[Redacted], Lyle P., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Aug 8, 2022

Appeal No. 2021001672 (E.E.O.C. Aug. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyle P.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2021001672 Agency No. DEA-2019-00768 DECISION On December 19, 2020, 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 November 24, 2020 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Diversion Investigator, GS-13, at the Agency’s San Francisco Field Division in Sacramento, California. On August 23, 3019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of his race (African American) when: 1. Complainant’s supervisor (S1) denied him opportunities to serve as the Acting Group Supervisor. 2. S1 communicated poorly with Complainant. 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. 2021001672 2 3. S1 subjected Complainant to excessive and unfair scrutiny. 4. S1 gave Complainant lower annual and mid-year performance evaluations. 5. S1 made inappropriate offensive racial comments. 6. Other employees engaged in racially offensive conduct such as posting a sign with a picture of Abraham Lincoln and the words “abolish sleevery” in a place visible to anyone walking into the Diversion Group workspace. 7. On October 25, 2019, Complainant received an overall rating of “Successful” on his annual performance evaluation for the rating period October 1, 2018 to September 30, 2019. 8. On November 4, 2019 S1 informed Complainant that she was taking a case away that he had initiated on January 9, 2018 and reassigning it to a less experienced Diversion Investigator. The Agency accepted the complaint and conducted an investigation which produced the following pertinent facts. Complainant began his employment with the Agency in August 2005. He testified that he was the Acting Group Supervisor for five months prior to S1’s arrival in the Sacramento District Office. Complainant described that he worked without incident prior to S1’s arrival and received “recurring acknowledgement of his dedicated work through annual evaluations, leave and cash awards.” However, when S1 arrived in March 2017 and assumed her role as the Diversion Group Supervisor GS-14, she subjected him to a hostile work environment. Complainant testified that among other things, S1 denied him opportunities to serve as the Acting Group Supervisor, scrutinized his work excessively, and gave him unfounded negative remarks on his annual evaluations - disrupting his impeccable 14-year record. Complainant stated that S1’s leadership led him to “stay quiet and to himself throughout the workday, unless his voice or experience is needed or requested on a matter.” Claim 1 With claim 1, Complainant alleged that S1 denied him opportunities to serve as the Acting Group Supervisor. Complainant contended that S1 departed from historical practices where the most senior staff member onsite would stand in and serve as Acting Group Supervisor during the Diversion Group Supervisor’s absence from the office. Complainant pointed to at least five occasions in 2018 where S1 appointed his coworker (CW1) (White and Hispanic) as the Acting Group Supervisor during her absence instead of appointing Complainant, who was the most senior staff member. 2021001672 3 In response, S1 (Hispanic) stated that although Complainant was the Acting Group Supervisor prior to her arrival, she changed the practice of selecting the most senior Diversion Investigator during her absence because Complainant did not follow guidelines during his tenure. For example, S1 asserted that during Complainant’s tenure investigations were done on the wrong site and evidence was not processed in accordance with Agency regulations. In addition, S1 stated that she counseled Complainant on leave abuse following two incidents. The first incident occurred in December 2017 when Complainant left the office to assist another investigator without telling S1. The second incident occurred in January 2018, when Complainant submitted a leave request but did not have any leave. S2 (Caucasian), the Diversion Program Manager and Complainant’s second-line supervisor, testified that Complainant was the Acting Group Supervisor for four months prior to S1’s arrival, and during that time he gave Complainant an on-the-spot award. S2 indicated the that the decision to choose the Acting Group Supervisor was normally left to the Diversion Group Supervisor’s discretion and there was no formal policy. S2 stated that there was an occasion where S1 told him she was not comfortable leaving S1 as the Acting Group Supervisor, so in 2018 S1 primarily selected CW1 for the position. Claim 3 With claim 3, Complainant alleged that S1 deliberately lessened the workload of others in his group while continuing to increase his workload. In addition, Complainant alleged that S1 unfairly scrutinized his reports and sent his reports back to him for corrections multiple times. Complainant contends that there were several occasions where he requested clarification from S1 on the corrections she made to his reports and S1 would often respond with double-talk or a mixed message. S1 admitted that she returned Complainant’s reports for corrections, but she denied scrutinizing Complainant’s reports more closely. She testified that and she reviewed everyone’s work the same and had returned all her subordinates reports to them for correction. S1 stated that the two Diversion Investigators whose work she revised and returned the most was CW2 (African American) and CW3 (Asian). S2 testified that he had received several complaints from the Diversion Investigators staff about S1’s multiple corrections, so he met with S1 and asked her to come up with a template for the Diversion Investigators to use. S2 stated that S1 could not continue to have the Diversion Investigators correct their reports because the Agency needed them in the field conducting investigations. Claims 4 and 7 With respect to claims 4 and 