Elias M.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Apr 5, 2017

0120150761 (E.E.O.C. Apr. 5, 2017)

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

Elias M.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120150761

Hearing No. 550-2012-00354X

Agency No. 12-0001-ID

DECISION

The Commission accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s final action 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physical Scientist
at the Agency’s Idaho Operations Office in Idaho Falls, Idaho. Complainant was initially hired
in 2006, as an Environmental Scientist, GS-12; however, in 2008, the Agency discovered that
it had misclassified Complainant’s position. The Agency reclassified Complainant as a
Physical Scientist. Complainant was promoted to the GS-13 level in 2009.

In 2007, the Agency began integrating “Sustainability” into its functions. Complainant
volunteered to perform some of these duties and eventually became the office’s subject matter
expert in this area. Additionally, in early 2010, Complainant was placed under a new team
lead supervisor (S1) as part of an internal reorganization. Complainant’s second-level

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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supervisor (S2) transferred some of the Sustainability duties to S1, but Complainant continued
to perform some of the duties.

S1’s supervisory style differed from that of Complainant’s previous supervisor. S1 placed a
greater emphasis on his employees’ writing, paid greater attention to detail, and was more
involved in projects. In October 2010, S1 issued Complainant his 2010 performance appraisal.
S1 rated Complainant as “Meets Expectations,” the second-highest level. Complainant had
previously received “Exceeds Expectations,” the highest level, in 2008 and 2009.

In April 2011, S1 met with Complainant for his mid-year progress review and provided
feedback on his performance in the critical elements. S1 noted that Complainant’s work
contained many grammatical and typographical errors and issues with organizational flow. S1
and Complainant added additional expectations to the critical element of Sustainability
including regular status reports and publishing monthly educational information on
Sustainability. In July 2011, Complainant requested that S1 evaluate his work type, workload,
and position description. S1 reviewed the entire team’s workload distribution and moved some
of Complainant’s duties to a co-worker.

Additionally, Complainant believed that his position description did not accurately cover his
responsibilities in the Sustainability area. S1 requested that Complainant submit a summary of
his tasks and time spent on each activity. Complainant provided the overview of his workload
in August 2011. S1 reviewed the position descriptions of his entire team and decided to create
a more general position description for all of his GS-13 employees. On August 4, 2011, S1
drafted new position descriptions for Complainant and the rest of the team. After receiving
comments from Complainant and the team, S1 finalized the new position descriptions for
implementation in January 2012.

In October 2011, S1 issued Complainant’s 2011 performance evaluation and rated him as high
“Meets Expectations.” Complainant believed that S1 ignored several of his achievements and
awards. Complainant appealed the evaluation to S2, and S2 upheld the rating.

Complainant had previously volunteered to represent the Agency on the Idaho Falls Earth Day
Celebration Committee from 2009 through 2011. On November 8, 2011, Complainant
informed the Agency’s Public Affairs Manager that he would not be volunteering for the next
event, but he failed to inform S1 or S2. A representative from the Idaho Department of
Environmental Quality called S2 to inform her that no one from the Agency appeared at recent
Committee meetings. S2 met with S1 to discuss the Earth Day Committee, and S1
subsequently asked Complainant to represent the Agency on the Committee. Complainant
stated that he wished to participate in other activities. S1 and S2 met again to discuss
Complainant’s reluctance to participate, but noted that his experience was needed. Following
the meeting, S1 assigned Complainant to be the Agency’s representative for 2012. S1 assured
Complainant that all work would be done on federal time and that he would not be required to
work outside of his work schedule.

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Complainant and S1 developed a Performance Plan for Fiscal Year 2012 which was divided
into three critical elements: Sustainability; Pollution Prevention, SME Backup, and Support for
Initiatives; and Oversight. The Plan required two progress review meetings between S1 and
Complainant before the annual appraisal. In the first progress review meeting, S1 provided
Complainant feedback; however, Complainant disagreed and wrote a response in the employee
comment section. S1 provided Complainant additional feedback during the second progress
review meeting. At the annual appraisal meeting, S1 rated Complainant “Meets Expectations:
in two of the critical elements (Sustainability and Oversight) and “Exceeds Expectations” in
one critical element (Pollution Prevention, SME Backup, and Support for Initiatives).
Complainant received an overall “Meets Expectations” rating for his 2012 performance
appraisal. S2 reviewed the appraisal and concurred with the rating.

