Billy B.,1 Complainant,v.Alex M. Azar II, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019002124 (E.E.O.C. Sep. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Billy B.,1
Complainant,

v.

Alex M. Azar II,
Secretary,
Department of Health and Human Services
(Food and Drug Administration),
Agency.

Appeal No. 2019002124

Hearing No. 443201700072X

Agency No. HHSFDAORAC05916

DECISION

On January 5, 2019, Complainant filed an appeal with the Equal Employment Opportunity
Commission (“EEOC” or “Commission”) pursuant to 29 C.F.R. § 1614.403, with respect to an
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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a probationary employee of
the Agency, working as a Consumer Safety Officer ("CSO"), GS-11, for the Agency’s Office of
Regulatory Affairs, Southwest Region, in Des Moines, Iowa.

On July 5, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to
discrimination and a hostile work environment on the bases of race (African-American), color
(Black), national origin (Nigeria), and 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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1. On January 27, 2016, prior to the end of his probationary period, he received a
letter of termination from his first level supervisor (“S1”),

2. S1 failed to issue him a 2015 end-of-year Performance Management Appraisal
Program (“PMAP”) evaluation,

3. [voluntarily withdrawn],2 and

4. In or about July 2015, he received an unfair, improper and discriminatory mid-
year PMAP which inaccurately reflected his work performance. After
complaining to the Director and Deputy Director of the Investigations Branch,
several negative criticisms were removed from his evaluation. His complaint and
evaluation reassessment prompted retaliation by S1, and led to his termination.

On March 10, 2015, Complainant was hired by the Agency as a COS, subject to a 1 year
probationary period. Per Agency policy, Complainant was placed on a PMAP evaluation plan to
set performance expectations using five “Critical Elements” (Communication, Technical
Knowledge/ Competency, Analysis and Reporting, Investigations/Operations and Customer
Service.) Complainant was also notified that as a GS-11 level CSO, he would be expected to
perform at a higher level of competency than a newly-hired CSO at a lower GS level.

In May 2015, S1 (Caucasian, white, American), a Supervisory CSO, GS-13, became
Complainant’s first level supervisor. S1 testifies that between May and July 2015, Complainant
was assigned to accompany senior CSOs on inspection assignments, and that either she or a
senior CSO provided Complainant with written and verbal feedback for each assignment. S1 said
she became aware that Complainant was not achieving expected results for a GS-11 CSO.

On July 17, 2015, S1 met with Complainant to issue his mid-year evaluation. She informed him
that he had “unsatisfactory” performance in the Critical Elements of Communication and
Customer Service. Complainant described the mid-year PMAP as “inaccurate,” “unfair,” and
“improper” because, among other things, S1 relied on the events of a single day and two emails
to justify the “unsatisfactory” rating, seeming to disregard his 4 months of work. He also alleged
that S1 improperly considered statements about his professionalism and abilities made by CSOs
on his investigation team for an assignment during the week of April 27, 2015.

2 On June 14, 2017 Complainant filed a “Motion to Remove one Claim, to Slightly Modify the
Other Claims, and to add Three More Claims.” On June 21, 2017, the AJ denied Complainant’s
request to include additional claims (harassment/hostile work environment) as untimely, but
granted his request to abandon the allegation in Claim 3. Complainant subsequently filed a
Motion for Reconsideration, which the AJ denied on July 5, 2017. As Complainant raised the
matter again on appeal, we affirm the AJ’s June 21, 2017 and July 5, 2017 denials of
Complainant’s motions for the reasons he already provided. However, we have considered the
harassment claims as background information in reaching this Decision.
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On July 23, 2015, Complainant met with the S1’s supervisors the Director (“D1”) and Deputy
Director (“D2”) for the Investigative Branch, (both white, white, American) to discuss his
concerns with his mid-year PMAP evaluation. Complainant also revealed that he felt “bullied
and harassed” by S1 and one of the senior CSOs who reported (and encouraged two other CSOs
to report) the alleged April 27, 2015 incidents. Although discrimination was not discussed,
Complainant identifies this meeting as the underlying “protected activity” for his reprisal claim.

