Melvin S.,1 Complainant,v.Ajit V. Pai, Chairman, Federal Communications Commission, Agency.

Equal Employment Opportunity Commission

Mar 5, 2019

0120171640 (E.E.O.C. Mar. 5, 2019)

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

Melvin S.,1
Complainant,

v.

Ajit V. Pai,
Chairman,
Federal Communications Commission,
Agency.

Appeal No. 0120171640

Hearing No. 570-2014-00036X

Agency No. FCC-EEO-12-13

DECISION

On April 5, 2017, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 7, 2017, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final order.

ISSUES PRESENTED

The issues presented are: (1) whether the Equal Employment Opportunity Commission
Administrative Judge (AJ) properly granted summary judgment; and (2) whether the
preponderance of the evidence in the record establishes that Complainant was subjected to
discrimination based on race, age, and/or reprisal when he was removed during his probationary
period.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Economist, GS-
0110-12, in the Agency’s Wireless Telecommunications Bureau, Spectrum Competition Policy
Division (SCPD) in Washington, D.C. Complainant began working for the Agency on August 29,
2011, and the Deputy Chief of SCPD (S1) was his first-line supervisor until December 2011. In
December 2011, S1 was promoted to Chief Economist, and the new Deputy Chief of SCPD (S2)
became Complainant’s first-line supervisor. At all times relevant to his complaint, Complainant’s
second-line supervisor was the Chief of SCPD (S3). A 30-year-old Caucasian Economist (C1) also
began working in SCPD on August 29, 2011. On July 17, 2012, Complainant was removed during
his one-year probationary period. Complainant is African-American, and, at the time of his
removal, he was 70 years old.

One of Complainant’s assignments was to analyze mobile wireless transactions under the direction
of an Assistant Chief of SCPD (P1). The transaction reviews entailed preparing a market sheet
with economic data and analysis as well as drafting competitive analysis for an order approving a
proposed transaction. According to P1, Complainant struggled to produce timely and accurate
market sheets and competitive analysis. P1 averred that Complainant’s work contained numerical
errors and sometimes included incorrect analysis. P1 stated that she explained the issues to
Complainant, but he continued to make similar errors. Complainant denied missing deadlines for
transaction analysis. According to Complainant, the errors cited by P1 were minor. Complainant
stated that C1 made similar errors. P1 averred that C1 made fewer errors as he learned the process
and that C1’s performance was far superior to Complainant’s.

Complainant was also responsible for drafting two sections of the Agency’s 16th Mobile Wireless
Competition Report under the direction of an Assistant Chief of SCPD (P2) and an Industry
Economist (P3). The assignment was made in September 2011, and the established deadline for
Complainant’s draft sections was May 2, 2012. According to P2, the task was to update the data
from the 15th Report rather than to add new analysis. Complainant stated that P3 told him that
there was room for improvement and creativity in the drafting process. In April 2012, Complainant
was assigned document review for a transaction, which S2 stated was intended to be a part-time
assignment. Complainant alleged that he was told that the document review should be his top
priority. On April 30, 2012, Complainant asked to be removed from the document review project
and for a deadline extension until May 11, 2012, for the draft sections. S2, P2, and P3 agreed that
Complainant should devote his time exclusively to drafting the sections. On May 11, 2012,
Complainant requested another extension for a week or a week and a half. On May 22, 2012, P2
asked Complainant to submit what he had by May 25, 2012. Complainant responded that he had
not started writing and asked for an extension until June 1, 2012. On May 24, 2012, P2, P3, and
S3 met with Complainant for a status update. According to Complainant, S3 asked him in a
condescending manner what he had been working on for the past month. On June 8, 2012,
Complainant submitted his first draft of the Consumer Behavior section. According to P2, she was
not satisfied with the draft because much of the work was outside of the scope of the assignment
and contained incorrect statements. S2 averred that the draft improperly contained Complainant’s
personal opinions. P3 rewrote the section. According to Complainant, the draft reflected the outline
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he had submitted to P2, P3, and S3. P2 stated that the outline contained headings but did not detail
the content Complainant planned to include. On June 22, 2012, Complainant submitted a draft for
the Urban-Rural section.

In September 2011, Complainant was assigned part of the drafting of a notice of proposed
rulemaking, managed by an Assistant Chief of SCPD (P4). P4 asked Complainant to provide a
draft by September 27, 2011. On September 27, 2011, Complainant provided an outline and asked
for an extension. P4 stated that the outline inappropriately singled out individual companies. In
January 2012, Complainant submitted additional proposed edits. According to P4, most of
Complainant’s edits were redundant or inappropriate for a notice of proposed rulemaking. P4
stated that she took over the assignment. On May 6, 2012, Complainant received a performance
award for his work on the notice of proposed rulemaking. S3 stated that she gave Complainant the
performance award for his willingness to help out and his commitment to the notice of proposed
rulemaking.

In May 2012, S2 asked the project managers for input on Complainant’s performance in order to
prepare his annual performance appraisal. P1 and P4 both expressed their frustration with
Complainant’s work, and P2 subsequently told S2 that she was not satisfied with the draft sections
when they were submitted. S2 and S3 decided to terminate Complainant during his probationary
period for unsatisfactory performance. On June 27, 2012, S3’s Chief of Staff (S4) and a Deputy
Chief of SCPD (S5) notified Complainant that he would be removed from his position.
Complainant averred that he had no documented performance issues and that S4 and S5 could not
tell him why he was being removed. S2 and S3 were out of the office on unplanned leave on June
27, 2012, and they asked S4 and S5 to meet with Complainant on that day because Complainant
was leaving on an extended vacation the next day. Complainant was removed on July 17, 2012.
Complainant stated that on July 17, 2012, he received a memo outlining the reasons for his
removal. Complainant averred that he should have been put on notice that there were issues with
his performance. According to the Agency’s Basic Negotiated Agreement, a probationary
employee is not entitled to notice regarding performance issues or an opportunity to respond prior
to termination.

