Oliver T.,1 Complainant,v.Chad Wolf, Acting Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity Commission

Jul 14, 2020

0120182404 (E.E.O.C. Jul. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oliver T.,1 Complainant, v. Chad Wolf, Acting Secretary, Department of Homeland Security, Agency. Appeal No. 0120182404 Hearing No. 480-2016-00939X Agency No. HS-CBP-01763-2014 DECISION On July 7, 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 June 8, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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. ISSUES PRESENTED The issues presented are whether the AJ appropriately dismissed Complainant’s hearing request and remanded the matter for the issuance of a final Agency decision; and, whether Complainant has shown by a preponderance of the evidence that the Agency subjected him to a hostile work environment and discriminated against him based on his protected classes and in reprisal. 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. 0120182404 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Law Enforcement Communications Assistant at the Agency’s San Diego Border Patrol Sector Tactical Communications Center in San Diego, California. On October 9, 2014, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of race (African- American), disability (disabled veteran), age (64), and reprisal for prior protected EEO activity when: 1. between approximately May 10, 2013, and May 17, 2013, Complainant’s first line supervisor (S1), contacted Complainant’s university to verify whether Complainant had received a degree from that institution; 2. on September 13, 2013, management informed Complainant that he would be reassigned from the midnight shift to the day shift; 3. since September 2013, S1 and a former Supervisory Law Enforcement Assistant (SLECA) (S3) routinely checked whether Complainant had locked his desk drawer prior to his departing for lunch; 4. since September 2013, S1 frequently summoned Complainant to S1’s office to provide a written statement about Complainant’s performance; 5. since September 13, 2013, S1 had sworn, cursed, and made racially derogatory comments in Complainant’s presence on a daily basis; 6. on June 12, 2014, S1 instructed Complainant to submit a memorandum; 7. as of July 15, 2014, S1 required Complainant to submit the Cross-Border Security Communications Network (CBSCN) test results within 15 minutes of the completion of the test; 8. the Agency did not give Complainant an initial performance review, a mid-year performance review, or an annual performance appraisal (PA) during FY 2014 (October 1, 2013, through September 30, 2014); 9. on October 3, 2014, the Agency issued Complainant a proposal to suspend him from duty without pay for 10 calendar days; 0120182404 3 10. on October 17, 20142, S1 issued Complainant a formal performance counseling letter (PCL); 11. on October 31, 2014, the Agency violated Complainant’s due process rights under the Fifth and, Fourteenth Amendments of the U. S. Constitution when the Agency placed Complainant on an Employee Proficiency Plan (EPP)3; 12. on October 31, 2014, S1 placed Complainant on a 60-day Employee Proficiency Plan (EPP), and on December 11, 2014, S1 issued Complainant a written performance counseling memorandum (PCM) as part of management’s review of his EPP; 13. on January 12, 2015, S1 requested that Complainant provide medical verification in order to grant Complainant’s request for sick leave (SL)4; and, 14. effective January 31, 2015, the Agency forced Complainant to resign from the Agency (constructive discharge)5. On July 23, 2015, at the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notified him that because his case was a mixed case complaint, the Agency had referred the matter for issuance of a Final Agency Decision (FAD) without a hearing. On August 31, 2015, the Agency issued a FAD. It dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(1), which provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. Specifically, on October 18, 2013, Complainant filed an EEO complaint (Agency No. HS-CBP-01643-2013). Claims 1-2 of the instant complaint are identical to allegations in Agency No. HS-CBP-01643- 2013, which, at the time, was pending before an EEOC AJ for a hearing and decision6. The Agency dismissed claim 11 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim because it determined that the allegation was not within the purview of EEOC regulations. However, the Agency noted that all three dismissed claims were still considered as part of Complainant’s overall hostile work environment claim. Regarding the remaining claims, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency provided Complainant appeal rights to an appropriate United States District Court, or with the Merit Systems Protection Board (MSPB), but not with the Commission. 2 Amended on October 20, 2014. 3 Amended on November 12, 2014. 4 Amended on January 24, 2015. 5 Amended on February 2, 2015. 6 That matter was later resolved before the Commission. Oliver T. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019000285 (Feb. 5, 2020). 