[Redacted], Alejandro B., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jul 7, 2022

Appeal No. 2020005449 (E.E.O.C. Jul. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alejandro B.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020005449 Agency No. FBI-2019-00075 DECISION On September 8, 2020, 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 September 3, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant worked as a GS-1801-11 Investigative Specialist in the Agency’s New York Division in New York, New York. On March 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical), age (born in June 1961), and reprisal for prior protected activity (reporting a work-related injury to his ear in June 2017) when: 1. Between September 28, 2018, and February 2019, the Supervisory Special Agent (SSA) both targeted him and made demeaning comments about him; 2. In the fall of 2018, the SSA formed a team of employees he described as “older, experienced and seasoned,” calling them “Silverbacks,” and Complainant was not offered a spot on the team; 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. 2020005449 2 3. On October 5, 2018, the Team Leader (TL) stated that the SSA and the Supervisory Investigative Specialist (SIS) were both “targeting” and “gunning” for Complainant; on two subsequent occasions the TL told Complainant that the SSA and the SIS were a “looming threat” to him; and 4. The SIS asked him to put in a sick leave request for the afternoon of November 14, 2018, an “Admin Day” on which his team members did not have to work in the afternoon. The Agency dismissed reprisal as a basis, finding that reporting a work-related injury does not constitute protected EEO activity. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency found that Complainant, who suffered a work-related injury to his ear that affected his hearing and balance, was a qualified individual with a disability. Although the Agency determined that the SIS, the SSA, and the TL were not aware of Complainant’s disability, the Agency assumed for the purposes of the analysis that management was aware that Complainant had a disability. Using disparate treatment analysis, the Agency found that management had provided legitimate, nondiscriminatory reasons for some of its actions and that Complainant had not established by preponderant evidence that the proffered reasons were pretextual. Complainant alleged that the SSA made a comment at a September 28, 2018, meeting that he could see on a tracking app when Complainant stopped at a certain grocery store on his way home. The SSA indicated that he made the comment about Complainant’s shopping trip at the meeting as a reminder that employees should turn off the tracking app when they were off-duty. The SSA’s legitimate, nondiscriminatory reason for not selecting Complainant as alleged in claim (2) was that he only needed a few older, white men for a surveillance assignment and that the positions filled quickly. Moreover, the surveillance never occurred because the assignment was cancelled, and the SSA stated that he did not name the group the “Silverbacks” and the name was chosen either by the group members themselves or by the case squad as a codename. Regarding claim (4), management stated that the Field Office policy for admin days was that employees could leave early as long as they had worked at least four hours and 15 minutes and completed their paperwork. On the date in question, Complainant had not worked at least four hours and fifteen minutes when he left admin day early for a family emergency, so the SIS asked Complainant to request leave for his absence. The Agency found that Complainant could not establish a prima facie case of discriminatory harassment. The Agency determined that Complainant did not establish by the preponderance of the evidence in the record that some instances of alleged harassment actually occurred in the absence of any corroborating evidence. The SSA denied angrily staring at Complainant after making the September 28, 2018, comment. 2020005449 3 The TL stated he reminded Complainant to turn on the tracking app while working, but he denied telling Complainant that the SSA or the SIS were targeting or gunning for him; the SSA and SIS similarly denied that they were targeting or gunning for him. The Agency also found that Complainant failed to establish that the alleged harassment was based on his disability and/or age. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed.2 As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (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”). On appeal, Complainant contends that some of his coworkers should have been interviewed during the investigation of his complaint, but he does not specifically identify any witnesses he believes should have been interviewed. The record also does not reflect that Complainant suggested any witnesses to the EEO investigator or named any potentially relevant witnesses in his investigative affidavit. We find that the investigative record was adequately developed to reach the ultimate question of whether discrimination occurred. Upon careful review of the Agency’s decision, the evidence of record, and the contentions on appeal, including those not specifically addressed herein, we find that the Agency correctly analyzed the facts and law of this case to determine that Complainant did not establish by the preponderance of the evidence in the record that the Agency subjected him to discrimination based on disability and/or age as alleged. We also find that the Agency properly dismissed reprisal as a basis. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. 2 On appeal, Complainant contends that he has been subjected to ongoing discrimination and appears to raise new discrimination claims. To the extent that he wishes to pursue these new allegations through the EEO process, Complainant is advised to initiate EEO counseling. 2020005449 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020005449 5 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 July 7, 2022 Date