Charles G.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

0120180047 (E.E.O.C. Sep. 11, 2019)

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

Charles G.,1
Complainant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120180047

Hearing No. 570-2015-00268X

Agency No. 14-00015-00809

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated September 6, 2017, finding no
discrimination concerning his 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 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, we AFFIRM the Agency’s final decision finding no
discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Intelligence
Specialist, GG-0132-13, at the Agency’s Kennedy Irregular Warfare Center (KIWC) within the
Office of Naval Intelligence (ONI) in Washington, D.C.

On February 27, 2014, Complainant filed his complaint alleging discrimination based on national
origin (Persian-American), disability (diabetes and depression), age (over 40), and in reprisal for

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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prior EEO activity when he was subjected to harassment from February to November 26, 2013,
in that:

(1) On February 6, 2013, he was placed on a Performance Improvement Plan (PIP);

(2) On July 22, 2013, he was issued a letter of proposed removal;

(3) On July 22, 2013, he was escorted out of the NMIC building and placed on
administrative leave;

(4) On October 25, 2013, he was terminated;

(5) On or about November 2013, his first level supervisor (S1) and an identified individual
made a false sexual harassment report against him; and

(6) On or about November 26, 2013, he received a minimally successful performance
evaluation for Fiscal Year (FY) 13.

After completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ) but later withdrew the request.2 The Agency issued its final
Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action,
which Complainant failed to rebut.

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 (EEO MD-110), Chap. 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").

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).

2 The Agency noted that due to its administrative oversight, it did not receive a notice of
Complainant’s request for a hearing within 30 days of receipt of the report of investigation.
Thus, on October 17, 2014, the Agency issued its final Agency decision which was subsequently
rescinded once it became aware of Complainant’s hearing request which he later withdrew.
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Complainant must initially establish a prima facie case by demonstrating that he or she was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a
prima facie case will vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Department of Community 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 Center 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. See U.S. Postal Service
Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of
Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health
and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department
of the Navy, EEOC Petition No. 03900056 (May 31, 1990).

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents. Complainant worked as an Intelligence Specialist, GS-13, at the
Agency’s KIWC, ONI, which provided intelligence support to Naval Special Warfare and Navy
expeditionary forces.

Regarding claim (1), S1 indicated that Complainant was placed on a PIP because he was not
performing at the expected GS-13 full performance level and was not on track to receive a
successful performance evaluation. S1 stated that on December 19, 2012, Complainant was
issued an Unacceptably Low Quality Production memorandum, and on October 5, 2012, he was
also issued a Lack of Accountability for Results/Poor Time Management memorandum for his
poor production and poor time management. Complainant received an overall Minimally
Successful rating for Fiscal Year 2012. There is no evidence of similarly situated persons being
treated differently.

Furthermore, to the extent that Complainant alleges the PIP requirements were unfair or
discriminatory, S1 stated that the PIP was not unreasonable as Complainant was assigned to
write two five-page papers which individually would take no more than 45 days to complete;
write four one to two-page papers which would take 1-2 days to complete; show proficiency in
writing evaluations using an online tool; and complete a brief.

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S1 indicated that other employees who were at Complainant’s work level or even some who
were at lower grades level were capable of performing the foregoing level of work and did so
regularly without issue and while working on additional training and preparing for deployments.
S1 noted that that Complainant was not required to work on training or prepare for deployment
during this time; rather he was to only focus on the assigned projects described in this paragraph.

Regarding claim (2), S1 indicated that he submitted to Complainant’s second level supervisor
(S2) the PIP review letter dated June 18, 2013, indicating that Complainant’s performance on the
PIP was unacceptable and Complainant failed to satisfy the terms of his PIP. S2 stated that after
conferring with S1 and Complainant’s mentor at the end of his PIP, S2 decided to propose
Complainant’s removal because he failed to pass his PIP.

Regarding claim (3), S2 indicated that Complainant was placed on administrative leave with pay
in accordance with the Agency’s policy following his proposed removal. S2 stated that the
administrative leave was a routine part of a removal action pending a determination of
Complainant’s eligibility for, and to maintain, a security clearance, assignment to sensitive
position, and access to Secret Compartmented Information as a condition of employment.

Regarding claim (4), Complainant’s Deputy Commander stated that he made a decision to
remove Complainant from his position due to his unacceptable performance after he reviewed
the PIP results, the proposed removal letter, and Complainant’s written response to the proposed
removal. The Deputy Commander indicated that Complainant’s performance issues were
serious, and he was unable to deliver the required intelligence, which was critical to the combat
troops in the field, in a timely fashion, clearly and cogently developed, and ready for use.

Regarding claim (5), S2 indicated that a male employee (E1) reported to E1’s supervisor (who
was S1’s sister) that Complainant had touched E1 inappropriately. S2 indicated that it was a
supervisor’s duty to properly notify the commanding officer of the incident. S2 stated and
Complainant acknowledged that no written sexual harassment report was filed against
Complainant. There is no indication that Complainant was harmed by this incident.
Furthermore, the Agency should always investigate alleged misconduct.

Regarding claim (6), S1 indicated that he issued Complainant a minimally successful
performance evaluation for FY13 based on the facts that he was placed on the PIP and in a mid-
PIP review, it showed his performance was on the negative trend. S2 stated that during FY13, all
analysts, including Complainant, were held accountable to produce maritime intelligence reports
and baseline assessments. S2 indicated that all analysts, except Complainant, successfully
completed those requirements.

Assuming (without deciding) that Complainant was an individual with a disability, he did not
allege that he was denied a reasonable accommodation due to his disability. On appeal,
Complainant contends for the first time that he was denied a reasonable accommodation but
admits that he did not request any accommodation to his supervisors. Complainant
acknowledges that he requested and was granted leave with no issues.
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After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. Regarding his claim of harassment,
we find that Complainant failed to show that it was related to any protected basis of
discrimination. Furthermore, we find that Complainant failed to show that there were any
similarly situated employees not in his protected groups who were treated differently under
similar circumstances. Based on the foregoing, we find that Complainant has failed to show that
the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision finding of no discrimination is AFFIRMED.

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.
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).
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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

September 11, 2019
Date