0120182404 4 On October 13, 2015, Complainant filed an appeal with the MSPB, alleging that his retirement, effective January 31, 2015 was involuntary and constituted a constructive discharge. On January 21, 2016, a MSPB Administrate Judge (MSPB AJ) issued an initial decision dismissing Complainant’s October 13, 2015 appeal for lack of jurisdiction. The MSPB AJ determined that Complainant’s retirement was not a constructive discharge. Complainant subsequently filed a Petition for Review of the MSPB AJ’s initial decision.7 In MSPB SF-0752-16-0033-I-1 (July 1, 2016) 8, the MSPB issued a Final Order affirming the MSPB AJ’s Initial Decision9. On July 14, 2016, Complainant filed a Petition for Review with the Commission, appealing the MSPB’s July 1, 2016 Final Order. In EEOC Petition No. 0320160055 (Aug. 2, 2016), the Commission dismissed Complainant’s July 14, 2016 Petition for Review finding that it had no jurisdiction to consider Complainant’s Petition because the MSPB did not address any matters within the Commission’s jurisdiction when the MSPB denied jurisdiction over a matter that it did not view as a mixed case. The Commission referred the matter to the Agency for further processing as a non-mixed case, including notification to Complainant of his right to elect a hearing before an EEOC Administrative Judge (hereinafter referred to as “AJ”) or to receive a FAD. On September 8, 2016, Complainant filed a request for a hearing before an AJ. On February 14, 2018, an EEOC AJ issued a Scheduling Notice (Notice) scheduling a pre-hearing telephonic conference for April 26, 2018 at 11:00 a.m. Central Time. The Notice stated that failure to appear, without prior approval, may result in the cancellation of the hearing. On April 26, 2018, the AJ ordered Complainant to show good cause for why his hearing request should not be dismissed and the case returned to the Agency for issuance of a Final Agency Decision (FAD). 7 The record does not contain a copy of Complainant’s MSPB Petition for review, or the date in which he filed it. 8 Complainant later appealed the July 1, 2016 MSPB decision. The MSPB affirmed its prior decision in MSPB No. 2016-2533 (March 9, 2017). 9 On August 17, 2016, Complainant filed a Petition for Review or Notice of Appeal with the United States Court of Appeals for the Federal Circuit, appealing the MSPB's Final Order. On September 8, 2016, Complainant filed a request for a hearing before an EEOC Administrative Judge (AJ). On March 9, 2017, the United States Court of Appeals affirmed the MSPB’s Final Order. On May 10, 2017, Complainant filed a petition with the Supreme Court of the United States for a writ of certiorari, for review of the Court of Appeals’ decision. On October 2, 2017, the Supreme Court denied Complainant's petition. On October 21, 2017, Complainant filed a petition for rehearing of the Court's denial of the petition for writ of certiorari. On November 27, 2017, the Supreme Court denied Complainant's petition for rehearing. 0120182404 5 The AJ stated the good cause order was based on Complainant’s failure to appear for the prehearing conference scheduled that same day. The Show Cause order provided Complainant 15 days in which to respond. Complainant timely responded10. On May 9, 2018, the AJ submitted an Order of Dismissal and for the Agency to issue a FAD. The AJ noted that Complainant had timely responded to the AJ’s April 26, 2018 show cause order. However, the AJ determined that the response11 was inadequate. Specifically, Complainant stated that he was out of town due to a family emergency and was unable to make calls. In support, Complainant provided a copy of his itinerary which demonstrated that he had booked his trip, at a minimum, eight days prior to the prehearing conference. The AJ determined that Complainant failed to show good cause as to why he was incapable of filing a motion to continue, or to send an email to the Agency and the AJ regarding his inability to appear. Therein, the AJ ordered the Agency to issue a FAD based on the record. On June 8, 2018, the Agency issued a FAD. The Agency dismissed claims 1 and 2, pursuant to 29 C.F.R. § 1614.107(a)(l) because, at the time, those claims were pending before the Commission12. The Agency also dismissed claim 11 pursuant to 29 C.F.R. § 1614.l07(a)(l), for failure to state a claim. The Agency determined that claim 11 was not in within the purview of the Commission. The Agency noted that while claims 1, 2, and 11 were procedurally dismissed, all three were reviewed in relation to Complainant’s hostile work environment claim. Ultimately, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency provided Complainant his appeal rights to the Commission or to file a civil action with the appropriate United States District Court. On July 7, 2018, Complainant submitted an appeal concerning the instant matter to the Commission. During this same time, on July 8, 2018, Complainant filed an appeal with the MSPB. Complainant submitted several claims in his appeal, including whistleblowing13, a USERRA claim related to a denial of sick leave due to prior active military duty, and a proposed 10-day suspension. On July 10, 2018, the MSPB issued an Acknowledgement Order ordering the parties to address whether the doctrines of res judicata and/or collateral estoppel applied to the appeal. On July 23, 2018, the Agency issued a response in which it argued that the MSPB did not have jurisdiction as Complainant had filed a brief with the Commission on the same issues on July 7, 2018. 10 The record does not contain a copy of Complainant’s response to the show cause order. Attempts to obtain a copy were unsuccessful. 11The AJ’s May 9, 2018 Order of Dismissal did not include a copy of Complainant’s response. 12 Claims 1 and 2 are identical to claims that have been resolved before the Commission. Oliver T. v. Dep’t of Homeland Sec., Appeal No. 2019000285 (Feb. 5, 2020). 13 In MSPB No. SF-1221-18-0779-W-1 (Oct. 11, 2018), the MSPB dismissed Complainant’s whistleblowing retaliation claim regarding his 10-day suspension finding that the MSPB lacked jurisdiction. 0120182404 6 On July 24, 2018, Complainant filed a response. On August 3, 2018, the Agency issued a counter- response to the MSPB. The MSPB later issued initial decisions regarding Complainant’s July 8, 2018 appeal. 