EEOC Appeal 2020001907

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marquis K.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.
Appeal No. 2020001907
Hearing No. 450-2017-00437X
Agency No. P7-16-0096
DECISION
On December 23, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s November 15, 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. and Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
On November 30, 2015, Complainant was hired as an Aerospace Engineer, GS-0861-12, at the
Agency’s Defense Contract Management Agency (DCMA) in Amarillo, Texas, subject to a one-
year probationary period.
On December 14, 2016, Complainant filed the instant formal complaint. 	Complainant claimed
that the Agency discriminated against him based on national origin (Syria), religion (Islam),
disability, and in reprisal for prior EEO activity (pursuit of EEO complaint process in May/June
2016):
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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1. 	from November 2015 to July 2016, the Supervisory General Engineer and the Contract
Operations Supervisor harassed and treated him differently than others. Complainant
provided the following in support of his claim:
a. 	from November 2015 to July 2016, the Supervisory General Engineer denied
Complainant’s travel arrangements three times, and instructed Complainant not
to gain access to the Defense Acquisition University (DAU) website at home to
complete the training;
b. 	from January 2016 to July 2016, the Supervisory General Engineer and
Contract 	Operations 	Supervisor 	inhibited 	his 	ability 	to 	attain 	Defense
Acquisition 	Workforce 	Improvement 	Act 	(DAWIA) 	Level 	II 	and 	Non-
Destructive Testing (NDT) certifications;
c. 	from January 2016 to July 2016, the Supervisory General Engineer did not
provide him mentorship for career advancement; and
2. 	on July 27, 2016, the Contract Operations Supervisor issued Complainant a Letter of
Termination during his probationary period.
After an investigation, the Agency provided Complainant with a copy of the investigative file, and
Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to
the case issued a Notice of Intent to Issue a Decision Without a Hearing on September 6, 2019.
Complainant responded to the Notice of Intent. 	On October 16, 2019, the AJ issued a decision by
summary judgment in favor of the Agency.2 The Agency thereafter issued the instant final action
implementing 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-
2 Complainant identified his disability as sciatica. For purposes of this analysis, we assume,
without so finding, that Complainant was an individual with a disability.

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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
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 establish a claim of hostile environment harassment, Complainant must show that: (1) he
belongs to a statutorily protected class; (2) he was subjected to harassment in the form of
unwelcome verbal or physical conduct involving the protected class; (3) the harassment
complained of was based on his statutorily protected class; (4) the harassment affected a term or
condition of employment and/or had the purpose or effect of unreasonably interfering with the
work environment and/or creating an intimidating, hostile, or offensive work environment; and (5)
there is a basis for imputing liability to the Agency. 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, EEOC’s
Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8,
1994).
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 national origin, religion, disability or prior
protected activity. Only if Complainant establishes both of those elements – hostility and motive
– will the question of Agency liability present itself. Here, Complainant failed to prove that his
national origin, religion, disability or prior protected activity played any role whatsoever in the
events raised in his complaint.
In finding no discrimination by summary judgment, the AJ found that the record developed during
the investigation established the following undisputed facts.
During the relevant period, Complainant was employed as an Aerospace Engineer, GS-0861-12,
at 	the 	Agency’s 	DCMA 	in 	Amarillo, 	Texas. 	The 	Supervisory 	General 	Engineer 	was
Complainant’s first-level supervisor and the Contract Operations Supervisor was his second-level
supervisor.
Regarding claim 1, Complainant asserted that from November 2015 to July 2016, Supervisor 1
and Supervisor 2 harassed and treated him differently than others when: (a) Supervisor 1 denied
Complainant’s travel arrangements three times and instructed him not to access the DAU website
at home to complete the training; (b) Supervisor 1 and Supervisor 2 inhibited his ability to attain

