0120131114
05-21-2015
Complainant, v. Martin J. Gruenberg, Chairman, Federal Deposit Insurance Corporation, Agency.
Complainant,
v.
Martin J. Gruenberg,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120131114
Agency No. FDICEO-100006
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 7, 2012 final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
On February 5, 2007, Complainant began working as a Financial Institution Specialist, CG-0570-07, at the Agency's Corporate Employee Program (CEP) at the Agency's Detroit Field Office in Livonia, Michigan, under a three-year internship in the excepted service with conversion eligibility to a permanent position no later than the conclusion of the third year in the program.
On March 1, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race (African-American), age (over 40) and in reprisal for prior EEO activity when1:
1. on February 5, 2007, he signed an employment contract with the FDIC in which he was promised that he would have four years to become a bank examiner and was never informed he could be terminated prior to that time;
2. on March 20, 2009, he received an Letter of Warning from the Field Supervisor that gave him 90 days to improve his performance. Complainant was subsequently rated as "Meets Expectations" on his bank exam feedback forms dated July 6, 2009, September 8, 2009 and October 5, 2009;
3. on November 2, 2009, he received a second Letter of Warning from the Field Supervisor. Complainant subsequently received "Meets Expectations" ratings on his November 2 and 5, 2009 bank exam feedback forms and was sent to Loan School;
4. he was not placed on any Performance Improvement Program before being notified that his employment was to be terminated;
5. he failed to receive any type of performance awards or recognition from FDIC despite his work in discovering eight million dollars in financial errors that were missed by the Examiners in Charge (EICs) during several of his assignments;
6. he was denied adequate on-the-job training, helpful coaches and mentors, and sufficient developmental and educational opportunities throughout his tenure;
7. he was not allowed to attend Fourth School;
8. he was unfairly subjected to downgrades of favorable evaluations and formal written performance criticism;
9. he was yelled at and treated in a demeaning and antagonistic manner by several Caucasian Field Office examiners;
10. he was denied a transfer out of the Risk Management area to the Compliance area;
11. on January 4, 2010, he received a letter from DSC, Regional Director, Chicago Regional Office that informed him that he would not be converted to permanent status; and
12. he was terminated from employment with FDIC on February 4, 2010, despite having attained superior test scores at FDIC training schools and being rated as "Meets Expectations" on 88% of his 2008 and 2009 evaluations.
The record gathered during the investigation reflects that before beginning his employment, on October 13, 2006, Complainant signed an agreement confirming some of the key terms of his employment and his expected progress through the CEP. In the agreement that Complainant signed on October 13, 2006, the Agency reserved the right not to convert Complainant to permanent employment status at the conclusion of the three-year appointment based on workload needs or Complainant's performance or conduct. The agreement also stated that Complainant was required to obtain a commission as a Financial Institution Examiner within four years of his initial appointment.
On March 5, 2009, Complainant was notified that there would be a delay in his career ladder promotion due to his failure to demonstrate the ability to perform at the CG-9 level. He was further notified that he had exhibited performance deficiencies on assignments completed form May 2008 through January 2009. On March 20, 2009, Complainant was issued a Letter of Warning which provided him with approximately three months to demonstrate acceptable performance in all skills areas and meet the required benchmarks. Complainant's subsequent performance was determined to be marginally acceptable, slow and inconsistent. On November 2, 2009, Complainant received a second Letter of Warning in which he was given until approximately December 1, 2009 to demonstrate acceptable performance and meet the required benchmarks.
On January 4, 2010, Complainant was notified via letter that based on his overall unsuccessful performance in meeting CEP requirements, he would not be converted to permanent competitive service status in accordance with the terms of his appointment and the agreement that he had signed on October 13, 2006. Complainant's excepted service appointment expired effective February 4, 2010.
After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant initially requested a hearing. However, Complainant subsequently withdrew his request. Consequently, the Agency issued the instant final decision on December 7, 2012, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race and reprisal discrimination. However, the Agency found that Complainant established a prima facie case of age discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext. Furthermore, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
The instant appeal followed. Complainant makes no new contentions on appeal.
ANALYSIS AND FINDINGS
Disparate Treatment
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie 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 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. See 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).
