[Redacted], Verlie S., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

May 3, 2022

Appeal No. 2021004052 (E.E.O.C. May. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verlie S.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2021004052 Hearing No. 570-2020-00512X Agency No. FBI-2019-00022 DECISION On June 24, 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 May 25, 2021, final order concerning her 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Budget Analyst, GS- 14, at the Agency’s Facilities and Finance Division (FFD) in Washington, DC. Complainant had previously been on a one-year joint duty assignment (JDA) to another Agency from approximately 2016-2017, and a three-month temporary duty assignment (TDY) in the Strategic Management and Organizational Unit within FFD. Report of Investigation (ROI) at 93- 4 and 234-35. 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 2021004052 Based on feedback they received from Complainant’s TDY unit during her TDY, management determined that Complainant’s work did not achieve the anticipated results and she did not meet the expectation of the TDY. ROI at 152. Complainant was also performing at a “Minimally Successful” level for the FY 2018 evaluation period for her Budget Analyst position. Team Lead supervised Complainant and provided negative feedback of Complainant’s work. According to Team Lead, Complainant’s original product was lengthy, and the intent was not clear. Team Lead noted that on a recent presentation, many of Complainant’s the slides had too much information, did not transition from one point to another clearly, and contained information that could not be clarified or explained. ROI at 234. As such, management coordinated with a Human Resource Specialist (Specialist). As she typically did if an employee is underperforming, Specialist recommended that Complainant remain in her current assignment to try to improve her performance. Based on that recommendation, management decided Complainant should return to her original position. ROI at 132, 144, 153, 161-63, 171, 189-90, 226, 234-35, and 274. After collaborating with upper management, Complainant’s first-line Supervisor (Supervisor) implemented bi-weekly meetings to help Complainant succeed. According to Supervisor, she met with other employees as well, and those meetings were dependent on the needs of each employee. ROI at 124, 198, 219, and 282. Complainant allegedly complained that she did not receive enough counseling and had no chance to improve. Supervisor and Unit Chief suggested that Complainant move her workstation closer to the rest of the employees in the unit. According to Unit Chief, Complainant sat away from the unit. Unit Chief thought moving Complainant’s workstation to an area that was more integrated with her peers would help Complainant improve her performance because she would be more involved in conversations that occur amongst her peers, and she would be able to better collaborate with them as a team. Unit Chief stated that Complainant refused to move her workstation. ROI at 123-25, 135, 195, and 198. Supervisor stopped by Complainant’s workstation to inquire about the status of a project. According to Supervisor, she expected her subordinates to communicate about their work deadlines generally and frequently. Complainant did not follow up on her projects and Supervisor wanted to know her plan for meeting deadlines. ROI at 123. Complainant believed that these actions were based on her protected bases because she did not feel anybody else was treated similarly, was spoken to poorly, or was treated unprofessionally. According to Complainant, she was the only employee of a different national origin. She also noted that she was older, and most of the other employees were younger than her. ROI at 98. Acting on her belief, on March 1, 2019, Complainant filed an EEO complaint alleging that the Agency subjected her to harassment and discriminated against her on the bases of her race (African-American), national origin (Cameroon), age (47), and reprisal for prior protected EEO 3 2021004052 activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. In support of her complaint, Complainant alleged the following events: 1. In or around March 2018, Complainant was publicly humiliated, her project to which she was assigned was cancelled, her work was ignored, and management threatened her with a poor review in her mid-year Performance Appraisal Report; 2. On or about October 5, 2018, Complainant’s previously approved temporary duty assignment to the Washington Field Office was cancelled; 3. On or about October 17, 2018, Complainant was subjected to unnecessary and heightened scrutiny; 4. Since October 18, 2018, Complainant is required to attend bi-weekly meetings regarding her work assignments which are not required of her peers; 5. On or about October 30, 2018, Complainant was issued a “Minimally Successful” performance evaluation; 6. On or about December 6, 2018, Complainant was threatened with an “Unacceptable” performance evaluation if she did not agree to move to a workstation closer to her supervisor; 7. On or about December 11, 2018, management insisted again that Complainant move her workstation; 8. Since December 19, 2018, Complainant is required to submit all her work product for review; 9. On or about May 17, 2019, Complainant received a ranking of “Unacceptable” on her second quarter (Q2) performance evaluation; and 10. Since on or about May 17, 2019, Complainant is required to attend weekly check-in meetings regarding her work and performance which are not required of her peers. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Both parties engaged in discovery. On March 12, 2021, the Agency filed a motion for summary judgment. On March 30, 2021, Complainant filed her opposition to the agency’s motion. The Agency filed a reply on April 6, 2021. On April 23, 2021, the AJ granted the Agency’s motion. The AJ found that the investigative record was adequately developed; and that there were no material facts in dispute. 4 2021004052 The AJ observed that the Agency’s motion accurately applied the law to the undisputed material facts of this case and adopted those facts in their entirety. The AJ also found that the Agency articulated legitimate, nondiscriminatory reasons for the actions Complainant challenged. The AJ determined that Complainant had failed to offer evidence to support a prima facie case of discrimination, retaliation, and/or harassment. Specifically, the AJ asserted that the unrebutted record indicated that Complainant’s poor performance preceded the Agency’s actions. According to the AJ, Complainant did not offer any evidence to rebut these legitimate, non-discriminatory explanations. The AJ observed that Complainant alleged that she was treated differently than similarly situated individuals. However, the AJ stated that her proffered comparators were not actually similarly situated. Furthermore, the AJ found that Complainant was unable to demonstrate how the Agency’s actions were connected to her protected statuses, or that the alleged harassment was severe or pervasive enough that a reasonable person in her position would have considered it abusive or hostile. The AJ noted that beyond Complainant’s bare assertions, the record is devoid of any indication that discriminatory motives influenced any of the Agency’s actions. The AJ added that to the extent Complainant challenged any of the Agency’s asserted undisputed facts, the discrepancies she asserted were immaterial, and made no difference to the analysis. The Agency subsequently issued a final order pursuant to 29 C.F.R. Section 1614.110(a) implementing the AJ’s finding that Complainant failed to prove that the Agency subjected her to harassment and discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, among other things, Complainant submits that she has established by preponderant evidence her claims of disparate treatment and harassment for claims 1-9, and reprisal for claims 5-9. Complainant did not challenge the AJ’s decision regarding claim 10. According to Complainant, the Agency and the AJ erred in finding otherwise. Complainant argues that it was an abuse of discretion for the AJ to adopt the Agency’s statement of facts and legal argument in its entirety. Complainant asserts that the AJ ultimately deprived her of a hearing on the merits and any attempt to supplement the record with cross-examination of the management officials. Complainant requests that her appeal be granted; that the Agency be found liable for disparate treatment, discriminatory harassment, and reprisal; and that the instant matter be remanded to the Agency for an investigation as to the extent of damages. In the alternative, Complainant requests that the matter should be remanded back to the AJ for a hearing. In response to Complainant’s appeal, the Agency reiterates its explanations for the alleged actions. The Agency argues that Complainant failed to establish a prima facie case of discrimination, harassment, or reprisal; and that the AJ’s decision was proper. The Agency requests that the Commission affirm the AJ’s decision. 5 2021004052 ANALYSIS AND FINDINGS Summary Judgment 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. Contrary to Complainant’s appeal assertion that the AJ erred in granting summary judgment, we find that the record was adequately developed and that there are no material facts in dispute. Nor do we find the AJ’s adoption of the Agency’s statement of facts and legal argument in its entirety to be an abuse of discretion or arbitrary and capricious. Therefore, we conclude that the AJ appropriately issued a decision without a hearing. 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, 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. Tex. Dep’t of Cmty. Affs. 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. 