7, Complainant testified that his annual and mid-year performance evaluations for fiscal year (FY) 2019 were lower than his FY2018 evaluations. Complainant 2021001672 4 received an overall rating of “outstanding” rating on his FY2018 evaluation. Complainant described that S1 had high praise for his work during FY2018. However, when he met with S1 and S2 on April 9, 2019, to discuss his mid-year evaluation for FY2019, S1 put forth negative comments. On June 21, 2019 Complainant met with S1 in her office to discuss his written response to her evaluation. Complainant described that S1 kept her office door open even though other investigators were present in the office and within hearing range. According to Complainant, S1 stated that she removed most of her comments after receiving S2’s input. Complainant relayed that he was caught off guard by such a negative mid-year evaluation when he had never been consulted about any of the performance issues that she brought up and had been away for 90 days serving as a counselor. Complainant said that S1 replied that she “had never thought about it like that.” Nonetheless, Complainant received an overall evaluation of “successful” for the FY2019 rating period. S1 explained that she issued Complainant a rating of “successful” for the FY2019 rating period because his work product declined. Specifically, S1 explained that Complainant had not progressed on two of his investigations and failed to adequately train new Diversion Investigators. S1 said that the new Diversion Investigators told her that Complainant seemed burned out and was not proactive in training them. S1 stated that she told Complainant about the issues in his mid-year review and gave him time to improve but he did not correct the issues. S1 indicated that she took Complainant’s 90-day absence on his detail into consideration. S2 described that it was later discovered that the two investigations that Complainant had made little to no progress on were due to issues that he experienced with another department. S2 stated that Complainant did not have access to pertinent information from the other department because the department had data analytics issues. S2 stated that Complainant never communicated the reason for the lack of progress. Claims 2, 5, and 6 Regarding claims 2, 5, and 6, Complainant contends that S1 created a toxic work environment with very little communication. Complainant believes that S1 does not have the same level of respect for him that she has for the non-African American Diversion Investigators, including CW1. He described that when S1 comes into the office she gets her coffee and sits at her desk in front of her TV. In order for them to have a dialogue, he is the one who usually goes into her office to bring something up, and when he does there is a 50/50 chance that she would give him her undivided attention. He described that she often was looking out of the window or her TV. In contrast, he described that S1 “always” talks with CW1. Complainant described that S1 keeps CW1 up to date with what is going on in the office and shares information with her, and the two of them often have whispering sessions in S1’s office. Complainant pointed out that CW2 (African American) had been under S1’s radar along with him and that she also filed an EEO claim. Complainant stated that he spoke to S2 about S1’s management style, including her being more engaged and consistent with her directives. 2021001672 5 In support of his belief that S1’s actions were racially motivated, Complainant referenced four incidents involving inappropriate comments or pictures. Complainant contends that shortly after becoming his supervisor, S1 issued him an assignment and stated “because [the assignment] had to do with jails, I assigned it to you.” This left Complainant wondering if S1 was referring to his race and incarceration. Complainant described that in the second incident, S1 came to his desk and told him that there was plenty of food and watermelon downstairs. Complainant testified that he was extremely offended by the jail comment and watermelon comment. In the third incident, Complainant stated that the Registration Program Specialist posted a picture of Abraham Lincoln on the rear of his computer with the words “Abolish Sleevery.” And in the fourth incident, Complainant described that there was a “wall of shame” where staff members had put up mug shots of celebrities who had been arrested. Complainant stated that the wall included a picture of Bill Cosby, as well as non-African American celebrities. Complainant described that the wall created an uncomfortable work environment, and that S1 never told staff to take the pictures down because he believed that S1 found the pictures humorous. S1 denied that she had made the jail comment and watermelon comment. She also testified that she was unfamiliar with the Abraham Lincoln post and wall of shame. S1 denied that she had treated Complainant differently based on his race. S2 testified that he had received complaints from other Diversion Investigators about S1’s communication style, so he spoke to S1 and assigned her a mentor. S2 stated that he told S1 that she could not manage her group sitting behind a desk, and that she needed to be more engaged. S2 stated that management moved CW2 to another team after she filed an EEO complaint against S1, and that CW2 was happy after the move. S2 stated that management was considering moving Complainant to another team and/or moving if S1 if she did not improve her management style. S2 acknowledged that there were communication problems between S1 and Complainant. However, he attributed the breakdown in communication to both parties. S2 stated that the tension was due to a combination of S1 being a new supervisor and Complainant failing to adapt to a supervisor with a different supervisory style that he was accustomed to. Claim 8 With Claim 8, Complainant alleged that on November 4, 2019, S1 informed him that she was taking a case away that he had initiated on January 9, 2018, and was reassigning it to a less experienced investigator. S2 confirmed that he asked S1 to reassign the case to a less experienced investigator in November 2019. However, S2 explained that the case was reassigned because it was an important national case and Complainant was making little progress on it. S2 stated that soon after, he found out that the reason Complainant was not progressing was because he did not have access to pertinent information from another department-due to that department’s own data analytic issues. S2 stated that Complainant never communicated the reason for the lack of progress, and that he asked S1 to reassign the case back to Complainant. 