On December 26, 2012, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the bases of race (African-American), age (70), and reprisal for prior
protected activity (whistleblowing) when on July 17, 2012, he was removed during his
probationary period.

The Agency accepted race and age as the bases for Complainant’s complaint. Complainant stated
that his prior protected activity consisted of whistleblowing activity in January 2012. It is well
settled that engaging in whistleblowing is not protected EEO activity. See Reavill v. Dep’t of the
Navy, EEOC Appeal No. 05950174 (July 19, 1996). Therefore, the Agency properly dismissed
reprisal for whistleblowing as a basis for Complainant’s complaint.

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 AJ. Complainant
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timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted
the Agency’s July 14, 2015, motion for summary judgment and issued a decision on January 27,
2017. The Agency subsequently issued a final order fully implementing the AJ’s finding that
Complainant failed to prove that the Agency subjected him to discrimination as alleged. The
instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment, improperly
weighing materially disputed facts in favor of the Agency. Complainant asserts that the AJ could
only conclude that he failed to provide any evidence that his race or age motivated his removal if
she impermissibly weighed evidence in favor of the moving party. Complainant also notes that the
AJ’s decision did not address the performance award he received for his work on the notice of
proposed rulemaking. Complainant requests that the matter be remanded for a hearing.

The Agency makes no contentions in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

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. (Aug. 5, 2015) (providing that an administrative judge’s
determination to issue a summary judgment decision, and the decision itself, will both be reviewed
de novo). This essentially means that we should look at this case with fresh eyes. In other words,
we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual
conclusions and legal analysis – including on the ultimate fact of whether intentional
discrimination occurred, and on the legal issue of whether any federal employment discrimination
statute was violated. See id. at Chapter 9, § VI.A. (explaining that the de novo standard of review
“requires that the Commission examine the record without regard to the factual and legal
determinations of the previous decision maker,” and that EEOC “review the documents,
statements, and testimony of record, including any timely and relevant submissions of the parties,
and . . . issue its decision based on the Commission’s own assessment of the record and its
interpretation of the law”).

Summary Judgment

We must determine whether it was appropriate for the AJ to have issued a summary judgment
decision on this record. The Commission’s regulations allow an AJ to issue a summary judgment
decision when he or she finds that there is no genuine issue of material fact. 29 C.F.R.
§ 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in
Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary
judgment is appropriate where a court determines that, given the substantive legal and evidentiary
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standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s
function is not to weigh the evidence but rather to determine whether there are genuine issues for
trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment
stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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.

If a case can only be resolved by weighing conflicting evidence, issuing a summary judgment
decision is not appropriate. In the context of an administrative proceeding, an AJ may properly
consider issuing a summary judgment decision only upon a determination that the record has been
adequately developed for summary disposition. See Petty v. Dep’t of Def., EEOC Appeal No.
01A24206 (July 11, 2003). Finally, an AJ should not rule in favor of one party without holding a
hearing unless he or she ensures that the party opposing the ruling is given (1) ample notice of the
proposal to issue a summary judgment decision, (2) a comprehensive statement of the allegedly
undisputed material facts, (3) the opportunity to respond to such a statement, and (4) the chance to
engage in discovery before responding, if necessary. According to the Supreme Court, Rule 56
itself precludes summary judgment “where the [party opposing summary judgment] has not had
the opportunity to discover information that is essential to his opposition.” Anderson, 477 U.S. at
250. In the hearing context, this means that the administrative judge must enable the parties to
engage in the amount of discovery necessary to properly respond to any motion for summary
judgment. Cf. 29 C.F.R. § 1614.109(g)(2) (suggesting that an administrative judge could order
discovery, if necessary, after receiving an opposition to a motion for summary judgment).

Here, we find that the AJ appropriately issued a summary judgment decision because there is no
genuine issue of material fact. Although Complainant contends that the AJ improperly weighed
evidence in favor of the Agency, we find that the AJ properly based her decision on the undisputed
facts. Complainant also suggests that the AJ’s decision should be overturned because the decision
did not discuss his performance award. However, it is undisputed that Complainant received a
performance award for his work on the notice of proposed rulemaking, so this does not create a
triable issue of fact. Accordingly, we consider the merits of Complainant’s appeal.

Complainant’s Removal

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842
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(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

The Agency’s legitimate, nondiscriminatory reason for removing Complainant during his
probationary period was that his performance was deficient with respect to performing transaction
analysis, drafting sections of the 16th Mobile Wireless Competition Report, and working on a
notice of proposed rulemaking. As evidence of pretext, Complainant contends that he was not put
on notice that his performance was subpar, noting that he received a performance award for his
work on the notice of proposed rulemaking. Although Complainant was not entitled to notice that
his probationary performance was deficient, the record in fact reflects that he had repeated negative
feedback from P1, P2, P3, P4, and S3 that there were issues with his performance. Furthermore,
while Complainant did receive a performance award, this does not negate the evidence in the
record that his transaction analyses contained repetitive errors, that his suggested edits for the
notice of proposed rulemaking were inappropriate, or that his sections for the 16th Mobile Wireless
Competition Report were delayed and required substantial rework. Therefore, we find that the
preponderance of the evidence in the record does not establish that the Agency’s legitimate,
nondiscriminatory reason was pretextual.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we AFFIRM the Agency’s final order because the AJ properly
granted summary judgment and because the preponderance of the evidence in the record does not
establish that discrimination occurred.

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
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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.

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
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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

March 5, 2019
Date