6 2021004052 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). Upon review of the record, we find that the Agency provided legitimate, nondiscriminatory reasons for its actions. Here, regarding claims 1 and 2, management cancelled Complainant’s TDY project and her temporary duty assignment because Complainant did not meet expectations on the TDY project and her performance was declining. ROI at 101. Included in the record are statements provided by Unit Chief and Supervisor who observed Complainant’s October 5, 2018, presentation and agreed it was poorly done and Complainant was not able to answer substantive questions during the presentation. ROI at 122 and 133. Regarding claim 3, Supervisor stopped by Complainant’s workstation because Complainant did not follow up on her projects and Supervisor wanted to know her plan for meeting deadlines. Regarding claims 4 and 10, Supervisor and Unit Chief implemented bi-weekly meetings with Complainant in an ongoing effort to assist Complainant in her performance. According to her supervisors, based on her October 2018, performance rating, Complainant was experiencing performance issues. She had also complained she did not receive sufficient feedback and guidance. ROI at 123, 134, and 137. Regarding claims 5, 8 and 9, Management issued Complainant a “Minimally Successful” performance rating and a ranking of “Unacceptable” on her Q2 performance evaluation based on Complainant’s performance deficiencies. ROI at 237-44. For example, Supervisor and Unit Chief noted that a presentation on the “ZBRA” project required extensive coaching and contained many errors. See id. at 238. In addition, management included documented complaints by other employees also justified the rating. See ROI at 237 and 265. Management requested that Complainant submit all her work product for review because of deficiencies that include inaccuracies and missing key factual information and in response to Complainant’s belief that she did not received sufficient feedback or guidance. ROI at 105-06, 123-24, and 134-36. According to Supervisor, there was nothing unusual in the unit about having one’s written work reviewed. ROI at 125. The record included Complainant’s Performance Appraisal indicating that Complainant was deficient in three critical elements: (1) Organizing, Planning, and Coordinating (critical element 1); (2) Acquiring, Applying, and Sharing Job Knowledge (critical element 2); and (3) Analyzing, Researching, and Problem Solving (critical element 3). ROI at 187-92. Regarding claims 6 and 7, Supervisor and Unit Chief suggested Complainant move to a workstation closer to her team to help Complainant improve her performance by further collaboration with the rest of the team. ROI at 124-25 and 135. Management noted that Complainant did not move workstations. ROI at 108, 135, and 195. 7 2021004052 Based on our review, we find that the Agency has met its burden. Therefore, we turn to Complainant to establish that the Agency’s reasons were pretext for discrimination. Upon review, Complainant expressed her belief that the alleged actions were based on her protected bases. She however failed to refute management’s explanations; and she does not present any evidence to show that those explanations are pretextual. Regarding claims 1 and 2, Complainant acknowledged there were typos in her presentation and some of the slides “needed to be reviewed and clarified.” ROI at 102 and 297. Complainant identified employees from her Unit who were outside her protected bases, alleging they received more favorable treatment because their TDYs were not cancelled, and all were permitted to complete their TDYs. ROI at 362. Complainant also alleged that employees in her unit who were under age 40, Asian, or Caucasian received an “Excellent” performance rating; another employee over age 40 received a “Successful,” and Complainant (also over 40) received a “Minimally Successful.” ROI at 363. According to Complainant, no employees outside of her protected classes were required to complete large swaths of work before going on their TDYs, subjected to unnecessary and heightened scrutiny, or micromanaged without any performance- related counseling or feedback prior to receiving official ratings documents or adverse actions. ROI at 102 and 104-05. However, upon review, we find that none of these employees had the same performance deficiencies as Complainant. Therefore, they are not similarly situated. See Aguilar v. U.S. Postal Serv., EEOC Appeal No. 01944167 (Aug. 8, 1995) asserting that in general, in the absence of direct evidence of discrimination, if the complainant cannot identify any similarly situated comparison employees who were treated more favorably, he or she will not prevail. Therefore, we find that Complainant has not shown by preponderant evidence that she was subjected to disparate treatment due to her protected bases. Harassment To establish a claim of harassment, complainant must show that: (1) she belongs to a statutorily protected class; (2) she 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 her 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 F.2d 897 (11th Cir. 1982). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). To ultimately prevail in a claim of retaliatory harassment, Complainant must show that she was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). 8 2021004052 Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Comm., EEOC Appeal No. 0120160024 (Dec. 20, 2017). To the extent that Complainant is alleging that the Agency subjected her to unlawful harassment, we conclude that a case of harassment is precluded based on our finding above that Complainant did not establish that any of the actions taken by the Agency were motivated by any of her protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION 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). 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. 9 2021004052 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. 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 May 3, 2022 Date