[Redacted], Dan L., 1 Complainant,v.Bill Nelson, Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Nov 7, 2022

Appeal No. 2021004051 (E.E.O.C. Nov. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dan L.,1 Complainant, v. Bill Nelson, Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 2021004051 Hearing No. 570-2019-01598X Agency No. NCN-19-HQ-00051 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated June 11, 2021, finding no discrimination regarding his 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, we AFFIRM the Agency’s final order finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-15, Budget Analyst for the Agency’s Office of Science, Technology, Engineering and Math (STEM) Engagement, the National Aeronautics and Space Administration (NASA) Headquarters in Washington, D.C. The record indicates that on November 28, 2018, Complainant contacted an EEO Counselor alleging that on October 28, 2018, he was unfairly detailed and denied an opportunity to return to his previous position, as described in claim 1, herein. Unable to resolve the matter informally, Complainant filed a formal complaint on March 11, 2019. 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. 2021004051 2 In his complaint, Complainant alleged discrimination and/or harassment based on race (Afro- American/Black), color (black/brown), sex (male), and age (over 40) when: 1. On October 28, 2018, he was unfairly detailed and denied the opportunity to return to his position as Supervisory Program Specialist/Resource Manager Officer (SPS/RMO) for NASA Office of STEM Engagement. 2. On June 1, 2018, he was forced to attempt an additional detail assignment because his supervisor (S1) advised him that the “complement group personnel policy” would accommodate the transfer of his Full Time Equivalent (FTE) permanently to the NASA Headquarters Office of Small Business (SB). 3. On March 28, 2018, S1 permanently replaced Complainant with a younger, black female employee (E1) as the SPS/RMO. 4. During Complainant’s May 31, 2017 - May 20, 2018 detail, S1 denied the transfer of his FTE from the STEM Office to the Information Technology Communication Division (ITCD). 5. On or about April 13, 2017, S1 instructed him to find a detail assignment in another organization without providing a reason, informing him that he would not be returning to the office as the SPS/RMO and that he would be demoted. The Agency accepted claim 1 as a disparate treatment claim and claims 1 - 5 as harassment claims. Complainant did not challenge this. At the conclusion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without holding a hearing, finding no discrimination. The AJ stated that Complainant’s November 28, 2018 EEO contact was timely for claim 1 but was untimely regarding claims 2 - 5, which would be analyzed as part of his harassment claim. Considering the claims from the oldest to newest incidents, we shall start with claim 5. The record indicates that in Complainant’s GS-15, SPS/RMO position, Complainant supervised employees and was responsible for the office’s budget operations, including both budget formulation and execution. S1 indicated that he, as a SES (Senior Executive Service), Associate Administrator, joined the STEM office on April 1, 2017, and was notified that the office was subjected to an Anti-Deficiency Act claiming the office spent money that it was not authorized to spend. There was also a SES deployed to the office to observe financial practices of the group. Further, the Office of Management and Budget (OMB) recommended closing the office as a result. Based on the foregoing budget issues, including his concerns regarding Complainant’s budget management expertise and style, S1 stated that he met with Complainant on April 13, 2017, and suggested his detail to a different position. Complainant was receptive to S1’s idea and voluntarily found a six-month detail in ITCD. Complainant started the detail in May 2017. 2021004051 3 Regarding claim 4, S1 indicated that upon Complainant’s request, S1 asked Human Resources (HR) for Complainant’s GS-15 FTE to be transferred to ITCD but the request was not granted. S1 indicated that FTE was a head count for how many people were in the office and when an employee moved/detailed to another office, the employee did not take the FTE slot. HR Director stated that she received S1’s request but ITCD did not have a work structure to accommodate an additional GS-15 FTE position. Regarding claim 3, S1 indicated that Complainant was not replaced by E1. Specifically, S1 stated that after Complainant went on detail, he decided to convert Complainant’s supervisory SPS/RMO position to a non-supervisory position in the fall of 2017, because Complainant only supervised two employees and there were three other supervisors in the office. S1 stated that he hired E1, who had relevant team lead and budget experience, into this converted position as a Budget Team Lead, not as a supervisor. Regarding claim 2, S1 indicated that Complainant voluntarily found a new detail in the SB Office after his ITCD detail ended in May 2018. S1 stated that he was not involved with this new detail. S1 acknowledged that S1 informed Complainant that he could take his FTE to the SB Office as it was in the same complement group. Regarding claim 1, S1 stated that the Associate Administrator at the SB Office considered retaining Complainant permanently in the SB Office but did not do so because Complainant did not perform well. In October 2018, Complainant’s detail at the SB Office ended and there was no available detail for him. Complainant thus returned to the STEM office as a Budget Analyst, GS-15, which recently became vacant after a former Budget Analyst, not E1, accepted a different job in a different organization. As noted above, Complainant’s former SPS/RMO position had been eliminated in fall 2017. The Agency’s final order implemented the AJ’s decision. Complainant appeals from the Agency’s final order. ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to issue a decision without a hearing 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 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. 2021004051 4 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 this case, we find that the AJ properly issued a decision without a hearing because no genuine dispute of material fact exists. 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). Complainant must initially 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community 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’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. 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 evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, 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). To establish a claim of harassment, Complainant must establish 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 Agency. 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 2021004051 5 Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). 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 his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Initially, we find that the AJ properly dismissed claims 2 - 5 for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within 45 days of the alleged discriminatory event, or the effective date of an alleged discriminatory personnel action. The alleged incidents in claims 2 - 5 occurred on or before June 1, 2018, but Complainant did not contact an EEO Counselor until November 28, 2018, which was beyond the 45-day time limit. Complainant does not provide a justification for his untimeliness and does not contest this dismissal on appeal. We note that the AJ properly addressed claims 2 - 5 as part of Complainant’s harassment claim. After a review of the record, we, assuming arguendo that Complainant had established a prima facie case of discrimination, find that the Agency articulated legitimate, nondiscriminatory reasons for its action. The record indicates that in April 2017, Complainant was a GS-15, SPS/RMO in the Office of STEM Engagement, responsible for the office’s budget management. The office however was subjected to an Anti-Deficiency Act violation claim and was considered to be eliminated based on OMB’s recommendation. Considering the foregoing which were related to Complainant’s budget management performance, S1 suggested Complainant detail to a different position in the Agency. Complainant then decided to detail to ITCD. Even if Complainant was “instructed” as alleged to find a detail, the Agency had a legitimate, nondiscriminatory reason for such an instruction. While in his detail, Complainant requested a permanent GS-15 position in ITCD, but the request was not granted because ITCD could not accommodate an additional GS-15 position. Meanwhile, in fall 2017, S1 decided to reorganize the Office of STEM Engagement and convert Complainant’s supervisory position to a non-supervisory position because there were four supervisors, including Complainant’s position, managing 14 employees, and Complainant’s position supervised only two employees. After the ITCD detail ended in May 2018, Complainant decided to detail to the SB Office. The SB Office did not offer Complainant a permanent GS-15 position due to his poor performance. At the end of his detail, Complainant returned to the Office of STEM Engagement as a GS-15, Budget Analyst. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. 2021004051 6 Regarding the discrete incidents, we find that Complainant failed to show that any of the actions, even considering untimely claims, were motivated by discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that the actions were related to any protected basis of discrimination. Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final order finding no discrimination is AFFIRMED. 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). 2021004051 7 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. 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 November 7, 2022 Date