[Redacted], Alex W., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Dec 19, 2022

Appeal No. 2022002931 (E.E.O.C. Dec. 19, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alex W.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2022002931 Hearing No. 440-2021-00126X Agency No. EPA-2020-0067-R05 DECISION 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 April 4, 2022, final decision 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Attorney Advisor (GS-15) at the Agency’s Office of Regional Counsel, Region 5 in Chicago, Illinois. On August 3, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic),2 and national origin (Mexican), and in 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. 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. However, herein the Commission acknowledges Complainant’s self-identification of his race as Hispanic. 2022002931 2 1. on March 17, 2020, Complainant’s first-line supervisor, the Branch Chief, issued Complainant a Written Warning Memo regarding his conduct and performance; 2. on April 28, 2020, the Branch Chief rated Complainant’s mid-year performance as unsatisfactory; 3. on May 7, 2020, the Branch Chief placed Complainant on a Performance Improvement Plan (PIP); and 4. on July 15, 2020, the Branch Chief demoted Complainant from a Supervisory Attorney Advisor to Senior Counsel for Water Enforcement and Legal Counseling and reassigned him to another section in the Office of Regional Counsel. 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 EEOC Administrative Judge. Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed, but Complainant did not file a brief in support of his appeal. The Agency did not respond to Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review 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”). Disparate Treatment 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). 2022002931 3 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 (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). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his race and national origin, and in reprisal for protected EEO activity, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, the Branch Chief issued the written memo based on Complainant’s unacceptable performance. ROI at 4292. The Branch Chief described that she lost trust in Complainant’s ability to appropriately carry out his supervisory duties, and that Complainant established a pattern of being insubordinate and difficult. As such, the memo was issued to give Complainant an opportunity to cease this conduct. The Branch Chief attached fifteen supporting emails. For example, Complainant refused to follow a supervisory directive that the Branch Chief issued on January 15, 2020, and his explanation indicated a lack of knowledge of the issue. The Branch Chief determined that there was no basis for Complainant’s failure to follow the instruction, and this was an example of his refusal to cooperate on routine matters. ROI at 4363-4447. For claim 2, the Branch Chief obtained feedback from other senior managers on Complainant’s performance and determined that he was unacceptable in three critical elements: Ensure Program Implementation; Effectively Managing and Leading People; and Building Effective Working Relationships. For example, on several occasions, Complainant concurred on his staff’s work product that was not properly prepared; managers above Complainant had to help his employees with substantive and procedural issues; and he did not provide his employees with instructions to help them finalize necessary court documents. ROI at 4295-6. Another branch chief corroborated providing feedback regarding substantive issues with Complainant’s work product; and the Acting Deputy Regional Counsel averred informing the Branch Chief of her concerns about Complainant’s failure to follow correct procedures. ROI at 4334, 4356. The Branch Chief subsequently placed Complainant on a PIP because Agency policy requires that a supervisor place an employee who is performing at an unacceptable level on a PIP (claim 3). ROI at 4294. For claim 4, the Branch Chief clarified that Complainant was not demoted, but he was reassigned to a position at the same GS-15 level, after he failed the PIP. ROI at 4289. We find that Complainant has not shown that the proffered reasons were pretexts for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were 2022002931 4 confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). We note that Complainant offered no arguments on appeal to dispute any of the Agency’s findings in its final decision. In his complaint, Complainant only offered bare assertions that management officials discriminated against him. For example, Complainant asserted that the actions were based on his race and national origin because he is Hispanic, of Mexican origin; and he “strongly believed” that management was retaliating against him for standing up to their discriminatory practices. ROI at 150, 164, 180, 185. In his rebuttal, Complainant “den[ied] the veracity of” the Branch Chief’s testimony. ROI at 4283. However, Complainant’s broad contentions and beliefs are insufficient to prove pretext or that the actions were discriminatory. Complainant also submitted over four thousand pages of documents, without any explanation or organization, with many duplicate copies of the same documents. Examples of the documents include confidential attorney work products; various personnel documents for Complainant and his employees; and miscellaneous Agency policies, but Complainant provided no evidence to prove that the Agency’s reasons were not worthy of credence. Further, the record clearly shows that Complainant disagreed with the Branch Chief and other managers on many substantive and managerial issues. To the extent that Complainant requests that the Commission substitute our judgment for those of his management officials, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. Accordingly, we find that Complainant did not establish that the Agency discriminated against him based on his race or national origin, or in reprisal for prior protected EEO activity. CONCLUSION Based on a thorough review of the record, we AFFIRM the Agency’s final decision finding that Complainant did not prove that he was subjected to discrimination as alleged. 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. 2022002931 5 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). 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. 2022002931 6 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 December 19, 2022 Date