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DAWIA Level II and Non-Destructive Testing (NDT) certifications; and (c) Supervisor 1 did not
provide him mentorship for career advancement.
Supervisor 	1 	(Hispanic/American, 	Christian, 	no 	disability) 	was 	not 	aware of 	any travel
arrangements that Complainant applied for which were denied. 	However, Supervisor 1
acknowledged that there was some confusion with Complainant’s DAU classes “that were in
residence that were switched from his applied for location to what was more cost effective for the
government.” He noted that Complainant complained about the switch and contacted the DAU
coordinator and had it reapproved for his requested location, which was in Ohio.
Further, Supervisor 1 stated that he reviewed Complainant’s request “because he was coupling two
training sessions together. It made sense, and I approved it. The [DAU Coordinator] reviewed it
and switched the location to Tinker Air Force Base in Oklahoma.” 	He believed that the DAU
Coordinator switched the location due to cost effectiveness for the government and “based on that,
travel is approved. He is not the first person to have their travel denied because of cost effectiveness
for the government.”
Supervisor 2 asserted that Complainant’s ability to obtain DAWIA Level II course “was not
inhibited in any way.” He noted that Complainant was scheduled to attend DAWIA Level II course
in August 2016 “which would have completed his DAWIA Level II certification. Regarding the
NDT course, NDT is not a required course for [Complainant], nor is it listed as an optional course
for his engineering training. 	Yet, [Complainant] was scheduled to attend the NDT training in
September 2016, in Salt Lake City, Utah.”
Furthermore, Supervisor 1 stated that he was not sure what Complainant was referring to in regard
to mentorship. He noted that Complainant was provided an On-the-Job Training Plan (OJT) and
the first line supervisor review was accomplished with Complainant. 	In addition, Supervisor 1
stated that Complainant was issued an Individual Performance Plan and “his training path was
discussed. 	I visited with [Complainant] on case reviews for Non-Conforming Reports (NCR),
Engineering Change Orders (ECO) and Variances.” 	Finally, Supervisor 1 maintained that
Complainant never requested any type of formal programmatic mentorship.
Regarding Complainant’s claim that he was subjected to harassment when Supervisor 1 harassed
and treated him differently than others, Supervisor 2 (American, Christian, no disability) stated
that he conducted an inquiry “to find if there was any way to corroborate what Complainant said.
Following the investigation, he did not find any evidence to support Complainant’s allegation that
Supervisor 1 was bullying him at his workstation.” Supervisor 2 further stated that DCMA Fort
Work DMCA sent the Quality Director to Amarillo to conduct an outside investigation and that
investigation “was more extensive and also did not find any evidence of discrimination.”

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Regarding claim 2, Complainant alleged that Supervisor 2 issued Complainant a Letter of
Termination during his probationary period, Supervisor 2 explained that he was the deciding to
terminate Complainant during his probationary period because Complainant did not demonstrate
the quality of performance and/or conduct required for continued employment in the Federal
Government.
Specifically, Supervisor 2 noted that on March 3, 22, and 31, 2016, May 17, 2016, and during his
mid-year discussion, Supervisor 1 “has had to counsel you regarding your performance. During
these meetings, you discussed deadlines that you had missed and he emphasized that you must
meet deadlines for assigned tasks, which are essential for meeting our mission requirements.”
Supervisor 2 also noted that on multiple occasions, Supervisor 1 observed Complainant
“downloading or performing DAU training instead of working on configuration management
assignments. When he attempted to address performance concerns with you, you responded with
email responses to him that were unprofessional and disrespectful. 	In addition, he has had to
counsel you regarding deviating from your assigned tour of duty without permission.”
Subsequently, Supervisor 2 stated that he determined that Complainant’s work performance and
conduct in the workplace was unacceptable and terminated him “based upon the aforementioned
facts and for the efficiency of the service.” 	Moreover, Supervisor 2 stated that Complainant’s
national origin, religion, disability, and prior protected activity were not factors in his decision to
terminate Complainant during his probationary period.
Here, we concur with the AJ’s determination that there is simply no evidence that Complainant’s
national origin, religion, disability or prior protected activity played any role in the incidents at
issue even if they occurred as alleged. 	Moreover, a claim of discriminatory harassment is
precluded based on our findings that Complainant failed to establish that any of the actions taken
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.

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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
(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.

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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 17, 2020
Date