0120130218
03-27-2015
Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120130218
Hearing No. 530-2010-00127X
Agency No. 09R3PBSMG08
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's September 18, 2012 final order concerning an equal employment opportunity (EEO) complaint claiming 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.
BACKGROUND
On September 15, 2008, Complainant was hired as a Realty Specialist at the Agency's Public Building Services Division in Philadelphia, Pennsylvania, subject to a two-year probationary period.
On May 26, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency discriminated against him on the basis of sex (male) when:
1. from September 2008 through April 2009, management subjected him to a hostile work environment; and
2. management forced him to resign in lieu of termination effective April 25, 2009.
After the investigation, Complainant timely requested a hearing and the EEOC Administrative Judge (AJ). Following the September 21, 2011 hearing, the AJ issued a decision finding no discrimination. The AJ found that Complainant did not show by a preponderance of the evidence that he was discriminated against on the basis of sex. The AJ further concluded that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.1
In reaching this conclusion, the AJ noted that as a Reality Specialist, Complainant was responsible for procuring office space for other federal government agencies by locating appropriate real estate, negotiating with realtors on behalf of the government, and creating lease acquisition documents, among other duties. Complainant was initially supervised by a named male Reality Specialist. The former supervisor was pleased with Complainant's performance and never criticized his work or behavior.
The AJ noted that during the relevant period, Agency management also assigned Complainant a named female trainer, a Realty Specialist, who monitored Complainant's work and provided feedback on his performance to both him and his supervisors. The trainer praised Complainant's performance and thought he was a very conscientious and eager probationary employee.
The AJ noted the events giving rise to the instant formal complaint began on November 9, 2008. The AJ found that at that time, a named female Realty Specialist became Complainant's new supervisor. At the same time, the supervisor also began supervising another new female probationary Realty Specialist who had been hired with Complainant. The AJ noted that the supervisor was a young and new supervisor who had never supervised anyone before overseeing Complainant and the female probationary Realty Specialist.
Further, the AJ noted that several employees agreed that the supervisor had poor interpersonal skills and was unreasonably strict and autocratic in her approach, even when dealing with seemingly minor management issues. For instance, the trainer stated that the supervisor "had just recently been promoted to...Supervisor [and] she just didn't appear to have people skills." The trainer stated that from the outset, the supervisor appeared "very by the book," and found her to be "very intimidating."
The AJ noted that the female probationary Realty Specialist also stated that the supervisor's poor interpersonal skills and unapproachable demeanor made it difficult to communicate with her and caused her to fear for her job. The probationary Realty Specialist stated that the supervisor's domineering demeanor intimidated her during their one-on-one meetings. Similarly, Complainant testified from the outside of his interactions with the supervisor, she demonstrated a cold and intimidating demeanor. For instance, Complainant stated that during one of his first meetings with the supervisor, she scolded him for answering a telephone call while she was in his office.
Complainant stated that the supervisor appeared to be unnecessarily harsh on another occasion when he mistakenly assumed that she had left for the day, and sought approve for a document from another manager. Specifically, Complainant stated that he became anxious because the completed version of the document needed to be sent out by the end of the day. When he had not heard from the supervisor, Complainant stopped by the supervisor's office but she was not there. Complainant stated that he then submitted the document to another manager for evaluation. However, the supervisor had not left the office. When the supervisor learned of Complainant's action in submitting the document to another manager before she could complete her assessment, she scolded Complainant for engaging in conduct that appeared to undermine her authority.
The AJ noted that, similar to all probationary Realty Specialists, Complainant was required to undergo an Evaluation Panel meeting, during which the probationary employee was required to present a formal oral report to his or her supervisors. The panel then discussed the probationary employee's progress in his or her position and provided that employee with appropriate feedback concerning the team's assessments.
Complainant's Evaluation Panel meeting took place on January 20, 2009. In anticipation of this meeting, the supervisor met with Complainant a few days before to discuss her own assessments of his progress. The supervisor informed Complainant while she had no criticisms of his substantive work performance, she had many concerns about his behavior and attitude. For instance, the supervisor reiterated her concern that Complainant continued to engage in unprofessional behavior by interrupting her and appearing distracted when she attempted to give him instructions.
During the Evaluation Panel meeting, Complainant received praise from the panel for his substantive work performance. The panel noted that Complainant was a "quick study" and had a "good grasp of things." However, the panel noted that Complainant "can get frustrated with slow responses [but] [s]eems to balance it out now." Afterwards, [Agency official] prepared an Evaluation Panel Summary form briefly summarizing the panel's assessment of Complainant's progress. The panel members then all signed the document. However, after the panel members signed the form, the supervisor unilaterally wrote her own remarks in Section III, entitled "Panel Recommendations/Area of Concern." Therein, the supervisor noted "[Complainant] needs to work on behavior/conduct issues discussed on January 15, 2009." The AJ noted that it was highly unusual for a manager to add unilateral written comments to the summary form after the panel members had already signed the document.
