U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Markus C.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021004861 Agency No. HS-FEMA-00887-2020 DECISION On September 2, 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 June 4, 2021, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Program Analyst, GS-15 at the Agency’s Mission Support, Executive Office, Headquarters in Washington, DC. Report of Investigation (ROI) at 43 and 190. Complainant was a 63-year old African American. Complainant had engaged in prior EEO activity when he allegedly opposed discrimination. ROI at 190. The Chief of Operation was Complainant’s first-level supervisor (Supervisor 1). ROI at 254-65. The Mission Support Chief of Staff was Complainant’s second-level supervisor (Supervisor 2). ROI at 267-79. 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. 2 2021005003 On March 4, 2020, Supervisor 1, the rating official, rated Complainant’s performance as “Unacceptable” for fiscal year (FY) 2019. According to Supervisor 1, Complainant was rated “Unacceptable” because of his performance in the three Core Competency areas of 1) Technical Proficiency; 2) Assigning, Monitoring and Evaluating Work; and 3) Leadership. Supervisor 1 explained that when a Core Competency is rated Unacceptable, the entire rating is Unacceptable. Supervisor 1 asserted that of the Core Competencies, Supervisor 1 felt that Complainant struggled the most in Assigning, Monitoring and Evaluating Work. Complainant met with Supervisor 1 and Supervisor 2 regarding his performance rating. Supervisor 2 gave Complainant an opportunity to provide examples of his leadership. ROI at 255-56. Supervisor 1 asserted that Complainant’s response to Supervisor 2’s questions during the meeting was “I come to work every day, I dress professionally.” ROI at 256. According to Supervisor 2, the reviewing official, she concurred with Supervisor 1’s assessment of Complainant’s performance. Supervisor 2 stated that she had observed Complainant’s performance for herself, adding that “[Complainant’s] performance in Assigning, Monitoring and Evaluating work was his most prominent competency in which he was failing.” ROI at 268-69. Supervisor 2 cited to examples of Complainant’s performance, from a meeting with Complainant and Supervisor 1, regarding the matter. In particular, Supervisor 2 explained, Complainant had complained that Supervisor 1 did not support Complainant’s performance ratings for his own subordinate employees. ROI at 269. According to Supervisor 2, she reviewed the performance documentations of employees [Complainant] was talking about and found that at least 2 employees had not accomplished nearly what their performance plans prescribed they must do to get a rating of Achieved Expectations. Supervisor 2 also stated that in one case, the employee had not completed any of the requirements, but [Complainant] had recommended they receive “Achieved Excellence” ratings for those performance goals. Supervisor 2 added that [Complainant] had an employee with a performance goal but he had never assigned any work for the goal. That employee, Supervisor 2 explained, would have been Unacceptable due to [Complainant’s] failure to assign work. Id. Complainant filed an administrative appeal. According to Supervisor 2, Complainant stated during the appeal process that Supervisor 2 learned that Supervisor 1 had notified Complainant of his performance issues, verbally and in email, but did not follow agency procedure by documenting those performance issues in the agency’s “electronic performance system”; therefore, Complainant successfully appealed his rating. On May 11, 2020, management changed Complainant’s performance rating to 3 out of 5 (Achieved Expectations). ROI at 192-94, 269, and 363. Supervisor 2 also rated Supervisor 1 [Caucasian, Year of Birth (YOB): 1962], no prior EEO activity]) as “Unacceptable” for the same reasons as Supervisor 1 had rated Complainant. Supervisor 1 acknowledged that, for her FY 2019 performance, “I was rated Unacceptable for the Assigning, Monitoring, and Evaluation Core Competency,” stating that it “seemed that since [Complainant] was rated Unacceptable and I was responsible for [Complainant], therefore I was also Unacceptable.” ROI at 257. 3 2021005003 Complainant identified another employee (Comparator A), (Caucasian, YOB:1974, prior EEO activity unknown). Complainant argued that he was treated less favorably than Comparator A regarding his FY 2019 performance rating. While Comparator A served temporarily in acting positions held by GS-15 employees, Comparator A was a GS-14 employee. ROI at 191 and 302. During a reorganization meeting in 2018, Supervisor 1 indicated her desire to reduce the number of GS-15 employees. ROI at 201-02. According to Complainant, Supervisor 1 had pointed her finger directly at him and stated that she was especially talking to him regarding the matters being discussed that they “should not leave the room.” Id. Complainant stated that after the meeting, Supervisor 1 “approached me to apologize.” Id. According to Complainant, in that conversation, he told Supervisor 1 that he was “being treated differently and being harassed,” however, Complainant did not indicate that he had informed Supervisor 1 that her actions were based on his protected classes. Id. Complainant was not invited to attend a July 17-18, 2018 meeting for all Mission Support senior leaders to discuss strategy, although his team had set up the meeting. ROI at 203-04. According to Complainant, Supervisor 1 told him, “You do not need to attend.” ROI at 203. Complainant asserted that Supervisor 1’s