Lonnie H.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.

Equal Employment Opportunity Commission

Sep 4, 2019

0120181729 (E.E.O.C. Sep. 4, 2019)

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

Lonnie H.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.

Appeal No. 0120181729
Hearing No. 531-2016-00125X
Agency No. 57201500073

DECISION

On May 2, 2018, Complainant filed an appeal with the Equal Employment Opportunity
Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
March 19, 2018, final decision 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. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

The issue presented is whether Complainant has shown by a preponderance of the evidence that
the Agency subjected him to discrimination and reprisal based on his protected classes and in
reprisal for his protected EEO activity.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Health Physicist, ZP-
1306-IV, with the Radiation Facilities Group, Gaithersburg Safety Division, Office of Safety,
Health and Environment, at the Agency’s National Institute of Standards and Technology facility

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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in Gaithersburg, Maryland. On March 23, 2015, Complainant filed an EEO complaint alleging
that the Agency discriminated against him on the bases of sex (male), age (62), and reprisal for
prior protected EEO activity when:

1. On November 7, 2014, S1 (Complainant’s supervisor) summoned him by telephone
to come to this office in an unprofessional and terse manner with the statement
“Come here, I want to talk with you.” During their discussion in S1’s office, S1
directed/demanded that he (Complainant) submit a progress report by the end of
the day about his work in the Room B200 of Building 245.

2. On November 14, 2014, S1 gave him (Complainant) a performance evaluation
rating of “Marginal Contributor” with an explanation that listed only “two specifics
and general statements.” Also, the last paragraph of the “strengths/achievements”
section was “counterproductive about [his] strengths.”

3. On November 17, 2014, S1 summoned him (Complainant) by telephone to come
to his office. While in S1’s office, S1 discussed with him the circumstances behind
a response to a customer who was waiting to receive information from him
(Complainant). However, S1 limited their discussion to “select issues of
communications” he (Complainant) had with the customer, excluding any matters
related to the issue of sending a response to the customer.

4. On November 18, 2014, during a staff meeting, S1 went over the staff schedule of
those who would be present on Friday, November 28, 2014. S1 identified two (2)
of the three (3) people in his group who would be present at work that day, but did
not include him (Complainant), even though he was scheduled to be at work that
day, and despite the fact that S1 was sitting next to him at the meeting.

5. On March 8, 2015, without prior notifications, he (Complainant) was reassigned
from the Radiation Facilities Group to the Program Development and Compliance
Group.2

Complainant testified that he was discriminated against by S1 based on sex because Complainant
contended that S1 treated female personnel, including a female Health Physicist, differently. He
claimed that he was discriminated against based on his age when he “[n]oted that he is the oldest
employee in his group.” Complainant further asserted that he had been “singled out” based on his
prior EEO complaint and a Merit Systems Protection Board appeal in 2012.

2 Claim 5 was dismissed based on untimely EEO counselor contact, pursuant to 29 C.F.R.
§ 1614.107 (a)(2). The record indicates that Complainant did not contact an EEO counselor
regarding this matter until June 29, 2015, which was well beyond the 45-day time limitation period.
Complainant does not contest the dismissal of this allegation; therefore, we will not address it
further in this decision.
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With regard to Claim 1, Complainant contends that he was not provided with assistance on his
project. His project was an assignment to survey a room and the equipment contained in it on an
ongoing basis to determine the extent of contamination in it. He states that he was not provided
with assistance, although he expected assistance. He stated that there was no specific deadline and
that he had provided S1 with routine progress reports. On November 7, 2014, Complainant stated
that S1 called him into his office where he was directed to submit a non-routine progress update
on the project by the end of the day. Complainant stated that he complied. Complainant felt that
S1 had a demeanor that was threatening, intimidating, harassing or motivated by discrimination
and retaliation.

Complainant avers that his reputation as a professional w a s harmed, h i s health was adversely
impacted, which required professional treatment and care, he lost sleep, suffered depression,
diminished thinking and concentration due to the stress caused by the discriminatory conduct
and harassment by his supervisors.

S1 denied any specific recollection of Claim 1. He recalled that there was a delay in Complainant’s
completion of his project. S1 stated that he has regular meetings with staff, that he required
Complainant to meet specific deadlines regarding his assigned projects, and that requirement
applied to all staff. S1 denied speaking to Complainant in a disrespectful or unprofessional
manner.

With regard to Claim 2, Complainant stated that his rating of “Marginal Contributor” was based
on a change in his performance plan. He did not concur with the performance plan. He also stated
that the Report of Counselling compiled by the EEO counsellor reflected that other Health
Physicists were given goals and progress requirements different from him. He felt his to be
indicative of disparate treatment. He also averred that his EEO complaint (and his MSPB appeal)
were factors in his rating. Complainant avers that his performance appraisals and accomplishments
were reduced after he filed an EEO complaint.

