Complainant,v.Michael E. Fryzel, Chairman, National Credit Union Administration, Agency.

Equal Employment Opportunity Commission

Feb 21, 2013

0120114166 (E.E.O.C. Feb. 21, 2013)

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

,
Complainant,

v.

Michael E. Fryzel,
Chairman,
National Credit Union Administration,
Agency.

Appeal No. 0120114166

Hearing No. 410-2011-00026X

Agency No. 10-03

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s July 25, 2011 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., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. and, Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For
the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a District Examiner
at the Agency’s Region III Office in Atlanta, Georgia. On April 14, 2010, Complainant filed a
formal complaint alleging that the Agency discriminated against and subjected him to a hostile
work environment on the bases of race (African-American) evidenced by multiple incidents
including, inter alia, he was issued a statement of expectations memorandum; his supervisor
(S1) denied his leave request; and, S1 singled him out during two team examinations by calling
him out of the work room to discuss performance issues. Additionally, Complainant alleged
that he was subjected to discrimination on the bases of race, disability, and age (44) when he
was not selected for Region III Division of Supervision Analyst position.

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 an EEOC
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Administrative Judge (AJ). Complainant timely requested a hearing. The AJ held a hearing
on June 28, 2011, and issued a bench decision thereafter.

In the decision, the AJ determined that Complainant failed to establish a prima facie case of
discrimination. Even assuming he had established a prima facie case of discrimination, the AJ
found that the Agency articulated legitimate, nondiscriminatory reasons for not selecting
Complainant. Namely, the interview panelists testified that Complainant’s past performance
did not warrant his selection for the position. The AJ determined that this was corroborated by
Complainant’s own admission during his interview that his writing was a weakness and when
asked why he wanted the position he said that he wanted to spend more time with his newly
adopted child.

As to Complainant’s harassment claim, the AJ found that there was no evidence that any of the
alleged Agency actions were based on discriminatory animus. The AJ concluded that
Complainant failed to present any evidence establishing that the Agency’s reasons for its
actions were pretextual. As a result, the AJ held that Complainant had not been subjected to
discrimination or subjected to a discriminatory hostile work environment as alleged. The
Agency subsequently issued a final order adopting the AJ’s decision.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in denying several of his witnesses from
testifying at the hearing. Further, Complainant argues that the Agency violated the Veterans
Employment Opportunities Act of 1998. Complainant maintains that S1 continued to single
him out during S1’s tenure. Finally, Complainant argues that witnesses at the hearing testified
that S1 never denied their leave requests for court appearances or issued them expectations
memoranda. Accordingly, Complainant requests that the Commission reverse the final order.

STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 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.

An AJ's credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO
MD-110), at 9-16 (Nov. 9, 1999).

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To the extent that Complainant alleges that the AJ erred in disallowing several of his witnesses
from testifying, the Commission notes that AJs have broad discretion in the conduct of a
hearing, including matters such as issuing discovery orders, scheduling, and witness selection.
See 29 C.F.R. § 1614.109(e). The Commission finds that Complainant has failed to
demonstrate that the AJ abused his discretion in denying those witnesses from testifying as
their testimony was not relevant to the claims presented in this case.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary
scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). 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 Constr. Corp. 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. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 519 (1993).

The Commission concurs with the AJ’s finding that, assuming arguendo that Complainant
established a prima facie case of discrimination, the Agency articulated legitimate,
nondiscriminatory reasons for its actions. Regarding his non-selection claim, Complainant
applied and was the only candidate listed on the Certificate of Eligibles. Complainant was
interviewed by the Director of Supervision (D1) and the Associate Regional Director of
Operations (D2). D2 testified that Complainant stated during his interview that one of his
weaknesses was that his writing skills could use some improvement and his supervisor had
pointed that out. Hr’g Tr., at 73. D2 further testified that analysts are required to write
professionally, and it was a key skill for that position. Id. Additionally, when asked why he
wanted the position, Complainant responded that he wanted to spend more time with his newly
adopted child. Id. at 78. Finally, when asked about the most complex case he had worked on,
Complainant compared cases of which D2 was familiar and that he did not believe were very
complex. Id. at 78-79. As a result, D2 did not believe that Complainant would be a good
choice, and Complainant was not selected.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403
(Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered
explanation is unworthy of credence. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

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The Commission finds that the AJ's determination that Complainant failed to establish pretext
as to the Agency’s reasons for his non-selection is supported by substantial evidence in the
record. In the absence of evidence of unlawful discrimination, the Commission will not second
guess the Agency's assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v.
Burdine

, 450 U.S. at 259. The record and facts gleaned at the hearing fail to prove any
evidence purporting to show that the selection process or the Agency’s selection decision was
tainted by discriminatory animus or that the reasons articulated by the Agency were pretext to
hide unlawful discrimination. As a result, the Commission finds that Complainant was not
discriminated against as alleged.
Hostile Work Environment

Harassment of an employee that would not occur but for the employee's race, color, sex,
national origin, age, disability, religion or prior EEO activity is unlawful, if it is sufficiently
patterned or pervasive. Wibstad v. U.S. Postal Serv., EEOC Appeal No. 01972699 (Aug. 14,
1998) (citing McKinney v. Dole, 765 F.2d 1129, 1138-39 (D.C. Cir. 1985)); EEOC
Enforcement Guidance on Harris v. Forklift Systems, Inc. at 3, 9 (Mar. 8, 1994). In
determining that a working environment is hostile, factors to consider are the frequency of the
alleged discriminatory conduct, its severity, whether it is physically threatening or humiliating,
and if it unreasonably interferes with an employee's work performance. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 21 (1993); Enforcement Guidance at 6. The Supreme Court has
stated that: “Conduct that is not severe or pervasive enough to create an objectively hostile
work environment - an environment that a reasonable person would find hostile or abusive - is
beyond Title VII's purview.” Harris, 510 U.S. at 22 (1993).

The Commission finds that Complainant has not shown that he was subjected to conduct
sufficiently severe or pervasive to rise to the level of a hostile work environment. Further, the
Commission finds that substantial record evidence supports the AJ's determination that
Complainant failed to show that these incidents were unlawfully motivated by discriminatory
animus. Specifically, as to the performance expectations memorandum, S1 affirmed that he
issued it because he had previously met with Complainant regarding his deficiencies and he
believed it would better serve the process if Complainant fully understood what and why
certain things needed to be done. ROI, Ex. 10, at 3-4. S1 noted that he later rescinded the
memorandum after he learned that Complainant had not completed some of the core training
courses. Id. at 4.

Regarding the leave matter, S1 asserted that he did not deny Complainant’s leave request to
attend a court proceeding regarding his son; rather, Complainant informed him that he was
attempting to receive permission from the court to allow his neighbor to appear in his place.
ROI, Ex. 10, at 12-13. S1 noted that Complainant never specifically requested leave and the
matter became moot when Complainant indicated that he did not need to appear. Id. at 13.

Finally, as to being singled out during team examinations, S1 maintained that he met with
Complainant at a few sites, but never broadcasted or shared details about Complainant’s
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performance with anyone. ROI, Ex. 10, at 9. S1 noted that he asked Complainant on one
occasion if he wanted have a discussion at the office and Complainant indicated that the site
was suitable. Id. On another occasion, Complainant showed his appraisal to another examiner
and asked for his thoughts before S1 had an opportunity to talk to him about it. Id.

The Commission finds that substantial evidence in the record supports that the alleged incidents
were not based on racial animus. Accordingly, the Commission finds that Complainant was not
subjected to harassment.

CONCLUSION

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 final Agency order 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 (Nov. 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.
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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

February 21, 2013
Date