On February 2, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected to a hostile work environment on the bases of
race/national origin (Hispanic) and in reprisal for prior protected EEO activity as evidenced by
multiple incidents including, inter alia, his supervisor issued him a performance appraisal that
did not clearly reflect his work; shouted at him; made constant negative and demeaning
comments; subjected him to heightened scrutiny; failed to follow Agency rules regarding his
position description and performance appraisals; failed to provide him work-related
information in a timely manner; and assigned him to be Earth Day Coordinator.2

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing. The AJ granted summary judgment in favor of the Agency and issued a
decision without a hearing on October 15, 2014.

In the decision, the AJ determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency found that there was
no evidence that the conduct at issue was based on Complainant’s protected classes. In
particular, as to his claim that S1 subjected him to heightened scrutiny, S1 gave both
Complainant and his co-workers feedback. S1 determined that Complainant had grammar,
typos, and writing style issues. Complainant did not dispute those issues, but alleged that S1
zeroed-in on those issues at the expense of his more substantive accomplishments. S2 had
provided Complainant feedback and re-wrote some of his work prior to S1 becoming his
supervisor. S1 rated Complainant as “Meets Expectations” as a result of Complainant’s work
products needing more attention and editing than others. The AJ noted that S1 over-
emphasized grammar; typographical errors; and writing style, but found that there was no
evidence that he based his critical evaluations on discriminatory or retaliatory animus.

2 The Equal Employment Opportunity Commission Administrative Judge assigned to the matter
granted Complainant’s motion to amend his complaint to include claims related to his 2012
mid-year review and 2012 annual performance appraisal.
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Complainant objected to the position description changes and believed that it was “against the
rules” to change work duties during the last 90 days. The record reveals that S1 changed the
position descriptions for the entire team and changed Complainant’s work duties after he
requested a work adjustment due to being overloaded with work. The AJ noted that
Complainant failed to show that if S1 violated internal rules, that the violation was based on
discriminatory animus.

With regard to inappropriate comments, the AJ noted that there was only one comment at
issue. Complainant and his co-workers joked about “wearing sombreros.” S1 interjected that
“You’re really lucky you can make a comment like that.” The AJ noted that the inference was
that a non-Hispanic would be accused of stereotyping if he had made the same joke. The AJ
concluded that this was simply one comment and it did not rise to the level of an objectively
hostile work environment.

Finally, with respect to the Earth Day Coordinator assignment, S1 assigned him the task
because Complainant had personal knowledge and had performed the assignment for the past
three years. Since Complainant gave late notice that he no longer wanted to do the
assignment, there was less time to find a replacement. Complainant did not get the assignment
the next year.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. When the Agency failed to
issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the
Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency. Complainant argues that the AJ misunderstood and misapplied the Agency’s rules
and policies, but accepted most of the Agency’s representations. Complainant claims that S1
changed all the position descriptions to cover up the fact that he erroneously assigned new
duties to Complainant in violation of Agency policy. Complainant contends that he should
have been rated as “Exceeds Expectations” in his 2011 performance appraisal and that his
awards and extra work were not credited. Complainant argues that S1 assigned him to the
Earth Day Committee based on misperceptions and manufactured reasoning. Finally,
Complainant contends that his accomplishments and awards were not considered in his 2012
performance appraisal and that he should have been rated as “Exceeds Expectations.”
Accordingly, Complainant requests that the Commission reverse the final action.

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
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“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.

Hostile Work Environment

To establish a claim of harassment a 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 employer. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or
pervasive to alter the conditions of [complainant's] employment and create an abusive working
environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, 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 protected classes. Only if Complainant establishes
both of those elements, hostility and motive, will the question of Agency liability present itself.

The Commission agrees with the AJ that, construing the evidence in the light most favorable to
Complainant, the alleged incidents were not sufficiently severe or pervasive to establish a
hostile work environment. Even assuming that the alleged conduct was sufficiently severe or
pervasive to create a hostile work environment, Complainant failed to show that the Agency's
actions were based on discriminatory or retaliatory animus.

The record reflects that the alleged incidents were more likely the result of routine supervision
and general workplace disputes and tribulations. For example, regarding the 2011
performance appraisal, S1 asserted that he rated Complainant as “Meets Expectations,” which
he believed was consistent with Complainant’s performance. ROI, at 413. S1 stated that he
reviewed Complainant’s work, self-assessment, and how he interacted with others. Id. at 413-
14. S1 noted that he asked Complainant for clarification of his self-assessment as he had
provided a list of things he had done, but failed to provide information about their impact or
meaning. Id. at 414. S1 added that Complainant’s performance degraded in the second half of
the year, but his work on Earth Day and other Sustainability outreach activities were the
highlights of his performance. Id.

