[Redacted], Jesse R., 1 Complainant,v.Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency.

Equal Employment Opportunity Commission

Mar 21, 2022

Appeal No. 2021003184 (E.E.O.C. Mar. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jesse R.,1 Complainant, v. Pete Buttigieg, Secretary, Department of Transportation (Federal Highway Administration), Agency. Appeal No. 2021003184 Hearing No. 570-2020-00251X Agency No. 2018-28199-FHWA-02 DECISION On May 7, 2021, 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 February 26, 2021, final action 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Analyst, GS-12, for the Agency’s Federal Highway Administration, Office of Chief Counsel at its Headquarters in Washington, D.C. On December 14, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (sexual orientation) and disability (physical) 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. 2021003184 2 1. On May 11 and 16, 2018, Complainant’s supervisor, the Assistant Chief Counsel (ACC) held meetings to discuss rebalancing work and denied work-related suggestions from Complainant; 2. On January 18, 2018 and July 26, 2018, the ACC remarked about Complainant’s personal travel and made a comment about “big life events” that led to a desire to “catch up on lost time;” 3. On July 25, 2018, Complainant’s concerns to the ACC about stress at the workplace did not receive adequate attention and the ACC compared Complainant’s professional issues to those of her kids when they were sick; 4. Beginning on August 6, 2018, the ACC required Complainant to maintain a “time-tracker” to determine how his time was divided between program areas and divisions; 5. On September 26, 2018, Complainant was denied a career ladder promotion from the position of Program Analyst (GS-12) to the position of Program Analyst (GS-13) grade level and his employment status was not converted from conditional to permanent; 6. On October 17, 2018 and October 30, 2018, the ACC held “substantive feedback” and “performance discussion” meetings with Complainant.2 Complainant began his employment with the Agency in August 2015. See Report of Investigation (ROI) at 691. According to Complainant, in his cover letter he mentioned his cancer diagnosis and further explained in his interview that, due to his cancer, he was unable to speak loudly. See ROI at 170-71. Complainant also stated that he has a gastric issue for which he eventually requested, and was granted, a reasonable accommodation in 2019.3 See ROI at 183, 626-32. Complainant also asserted that the Agency became aware of his sexual orientation from his resume, which cited his work for Human Rights Campaign and his accomplishment of being the Sexual Orientation and the Law Moot Court Competition champion. See ROI at 170- 71. 2 In Bostock v. Clayton County, the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 3 Complainant’s reasonable accommodation is not at issue in this case. 2021003184 3 Regarding claim 1, Complainant explained that although he did not attend the May 11, 2016 meeting, he was at the May 16, 2016 meeting and expressed his desire for a fair division of his workload. Specifically, he sought more work in the Legislation and Regulations Division as reflected in his performance plans. See ROI at 171. His request for a fair workload was denied, and Complainant believed that the meetings were a precursor to the harassment he later endured from the ACC and the Freedom of Information Act (FOIA) Team Lead (TL), which included tracking his time, making false accusations, and maligning his character. See ROI at 171-74. Complainant stated that on January 18, 2018, the ACC mentioned his personal travel on the weekends in connection with his performance evaluations, suggesting that his weekend activities could affect his performance (claim 2). See ROI at 176-77. Complainant asserted that he felt this was an offensive reference because “‘partying’ is commonly attributed to a ‘gay lifestyle.’” See ROI at 177. As for claim 3, Complainant asserted that the ACC did not listen to his explanation about the cause of an error that had been incorrectly attributed to him, and stated that she “deals with this sort of thing all the time with [her] kids when they are out sick from school and have work to make up.” See ROI at 180. Complainant felt the remark was insulting and offensive because he is not a child and his cancer should not be diminished to a childhood illness. See id. Complainant stated that, beginning on August 6, 2018, the ACC required him to maintain a “time-tracker,” in order to determine how his time was being used and what work was and was not being done (claim 4). See ROI at 183. Complainant felt “singled out” and “overwhelmed” because the extra work was burdensome. See ROI at 185. He also asserted that it was unfair because his duties and his gastric issues, which he had not shared with the ACC because it was personal and embarrassing, often required him to be away from his desk. See ROI at 183-84. With respect to claim 5, Complainant stated that he became eligible for a promotion to the GS-13 grade level in September 2018 and believed he should have been promoted due to his outstanding performance. See ROI at 187. In claim 6, the ACC held meetings with Complainant to discuss her lack of confidence in his ability to produce work at the next grade level. However, contends Complainant, the ACC did not point out any specific errors or substantive issues. See ROI at 188-89. Additionally, Complainant took issue with the ACC’s questioning of his performance, because it was not raised in his annual performance review. See ROI at 189. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s February 17, 2021, motion for a decision without a hearing. On February 26, 2021, the AJ issued a decision without a hearing. 2021003184 4 The AJ found that Complainant had not established that any additional discovery would lead to relevant evidence nor did he present any evidence of discriminatory intent on the part of the Agency. Therefore, the AJ concluded that Complainant had not established that he was subjected to either disparate treatment or a hostile work environment as alleged. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL Complainant did not make any arguments on appeal. The Agency filed a response, arguing that the AJ properly issued summary judgment in its favor and the AJ’s decision should be affirmed. 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 decision without a hearing, 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 first determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 2021003184 5 In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the instant record and find that it is adequately developed. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not made any arguments to indicate that issues of material fact are in dispute. Therefore, we find that the AJ’s issuance of a decision without a hearing was appropriate. Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 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. Bd. 