The AJ noted during her testimony, the supervisor stated that she met with Complainant in January 2009, before the Evaluation Panel meeting and "I had talked about with HR before and asked them if I needed to do anything at [Complainant's] Panel as a result of having that meeting with him. And it was suggested that I write something on his Panel." The supervisor further stated that she was notified that conduct issues were not to be discussed during the Evaluation Panel meetings and "that forum was really to go over training that had been given, training that was coming up, for the Intern to report out on their projects and where they were in the process."
Further, the supervisor testified that even after her pre-panel meeting with Complainant in January 2009, she continued to have concerns about his behavior and attitude. For instance, the supervisor stated that Complainant "was still constantly interrupting me, not letting me finish. He was constantly seeking... an immediate response to things in the office. He also had not followed my instructions."
The AJ noted that during her testimony, the supervisor expressed concerns about Complainant's behavior during a training session in February 2009. During the three-day training session for new hires, Complainant participating in a training game modeled after the "Jeopardy" television game show, along with all of the other trainees. Complainant testified that it was a light-hearted atmosphere, and that he merely participated in the playful atmosphere to the same extent as everyone else by laughing and joking. However, the supervisor later verbally reprimanded Complainant for engaging in juvenile behavior that made her want to kick him out of the room.
During her testimony, the supervisor acknowledged that she found Complainant's cited female comparator, the probationary employee, easier to manage. Specifically, the supervisor stated that it was easier to manage the probationary employee than Complainant because "she was very attentive... she would look at me or she would stand facing me to receive the instruction that I was giving her. She didn't interrupt me when I was talking to her. She didn't try to finish my sentences."
The supervisor stated that on April 17, 2010, she and the Human Resources Specialist conducted a meeting with Complainant to seek his resignation. Specifically, the supervisor stated "I talked to [Complainant] about how I had a meeting with him in January [2010] and at that time discussed with him that he was in the probationary period and what that meant. And also at that meeting I had identified areas for improvement. And since that time I hadn't noticed significant improvements in any of those areas. And I had said that there were still areas that he needed to work on or he was still lacking. And I provided examples for those for interpersonal communication skills and also his inability to follow my direction, my supervisory direction."
The supervisor stated that she then presented Complainant with a termination memorandum citing his lack of interpersonal communication skills and his failure to follow her instructions. The AJ noted that the memorandum stated that Complainant failed to actively listen; often interrupted her when she was speaking to him; continued to expect an immediate response when asking a question or submitting a work assignment; acted in appropriately at a training session; and displayed a flippant attitude when choosing an intern topic. The supervisor further cited to Complainant's failure to follow her instructions with regard to the project lease file project.
The AJ noted that the supervisor testified that she told Complainant that if he agreed to resign in lieu of termination, he could main a clean record and be assured that she would give him a neutral reference in the future. The supervisor stated that she offered Complainant a prepared letter for him to sign indicating that he was resigning from his position for personal reasons. Complainant signed the letter and reassigned from his position effective April 25, 2009.
Further, the AJ noted that it was clear from the supervisor's testimony and "demeanor during the hearing that she genuinely perceived Complainant to be overeager, unnecessarily persistent, ant at times, unprofessional. I credited her testimony that she became genuinely irritated by the manifestations of Complainant's over-eagerness, namely, his tendency to interrupt her and finish her sentences, as well as, his consistently persistent nature when asking for immediate feedback on assignments, among other things. I further credited [supervisor's] testimony that she genuinely perceived Complainant to have engaged in unprofessional behavior on several occasions by appearing distracted when she was attempting to give him direction; asking for 59 minutes of credit time at Thanksgiving; and being loud and boisterous during the Jeopardy training game in February 2009, among other concerns."
Moreover, the AJ determined that the credible evidence "presented merely demonstrates, at most, that the adverse actions suffered by Complainant were the unfortunate result of being assigned to an inexperienced manager with poor interpersonal skills, not intentional discrimination on the basis of his sex, or any other unlawful factor...in the absence of any other evidence demonstrating that [supervisor's] articulated concerns about Complainant's behavior were disingenuous, or otherwise merely pretextual, I conclude that he has failed to prove that he was subjected to any unlawful discrimination."
The Agency, in its final order, adopted the AJ's finding of no discrimination. The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
Complainant has offered no persuasive arguments on appeal regarding the AJ's findings on the merits. The AJ's decision is well-reasoned, and the assessment that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by the record, as referenced above. Beyond his bare assertions, Complainant does not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask the true discriminatory motivation.
Therefore, after a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final action because the Administrative Judge's ultimate finding, that unlawful employment discrimination was not proven by a preponderance of the evidence, is supported by the record.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 27, 2015
__________________
Date
1 In her decision, the AJ determined that although Complainant resigned from his probationary position, it was undisputed that he did so only after his supervisor told him that if he did not resign, he would be terminated. Thus, the AJ determined that this claim is properly analyzed as a termination claim because it was undisputed that Complainant's resignation was not voluntary but rather submitted under the duress of termination.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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