S1 stated that he made no major changes in Complainant’s duties in FY 2014 but noted that any
changes were mission based. He noted that Complainant signed his performance plan. Despite
Complainant’s disappointment with his evaluation, he believed Complainant’s evaluation was fair.
He noted that there were areas where he felt Complainant performed satisfactorily and was rated
accordingly. He also stated that he had individual by-weekly meetings with employees, including
Complainant, and addressed all concerns raised during those meetings.

With regard to Claim 3, Complainant avers that S1 “summoned” him by telephone to come to his
office. While in S1’s office, S1 discussed the circumstances behind a response to a customer who
was waiting to receive information from Complainant. Complainant avers that S1 limited the
discussion to select issues of communications that he had with the customer, excluding any other
matters related to the issue of sending a response to the customer. Complainant avers that this was
an incident of on-going harassment, disparate and discriminatory treatment and retaliation’ against
Complainant.

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S1 stated that he was unaware of what discussion was raised by Complainant. S1 stated that one
of Complainant’s best aspects was his interaction with staff, contractors and visitors. S1 did not
recall any serious deficiencies in Complainant’s accomplishments in that area. S1 stated that if he
learned of a complaint from one of Complainant’s customers, it would have been his responsibility
to discuss it with Complainant.

With regard to Claim 4, Complainant averred that during a staff meeting, S1 he went over the staff
schedule of those who would be present or absent on Friday, November 28, 2014, in light of the
Thanksgiving Holiday. He identified two of the three people in his group who would be at work
that day. Although Complainant was the third person who was going to be present that day, S1
did not identify him even though he was sitting next to him at the meeting. Complainant asserted
that the omission of not recognizing him was not an isolated occurrence. Complainant asserted
that this was an incident of subtle on-going harassment, and discriminatory treatment, and
retaliation against him based on his protected activities. Complainant averred that ‘others had not
been similarly treated as if they were non-existent.’

S1 recalled discussing employee’s schedules prior to the Thanksgiving holiday but considered it
an “FYI” communication. He denied that any omission of Complainant was deliberate. He also
denied that Complainant’s age, sex or prior EEO activity played a role.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge. Complainant timely requested a hearing but
subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

No new contentions were raised on appeal by either party.

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, at Chapter 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’).

Disparate Treatment

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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 a complainant to prevail, they
must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802, n. 13; 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. 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. St. Mary’s Honor Center v. Hicks, 509
U.S. 502 (1993).

If we assume, arguendo, that Complainant established a prima facie case of discrimination based
on his age, sex, and previous EEO activity, the Agency has articulated legitimate,
nondiscriminatory reasons for its actions.

With regard to Claim 1, S1 recalled that there was a delay in Complainant completion of his
project. S1 stated that he had regular meetings with staff, that he required Complainant to meet
specific deadlines regarding his assigned projects, and that requirement applied to all of S1’s staff.
S1 denied speaking to Complainant in a disrespectful or unprofessional manner.

With regard to Claim 2, S1 stated that he made no major changes in Complainant’s duties in FY
2014 but noted that any changes were mission based. He stated that Complainant signed his
performance plan. He stated that despite Complainant’s disappointment with his evaluation, he
believed Complainant’s evaluation was fair. He noted that there were areas where he felt
Complainant performed satisfactorily and was rated accordingly. He also stated that he had
individual by-weekly meetings with employees, including Complainant, and addressed all
concerns raised during those meetings.

Other than Complainant’s averments and conjecture, he has failed to provide evidence that the
Agency’s legitimate, non-discriminatory reasons were pretext for discrimination.

Harassment

Regarding Complainant’s hostile work environment claim, we find that under the standards set
forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile
work environment must fail with regard to claims 1 and 2. See Enforcement Guidance on Harris
v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work
environment is precluded by our determination that Complainant failed to establish that any of the
actions taken by the Agency regarding these claims was motivated by discriminatory animus. See
Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

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With regard to claims 3 and 4, we note that the discrimination statutes are not a civility code. What
is prohibited is “behavior so objectively offensive as to alter the conditions of the victim’s
employment.” Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). The
discrimination statutes do not create a right to work in a pleasant environment, merely one that is
free from discrimination. As a result, employees may experience what they perceive as
unprofessional, inappropriate, and disrespectful treatment. In the instant matter, the record
demonstrates that Complainant believed that he had a contentious relationship with his superior
and was being treated differently. For example, he felt that he was not appreciated by his supervisor
for his contributions to the Agency’s objectives. We find that based on the record, aside from
common workplace annoyances, there were no incident(s) that would demonstrate that
Complainant was subjected to a hostile work environment based on his age, sex or previous EEO
activity.
CONCLUSION

Based on a thorough review of the record, we AFFIRM the Agency’s finding that it did not
discriminate against Complainant as alleged.

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.
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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 (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 4, 2019
Date