[Redacted], Kendall C., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity Commission

Dec 14, 2022

Appeal No. 2022004906 (E.E.O.C. Dec. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Kendall C.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce, Agency. Appeal No. 2022004906 Hearing No. 531-2021-00376X Agency No. 54-2021-00146 DECISION On September 15, 2022, 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 August 18, 2022, final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. During the relevant time, Complainant worked as a Property Manager, GS-14, at the Agency’s National Oceanic and Atmospheric Administration offices in Silver Spring, Maryland. Internal Controls Manager was his first level supervisor. Report of Investigation (ROI) at 194. Director was his second level supervisor. ROI at 202. On January 4, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of disability (physical and mental) 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. 2022004906 2 1. On August 27, 2020, he was issued a Memorandum of Caution and a Letter of Expectations which contained erroneous allegations and blamed him for an audit finding that was not his fault; 2. On or about November 24, 2020, he received his Performance Evaluation from Internal Controls Manager, which was not an accurate reflection of his actual performance; and 3. While in a mandatory telework status because of the COVID-19 pandemic, Internal Controls Manager has tried to micromanage his work assignments without providing clear guidance and instructions on how to complete these work assignments to her satisfaction. 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 July 15, 2022, motion for a decision without a hearing and issued a decision without a hearing on August 16, 2022. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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. 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 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the Agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. 2022004906 3 Upon careful review of the record, we find that the AJ’s decision accurately recounted the relevant material facts. The AJ also correctly identified the legal standard for Complainant to prove that he was subjected to disparate treatment. A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, they 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. 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. Tex. Dep’t of Cmty. Aff. 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 acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency provided legitimate, nondiscriminatory reasons for their actions. As to claim 1, Internal Controls Manager stated that several issues in 2020 resulted in Complainant being issued a Memorandum of Caution and a Letter of Expectation: (1) Complainant was not performing adequate oversight of his assigned properties in Alaska, resulting in an almost $5 million mistake that led to an audit finding; (2) Complainant was not collecting corrective action plans that he was required to collect to perform his duties; and (3) as addressed in the Letter of Expectation, Complainant demonstrated difficulties with customer service, which Internal Controls Manager reported were brought to her attention in January 2020. ROI at 195-198. As such, Internal Control Manager averred that she communicated with Labor Relations concerning Complainant’s employment concerns in July 2020 and issued Complainant the Memorandum of Caution and Letter of Expectation on August 27, 2020. ROI at 195. As to claim 2, Internal Controls Manager, as the rating official,noted that Complainant had deficiencies in each of the areas that he was rated. ROI at 198. In the area of Property management, which is 40% of Complainant’s evaluation, Internal Controls Manager noted the audit deficiency indicated above. ROI at 181, 198. For Customer service, worth 20% of Complainant’s evaluation, Internal Controls Manager enumerated three deficiencies, including lack of use of Google email and calendar platforms which led to missed meetings and led to Complainant being unable to provide proper oversight and customer service below that expected of a GS-14 on Real Property resolution request. ROI at 179, 198. In the third element of Expert Advisory Services, worth 20%, the narrative cited multiple instances in which other Agency employees, including Internal Controls Manager, performed tasks assigned to Complainant because Complainant did not complete them. ROI at 183, 198. Finally, Complainant was rated below expectations in the area of Capital Work in Progress, worth 20% of his rating, in which Complainant purportedly consistently did not provide sufficient time for the approving official to approve forms and required Internal Controls Manager to “[clean] up backlog and [instruct] [Complainant] to start a tracking sheet to ensure this issue did not happen again.” ROI at 185, 198-99. 2022004906 4 Director addressed Complainant’s argument that he had received higher performance ratings in past years, by stating that there was a “definite fall off in Complainant’s performance and effort” in fiscal year 2020. ROI at 126, 206. Finally, as to claim 3, Complainant has not demonstrated that Internal Controls Manager’s actions, as alleged, were directed solely at him, as opposed to expectations that she generally required of all employees. ROI at 200. Internal Controls Manager stated that, with regard to requesting corrective action plans by the 27th of each month, she set similar deadlines with her other employees. ROI at 200. She asserted that in regard to customer response, she and Director met with Complainant to try to “get him to articulate differently and improve his response time.” ROI at 200. Internal Controls Manager considered this a normal supervisory function and Director concurred that Internal Controls Manager did not request anything out of expected supervisory functions. ROI at 200, 208. We now turn to Complainant to provide evidence that the Agency’s actions were merely a pretext for unlawful discrimination. We find that he has failed to do so here. “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). We find that he has not. Rather, Complainant appears to rely upon a false syllogism: (1) I am disabled, (2) comments and actions at work occurred that I do not like, (3) therefore, this happened because I am disabled. See Crawford v. Medina Gen. Hosp., 96 F.3d 830, 836 (6th Cir. 1996). The opinion of Complainant in this case is not sufficient, without more, to find that the Agency acted upon discriminatory animus in any of the above claims. It is well-founded that EEOC regulations do not serve “as a vehicle for vindicating the petty slights suffered by the hypersensitive.” See Zabkowicz v. West Bend Co., 589 F. Supp. 780, 784 (E.D. Wis. 1984). Agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. Marvin W. v. Dep't of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). Rather, Complainant must prove, by a preponderance of the evidence, that the Agency’s articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. Burdine, 450 U.S. at 253; see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Hicks, 509 U.S. at 511; McDonnell Douglas, 411 U.S. at 804. A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. and Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). 2022004906 5 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. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). The record is devoid of such evidence in this case. As to Complainant’s allegations that he was subjected to a hostile work environment, the Commission finds that under the standards set forth in Harris v. Forklift Sys., Inc., 510 U.S. at 17 (1993), Complainant's claims must fail. See Enforcement Guidance on Harris v. Forklift Sys., Inc., EEOC Notice No. 915.002 (Mar. 3, 1994). Complainant's harassment claim is precluded based on our finding that he failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sept. 21, 2000). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against or subjected to harassment by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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). 2022004906 6 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. 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. 2022004906 7 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 14, 2022 Date