On July 30, 2015, D1 followed up in an email to Complainant, explaining that after reviewing
statements and information provided by Complainant, he did not see harassment or bullying, but
notified S1 of Complainant’s concerns. D1 also repeatedly referenced their discussion of
improving communication and reminders to follow his supervisor’s instructions. Complainant
thanked D1 and stated that since their meeting, he has “witnessed a tremendous positive shift.”
On July 31, 2015, S1 and Complainant met and discussed a performance improvement plan,
which S1 provided to Complainant via email on August 4, 2015. S1 went on extended leave, and
D2 was Complainant’s acting supervisor until S1 returned in late October 2015.

On January 28, 2016, S1 met with Complainant and issued him a “Notice of Termination during
Probationary Period” with the option to submit a voluntary resignation prior to the effective date
of February 12, 2016. S1 explained that Complainant had not met expectations for the Critical
Elements of Communication, Technical Knowledge/ Competency, and Analysis and Reporting,
and that he failed to follow direct orders of his supervisor. The Termination Notice listed
incidents between July 2, 2015 and January 6, 2016, based on S1 and D2’s supervisory
observations of Complainant in the field, his work product, communication, and failure to follow
instructions. Although the Termination Notice coincided with the year-end PMAP evaluations,
S1 explained that Complainant did not receive one because the decision had been made to
terminate his employment. Personnel documentation confirms that the termination was approved
by the Director of the Human Resources Center.

At the conclusion of the Agency’s investigation into his complaint, the Agency provided
Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request
a hearing before an EEOC Administrative Judge (“AJ”). Complainant timely requested a
hearing. Complainant and the Agency were provided with an opportunity to develop the record
through Discovery, and afterward, both parties submitted a motion for a decision without a
hearing (summary judgment) to the AJ. The AJ dismissed Complainant’s motion, and issued a
decision by summary judgment in favor of the Agency on September 4, 2018.

When the Agency failed to issue a final order within forty (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).3 The instant appeal followed.

3 With his appeal, Complainant submitted a “Motion/Request to Sanction the Agency for Not
Filing a Final Decision as Ordered by the AJ,” which we hereby deny. Complainant was properly
notified of his appeal rights by the AJ in the AJ’s Order, that "If the Agency fails to issue a final
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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).

Disparate Treatment

A claim of disparate treatment based on indirect evidence is examined under the three-part
analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For
Complainant to prevail, he or she must first establish a prima facie case of discrimination by
presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e.,
that a prohibited consideration was a factor in the adverse employment action. McDonnell
Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The
burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its
actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency
has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a
preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993).

This established order of analysis in discrimination cases, in which the first step normally
consists of determining the existence of a prima facie case, need not be followed in all cases.
Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action
at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas
analysis, the ultimate issue of whether Complainant has shown by a preponderance of the

order, you have the right to file your own appeal any time after the conclusion of the Agency's
(40) day period for issuing a final order. See EEO MD-110, 9-3." Our guidance clarifies that an
Agency’s failure to take any action during the 40-day period, means that the AJ’s decision is
“deemed ratified,” and the agency waived its right “to cross-appeal or challenge any aspect of the
Administrative Judge's decision in this situation.” See MD-110 Ch. 9.III.A [FN4]. In other
words, after 40 days, AJ’s Decision effectively became the Agency’s Final Decision. We note
that despite his confusion, Complainant fully exercised his appeal rights, and contrary to his
assertions that he had no final decision to respond to, Complainant’s appellate brief, consistent
with our guidance, addressed the AJ’s findings.
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evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC
Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC
Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No.
03900056 (May 31, 1990).

Here, the Agency’s legitimate nondiscriminatory reasons for its actions in Claims 1, 2, and 4 are
Complainant’s work performance, and his status as a probationary employee.