Similarly, with respect to Complainant’s claim that S1 overly scrutinized his errors, S1
affirmed that he focused on both Complainant’s grammatical and typographical errors in his
work product and his technical work and solutions. ROI, at 417. S1 stated that he provided
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feedback to Complainant during the mid-year progress review in 2011 about his need to
improve his writing, proofreading of documents, and tailoring communication to his audience.
Id. at 416-19. While Complainant claimed that S1 did not focus enough on his technical work,
S1 noted that a document with errors in it would raise questions with management as to the
quality of the content and that grammatical or typographical errors could also lead to technical
error. Id. at 418-19.

Regarding Complainant’s claim that S1 yelled at him and subjected him to demeaning
comments, S1 denied yelling or screaming at Complainant; however, he acknowledged that he
had an emphatic tone that he subsequently adapted with Complainant so that his manner would
seem less like yelling or shouting. Id. at 421. Further, S1 denied making any demeaning or
negative comments about Complainant or referring to him as a “problem.” Id. at 423.
Complainant alleged that on one occasion, S1 responded to Complainant and his co-workers
joking about sombreros that “you’re really lucky you can make a comment like that.” The
remark, even if made, was an isolated utterance that fails to rise to the level of objectively
unreasonable behavior that would trigger a violation of Title VII.

As to Complainant’s position description, S1 affirmed that he agreed to look into
Complainant’s concern that some of his work assignments were not covered under his current
position description. ROI, at 423. Additionally, S1 agreed to move some of Complainant’s
assignments to other employees to address his workload concerns. Id. at 482. S1 began
working with Human Resources to change Complainant’s and the entire team’s position
descriptions toward a more generic position description to allow flexibility to respond to
workload imbalances and changing needs of the organization. Id. at 423, 481. S1 noted that
all the GS-13 positions on his team required similar knowledge and performed similar duties,
so having the same position descriptions for them fit the situation and his philosophy and
understanding of a position description function. Id. at 481. S1 confirmed that Complainant
disagreed with the shift and wanted his position description to be very specific to his
responsibilities and assignments. Id. at 424. S1 signed off on the position descriptions, but
they had not been issued [at the time of the investigation] because the process to do so was not
complete. Id. at 481. S1 denied violating any Agency policies regarding appraisals or position
descriptions. Id. at 481-82.

Regarding his claim that S1 did not timely provide him work-related information, S1 stated
that any omission or delay was unintentional. ROI, at 425. S1 added that he did not hold it
against Complainant or any employee if work product was submitted late because he failed to
timely get information to them. Id. at 426.

With respect to his 2012 mid-year progress reviews, S1 noted that Complainant still needed to
improve on several writing errors, showing more initiative in communication, ensuring that
sustainability was analyzed and incorporated, and using different methods to reach out to more
people. S1’s Dep., at 175-82; Ex. 4. Following the progress reviews, S1 issued Complainant
his 2012 performance appraisal. Therein, S1 rated Complainant again as “Meets
Expectations” overall based on ratings of “Meets Expectations” for Critical Elements 1
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(Sustainability) and 3 (Oversight) and “Exceeds Expectations” for Critical Element 2 (Pollution
Prevention, SME Backup, and Support for Initiatives). Agency’s Motion for Summary
Judgment, Ex. 9. S1 commented under Critical Element 1 that Complainant’s monthly reports
were completed, but at times did not address appropriate items completely or required greater
attention to detail. Id. Additionally, S1 noted in Critical Element 3 that Complainant had
difficulty with oversight scope and content. Id. S2 concurred with the rating.

Finally, as to the Earth Day Committee assignment, S1 affirmed that he assigned Complainant
to continue performing this task after it was realized that Complainant had not been
participating without informing management. ROI, at 482. There was an immediate need for
Agency representation on the Committee and Complainant had the necessary knowledge and
understanding. Id. As a result, S1 assigned him to participate on the Committee.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown he was subjected to a hostile work environment.
Moreover, to the extent Complainant claims that he was subjected to disparate treatment, the
Commission finds that Complainant has not proffered any evidence from which a reasonable
fact finder could conclude that the Agency’s explanation was pretext for discrimination or
reprisal. As a result, the Commission finds no basis to disturb the AJ's summary judgment
decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile
work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final action, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0416)

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.
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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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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. Such requests do not alter the
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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

April 5, 2017
Date