action was an example of “subtle racism,” and that “[Supervisor 1] targeted me for intense and discriminatory actions to undermine my authority with my staff, harm my professional reputation, and try to force me to retire or to fire me.” Id. Complainant stated that during the November/December 2019 timeframe, Supervisor 1 intended to have Comparator A serve in an acting position in Supervisor 1’s absence, instead of Complainant. According to Complainant, “I told [Supervisor 1] that it was not correct office protocol or procedure for [Comparator A] to be named Acting Chief of Operations.” ROI at 196- 97. Complainant stated that Supervisor 2 acknowledged the incident, named Complainant as Acting Chief of Operations, and indicated that it would not happen again. Id. On November 21, 2019, Complainant took a telework day as part of a new telework schedule that had been approved for the office. According to Complainant, Supervisor 1 berated him in an e- mail, stating that Complainant was not following the telework policy. When Complainant pointed out her error by demonstrating to her that he was following the telework policy, and that she had approved the telework schedule, Supervisor 1 apologized. ROI at 198. According to Complainant, in the fall of 2019, after Supervisors 1 and 2 became the new leadership team, “a meeting was held and a decision was announced that my team would move from the front of the office space to mid-to-back of the office.” ROI at 199-200. Complainant stated that he disagreed with management’s “better workflow” reasons, because it was more convenient for the team, which dealt with administrative issues (equipment purchases, meeting schedules, etc.), to work with customers at the front of the office. Id. Complainant also stated that office customers “asked why we were moved to ‘the back of the bus.’” Id. According to Complainant, “All the staff that I supervised at that time were African American,” and when “Supervisor 1 heard this comment and became angry,” Supervisor 1 told Complainant, “your people are causing this 4 2021005003 dissension,” which meant Supervisor 1 was “basically accus[ing] me of creating the dissension.” ROI at 199. Complainant initiated EEO contact on February 7, 2020. On April 22, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to harassment on the bases of race (African-American), age (63, YOB: 1956), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On an unspecified date in 2018, Supervisor 1 did not invite Complainant to a Senior Leadership Mission Support meeting, held on July 17-18, 2018; 2. On an unspecified date in 2018, Supervisor 1 singled out Complainant in a meeting with other Unit Leaders; 3. In the fall of 2019, Supervisor 1 accused Complainant of causing dissension in the office; 4. On or about November 21, 2019, Supervisor 1 accused Complainant of not following the agency’s telework policy; 5. In November and December 2019, Supervisor 1 denied him the opportunity to serve in an acting capacity for her, in her absence, when Supervisor 1 assigned a junior, GS-14, employee to serve in an acting capacity over Complainant; and 6. On March 4, 2020, Complainant was issued an unacceptable performance rating. The Agency conducted an investigation into the complaint. 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). In accordance with Complainant’s request, on June 4, 2021, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In the FAD, the Agency analyzed Complainant’s disparate treatment claims in claim 6 under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Citing to management’s explanations regarding the claim, the Agency determined that management articulated legitimate, nondiscriminatory reasons for issuing Complainant an unacceptable performance rating. Complainant provided a rebuttal statement, arguing that Supervisor 1 did not notify him or give him an opportunity to improve his performance. He also argued generally that Supervisors 1 and 2’s statements about his “poor performance” were a “mere pretext” for discrimination. ROI at 247-52. 5 2021005003 The Agency observed that Complainant did not address management’s examples about his performance. The Agency noted management’s acknowledgement that its initial “Unacceptable” rating of Complainant’s performance, although warranted, was not properly processed procedurally; and that management changed Complainant’s rating to “Achieved Expectations.” The Agency determined that Complainant failed to demonstrate pretext, finding that based on the record, Complainant had not shown that management’s actions were discriminatory. The Agency also analyzed Complainant’s six claims under the legal standard for harassment and ultimately found that Complainant failed to prove that the Agency subjected him to an unlawful, discriminatory, hostile work environment. Regarding claim 1, Supervisor 1 asserted that she was not in charge of the invite list, and the topic of the meeting was not specifically aligned to Complainant or his team. According to Supervisor 1, had Complainant mentioned to Supervisor 1 that he had not been invited prior to the meeting, Supervisor 1 might have been able to address the issue. ROI at 261. Regarding claim 2, Supervisor 1 denied pointing at Complainant or singling him out, but acknowledged telling all of the meeting attendees, including Complainant, that the information she was sharing with them should not leave the room because the plan was that as vacancies occurred, lower-graded employees would be hired. ROI at 261. Supervisor 1 also asserted that Complainant did not tell her this was harassment. Id. Regarding claim 