14 15 On July 30, 2018, the Commission issued acknowledgment letters to both Complainant and the Agency that Complainant had filed the instant appeal to the Commission on July 7, 2018. On August 24, 2018, the Agency responded to Complainant’s appeal to the Commission. On August 31, 2018, Complainant countered. On September 7, 2018, the Agency issued a response. On September 18 and 24, 2018, Complainant issued additional response statements. The investigative record reflects the following pertinent matters relating to the subject claims. During Complainant’s tenure with the Agency, the Department Head served as his first line supervisor (S1) (African American, over 40, no identified prior EEO activity or disability) and a Supervisory Border Patrol Agent/Watch Commander served as his second-line supervisor (S2) (Caucasian, over 40, prior EEO activity, no identified disability). Complainant asserted that from September 2013 until his constructive discharge, S1 repeatedly monitored Complainant to see if he had locked his desk drawer prior to his departing for lunch (claim 3). S1 denied the charge and stated that he never personally checked, or ordered others to, check Complainant’s desk. S1 noted that Agency policy was to secure Personally Identifiable Information (PII) and that he had previously sent an email reminder to all supervisors reminding them to ensure all PII is secured. The former Supervisory Law Enforcement Assistant (S3) stated that six supervisors, including Complainant, shared a desk that had a drawer that contained PII. S3 stated all supervisors would occasionally forget to lock the drawer, but that Complainant most frequently left this drawer unlocked. S3 stated there were no orders to watch Complainant specifically. Management just simply reminded all supervisors to lock the drawer. According to Complainant, after his prior EEO complaint was decided in August 2013, S1 began to harass him. Specifically, S1 would call Complainant into his office to discuss his work performance (claim 4). S1 denied harassing or complaining to Complainant about his work and noted that while Complainant was called into his office daily it was due to overseeing him as his supervisor. 14 In MSPB No. SF-4324-18-0644-I-1 (Feb. 6, 2019), the MSPB issued an initial decision regarding one of Complainant’s claim. Specifically, regarding Complainant’s claim that he was denied sick leave due to his prior active military service in violation of the Uniformed Services Employment and Re-employment Rights Act (USERRA). While Complainant referenced his status as a disabled veteran in his claim, the MSPB did not address the Rehabilitation Act in its decision. The MSPB only discussed Complainant’s claim in relation to USERRA, and ultimately determined that Complainant had failed to prove his claim based on USERRA. 15In MSPB No. SF-0752-18-0643-I-1 (Sept. 12, 2018), the MSPB dismissed Complainant’s MSPB appeal dated July 8, 2018, without a hearing, as it was barred by collateral estoppel. 0120182404 7 Complainant asserted that S1 frequently cursed and used racially derogatory language, including use of the “n” word, on several occasions (claim 5). Complainant asserted that S1 would also occasionally call a S2 “a stupid white boy.” S2 stated that S1 has never cursed in the office and has no reason to believe S1 would call him “a stupid white boy.” S2 recalled one instance in which S1 used the “n” word.” S2 stated that it was during a private conversation between him and S1. S2 stated that it was not meant to disparage any individual or meant in a flippant manner and that S1 used the term to reference himself. S1 acknowledged that he has used the “n’ word but that it was about himself and not in a negative way. S1 denied cursing or being unprofessional at work. S1 also asserted that any use of the “n” word was taken out of context and claimed that the term can often be used as a “term of endearment in his culture”. On June 10, 2014, Complainant and S2 corrected entries on the Border Patrol Employee Tracking System (BPETS) based on initial mistakes Complainant had made in the scheduling. Specifically, Complainant allowed an employee, E1, to change his days without appropriately marking it. On June 12, 2014, S1 instructed Complainant to submit a memorandum on the mistakes he had initially made (claim 6). Complainant noted that S1 and S2 also played a role in the mistakes made, and yet he felt targeted as if the mistake was solely his. On June 17, 2014, Complainant submitted his memorandum to the Patrol Agent in Charge. S2 stated that scheduling mistakes were initially made by Complainant, but that he refused to assume responsibility. S2 noted that since this was not the first incident, he brought the matter to S1. As S1 informally reviewed the matter, he asserted that Complainant acknowledged lying about the incident. S1 then instructed Complainant to write a memorandum. According to S1, Complainant was requested to provide a memorandum not because of mistakes on the schedule, but because he showed lack of candor in lying about it. As of July 15, 2014, S1 required all management officials to submit the Cross-Border Security Communications Network (CBSCN) test results within 15 minutes of the completion of the test (claims 7). S1 stated that the test results needed to be submitted within 15 minutes of completion so that if there were any issues, the issues could be addressed as early in the work day as possible. Complainant averred that no other personnel were tasked to the same timeframe. S1 explained that Complainant was under the same directive as the rest of the department’s supervisors to submit CBSCN test results within 15-20 minutes of testing and that S1 did not make an exclusive requirement of Complainant. S1 added that he