Sherman K.,1 Complainant,v.Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Aug 6, 2020

2019003230 (E.E.O.C. Aug. 6, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherman K.,1 Complainant, v. Matthew P. Donovan, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2019003230 Agency No. 9X1M14013 DECISION On April 5, 2019, 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 March 7, 2019, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior General Engineer, 0801, DR-03, at the Agency’s Air Force Research Laboratory (AFRL) facility in Franklin, Ohio. On February 26, 2014, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment/harassment and discrimination on the bases of race (Asian), national origin (Republic of China/Taiwan), age, and reprisal for prior protected EEO activity when: (1) On December 18, 2013, Complainant’s first-level supervisor (Supervisor1) provided Complainant with an appraisal that is not a true reflection of his performance; 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. 2019003230 2 (2) From March through May 2012, management officials did not allow him to work on a research project; (3) In April 2012, he was treated differently from other employees concerning his security clearance; (4) On January 16, 2014, he requested a couple of hours leave at noon for going to the EEO office and he was told he improperly requested the leave and was presented with several emails dated in October and December 2013 that had been corrected, as examples of the reason he had points taken away from his communications rating; and (5) On January 9, 2013, Supervisor1 made a false statement that Complainant was deficient in his performance by being delinquent in continuous learning points when, on November 8, 2012, Complainant received a Continuous Learning Certificate of Achievement indicating he had met the 80 points continuous learning requirement. The Agency accepted claim (1), and claim (4) as it related to the criticism in his appraisal, for investigation, but dismissed the remaining claims for untimely EEO Counselor contact. In so doing, the decision also noted that Complainant’s allegations in claim (2) included a denial of his freedom of speech, which is not governed by EEO laws. The Agency conducted an investigation, which produced the following pertinent facts: Supervisor1 served as Complainant’s rating official for Fiscal Year (FY) 2013. Complainant’s annual performance appraisal for FY 2013 indicates an assessment date of December 18, 2013. The Agency’s rating criteria for Complainant’s position used four factors: problem solving, communication, technology management, and teamwork and leadership. Complainant’s assessment shows that he received a rating of 3.0 in problem solving, 2.5 in communication, 3.0 in technology management, and 3.2 in teamwork and leadership. His overall contribution score was 2.93, which was below his expected score of 3.05. On January 15, 2014, during Complainant’s end of the year assessment and feedback meeting, Complainant alleged that his score was unfair and the result of his race. Supervisor1 directed Complainant to EEO personnel, which led to the instant complaint. Supervisor1 reported the matter to Complainant’s second-level supervisor (Supervisor2). Complainant stated that Supervisor1 commented that his ability to speak English was worse than people from Europe, as evidence of bias. Complainant attested that he objected to his evaluation in the areas of problem solving and communication. He contended that his problem-solving skills merited a higher rating than a score of 3.0, noting that he submitted a research proposal that was named as the number one proposal in the AFRL, resulting in over one million dollars in research funds for the Agency for FY 2014, and he submitted six training research proposals to the Agency, ultimately improving their intelligence analyst capabilities for FY 2013. 2019003230 3 With respect to communication, he noted his proactive steps towards improving his ability to speak English, including a course in English, a public speaking course, and the satisfactory completion of Contribution Improvement Plan that he was placed on around September 2013. Complainant also noted that, during the time he was on the Contribution Improvement Plan, he submitted over 17 weekly activity reports, 3 abstracts, and prepared presentation slides for projects affecting the Air Force Institute of Technology (AFIT). He attested that he presented 6 proposals effecting programs like Enhanced Battlespace Information and Training Ground Stations, Networks of Air Operations Center, and Counterintelligence and Counterterrorist Operations Training for Warfighters and Intelligence Analysts. The record shows that Complainant was placed on a Contribution Improvement Plan (CIP) from January 14, 2013 through May 13, 2013. The plan indicates the specific areas he needed to increase his level of contribution were in communication and technology management. Supervisor1 disagreed with Complainant’s assertion that he merited higher ratings in problem solving and communication. Concerning problem solving, Supervisor1 denied that any of Complainant’s research proposals resulted in funding for the Agency and stated that, based on Complainant’s lack of teamwork or understanding of the unit mission, these proposals went without funding. Supervisor1 attested that Complainant’s English-speaking ability was a weakness and Complainant was by far the most challenging of his employees to understand. Supervisor1 explained that he emphasized to Complainant how most of the division had a very hard time understanding his communications, both written and verbal. Supervisor1 also attested that much of Complainant’s written work requires massive re-work for acceptability and, despite Complainant’s having taken courses in English and public speaking, his skills have improved very little. Supervisor1 further explained that Complainant’s inability to improve vastly limits his potential as a program manager or general engineer. Supervisor1 acknowledged referencing his experiences working with professionals from other countries in the context of attempting to understand their English when spoken with accents. Supervisor2 agreed with Supervisor1’s assessment, stating that Complainant required a high level of supervision to keep him focused on the division’s mission and, at times, became argumentative. Supervisor2 also indicated he did not recall Complainant’s garnering any research dollars for the Agency and stated that he held Complainant’s rating of 3 for problem solving abilities to be an accurate reflection of Complainant’s skills in that area. Supervisor2 acknowledged that Complainant took courses in English and public speaking, at the Agency’s suggestion, and, as a result, Complainant briefed several proposals to Supervisor2 and other division leaders. Supervisor2 stated that Complainant’s performance during those briefs showed acceptable performance, however, Complainant showed significant issues when interacting with a team. 2019003230 4 A Human Resources Specialist (HR Specialist) attested that management followed the appropriate policies and guidelines when they determined that Complainant was contributing at an adequate level as referenced on his performance evaluation. 