3, Supervisor 1 stated that she proposed a new seating assignment for her employees, which gave her a better view of her team. Complainant and his subordinates were “upset about the move.” ROI at 260. According to Supervisor 1, she met with Complainant to discuss his team’s concerns about the move, adding that she had informed Complainant that she heard that she was being accused of moving his team to the “back of the bus.” Id. Complainant had informed Supervisor 1 that office customers outside of Mission Support made the comment. Id. Supervisor 1 instructed Complainant to “shut down the garbage talk,” because Complainant did not defend the office against such a disparaging comment. Supervisor 1 did not recall making Complainant’s alleged statements that “your people,” but stated that, if she did, she meant Complainant’s “team.” Id. Regarding claim 4, Supervisor 1 acknowledged that she did question Complainant’s telework day because she was concerned about who was on-site covering the office. ROI at 259. According to Supervisor 1, Complainant informed her that “he was following the telework agreement even though [she] hadn’t signed it.” Id. Supervisor 1 acknowledged that she apologized to Complainant once he pointed that out to her. She asserted that this was simply a misunderstanding. ROI at 259- 60. Regarding claim 5, Supervisor 1 asserted that she did name Comparator A to act in her absence because Complainant was “struggling with his own performance and his team’s performance.” ROI at 258-59. According to Supervisor 1, she was not aware of any requirement that a GS-14 could not supervise a GS-15, in a short acting role; however, Supervisor 2 pointed out to Supervisor 6 2021005003 1 that it was inappropriate for Comparator A to be acting. Therefore, Supervisor 1 changed to have Complainant act for her. ROI at 258. Supervisor 2 provided supporting statements. ROI at 271 and 275-76. Complainant filed the instant appeal. He also sent via e-mail an after-the-fact request for an extension of time to file the appeal. According to Complainant, although the agency issued the FAD on June 10, 2021, it was sent to what had been his work email address, which was no longer active. Complainant indicated that he only received the FAD on August 31, 2021, after having made contact with the agency’s EEO Office. In the interest of fairness, we exercise our discretion to determine that Complainant’s appeal is timely. We also note that neither Complainant nor the Agency submitted an appeal statement. ANALYSIS AND FINDINGS 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, he or she 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. Texas Dep’t. of Cmty. 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 acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., 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). Complainant did not contest management’s explanation for the alleged actions in claims 1 through 5. Nor did he present evidence that management’s actions were based on his protected classes. Despite being given an opportunity to do so Complainant offered no rebuttal to management’s explanations regarding claims 1-5 in the manner he did for claim 6. ROI at 247-53. In his affidavit, Complainant made general allegations of discrimination that failed to demonstrate that his protected categories were factors in management’s actions. 7 2021005003 Having reviewed the record, we further find that Complainant did not establish that the Agency subjected him to disparate treatment in claim 6 or his reprisal allegations in that claim. The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and to otherwise manage the workplace. Erika H. v. Dep’t of Transp., EEOC Appeal No. 0120151781 (Jun. 16, 2017). We find that many of the allegations stated in Complainant’s complaint fall within these types of management prerogatives, and Complainant has not shown how he was treated differently than others who were similarly situated and outside of his protected classes. In the same vein, we find that Complainant did not establish that the Agency subjected him to harassment with respect to claim 6 because his allegations were insufficiently severe or persuasive to rise to the level of a hostile work environment given the Agency articulated legitimate, nondiscriminatory reasons for the alleged actions in that claim. See Doe v. U.S. Postal Service, EEOC Appeal No. 0120130491 (Dec. 18, 2014) citing Oakley v. U.S. Postal Serv., EEOC Appeal No. 01932923 (Sep. 21, 2000) (A finding of hostile work environment is precluded where the complainant fails to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus). Nor do we find discriminatory harassment with respect to Complainant’s remaining harassment allegations in claims 1 through 5. We note that the Commission has posited that for a hostile work environment claim to be actionable, the conduct must be more than merely offensive, it must exceed “casual comments, rude or derogatory remarks, and conduct motivated by personal animosity or personal feud” and the conduct must materially change the terms and conditions of employment and be more than an inconvenience or a change in job responsibility. Sealey v. Affiliated Computer Servs., Inc., No. 11-cv-489, 2012, W.D.N.Y. (Mar. 6, 2012). As we see no independent basis for finding in favor of Complainant, we AFFIRM the Agency’s final 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 8 2021005003 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” 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 9 2021005003 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 27, 2023 Date