brought this to Complainant’s attention when he learned that Complainant was not in compliance. S1 and S3 noted that the system had many issues when it was first released, and it was decided that the network needed to be tested on every shift to quickly identify and resolve issues. S3 noted that at times, Complainant would get results in the morning, but would not email them out until four or five hours later. S3 stated that this level of delay severely impacted troubleshooting efforts. Complainant asserted that management did not give Complainant an initial performance review, a mid-year performance review, or an annual performance appraisal (PA) during FY 2014 (October 1, 2013, through September 30, 2014) (claim 8). S1 stated that he was not Complainant’s supervisor during that relevant time, but that when he became Complainant’s supervisor he was informed by HR that someone else would be providing Complainant’s review. 0120182404 8 In April 2014, HR informed S1 that a Labor and Employee Relations Specialist would issue Complainant’s evaluation as Complainant had pending grievances against S2 and S3 at the time. On April 15, 2014, Complainant signed his annual review. Management noted that HR had delayed reviews across the department because the Human Resources Business Engine (HRBE) system was not operating properly at the time. However, all employees, including Complainant, received a short turnaround on their Mid-Cycle review by end of May/middle of June 2014. By letter dated October 2, 2014, signed by the Assistant Chief Patrol Agent (ACPA), Complainant was issued a proposal to suspend him from duty and pay for ten calendar days due to lack of candor (claim 9). The proposal stated that during a discussion on June 12, 2014, between Complainant, S2, and S1 regarding the scheduling errors on the G-259a form, Complainant was asked if he allowed a schedule switch on June 11, 2014, for E1. Complainant allegedly replied that he told E1 he could not accommodate E1’s schedule change request. When E1 was questioned, he alleged Complainant had approved the change. When Complainant was once again questioned about it, he allegedly replied “I lied.” The proposal stated that Complainant’s actions violated the Agency’s Standards of Conduct and that supervisors are expected to demonstrate and promote integrity and truthfulness in the workplace. The letter concluded that Complainant had a right to respond to the proposal and full consideration would be given to his reply and any supporting evidence he submitted. Complainant asserted that the “I lied” comment was taken out of context, and that he had framed it as a question, as if S1 and S2 were accusing him. Complainant retired prior to receiving the suspension, which was later reduced to a one-day suspension. Complainant compared himself to a Caucasian colleague (E2), who he asserted lied about having to leave work thirty minutes early and was never reprimanded. S1 stated that he was E2’s second line supervisor, and he brought the matter to E2’s direct supervisor for handling. E2’s supervisor opted to verbally admonish E2 and explained to S1 that it was a first-time incident, and that E2 did not give him trouble previously. S1 found the explanation reasonable and did not pursue the matter further. On October 17, 2014, S1 issued Complainant a formal performance counseling letter (PCL) (claim 10). The PCL advised Complainant he was deficient in four Core Competency areas: communication, teamwork/cooperation, technical proficiency, and assigning, monitoring and evaluating work. For example, regarding communication, it stated, “Complainant has demonstrated an inability to communicate amicably with his fellow supervisors in simply passing down information, often becoming contentious and refusing to consider different perspectives.” It noted that Complainant repeatedly failed to assume responsibility for his actions, mistakes, and more. The memorandum concluded that Complainant must correct this deficiencies and failure to do so within three weeks of the letter (i.e., October 17, 2014 through November 7, 2014) will reflect in his annual proficiency rating and could result in his placement on an Employment Performance Plan (EPP). Complainant argued that he was held to a different standard from Caucasian employees. Complainant did not provide any specific comparators. S1 stated the October 17, 2014 PCL was an opportunity for improvement, designed to both bring awareness to Complainant of how serious the issue of his performance was, as well as afford him a chance to show his ability to improve, to avoid getting to the point of issuing an EPP. 0120182404 9 On October 31, 2014, Complainant alleged that the Agency violated his due process rights under the Fifth and, Fourteenth Amendments of the U. S. Constitution when the Agency placed him on a 60-day Employee Proficiency Plan (EPP) (claim 11). The EPP provided Complainant with specific guidelines in order to demonstrate satisfactory performance. The memorandum further advised Complainant that he must meet and maintain the satisfactory performance level in all competency areas for one year from the beginning of the EPP period. Complainant argued he should have been allowed to correct his mistakes until at least November 7, 2014. On December 11, 2014, S1 issued Complainant a written performance counseling memorandum (PCM) as part of management’s review of his EPP (claim 12). S1 indicated management observed deficiencies and errors in the following areas: scheduling/assignments; knowledge of database/systems; departmental protocols/directives; and technical proficiency. The PCM further indicated six areas Complainant had not improved on. This memorandum concluded that this was a counseling