The Agency, as the employer, has broad discretion to set policies and carry out personnel
decisions, absent evidence of unlawful motivation. See Burdine at 259; Vanek v. Dep’t of the
Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); see also Furnco at 567. In other words,
this Commission "does not second-guess the business judgment of Agency officials regarding
personnel decisions without a demonstrably discriminatory motive." Camden v. Dep’t of Justice,
EEOC Appeal No. 0120093506 (Jul. 27, 2012) rec. denied EEOC Request No. 0520120603 (Jan.
31. 2013).

The Commission has long held that where a Complainant is a probationary employee, he or she
is subject to retention, advancement, or termination at the discretion of an agency so long as
these decisions are not based on a protected category. See Coe v. Dep’t of Homeland Sec.,
EEOC Appeal No. 0120091442 (Oct. 7, 2011) other citations omitted. Complainant’s
probationary status is undisputed. Additionally, the record contains copies of the relevant
provisions of the Collective Bargaining Agreement (“CBA”) between the Agency and the Union,
and Agency policy, which adheres to the Office of Personnel Management (“OPM”) regulation 5
CFR § 315.804(a), which provides that if at any time during the trial period a probationary
employee’s conduct fails to demonstrate his or her fitness for continued employment he or she
may be terminated by written notice explaining the reason for separation and the effective date of
the action. The January 28, 2016 Termination Notice, also provided in the record, thoroughly
meets these criteria.

For Claims 1 and 2, given Complainant’s probationary status, the Agency acted within its
discretion when it terminated Complainant’s employment on the grounds that he did not perform
up to probationary expectations, and when, based on its decision to terminate, it opted not to
issue Complainant a year end PMAP evaluation.

Much of Complainant’s argument that an issue of material fact exists warranting a hearing is
based on the absence of a year-end PMAP. However, the record supports that the Agency was
not required to issue one. The Agency provided sufficient evidence for its decision to terminate
Complainant’s employment based on his performance, regardless of whether it was formatted
into a PMAP. Complainant’s insistence on appeal, and in his Motion for Summary Judgment,
that the Agency’s decision not to issue a PMAP somehow negates his termination and was
against Agency policy and the CBA, disregards his probationary status. Probationary employees
are not entitled to the same notice and opportunity to respond to a proposed termination as an
employee who has completed his or her non-probationary period.
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Complainant was provided with two weeks’ notice and an explanation for his termination in
writing, which is all that is required under the statute. As Complainant offers no argument or
evidence to indicate a question of fact exists regarding the Agency’s legitimate
nondiscriminatory reason, we find no reason to disturb the AJ’s decision.

For Claim 4, the Agency issued Complainant’s July 2015 mid-year PMAP evaluation based on
established metrics and requirements for his position and grade. Each Critical Element was
numerically rated from Level 1 (“Achieved Unsatisfactory Results”) to Level 5 (“Achieved
Outstanding Results”). For any element rated under Level 3 (“Achieved Expected Results”) the
rating official (supervisor) must provide written documentation, which S1 provided, in detail.
Contrary to Complainant’s assertions in Claim 4, there is no evidence that as a result of
Complainant’s July 23, 2015 meeting with D1 and D2, his evaluation was “reassessed” and
“several negative criticisms were removed.” If anything, the July 30, 2015 follow up email from
D1 to Complainant supports S1’s mid-year MPAP evaluation, as it repeatedly reminds
Complainant to listen to his supervisor, and instructs him on a new plan for communicating by
having more “face to face” meetings and for Complainant to email a summary of what was just
communicated back to his supervisor.