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, 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 discrimination as alleged. The instant appeal followed. On appeal, Complainant argues that the Agency’s final decision did not take the proper factors into account with respect to the alleged discrimination. He asserts that he was set up for the CIP and his evaluation was unreasonable. He notes that he passed two communications courses during the CIP and cites his qualifications and professional achievements as evidence. In response to Complainant’s appeal, the Agency argues that Complainant’s English fluency is a legitimate, nondiscriminatory evaluation factor for his FY 2013 performance appraisal and Complainant has failed demonstrate pretext to refute the Agency’s legitimate nondiscriminatory basis for its actions. The Agency asks that we deny Complainant’s appeal. ANALYSIS AND FINDINGS Standard of Review 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”). Dismissed Claims EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The record shows that Complainant first contacted an EEO Counselor regarding the instant complaint on January 16, 2014, which is well beyond the 45-day period of claims 2, 3 and 5. 2019003230 5 Therefore, to the extent these allegations raise independent claims of discrimination, they were properly dismissed. However, they are still relevant to Complainant’s harassment claim, as discussed below. Disparate Treatment Claim - Performance Appraisal Complainant’s allegations in claim (1) raise a disparate treatment claim. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Cmty. Affairs v. Burdine. 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). The essence of Complainant’s allegations in claim (1) is that the Agency discriminated against him on the bases of race and national origin by giving him a lower performance rating than he felt he deserved, including in communications. The close relationship between language characteristics and an individual's national origin has led the Commission to classify discrimination based on linguistic characteristics (such as accent and English fluency) as unlawful under Title VII. More specifically, Commission guidelines make it unlawful to deny an individual equal employment opportunities due to the “linguistic characteristics of a national origin group.” 29 C.F.R. § 1606.1. See also 29 C.F.R. § 1616.6(b)(1) (selection procedures based on foreign accent). Denying employment opportunities, or otherwise implementing adverse employment actions, as a result of a foreign accent which causes communication difficulties, may be a “cover” for unlawful discrimination, and will accordingly, be subjected to close scrutiny in a national origin discrimination case. See Daly v. United States Postal Service, EEOC Appeal No. 01933547 (September 14, 1995) (citing Myrick v. Department of Veteran Affairs, EEOC Request No. 05920415 (July 10, 1992)); Shah v. Department of Defense, EEOC Request No. 05901097 (March 21, 1991); and Lal v. Department of the Army, EEOC Request No. 05900318 (June 28, 1990). Here, even if we assume that Complainant established a prima facie case of discrimination, his claim ultimately fails, as we find that the Agency articulated legitimate, non-discriminatory reasons for its actions. The Agency’s HR Specialist explained that, although Complainant was dissatisfied with his performance appraisal, management followed the appropriate policies and guidelines in determining that Complainant was contributing at an adequate level. The Agency’s management explained that Complainant’s communications score reflected the fact that much of Complainant’s written work required massive re-work for acceptability. The Agency’s management also explained that, while Complainant’s briefings showed acceptable performance, he showed significant issues when interacting with a team. 2019003230 6 The Agency’s management also explained that Complainant’s research proposals failed to result in funding for the Agency and attributed this to Complainant’s lack of teamwork or understanding of the unit mission. The Agency’s management also explained that Complainant required a high level of supervision to keep him focused on the division’s mission and, at times, became argumentative. We find the Agency’s reasons for its actions with regard to his appraisal to be supported by the record. The Agency’s management evaluated Complainant’s performance, including communication, within the context of the performance factors for his position. Although Complainant has alleged discrimination, we find he has not established by a preponderance of the evidence, that the legitimate, non-discriminatory reasons articulated by the Agency were a pretext for unlawful discrimination or motivated by some unlawful discriminatory animus with respect to this claim. Harassment Complainant has also alleged the Agency subjected him to harassment, noting several alleged instances. To establish a claim of hostile environment harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his 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 Agency. 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). In other words, 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, national origin, age, or prior EEO activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Most of Complainant’s harassment allegations can generally be described as relating to managerial decisions, such as disagreements with a performance assessment, security clearance procedures, granting leave, and assignments, or general workplace disputes between a supervisor and a subordinate. Without evidence of an unlawful motive, we have found that similar disputes do not amount to unlawful harassment. See Complainant v. Dep’t of Def., EEOC Appeal No. 0120122676 (Dec. 18, 2014) (The record established that the issues between the complainant and the supervisor were because of personality conflicts and fundamental disagreements over how work should be done and how employees should be supervised, and there is no indication that the supervisor was motivated by discriminatory animus towards the complainant's race, sex. or age); Lassiter v. Army, EEOC Appeal No. 0120122332 (Oct. 10, 2012) (personality conflicts, general workplace disputes, 2019003230 7 trivial slights and petty annoyances between a supervisor and a complainant do not rise to the level of harassment). Additionally, with respect to the erroneous statement that Complainant was deficient in continuous learning points and Supervisor1’s statement regarding Complainant’s speech in comparison to European professionals, we find these statements are insufficiently severe or pervasive to have altered the conditions of Complainant’s employment. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (the allegation that a supervisor had “verbally attacked” the complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign in log, were found to be insufficient to state a harassment claim). Although Complainant asserts that the Agency acted discriminately, there is insufficient evidence to establish that Complainant’s race, national origin, age, or prior EEO activity played any role in the incidents at issue. Thus, Complainant’s allegations, even if true, are insufficient to support a claim of discriminatory harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. 2019003230 8 Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 August 6, 2020 Date