notice issued to Complainant to improve his performance. By letter dated January 8, 2015, Complainant was issued another notification of unsatisfactory performance by S1. On January 11, 2015, Complainant stated that he called out sick due to his disability. On January 12, 2015, S1 requested that Complainant provide medical verification in order to grant his request for sick leave (claim 13). Complainant obtained one from his doctor who prescribed him medication and restriction from work until January 14, 2015. S1 stated that he did not deny Complainant time off but requested that he provide medical documentation to support his sick leave. S1 stated that Complainant called in on January 11, 2015, to request a third consecutive day of sick leave, in conjunction to his days off, after already having called in sick four out of the last six days he was scheduled to work. Complainant asserted that effective January 31, 2015, the Agency forced him to resign from the Agency (claim 14), and he was therefore constructively discharged. Complainant stated that he was forced to retire from the Agency based on his placement on the EPP and threats to terminate him for failure to improve his performance. He noted that he was given a January 8, 2015 performance counseling document which was subsequently followed with a proposed termination letter. S1 asserted that Complainant had retired and noted that he had previously announced intentions to retire several times prior. CONTENTIONS ON APPEAL Complainant’s Appellate Statements Complainant provided a lengthy appellate brief with many extraneous arguments regarding matters not appropriately before the Commission. Additionally, Complainant also provided lengthy counter statements to the Agency’s responses. 0120182404 10 Regarding the AJ’s May 9, 2018 hearing request dismissal, Complainant argued that he had demonstrated good cause for not appearing during the prehearing conference.16 Complainant stated that he did not appear during the April 26, 2018 prehearing conference because he was traveling due to a death in the family. He noted that he could not make any phone calls while traveling and was therefore unable to be present during the prehearing conference. Complainant asserted that since he had provided good cause, his hearing should not have been dismissed. Complainant also argued that the FAD involved clearly erroneous interpretation of material fact and law and was not properly decided on the merits. Ultimately, Complainant argued that he had demonstrated that the Agency had subjected him to a hostile work environment and discrimination based on his protected classes and in reprisal, and that the Commission should find in his favor. Complainant also asserted that his Uniform Services Employment and Reemployment Rights Act (USERRA) rights had been violated by the Agency. Additionally, Complainant asserted that the Agency’s response to his appeal was untimely and therefore should not be considered.17 Lastly, Complainant was also attempting to appeal claims in a matter that was previously before the Commission. That decision has already been closed, and the window for appeal has been closed as well. Oliver T. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019000285 (Feb. 5, 2020). Agency’s Appellate Statements In response, the Agency stated that Complainant’s appeal statement was confusing and appeared to be appealing three separate matters. First, Complainant was appealing the AJ’s decision to dismiss his EEO case after he failed to appear for the April 26, 2018 pre-hearing conference. Regarding the AJ’s decision to dismiss the hearing, the Agency noted that Complainant submitted his travel itinerary, which demonstrated that he had made the travel arrangements at least eight days prior to the prehearing conference. This would have given Complainant ample time to contact both the AJ and the Agency to reschedule. The Agency asserted that the AJ’s decision to dismiss and remand was appropriate. Second, Complainant was attempting to raise additional EEO claims that were subject to a different EEO complaint. The Agency noted that the AJ in that matter had issued a decision on August 21, 2018, granting the Agency’s motion for summary judgment. 16 The Commission contacted the Agency for any copies of Complainant’s response, and on May 6, 2020 was informed that the Agency had no record of it. Complainant did not attach a copy of his response to the AJ in his appeal either. The Commission relied on statements made by the AJ in the May 9, 2018 Order of Dismissal regarding Complainant’s arguments. 17 Complainant asserted that he mailed a copy of his July 7, 2018 appeal to the Agency as well as to the Commission. However, the record does not contain any postmarked envelopes, only a self- drafted certificate of service from Complainant that does not prove actual service. The record does contain a postmarked envelope dated July 7, 2018 from Complainant to the Commission. 