Agency management articulated legitimate, nondiscriminatory reasons for its actions. The Field Supervisor stated that during the relevant period she was Complainant's supervisor. The supervisor stated that in regard to claim 1, Complainant was not terminated from his Financial Institution Specialist (FIS) position. The supervisor stated that Complainant "was not converted to permanent status at the end of his Federal Career Internship contract. My understanding of the contract is that he was in an Excepted Service internship. I understand that the terms of the contract were gone over with the Complainant during orientation at Corporate University."
The Field Supervisor, Risk Management stated that on October 13, 2006, Complainant signed an employment contract regarding his appointment as a FIS in the CEP "that specifically explained the terms of the agreement. The agreement has two separate probationary periods. FIS's having a one year government employment probationary period and another excepted service probationary period for three years. The contract states that at the end of the three year period there will be a decision made as to whether the employee will be converted to permanent status to continue the program. At the end of the four year period the employee will take a test to be become a commissioned examiner. The Complainant acknowledged in the agreement that FDIC reserved the right not to convert him to permanent status at the conclusion of the third year of the appointment based on FDIC workload needs, or his performance or conduct."
Further, the Field Supervisor stated that because Complainant was "so far behind in completing his benchmarks that at the end of the three year period there was no way he would have been able to complete the training program and sit for his examination to become a commissioned examiner at the end of the four year period."
Regarding claim 2, the supervisor stated that on March 20, 2009, she issued Complainant a Letter of Warning because he "was having performance issues in the areas of oral and written communications, technical skills, and analytical skills. At the end of the 90-day warning period. the Complainant showed some improvement in the areas outlined in the Letter of Warning. However, he was still deficient in some areas. Subsequent to the end of the 90 day warning period, the Complainant improved in some areas."
The Field Supervisor stated that he assisted the supervisor writing the subject Letter of Warning. The Field Supervisor stated that Complainant was issued the Letter of Warning "because of his poor performance of his duties. He was so far behind with his benchmarks that there was no time for him to complete the training program in four years. His performance was hit or miss. There was no consistent satisfactory level of performance."
Regarding claim 3, the supervisor issued Complainant a second Letter of Warning because he was not performing at the fully successful level required for his FIS position. The supervisor stated that during the relevant period, Complainant "met some of the requirements outlined in the Letter of Warning. He met enough of them to be able to attend Loan School. However, in terms of benchmarks outlined in the Letter of Warning he was not performing adequately or consistently."
Regarding claim 4, the supervisor stated that Complainant was not placed on a Performance Improvement Plan (PIP) because "a PIP is usually issued to permanent employees. In a PIP, an employee is given a letter outlining their deficiencies and told what is expected of them to prove their performance. The two letters of warning issued to the Complainant serve a similar purpose in that it identified performance area in need of improvement and a time line in which to improve in those areas."
Regarding claim 5, the supervisor stated that she does not recall Complainant discovering eight million dollars in financial errors that were missed by a commissioned examiner. The supervisor stated, however, she recalled that Complainant "did review bounce protection, but I don't recall that identification of the error saved the bank any money. To find these types of errors are part of the duties completed during a bank examination. To find the errors would be considered doing a good job; but, it would not necessarily be an occasion where the employee would receive a STAR award...the job of identifying errors is any examiner's responsibility."
Regarding claim 6, the supervisor stated that Complainant was provided the same training as the other FIS's. The supervisor stated that there were occasions Complainant would come back to the field office "after the end of work-day assignments, and we discussed and reviewed his work products before he finalized them. I provided him with constructive, instructional, and guiding comments on the work product. I provided [training] to him. He received hands- on training."
Further, the supervisor stated that Complainant was provided a coach. Specifically, the supervisor stated that "coaches are usually designated when a FIS comes to the office. A FIS does not work with [his or her] Coach during every bank assignment. Typically a commissioned examiner or a more senior trainee works with FIS's during each bank examination. There is always an examiner available to work with a FIS; however, there might be a different examiner that a FIS would work with at each bank. [Complainant's coach] has a lot of experience and provides good coaching. I am not aware of Caucasian FIS's being provided mentors or coaches more actively engaged in the FIS's development and education than the Complainant was provided."
