Complainant,v.Sally Jewell, Secretary, Department of the Interior (Fish and Wildlife Service), Agency.

Equal Employment Opportunity Commission

Jul 2, 2015

01-2013-2935-0500 (E.E.O.C. Jul. 2, 2015)

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

,
Complainant,

v.

Sally Jewell,
Secretary,
Department of the Interior
(Fish and Wildlife Service),
Agency.

Appeal No. 0120132935

Agency No. DOI-FWS-13-0070

DECISION
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
July 26, 2013 final Agency decision (FAD) 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
The Commission’s review is de novo. For the following reasons, the Commission AFFIRMS
the FAD.

BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Property
Utilization Specialist in the Agency’s Office of Budget, Planning, and Financial Services in the
Regional Office in Atlanta, Georgia. On November 8, 2012, Complainant filed a formal
complaint alleging that the Agency discriminated against him on the bases of race (African-
American), sex (male), color (Black), age (55), and in reprisal for prior protected EEO activity
when on October 11, 2012, he learned he was rated a 4 on two Critical Elements on his
performance evaluation and Critical Element Number 3 was removed from his Fiscal Year
2012 performance plan.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R.
§ 1614.110(b).

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In the FAD, the Agency initially assumed arguendo that Complainant established a prima facie
case of discrimination and reprisal and found that management articulated legitimate,
nondiscriminatory reasons for its actions. In particular, Complainant’s second-level supervisor
(S2) stated that he rated Complainant for 2012 because his first-level supervisor (S1) was new
to the organization. S2 indicated that a rating of 5 is only given to employees who went above
and beyond. The type of accomplishments that would warrant a rating of 5 include:
consistently providing excellent customer service; willingness to assist co-workers; completing
a project that affects the region or the Service; completing a level of work that exceeds the
norm; and consistently completing work assignments quickly and accurately. Here, S2
affirmed stated that Complainant received a lower rating because of failure to complete the
Fleet Monthly Utilization report. S2 averred that a contractor had to work on the report
because Complainant could not provide the report on his own. S2 noted that the contractor
was not hired to produce the report, but pitched in and provided the assistance when it became
known that Complainant needed assistance.

In addition, S2 maintained that he inadvertently excluded a rating for Critical Element No. 3.
He asserted that he did not purposely remove it from the Complainant's 2012 performance
plan, and once the error came to his attention, he rated Complainant on Critical Element No.
3. S2 noted that that the inclusion of Critical Element No. 3 did not alter Complainant's
overall rating as he received a Superior (4) rating both before and after the inclusion of Critical
Element No. 3.

In attempting to establish that the Agency’s reasons were pretext for unlawful discrimination
and reprisal, Complainant contended that he should have received the highest rating on Critical
Element Nos. 1 and 2 because he performed at a higher level in both Customer Service and
Motor Vehicle Management. Further, the Agency noted that while Complainant stated that S2
refused to answer his question as to what he could have done to achieve an Exceptional (5)
rating for Critical Element Nos. 1 and 2, this was not evidence of pretext.

In addition, S1 affirmed that she believed that Complainant's performance merited a level 5
rating because a contractor, not Complainant, was responsible for the development and
production of the Monthly Fleet Utilization Report using a new system. The Agency noted
that Complainant failed to rebut S2’s explanation that S1 was new to the organization and the
contractor only assisted with the report because Complainant was unable to complete it on his
own. Complainant also did not dispute the fact that he received an overall rating of Superior
(4) for three critical elements on his 2012 Employee Performance Appraisal Plan, which was
the same overall rating based on two critical elements. Complainant was given a Performance
Award in the amount of $1,581, or 2% of his salary, based on the Superior rating.

The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination or reprisal as alleged. The instant appeal followed.

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CONTENTIONS ON APPEAL
Complainant argues that S2’s removal of Critical Element No. 3 significantly altered the terms
and conditions of his performance plan and led to tangible job consequences. Complainant
contends that the Fleet Utilization Report was the contractor’s responsibility to produce, not
his. Complainant notes that he did not receive a performance award until after his evaluation
was corrected to include Critical Element No. 3. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS
Disparate Treatment

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). Complainant must initially 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. 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 802 n. 13. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks

,
509 U.S. 502, 519 (1993).
Assuming arguendo that Complainant established a prima facie case of discrimination and
reprisal, the Commission finds that the Agency articulated legitimate, nondiscriminatory
reasons for its actions as discussed above. Particularly, as to Complainant’s rating, S2
affirmed that he rated Complainant because S1 was new to the organization. ROI, at 32. S2
stated that he did not rate Complainant as a level 5 on any Critical Elements because a level 5
rating was only given to employees who went above and beyond. Id. More specifically, S2
explained that level 5 ratings are warranted in areas such as consistently providing excellent
customer service, willingness to assist co-workers, completing a project that affects the region
or the Service, completing a level of work the exceeds the norm, consistently completing work
assignments quickly and accurately. Id. S2 noted that one reason Complainant was not rated
higher was because a contractor had to work on the Fleet Monthly Utilization report because
Complainant was not able to provide the report on his own. Id

.
Finally, with respect to the missing Critical Element, S2 maintained that he did not
intentionally remove the critical element from Complainant’s 2012 performance plan. ROI, at
32. S2 confirmed that once the error was brought to his attention, he rated Complainant on the
inadvertently missing Critical Element. Id. S2 noted that Complainant’s rating was not
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adversely affected by the missing Critical Element as his rating remained Superior after the
third Critical Element was added. Id

. at 33.
Complainant now bears the burden of establishing that the Agency's stated reasons are a
pretext for discrimination. 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.
In attempting to show that the Agency’s reasons for its actions were pretextual, Complainant
argued that he knows he performed at a higher level, and S2 refused to clearly explain to him
how he could achieve a higher rating. Further, Complainant contends that the contractor was
responsible for producing the report cited by S2. S2 stated, however, that the contractor was
not hired to produce the report, and the contractor provided assistance since Complainant was
not able to provide it on his own. ROI, at 32.

As Complainant chose not to request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented.
Beyond Complainant's assertions, the Commission finds that there is no persuasive evidence in
the record that Complainant’s protected classes played a role in any of the Agency’s actions.
The Commission notes that the Commission cannot second guess an employer's business
decision, such as an evaluation of an employee's performance, but can focus only on an
employer's motivation for such decisions. Tx. Dep't of Comm. Affairs v. Burdine

, 450 U.S.
248, 249 (1981). At all times, the ultimate burden remains with Complainant to demonstrate
by a preponderance of the evidence that the Agency's reasons were not the real reasons and
that the Agency acted on the bases of discriminatory and retaliatory animus. Complainant
failed to carry this burden. As a result, the Commission finds that Complainant has not
established that he was subjected to discrimination or reprisal as alleged.

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 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:

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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
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6
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

Date
July 2, 2015