0120182404 11 The Agency noted that the allegations Complainant attempted to bring forth were already discussed in that decision, and therefore it would not address them on appeal. Third, Complainant was appealing the FAD issued in the instant matter. Ultimately, the Agency argued that assuming, arguendo, that Complainant had established a prima facie case of discrimination, the Agency had articulated numerous, legitimate, nondiscriminatory reasons for its actions, to which Complainant failed to demonstrate was pretext for discrimination or retaliation. Regarding the timeliness matter, the Agency argued that it had filed its response brief within the requisite time limits, and therefore there was no basis to reject it. The Agency asserted that it only received Complainant’s appeal brief on August 9, 2018, when the Commission issued a copy to the Agency.18 Therefore, the Agency argued that its August 27, 2018 response was timely. STANDARD OF REVIEW 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 (EEO MD- 110), 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”). ANALYSIS AND FINDINGS AJ’s Sanction - Hearing Dismissal As a preliminary matter, we find the AJ’s May 9, 2018 dismissal of the hearing and remand of an Agency final decision to be appropriate. In this matter, Complainant argued that he had demonstrated good cause because he was traveling due to a death in the family. Complainant asserted that he could not be present during the prehearing conference due to lack of phone service. In support, Complainant provided the AJ with a copy of his travel itinerary, which according to the AJ, demonstrated that he had booked his trip, at a minimum, eight days prior to the prehearing conference. The AJ determined, and the Commission agrees, that Complainant failed to show good cause as to why he was incapable of filing a motion to continue, or to send an email to the Agency and the AJ regarding his inability to appear. The AJ then remanded the complaint to the Agency, and the Agency issued a Final Agency Decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). Initially, we address the AJ's decision to cancel the hearing. The Commission's regulations afford broad authority for the conduct of hearings by Administrative Judges. 29 C.F.R. § 1614.109; Rountree v. Dep’t of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). 18 The Commission’s package to the Agency was postmarked August 1, 2018. 0120182404 12 Before sanctions are imposed, the Commission requires an AJ to issue an order to the offending party that makes clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with an order unless the party can show good cause for that failure. Id. Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). A sanction may be used to deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. See id. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his/her discretion in imposing a harsher sanction. See also Marshall v. U.S. Postal Serv, EEOC Appeal No. 0120064783 (Apr. 24, 2008). Here, on February 14, 2018, the AJ issued a Scheduling Notice (Notice) scheduling a pre-hearing telephonic conference for April 26, 2018 at 11:00 a.m. Central Time. The Notice stated that failure to appear, without prior approval, may result in the cancellation of the hearing. Complainant failed to appear for the telephonic hearing and did not take necessary steps to notify the AJ that he would be unable to be present, even though he had the AJ's contact information. Following the Show Cause Order, the AJ cancelled the hearing. Upon review, we discern no reason to reverse the AJ's decision to cancel the hearing and remand to the Agency for issuance of an FAD. Disparate Treatment Complainant alleges that he was subjected to disparate treatment. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For a complainant to prevail, he 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 Constr. 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 Dep’t of Cmty. 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 Ctr. 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 its actions, 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983). 0120182404 13 Having reviewed the voluminous evidentiary record which consists of numerous affidavits and exhibits and having fully considered and analyzed the Agency’s decision which recites and addresses each claim and identifies the evidentiary support on which it relied for its alleged actions, we conclude that the preponderant evidence does not establish discriminatory or retaliatory animus.19 Here, Complainant’s allegations concern harassing behavior by management; implementations of work place policies; performance reviews, evaluations, and placement on an Employee Proficiency Plan; and general concerns regarding work place matters. The record contains detailed and numerous documents concerning Complainant’s claims. However, despite the documentation, Complainant has failed to show that the claims raised were causally connected to unlawful discrimination on any basis or motivated by discriminatory or retaliatory animus. Even if the claims occurred as alleged, Complainant failed to show that the Agency officials were in any way motivated by discriminatory animus. In addition, many of the actions taken by the alleged discriminating officials were routine managerial actions, such as managing expectations; overseeing work productivity; ensuring that smooth operations and standards were met; and, providing constructive criticism and feedback, which, absent discriminatory animus, will not be second-guessed by the Commission. We note that agencies generally have broad discretion to carry out personnel decisions and exercise business judgment. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). With respect to Complainant’s disparate treatment claims, assuming arguendo, that Complainant established a prima facie case of discrimination and reprisal, the Agency has articulated legitimate, nondiscriminatory reasons for its actions. For example, Complainant argued that he was held to a different standard when he was informed that he had to submit Cross Border Security Communications Network (CBSCN) test results within 15 minutes of the completion of the test. Complainant argued that other employees were not given the same directive, but he failed to provide any comparators. Additionally, Complainant failed to demonstrate that he was the only one given the directive. Management provided that finding and resolving any issues with the CBSCN was crucial for smooth operations, and that the directive was given to all supervisors. There was no evidence that Complainant was treated any differently. Complainant also argued that he was not timely given his performance reviews, and that his placement on a 60-day Employee Proficiency Plan (EPP) was part of a plan to force him into retirement. The record demonstrated that delays associated with Complainant’s performance reviews were an overall Agency issue, and not specifically targeted at Complainant. Notably, other individuals were also impacted by a delay due to the Agency’s Human Resources Business Engine (HRBE) system malfunctioning. 