Complainant raises a pretext argument by questioning the reasonableness of S1’s application of
the Agency’s rating system on his mid-year PMAP evaluation. See Loeb v. Textron, Inc., 600
F.2d 1003, 1012 n.6 (1st Cir. 1979). (The reasonableness of the employer's decision may, of
course, be probative of whether it is pretext… the focus is to be on the employer's motivation,
not its business judgment). He argues that for Customer Service, S1 based the rating on the
events of a single day, where she observed Complainant on site, and for Communication, she
cited two sentences in two emails Complainant sent. The first was to a coworker Complainant
was familiar with, and contained a line of bold text, which S1 stated indicated he was shouting.
The second was sent to S1, which she described as “argumentative in nature and not addressing
the concern I shared.” In his July 30, 2015 response email to Complainant, D1 describes the
statement as “offensive and condescending.” While acknowledging that Complainant told him
that it was not intended to be insulting, D1 notes that Complainant was unable to explain why he
would make such a statement to a supervisor. From the information before us, while strict,
Complainant has failed to sufficiently show that S1’s action was unreasonable in terms of
business judgment. Aside from the incidents of the week of April 27, 2015, which were not a
basis for Complainant’s negative performance ratings, Complainant does not dispute that he took
the actions described in his mid-year PMAP evaluation. As this matter is within the Agency’s
discretion, we are not going to second guess S1’s scoring of Complainant’s mid-year PMAP.

Even if Complainant could demonstrate that a question of material fact exists with respect to the
Agency’s legitimate nondiscriminatory reasons for Claims 1, 2, and 4, he has not established a
prima facie case. On appeal, Complainant cites alleged comparator evidence, which is not
sufficient to establish a prima facie case, as all relevant aspects of the comparative employee’s
work situation must be identical or nearly identical, comparative evidence relating to other
employees is considered relevant when they are “similarly situated.” See Anderson v. Dep’t of
Treasury, EEOC Appeal No. 01A22092 (Mar. 13, 2003).
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For instance, the employees report to the same supervisor, perform the same job function, work
during the same time periods, and, in instances where the Agency is responding to “problem
conduct” (e.g. performance deficiencies), engaged in the same conduct. See Stewart v. Dep’t of
Defense, EEOC Appeal No. 01A02890 (Jun. 27, 2001); Grappone v. Dep’t of the Navy, EEOC
No. 01A10667 (Sept. 7, 2001) rec. denied, EEOC Request No. 05A20020 (Dec. 28, 2002)
(Where the proffered “comparator's conduct was materially distinguishable from that of
complainant, he or she is not “similarly situated” to Complainant); see also Complainant v. Dep’t
of the Treasury (IRS), EEOC Appeal No. 0120132983 (Jun. 10, 2015).

On appeal, Complainant argues that as the only African-American in the office, and among S1’s
subordinates, he has been treated to a stricter standard. He argues that the other CSOs received
year-end PMAP evaluations, and he did not, and with respect to the mid-year PMAP evaluation,
he was the only one of S1’s subordinates to score less than Level 3 (“Achieved Expected
Results”). According to Complainant, S1’s other subordinates, who did not share his protected
categories received better scores “…despite the terrible huge and voluminous mistakes related to
their performance that they all made at work.” Other than bald statements, Complainant provides
no evidence that would give rise to a question of material fact warranting a hearing, as he has not
shown that these individuals are “similarly situated,” meaning that in this case, they reported to
S1, and worked as CSOs, GS-11, were in their probationary year, and engaged in the same
“problem conduct” that S1 cited as her legitimate nondiscriminatory reason for Complainant’s in
the MPAP evaluation score and termination.4

Harassment/Hostile Work Environment

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 his race, color, national origin, and/or reprisal for protected EEO activity.
Only if Complainant establishes both hostility and motive, will the question of Agency liability
present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement
Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC
Notice 915.002 (Jun. 18, 1999).

The claims before us concern termination and performance appraisals, which are discrete acts, to
be analyzed through a disparate treatment framework. Therefore, the AJ’s summary judgment
dismissal of Complainant’s harassment claim was proper.

4 Complainant requests an opportunity to engage in discovery regarding comparator matters.
However, he filed his discovery requests on or about April 29, 2017 whereas the AJ’s March 13,
2017 Order stated a deadline for submission was March 31, 2017. Complainant failed to show
good cause for the delay, and the AJ properly denied his motions to compel the Agency to
respond to his requests, as they were untimely.

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Moreover, a 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).

CONCLUSION

Accordingly, we AFFIRM the AJ’s decision, which became the Agency final order pursuant to
29 C.F.R. § 1614.109(i).

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.
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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. 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 11, 2019
Date