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 Services, EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). With respect to claims 2 and 3, the ACC questioning Complainant about his personal travel and comparing his issues to her children, we find that Complainant did not establish a prima facie case. See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sep. 7, 2007). 2021003184 6 Complainant did not allege that he suffered any adverse employment action as a result of these remarks and his subjective assertion, that he found the comments to be offensive, does not establish an adverse employment action. For each of the remaining claims, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. As for claim 1, regarding Complainant’s workload, the ACC stated that, while she did not specifically recall the meetings in question, she did have many conversations with her division staff regarding the heavy workload the office was experiencing due to position vacancies and the ability of her employees to manage their assignments. See ROI at 492. The FOIA TL further explained that Complainant’s position description included FOIA work and it was her duty, as the team lead, to delegate some FOIA responsibilities to Complainant. See ROI at 877. Regarding claim 4, the requirement to maintain a “time-tracker,” the ACC explained that at the time Complainant’s workload was heavy and varied, requiring him to work in different areas as needed, which meant she did not supervised Complainant’s work assignments directly. See ROI at 517-18. Therefore, ACC did not know the specifics of his projects. See Id. Because there were two Legal Assistant vacancies, noted ACC, Complainant was also required to perform more administrative duties. See ROI at 518. She asserted that the time-tracker was intended to help Complainant, and those who assigned Complainant work, to adjust and prioritize his workload to ensure that he spent roughly the same percentage of time on each practice area as reflected in his performance plan. See ROI at 518-19. With respect to Claim 5, the failure to promote Complainant to the GS-13 grade level and make his position permanent, the ACC explained that such decisions are usually made by supervisors. See ROI at 522. According to ACC, Complainant’s work at the GS-12 level contained too many errors. See ROI at 523. Moreover, Complainant displayed a lack of attention to detail and an inability to multi-task and stay organized. Id. The FOIA TL, who was responsible for assigning some of Complainant’s work, also asserted that Complainant failed to perform his work in a timely and professional manner. See ROI at 878. The ACC explained that she did not approve making Complainant’s position permanent due to the issues with Complainant’s performance and concerns with his attendance. See ROI at 529-30. In particular, she noted that, on more than one occasion, Complainant had been absent without providing advance notice and had exhibited a pattern of tardiness. See ROI at 500-502. On July 6 and 25, 2018, stated the ACC, Complainant arrived to work several hours late, missing an important FOIA meeting as well as his own performance appraisal meeting. See id. She further explained that there were multiple instances of Complainant not being in the office when he should have been, taking extended lunch breaks, and leaving prior to the end of his scheduled time. See ROI at 531. According to the ACC, Complainant submitted erroneous timecard data so that he was still paid for the time he was not in the office. See ROI at 531. When asked about these issues, ACC stated Complainant was not forthcoming and “seemed to feel entitled to make his own flexibilities without [her] approval, input or knowledge.” See id. 2021003184 7 As for the meetings about Complainant’s performance, claim 6, the ACC stated they were held at Complainant’s request, in order to discuss his promotion. See ROI at 526. At the meetings, ACC asserted that she informed Complainant that the decision-making processes for promotion and for performance required different time frames and analysis. See ROI at 526. Moreover, ACC said she clarified that Complainant’s work did not reflect the level of analysis and substantive expertise that she would like to see for the GS-13 level. See ROI at 526-28. She gave him a list of her specific concerns and what Complainant could do in the future to qualify for the promotion. See id. We find that Complainant has failed to establish that any of the Agency’s legitimate, nondiscriminatory reasons were a pretext for discrimination. Complainant did not provide any evidence to support his assertions of pretext, instead simply arguing that the ACC’s comments, which he took to be references to his disability or his sexual orientation, are proof of discriminatory intent. It is not clear that the comments about Complainant’s weekend activities or the reference to the ACC’s children have any connection to either of Complainant’s protected classes. In addition, the record indicates that they were said in the context of legitimate inquiries into Complainant’s performance and work schedule. We further emphasize that Complainant does not deny the instances of tardiness or the frequent absences from his desk. To the extent Complainant appears to argue that his attendance issues were due to his gastric condition, we note that Complainant did not inform the Agency of his condition at the time nor did he explain how his tardiness was connected to his condition. Moreover, with regard to denying Complainant’s promotion and making his position permanent, the Commission has long held that an Agency has broad discretion to carry out personnel decisions and should not be second- guessed absent evidence of unlawful motivation. See Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). There is no evidence in the record to support Complainant’s assertion that the Agency’s actions were due to any of his protected bases. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore affirm the Agency’s final action finding that Complainant did not establish that he was subjected to disparate treatment. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of 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 the 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 employer. See Henson v. City of Dundee, 682 2021003184 8 F.2d 897 (11th Cir. 1982); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). Here, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record indicates that the incidents Complainant characterizes as evidence of harassment involve routine work assignments, instructions, and admonishments, which are neither severe nor pervasive enough to alter a term or condition of employment. See Eckenrode v. U.S. Postal Serv., EEOC Appeal No. 0120113930 (Nov. 6, 2012); Quinones v. Dep’t. of Homeland Sec., EEOC Appeal No. 01A53109 (Mar. 31, 2006). 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 action finding that Complainant did not establish that he was subjected to discrimination or a hostile work environment 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. 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 2021003184 9 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. 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. 2021003184 10 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 March 21, 2022 Date