19 The record in this case is exhaustive and details numerous incidents in support of the claim. We will not individually address each incident of alleged discrimination. Although the claims will not be individually addressed, all matters which Complainant raised have been considered and viewed in the context of all bases and in the context of disparate treatment and a hostile work environment. 0120182404 14 Regarding the proposed 10-day suspension, the record detailed the Assistant Chief Patrol Agent’s decision in issuing the proposal. Specifically, Complainant made an error in the scheduling with regards to E1’s request. Management noted that it was not the error itself, but Complainant’s perceived lack of candor regarding the error that prompted the suspension. In this claim, Complainant did provide a comparator, E2, who he claimed was clearly caught in lie at work but faced no repercussions by S1. S1 provided a detailed account of the incident, noting E2 was not a direct subordinate, and that the matter E2 had purportedly lied about was a first-time incident in for which he was verbally admonished. In that claim, we also determine that the Agency had provided legitimate, nondiscriminatory reasons for proposing the 10-day suspension. Regarding all of Complainant’s claims, we note that the question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency’s actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination. Complainant has failed in this regard. We note that regarding claim 13, Complainant appealed the same claim to the MSPB on July 8, 2018. In his appeal to the MSPB, Complainant asserted that he was treated differently due to his status as a disabled20 veteran. In MSPB No. SF-4324-18-0644-I-1 (Feb. 6, 2019), the MSPB only discussed Complainant’s claim in terms of the Uniform Services Employment and Reemployment Rights Act (USERRA). Since the MSPB did not address the claim in terms of the Rehabilitation Act, we will address them here. The record demonstrated that on January 11, 2015, Complainant called out sick. Complainant later relayed that he was having difficulties due to his disability and therefore called out. Complainant asserted that S1 refused to grant him sick leave unless he provided medical verification and that this discriminated against him based on his disability. In response to this claim, we have determined that the Agency provided a legitimate, nondiscriminatory reason for its action. Specifically, S1 was not requiring medical documentation prior to Complainant taking leave but requesting that Complainant provide one upon his return. S1 noted that it was not due to just a one- day sick leave request, as asserted by Complainant, but because Complainant’s request was already his third consecutive day of sick leave, in conjunction to his days off. Complainant argued that this reason was merely pretext for discrimination and argued that he was held to higher standards. In this regard Complainant failed to provide any comparators. Additionally, the policy of requesting medical documentation was Agency wide. 20 We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability. 29 C.F.R. § 1630.2(g)(1). 0120182404 15 Furthermore, there is no evidence that S1 abused this policy when requesting Complainant to provide medical documentation upon his return. Virgilio M. v. Dept. of Homeland Sec., EEOC Appeal No. 0120182367 (June 7, 2019) (the complainant’s sick leave request was questioned, and management asked for a doctor's note to substantiate request. AJ determined, and Commission agreed, that there was no evidence that those matters were motivated by discriminatory animus). Unlawful Harassment As an initial matter, we find that the Agency appropriately procedurally dismissed claims 1, 2, and 11. As claims 1 and 2 were address in the Commission’s decision in Oliver T. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019000285 (Feb. 5, 2020), we are precluded from addressing these claims. We only review claim 11 in terms of Complainant’s hostile work environment claim, as discussed below. Complainant also alleged that he was subjected to unlawful harassment. A harassment claim is examined under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also Enforcement Guidance on Harris v. Forklift Systems. Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). To establish this claim, a complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability. The Supreme Court in Harris explained that an “objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22. Whether the harassment is sufficiently severe to trigger a violation must be determined by looking at all 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.” Id. at 23. A hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the condition of the complainant's employment. See Harris, supra; see also Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998). With respect to element (5) of a harassment claim, an agency is subject to vicarious liability for harassment when it is created by a supervisor with immediate (or successively higher) authority over the employee. See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999). 