a
hearing before an EEOC Administrative Judge (AJ). 	On September 27, 2019, the AJ issued a
decision by summary judgment in favor of the Agency. The Agency issued its final action adopting
the AJ’s decision.
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 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).

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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 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.
To prove his claim of a discriminatory hostile work environment, 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 or prior
EEO 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).
As a threshold matter, the AJ adopted the Agency’s argument that Complainant contacted an EEO
Counselor regarding her complaint on October 12, 2016, and thus claims a and c should be
dismissed as untimely raised with an EEO Counselor. However, we note that Complainant alleged
that she was subjected to ongoing harassment. 	Because we find that the investigation report is
complete, we will address all the subject claims (claims a – f) in that context. See National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (holding that a complainant
alleging a hostile work environment will not be time barred if all acts constituting the claim are
part of the same unlawful practice and at least one act falls within the filing period).
Complainant worked as a Logistics Management Specialist at the Agency’s Army Material
Command, LOGSA, GSC, Production Support Center in Redstone Arsenal, Alabama. The Chief
of the Production Support Center (Caucasian) was Complainant’s first-level supervisor.
Regarding claim a, Complainant asserted that from April 2016 to June 2016, he submitted five or
six requests for Compressed Work Schedule (CWS) in writing or verbally and each was returned
by his first-level supervisor for corrections, i.e., date, office symbol, signature block in the wrong
place.
Agency management witnesses stated Complainant’s request to begin working at 6:00 a.m. was
denied because it was beyond the earliest start time permissible under the terms of both the
Agency’s standard operating procedure and the collective bargaining agreement with the union.
The supervisor said he approved Complainant for flextime which meant Complainant “chose the
hours when he’d come to work and when he went home. And 6:30 in the morning is the earliest
you can come in to LOGSA, working based on LOGSA’s Policy 37-1. So that’s the start time,
according to policy, that you can start work. And anything before that – is an exception to policy.”

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The record reflects that Complainant admitted that none of his co-workers begin work at 6:00 a.m.
According to Complainant’s supervisor, he stated that he had not granted an exception to begin
work at 6:00 a.m. to any of his employees.
Complainant stated that once he learned that the 6:00 a.m. was not a permissible start time, he
requested a CWS, commonly known as 5/4/9. 	At that time, the work unit only recently had
compressed its operations from 7 days a week (24 hours a day in shifts), to 5 days per week.
Complainant admitted that he requested a compressed 5/4/9 work schedule. 	However, the
supervisor said he denied Complainant’s CWS request because he believed the mission would be
negatively impacted by a further compression in operations, as Complainant had requested. 	In
addition, Complainant was still being trained on the job. Specifically, the supervisor noted that
Complainant had not touched a Global Support Center Army System “so we started the training
session with that and he went through the training hands-on because it’s an interactive live mission.
You don’t have a test box that you can set up to do training on in the classroom environment.”
Prior to December 2016, no employee in Complainant’s unit had ever been approved to work a
compressed schedule.
Regarding claim b, Complainant alleged that from July 2016 to present, his coworkers did not
want to be around him because they believed he was challenging the supervisor.
The supervisor asserted that he does not remember “off the top of my head the exact words
[Complainant] said. He said he didn’t get along with folks.” The supervisor further stated that he
talked to Complainant’s co-workers and “what they were telling me is, ‘you talk to [Complainant].
If he doesn’t like something,’ they know he’s going to go to EEO or he’s going to file a Union
grievance on them. And they’d rather not go down to that situation. And it’s the credibility; him
saying things that they say, ‘I didn’t say that’ type of thing.”
The Logistics Management Specialist (African-American), also Complainant’s co-worker (“Co-
worker”), admitted that he does not want to be around Complainant “because he is very aggressive
and very hostile. He gets upset real easy. And he - - he started making false claims. He would
send out emails claiming certain things. And a lot of people were quite surprised at what he was
doing and was wondering why, if he had an issue didn’t he come talk to… one of us. So I began
to …distance myself from [Complainant] because of the false claims he made against me.”
Regarding claim c, Complainant alleged that sometime in July 2016, the Co-worker asserted that
while he was a Team Lead, Complainant was not part of his team. He stated that on one occasion
he was the Acting Chief while the supervisor was on leave. The Co-worker recalled at that time
Complainant “disappeared on various occasions from his desk without the knowledge of anyone
in the - - in the office…and a lot of co-workers since they had a bunch of IDocs to work, very time
sensitive for the soldiers, they would come to me and ask me where was [Complainant].” 	He
asserted them that he would look for Complainant to find out what was going on.
Further, the Co-worker stated that when he found Complainant, his response “was he got upset
and felt that he didn’t have to tell anyone anything about where he was going.