2021001672 6 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to race discrimination as alleged. The instant appeal from Complainant followed. 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, at Chapter 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: Claims 4 and 7 A claim of disparate treatment is examined under the three-part analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant has the responsibility to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-5 3; McDonnell Douglas, 411 U.S. at 804. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 2021001672 7 Here, management proffered legitimate, non-discriminatory reasons for its actions. With respect to claims 4 and 7, S1 stated that she issued Complainant a rating of “successful” for the FY2019 rating period because his work product declined. She noted specifically that Complainant was not progressing on his investigations and failed to adequately train new investigators. Because the Agency articulated a legitimate, nondiscriminatory reason for its actions, the burden shifts to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reason was a pretext 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). Here, Complainant has failed to rebut the Agency’s legitimate, non-discriminatory reasons and failed to carry his burden of establishing pretext. Therefore, we find that he has not demonstrated that the Agency discriminated against him on the basis of race with regard to his performance evaluations. Hostile Work Environment Harassment A fair reading of the remaining allegations in the complaint is that Complainant is alleging a claim of ongoing discriminatory hostile work environment harassment. 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 Complainant’s 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 - in this case, his race. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). With respect to claim 1, S1 stated that she changed the practice of selecting the most senior Diversion Investigator during her absence because prior to her arrival, Complainant allowed investigations to take place on the wrong site, and evidence was processed contrary to Agency regulations. With respect to claims 2, 5, and 6, S2 acknowledged that there were communication problems between S1 and Complainant. However, he attributed the breakdown in communication to both parties. S2 stated that the tension was due to a combination of S1 being a new supervisor and Complainant failing to adapt to a supervisor with a different supervisory style that he was accustomed to. Also, S1 denied that she unfamiliar with the Abraham Lincoln post, wall of shame, or that she made the jail comment or watermelon comment. With respect to claim 3, S1 testified that and she reviewed everyone’s work the same and the two Diversion Investigators whose work she returned the most was CW2 and CW3, not Complainant. With claim 8, S2 stated that he asked S1 to reassign a case to a less 2021001672 8 experienced investigator because it was an important national case and Complainant was making little progress on it for reasons that were unknown. Complainant has not shown that the S1’s explanations were a pretextual and that his race played any role in the incidents he proffered in support of his harassment claim. He did not provide evidence to successfully rebut S1’s contention that during his tenure as Acting Diversion Group Supervisor he allowed investigations to take place on the wrong site and evidence to be incorrectly processed. In addition, he has not shown that S1 reviewed his reports with more scrutiny. Although S2 corroborated Complainant’s allegation that S1 had poor communication skills, there is no indication from the record that her lack of communication was due to discriminatory animus. S2 had received complaints from other Diversion Investigators, of a number of different races, about S1’s communication style and attributed her poor communication to her being a new supervisor. Consequently, he assigned her a mentor and encouraged her to engage with her staff more and get out of her office. Notably, S2 also attributed some of the breakdown with communication between S1 and Complainant, to Complainant. S2 stated that Complainant had difficulty adapting to a supervisor with a different supervisory style that he was accustomed to. The image which emerges from considering the totality of the record is that there were conflicts and tensions with S1, a new supervisor, that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of their protected bases. Here, a finding of hostile work environment harassment in violation of Title VII is precluded by our determination that Complainant failed to adduce evidence that any of the disputed actions were motivated in any way by discriminatory animus towards his race. See Oakley v. USPS, EEOC Appeal 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record the Agency’s final decision 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: 2021001672 9 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). 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” 2021001672 10 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 August 08, 2022 Date