0120182404 16 Complainant alleged that he was subjected to a hostile work environment based on his sex, race, age, disability, and in reprisal. As an initial matter, Complainant has established parts 1 and 2 of a prima facie case of harassment. To establish part 3 of his prima facie case of harassment, Complainant listed a variety of incidents, such as, that S1 cursed and made derogatory comments at work; that he was given performance counseling, placed on an Employee Proficiency Plan; and based on the totality of incidents was forced to resign. Assuming, arguendo, that Complainant did establish part 3, we turn to part 4 of the prima face case of harassment. Complainant argued that management’s actions created a hostile work environment for him. Along with performance reviews, and purportedly higher standards, Complainant also asserted that S1 created a hostile work environment by frequently cursing and using derogatory language. For example, Complainant asserted that S1 had previously used the “n” word in his presence, and that S1 would refer to S2 as “a stupid white boy.” S1 denied ever calling S2 such terms. S2 asserted that he was unaware of S1 using such language and did not think S1 would refer to him in those terms. We note that S1 acknowledged saying the “n” word in the past but asserted that the incident was part of a private discussion between S1 and S2. Additionally, S1 claimed to be using the word as a “term of endearment” towards himself. Despite the unprofessionalism of using the term, S2 also acknowledged that S1 used the term in a private conversation but that the context was not towards any individual, or persons, and certainly not towards Complainant. Aside from S1’s acknowledgement of using the word once, and about himself, we do not have additional evidence of S1’s alleged frequent cursing and derogatory language use. Again, we note that S1 acknowledged using the term when referencing himself, in an apparent use of self-endearment. We remind the Agency that the use of this racial epithet is a “highly charged epithet” which “dredge[s] up the entire history of racial discrimination in this country.” See EEOC Compliance Manual, Section 15, “Race and Color Discrimination,” No. 915.003, 15-38 (April 19, 2006); Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (June 25, 1996). Moreover, the fact that such remarks are not specifically directed toward a specific employee is not dispositive. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185-86 (4th Cir. 2001) (racial harassment not directed specifically at plaintiff, but part of plaintiffs work environment, could be actionable). See also Smith-Riggins v. U.S. Postal Serv., EEOC Appeal No. 0120093837 (Aug. 31, 2011), request for recon. denied, EEOC Request No. 0520120009 (Jan. 6, 2012). However, in the instant complaint, there are conflicting statements regarding S1’s cursing and derogatory language use, other than the admittance of a single incident in a private conversation. While Complainant asserted that S1 frequently cursed and used derogatory language, this is in contrast to what S1 and S2 claim. Due to the AJ’s remand, we do not have the benefit of an AJ's credibility determinations of these conflicting witnesses. Complainant had to prove, by a preponderance of the evidence, that the alleged discriminatory act occurred. Here, the evidence is, at best, in equipoise. Accordingly, Complainant has failed to meet his burden of persuasion. Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 0120122134 (Sep. 24, 2014) citing Lore v. Dep't of Homeland Sec., EEOC Appeal No. 0120113283 (Sep. 13, 2013) and Brand v. Dep't of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012). 0120182404 17 Lastly, the Commission notes that 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 were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Constructive Discharge With regard to Complainant's claim asserting discriminatory constructive discharge, he must prove that the Agency, motivated by discriminatory animus, created working conditions that were so difficult, unpleasant, or intolerable that a reasonable person in Complainant's position would feel compelled to resign. Doe v. Social Sec. Admin., EEOC Appeal No. 01A114791 (Feb. 21, 2003). Specifically, Complainant must show that: (1) a reasonable person in her/his position would have found the working conditions intolerable; (2) conduct which constituted prohibited discriminatory treatment created the intolerable working conditions; and (3) complainant's involuntary resignation resulted from the intolerable working conditions. Greer v. U.S. Postal Serv., EEOC Appeal Nos. 01976756, 01976792 (Dec. 29, 2000). Complainant asserted that the Agency’s actions culminated into such a hostile work environment that he was forced to resign. However, in each incident alleged, the Agency has provided legitimate nondiscriminatory reasons. Moreover, it appears that Complainant resigned at the same time he was placed on an EPP in which he was failing to show improvement. Complainant has not shown that the EPP was a result of discrimination. Based on the record, we find that Complainant has failed to establish that he was subjected to such intolerable working conditions that he was forced to resign. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed or referenced herein, we AFFIRM the Agency’s final decision finding no discrimination. 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. 0120182404 18 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. 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. 0120182404 19 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 July 14, 2020 Date