The Field Supervisor stated that Complainant "was counseled consistently during the training period. I counseled him, [supervisor] counseled him and he was counseled at the end of every bank examination he participated in by the Examiner-in Charge (EIC) during the examination. After every bank examination the Complainant was evaluated on a developmental feedback form by the EIC and informed of his performance. I sat in on some of the counseling sessions. The Complainant received both good and bad developmental feedback."
Regarding claim 7, the supervisor stated that Complainant was not disallowed to attend the Fourth School because "he had not attained a level of performance to attend Fourth School in all capacities. To attend Fourth School, an employee has to be ready to be and should have served as an EIC. The Complainant had not reached that level of performance."
Regarding claim 8, the supervisor stated she had no knowledge of Complainant being unfairly subjected to downgrades of favorable evaluations and formal written performance criticism.
Regarding claim 9, the supervisor stated that there was an incident that occurred between Complainant and a named employee. Specifically, the supervisor stated that both Complainant and named employee "ended up with raised voices at each other. The Complainant was reviewing a tax deferred asset account looking to reconcile data that was inconsistent on the bank records on an examination where [employee] was the EIC. During this examination the Complainant came to my office at the end of the work day to discuss general work information. At some point when the Complainant was in my office, [employee] came in my office and stopped by when the Complainant and I were in discussion. She interrupted and essentially asked the Complainant why he was talking to me about the tax deferred account issue. I didn't know at that time they were having a difference of opinion. [Employee] told the Complainant that he should be having the discussion with her instead of me. The conversation between them became very heated and they both raised their voices. I counseled both of them regarding the incident. There appeared to be a personality conflict between them."
Regarding claim 10, the supervisor stated that Complainant never asked her to be transferred out of the Risk Management area to the Compliance area. The supervisor further stated "I have no authority to authorize a transfer."
Regarding claim 11, the supervisor stated that her involvement in Agency management's decision not to convert Complainant to permanent status "was similar to my involvement with the Letters of Warning. I looked at the Complainant's performance. His performance was not satisfactory. I worked with LERS representatives to gather data to support the recommendation that the Complainant should not be converted to permanent status. I submitted a letter recommendation to LERS and Chicago Regional management." Furthermore, the supervisor stated that the Chicago Regional Director issued the subject letter to Complainant.
The Chicago Regional Director stated that he was the deciding official not to convert Complainant to permanent status based on a proposal, including supporting documentation, which was forwarded to him by the supervisor, Field Supervisor and Regional Mangers. The Chicago Regional Director stated that Complainant's appointment was allowed to expire "because his performance and pace of attaining the benchmarks was not deemed to reflect adequate progress such that he would achieve commissioning within the four-year prescribed period. The three-year mark is a decision point established by the Corporate Employee Program, when such an assessment is properly made. The FDIC has the right under the OPM-approved CEP to not convert an employee to a permanent appointment at that time."
Regarding claim 12, the supervisor stated that Complainant's appointment was allowed to be terminated "because he was not performing satisfactorily." With respect to Complainant's allegation that he was terminated from Agency employment despite having attained superior test scores at training schools and being rated "Meets Expectations" on 88% of his 2008 and 2009 evaluation, the supervisor stated that Complainant was not terminated from his position. He was not converted to permanent status at the end of his training period. He did acceptable work at schools and passed. There were no tests given at schools. However, an accounting test was administered when he first entered the program during the first year. He did receive a letter of warning because he had not passed his benchmarks. To progress in the CEP he had to meet his benchmarks."
Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination.
Hostile Work Environment
Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). It is also well-settled that harassment based on an individual's prior EEO activity is actionable. Roberts v. Department of Transportation, EEOC Appeal No. 05970727 (September 15, 2000). A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at all of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993); Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994) at 3, 6. The harassers' 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 (March 8, 1994).
In the instant case, for the reasons already provided, we find that the record does not support a finding that that the incidents alleged by Complainant to support his hostile work environment claim occurred because of his race, age or prior protected activity.
Therefore, after a review of the record in its entirety, including consideration of all statements on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the Agency's final decision because the preponderance of the evidence of record does not establish that discrimination occurred.
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
May 21, 2015
__________________
Date
1 For ease of reference, the Commission has re-numbered Complainant's claims as claims 1-12.
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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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