[Redacted], Horace L., 1 Complainant,v.Todd M. Harper, Chairman, National Credit Union Administration, Agency.

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022000278 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horace L.,1 Complainant, v. Todd M. Harper, Chairman, National Credit Union Administration, Agency. Appeal No. 2022000278 Hearing No. 570-2020-00997X Agency No. 19-04 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 20, 2021, finding no discrimination concerning 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a District Examiner, Grade CU-11, at the Agency’s Eastern Region in Alexandria, Virginia. On August 22, 2019, Complainant filed his complaint, which was amended, alleging discrimination based on disability and in reprisal for prior 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. 2022000278 2 1. On or about May 2019, his first level supervisor (S1) denied him the on-the-spot award he issued to other Examiners in his work group; 2. On May 6, 2019, S1 issued him a letter of counseling; 3. On June 18, 2019, his second level supervisor (S2) did not approve his request to attend the Bank Secrecy Act training; 4. On August 16, 2019, S1 denied his annual leave scheduled for August 19, 2019, through August 30, 2019; 5. On or about November 18, 2019, his performance appraisal was intentionally lowered (compared to the prior year); 6. On unspecified dates, he was suspended; and 7. On unspecified dates, he received unfair progressive discipline.2 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 EEOC Administrative Judge or a final Agency decision. 29 C.F.R. § 1614.108(f). Complainant requested a hearing but later withdrew the request. The Agency issued its final decision concluding that it asserted legitimate, nondiscriminatory reasons for its actions, which Complainant failed to rebut. Complainant indicated that he had severe attention deficit disorder which was diagnosed in 2011. S1 and S2 stated that they were not aware of Complainant’s disability or his prior EEO activity at the time of the alleged incidents. Regarding claim 1, S1, a Supervisory Credit Union Examiner, stated that he gave a $100 monetary award to seven examiners who presented a credit union case to both regional management and their examiner group member during the May 2019 group meeting. 2 In the instant complaint, Complainant also alleged that on September 27, 2017, and on April 23, 2018, S1 denied his request to have his performance review delivered and discussed by another individual. The Agency dismissed the claim as untimely pursuant to 29 C.F.R. §1614.107(a)(2). The Agency noted that Complainant filed prior EEO complaints and had training which informed him of the requisite time limits in the EEO process. Complainant contacted an EEO Counselor regarding the instant complaint on June 13, 2019, but he did not raise the subject claim to the EEO Counselor. On appeal, Complainant does not provide adequate justification to warrant an extension of the requisite time limit for contacting an EEO Counselor. Upon review, we find the Agency’s dismissal of this claim to be proper. Furthermore, we find this claim is also properly dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1) since Complainant has not shown he was aggrieved. 2022000278 3 Two other examiners, including Complainant, did not present a case to regional management and their examiner group and thus, they did not receive an award. S1 indicated that Complainant was scheduled to present a case on August 21, 2019, but he took annual leave on that day. Regarding claim 2, S1 indicated that he issued Complainant a letter of counseling dated May 6, 2019, for his failure to comply with Agency’s Time Management System (TMS) and HRLinks (a payroll technology program software) and for his failure to complete his itinerary. The Agency required its employees, including Complainant, to report their time and upload information regarding hours worked into two systems, TMS and HRLinks. The letter of counseling reveals that on numerous occasions in January - May 2019, Complainant was late in entering his time and attendance into TMS and HRLinks, and he also failed to complete his itinerary, including his approximate start and end times each day of the week. Regarding claim 3, S2, Associate Regional Director of Programs, indicated that she did not approve Complainant’s request to attend the training because Complainant was not required to take the subject training; rather it was a required course for Grade 12 Bank Secrecy Act Subject Matter Examiners and Complainant was not a Grade 12 Bank Secrecy Act Subject Matter Examiner. S2 noted that it cost the Agency $1,540.00 per each employee to enroll in the training. Regarding claim 4, the record indicates that in an email, dated August 16, 2019, S1 approved Complainant’s requested leave from August 19 - 30, 2019. Complainant took the leave. Regarding claim 5, S1 stated that Complainant received a rating of Fully Successful (highest to lowest: Exceptional, Highly Successful, Fully Successful, Minimally Successful, and Unsatisfactory) for Fiscal Year (FY) 2019 for the period from October 1, 2018, to September 30, 2019. Complainant’s performance appraisal reveals that his performance was rated based on six critical elements wherein which he was rated Meets (highest to lowest, Exceeds, Meets, Minimally Meets, and Does Not Meet) for critical element 1 - district management, supervision, and problem resolution; Exceeds for critical element 2 - job related knowledge and skills; Meets for critical element 3 - written communication; Meets for critical element 4 - oral communication; Minimally Meets for critical element 5 - planning and organization; and Meets for critical element 6 - customer service and teamwork. Specifically, regarding critical element 1, S1 commented that Complainant demonstrated satisfactory district management; he determined appropriate scope and prioritized areas to be reviewed during an examination or supervision contact; and his examination report included good rational to support the conclusions. For critical element 2, S1 commented that Complainant demonstrated advanced knowledge and a penchant for research; and he successfully completed his assignments examining several federal credit unions. For critical element 3, S1 commented that Complainant’s written work was good; and he generally prepared examination reports that appropriately convey and support the examiner’s conclusion which required some edits. For critical element 4, S1 commented that Complainant consistently conducted effective meetings that led to problem resolution. 