Brenton W.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 6, 2017

0120150484 (E.E.O.C. Nov. 6, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Brenton W.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120150484

Hearing No. 540-2012-00133X

Agency No. 11-0049-AL

DECISION

On November 19, 2014, 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
October 15, 2014, final order 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. 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 Supervisory
Training Specialist at the Agency’s National Nuclear Security Administration (“NNSA”), Office
of Secure Transportation, Agent Operations Western Command in Albuquerque, New Mexico.
On March 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the basis of national origin (Hispanic) when:

1. he served a three-day suspension from duty December 16-18, 2010;

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.
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2. he received a FY 2010 performance appraisal reconsideration of FME (Fully
Meets Expectations) on December 29, 2010;

3. he received a Supervisory Specific Performance Objective FY 2010 rating of NI
(Needs Improvement) resulting in denial of supervisory bonus and year-end
pay raise;

4. he is the lowest paid member of the Agent Operations Western Command
(AOWC) staff; and

5. on November 23, 2010, he was required to see the Human Reliability Program
Psychologist for alleged anger management issues.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before a Commission
Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s
objections, the AJ assigned to the case granted the Agency’s motion for a decision without a
hearing and issued a decision without a hearing on August 14, 2014. The Agency subsequently
issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency
subjected him to discrimination as alleged.

ANALYSIS AND FINDINGS

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).

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The Supreme Court has held that summary judgment is appropriate where a
court determines that, given the substantive legal and evidentiary standards that apply to the case,
there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the
evidence but rather to determine whether there are genuine issues for trial. Id. at 249. 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
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outcome of the case. For the following reasons, we find that this matter does not present a
genuine issue of material fact requiring a hearing.

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate, nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't
of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the
Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

In his decision, the AJ found that Complainant did not establish a prima facie case of national
origin discrimination. However, as the Agency articulated legitimate, nondiscriminatory reasons
for its actions, the AJ properly continued the analysis of Complainant’s claims, as we discuss
below.

Claim #1 (Suspension)

The Agency explains that Complainant was suspended for three days as discipline for his failure
to assure that training instructors under his supervision had been evaluated for competency as
required by Agency regulations. ROI at Ex. G-1. This is a legitimate, nondiscriminatory reason
for the Agency’s actions. Complainant has adduced no evidence that the Agency’s explanation
is a pretext designed to conceal discriminatory animus. Complainant acknowledged that he had
failed to comply with the regulation in question, arguing that the proposed punishment was
excessive, but admitting that some discipline was warranted by his actions. ROI at Ex. G-2.

Claims #2 & #3 (Performance Appraisal ratings)

According to the Agency, Complainant received a “Needs Improvement” rating on the
Supervisory Specific Performance Objective (SPO) because, during the rating period in question,
he “struggled with anger issues” (ROI Ex. F-2 at 4) and had engaged in confrontational behavior
with two contract employees, ROI Ex. F-4 at 3. This is a legitimate, nondiscriminatory reason
for the Agency’s actions in rating Complainant’s performance as a supervisor as needing
improvement. During the same rating period, Complainant had also received a tentative “Needs
Improvement” rating for the Training Records Maintenance SPO. That rating was increased to
“Fully Meets Expectations” before the rating was finalized. As Complainant received a FME in
four of his critical job areas, the overall performance rating was also a FME, pursuant to the
Agency rules pertaining to performance evaluations. Complainant has adduced no evidence that
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the Agency’s explanations are pretext designed to conceal discriminatory animus. Complainant
maintains that he conducts himself in a professional manner but does not dispute that these
incidents occurred.

Claim #4 (Lowest Pay)

The Agency explains that Complainant earns less than his coworkers because he began working
for the Agency at the GS-12 level whereas the coworkers to whom he is comparing himself
started with the Agency at the GS-13 level. ROI Ex. F-2 at 5. This is a legitimate,
nondiscriminatory reason for the Agency’s actions. Complainant has adduced no evidence that
the Agency’s explanation is a pretext designed to conceal discriminatory animus.

Claim #5 (Required to see Psychologist for Anger Management)

According to the Agency, Complainant was required to submit to an examination by a
psychologist because of his history of angry confrontations with coworkers. This is a legitimate,
nondiscriminatory reason for the Agency’s actions. Complainant has adduced no evidence that
the Agency’s explanation is a pretext designed to conceal discriminatory animus. Although
Complainant claims that his behavior was always professional, he does not dispute that the
specific confrontational events cited by the Agency occurred.2

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 order fully implementing the AJ’s
decision granting the Agency’s motion for summary judgment and finding that Complainant did
not establish that he was discriminated against as alleged.

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.

2 Complainant, who is represented by counsel, makes no contention that the Agency’s mandate
that he submit to a psychological examination constituted a violation of the Rehabilitation Act.
See 42 U.S.C. § 12112(d)(4)(A); 29 C.F.R. §1630.14(c).
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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.
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.

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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

November 06, 2017
Date