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And he kept saying that I was, I guess, riding him or trying to force him to do certain things. And
I explained to [Complainant] that I did - - that was not my intent and that I just wanted him to let
us know when he wasn’t going to be around.”
Regarding claim d, Complainant claimed that sometime in July 2016 or August 2016, Team Lead
2 told him he should not wear jeans to work unless it was Friday.
Team Lead 2 (Caucasian) denied telling Complainant that he should not wear jeans to work unless
it was a Friday. Specifically, he acknowledged that on one occasions he observed Complainant
wearing a t-shirt “in the middle of the week once…I thought I was trying to give [Complainant] a
head’s up. I –I was like, [supervisor] doesn’t usually like us wearing T-shorts during the week.’
That is the only thing I’ve ever said to him about this.” Furthermore, Team Lead 2 acknowledged
that there was no dress code policy.
The Global Support Center Chief (“Chief”) (Hispanic) stated that Team Lead 2 told him “that he
was not trying to tell [Complainant] how to dress or that, basically, he was - - actually, he thought
that he was actually doing him somewhat of a favor, I guess, because he was looking at
representing the appearance, but not telling him how to dress.”
Regarding claim e, Complainant asserted that on October 18, 2016, during a meeting with his
second level supervisor, the Chief of GSC, LOGSA, he was told he would not be approved for an
AWS/CWS.
The Chief explained that during the relevant period, he needed time to look over the paperwork
concerning Complainant’s AWS/CWS request before making a decision. He asserted that he never
told Complainant that his request would not be approved. Specifically, the Chief stated “I never
said - - in fact, I said several times throughout the meeting that ‘I have to look at the
documentation….never did I say that I will not approve. In fact, I also stated that, ‘I have to look
at 180 days and see where we’re going to be [at] that time.” The Chief stated that he approved
Complainant’s request during the relevant period.
Regarding claim f, Complainant asserted that on an unknown date, he was assigned a second
trainer to train him on items that he did not need to know.
The record reflects that Agency management asserted that all employees in the work unit were
required to be proficient in resolving IDOC errors before moving on to performing Force Elements
tasks, and both Complainant and the other new employee in his work unit were evaluated on his
respective proficiency by the same person.
The record contains a copy of the Production Support Center (PSC) Functional Analyst’s
memorandum dated October 13, 2016. in which the Analyst noted that he conducted an evaluation
assessment on Complainant to assess his proficiency in working Intermediate Document (IDOC)
Errors.

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Therein, the Analyst stated that during his assessment, he noted that Complainant “displayed an
institutional knowledge of certain IDOC errors that proved that he could work those errors and did
not require constant supervision. There are a number of messages that he had not worked prior to
my assessment which he displayed the lack of research ability. In some cases, he was not as careful
in his error correction processes as he could be.”
Further, the Functional Analyst determined that Complainant did not display a level of proficiency
with IDOC error correction “to be totally unsupervised and move into the DoDAAC Addition
processes. He noted that he had a discussion with Complainant in which he opted to extend the
opportunity to be reassessed in 60 days, and “at that time I will reassess [Complainant’s]
proficiency in correction any error that he may encounter.”
In sum, after careful consideration of all Complainant’s allegations and the evidence of record,
there is adequate support the AJ’s determination that the responsible management officials clearly
articulated legitimate, non-discriminatory reasons for the disputed actions. Beyond his bare
assertions, Complainant has simply provided no evidence to support his claim that his treatment
was the result of his race or prior EEO activity. A case of discriminatory hostile work environment
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).
CONCLUSION
We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing, finding
no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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

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(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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 14, 2020
Date