2022000278 4 For critical element 5, S1 commented that Complainant needed improvement in this area; he failed to meet the deadlines on several federal credit unions examination reports; and he did not keep S1 informed of noteworthy issues. For critical element 6, S1 commented that Complainant consistently provided appropriate guidance and advice to national and federal credit unions; and he consistently worked effectively in collaboration with other staff. Regarding claims 6 and 7, the record indicates that on September 23, 2019, S1 issued Complainant a proposed suspension for five calendar days for failure to follow procedures relating to his TMS reports, failure to respond to requests for information, and making an inappropriate response to a request for information. Therein, S1 cited nine specifications regarding Complainant’s failure to report his time and leave in TMS/HRLinks in April - August 2019, and four specifications for his failure to respond to S1’s request to make necessary corrections to his TMS/HRLinks. S1 also stated that on July 3, 2019, he inquired about a status of Complainant’s assignment on the Greater Metro Federal Credit Union examination report since he did not submit a revised draft report. In response, Complainant replied, “Please ask for extension. At the moment, doing other things that benefit society.” S1 found Complainant’s response did not provide the status of his draft and was unacceptable. S1 indicated that in issuing the suspension, a form of progressive discipline, he considered Complainant’s prior failure to comply with required procedures and deadlines on many occasions. S1 noted that Complainant was issued a letter of reprimand dated January 16, 2019, for failure to follow Agency policy in connection with the performance appraisal process; he was given many discussions throughout the year related to his failure to follow work-related policies; and he was issued a counseling memorandum dated May 6, 2019, for failure to follow TMS policies. On October 28, 2019, S2 issued a decision on the proposal and Complainant was suspended on December 6 - 10, 2019. Based on the foregoing, the Agency issued its final decision finding that Complainant was not discriminated against as alleged. Complainant appeals from the Agency’s decision. On appeal, Complainant, reiterating his allegations, raised new matters that are not at issue.3 ANALYSIS AND FINDINGS 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 (EEO MD-110), 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, 3 On appeal, Complainant raises new matters for the first time, i.e., his subsequent removal on April 2, 2021, and his being denied a reasonable accommodation based on his disability. Complainant is advised to contact an EEO Counselor if he wishes to pursue those matters in accordance with 29 C.F.R. § 1614.105. 2022000278 5 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"). 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 Complainant 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). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. In the instant case, Complainant has not claimed that he was denied a reasonable accommodation for his disability. 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 actions. The record reflects that Complainant did not receive an on-the-spot award because he did not present a credit union case to regional management and an examiner group. Complainant was issued a letter of counseling dated May 6, 2019, because he failed to report his time and his itinerary and upload information regarding hours he worked and/or his leave in TMS and HRLinks. 2022000278 6 Complainant was denied the Bank Secrecy Act training because it was not a required course for his position. Further, Complainant was actually approved for his annual leave request from August 19 - 30, 2019. Regarding his FY 2019 performance rating, Complainant received a rating of Fully Successful based on his ratings in five critical elements of his performance standards. Complainant has not shown that the rating was based on pretext or was motivated by discrimination or retaliation. Complainant was issued a five-day suspension from December 6 - 10, 2019, for failing to report his time and leave in TMS/HRLinks in a timely manner, failing to respond to requests for corrections in his TMS/HRLinks, and making an inappropriate response to S1’s inquiry relating to work-related information. In issuing the suspension, S1 considered Complainant’s prior letter of reprimand and counseling memorandum concerning his failure to follow work-related policies which he failed to comply with as directed. The Commission has held that agencies generally have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997); Shapiro v. Soc. Sec. Admn., EEOC Request No. 05960403 (Dec. 6, 1996). Although Complainant disagreed with the severity of the assessed discipline, we note that the Commission cannot stand as a “super-personnel” department. See Janel B. v. Soc. Sec. Admn., EEOC Appeal No. 2019000126 (Aug. 12, 2020). Upon review, we find that Complainant failed to establish that he was subjected to discrimination as alleged. 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. We find that Complainant failed to show that any of the actions 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. Considering all the events, we find that Complainant failed to show that his harassment claim, which he raised for the first time on appeal, was related to any protected basis of discrimination. Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant has failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2022000278 7 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). 2022000278 8 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 February 15, 2023 Date