Pedro C.,1 Complainant,v.Betsy DeVos, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Jan 4, 2018

0120150879 (E.E.O.C. Jan. 4, 2018)

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

Pedro C.,1
Complainant,

v.

Betsy DeVos,
Secretary,
Department of Education,
Agency.

Appeal No. 0120150879

Agency No. ED-2012-0US-0040

DECISION

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 November 17, 2014, final
decision concerning his equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Management and
Program Analyst, Association Director of the White House Initiative on HBCUs, at the Agency’s
facility in Washington, D.C. On July 9, 2012, Complainant filed an EEO complaint alleging that
the Agency discriminated against him on the bases of his disability, age (67 at the relevant time),
and in reprisal for prior protected EEO activity when:

1. on June 14, 2012, the Chief of Staff directed that he be suspended for three days;
2. since March 30, 2012, his supervisor (S1) took no action on his leave requests;
3. on March 28, 2012, S1 cancelled his appearance at the National Association for
Educational Opportunity (NAFEO) conference;

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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4. on March 23, 2012, S1 entered his REACH plan into the automated personnel
management system over Complainant’s objections;
5. on March 1, 2012, S1 placed him on leave restriction;
6. in February 2012, S1 cancelled his attendance at a conference at Savannah State
University;
7. since May 9, 2012, S1 has effectively denied him his within-grade increase;
8. since July 2012, S1 has failed to respond to his request to meet with the
administrators of Morgan State University and the University of Maryland Eastern
Shore;
9. on or about July 12, 2012, S1 denied his request to reimburse costs associated with
attending the HBCU Law Enforcement Executives and Administrators conference in
Norfolk, Virginia;
10. on or about July 19, 2012, S1 denied his request to attend the NAFEO conference in
Hilton Head, South Carolina;
11. on or about August 4, 2012, S1 denied his request to attend the American
Psychological Association conference in Tampa, Florida;
12. on August 8, 2012, S1 placed him on a performance improvement plan (PIP);
13. on October 16, 2012, S1 proposed to suspend him for 20 calendar days; and
14. on February 13, 2013, the deciding official with respect to S1’s proposal to suspend
decided to suspend Complainant for five calendar days.2

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 (AJ). Complainant requested a hearing but the
AJ denied the hearing request on the grounds that the request was untimely. The AJ remanded
the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R.
§ 1614.110(b). Complainant does not argue that he was improperly denied a hearing. The
decision concluded that Complainant failed to prove that the Agency subjected him to
discrimination as alleged. On appeal, Complainant reiterates his contention that the Agency
subjected him to unlawful discrimination.

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,

2 In his formal complaint, Complainant also raised a number of other claims which were
dismissed by the Agency, pursuant to 29 U.S.C. § 1614.107(a)(2), for untimeliness.
Complainant has not challenged the dismissal of these claims on appeal and we therefore will not
address the dismissal of these claims.
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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”).

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 was
subjected to an adverse employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. 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, non-
discriminatory reason for its actions. Texas Department of Community 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 (2000).

Here, we find that assuming, arguendo, Complainant established a prima facie case of age,
disability, and reprisal discrimination, the Agency nonetheless articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect to claim (1), the record
reflects that Complainant was instructed to provide S1 with a draft presentation on fostering
relationships between the NIH and HBCUs, but that Complainant failed to provide this draft
presentation on three separate occasions. Although Complainant contends that he could not
deliver the draft due to computer problems, the record shows that he was given more than a
month to provide the draft to S1 but failed to do so.

With respect to claims (2) and (5), S1 states that due to the workload of the office and the
difficulty in determining staffing needs in advance, his policy was that he would attempt to make
decisions on leave requests two weeks prior to the start of the requested leave. He also states that
he informed his subordinate employees that if there was a particular need to know more than two
weeks in advance if leave would be approved, they should speak with him. Additionally, the
record shows that although he did not approve Complainant’s leave requests immediately, he did
not deny any of the requests. Further, S1 states that he placed Complainant on leave restriction
because, after S1 had rescinded all of his employees’ alternative work schedules, Complainant
had taken leave every other Friday. S1 states that given Complainant’s resistance to the change
in schedule and the pattern of leave requests, after discussing the issue with human resources, he
decided to place Complainant on leave restriction. Although Complainant contends that he is the
only employee for whom S1 delayed approving leave, this contention is not supported by the
evidence of record. Additionally, although Complainant argues that he should not have been
placed on leave restriction because he had a large leave reserve at the relevant time, we note that
S1 cited Complainant’s pattern of leave requests as support for placing him leave restriction.
Complainant’s leave reserve was not at issue.

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As to claims (3), (6), (10) and (11), the record reflects that in February 2012, Complainant
requested that S1 allow him to travel to attend a conference at Savannah State University. S1
states that when he asked Complainant to explain his role at the conference and justify the need
for his attendance, Complainant failed to do so. The record shows that the conference was
subsequently canceled. Complainant then requested to attend the NAFEO conference in March
2012, and the American Psychological Association conference in August 2012, but in both cases,
the record shows that he again failed to respond to S1’s requests for additional information
explaining his role at the conferences and how they would relate to his job duties. With respect
to claim (10), the record shows that S1 denied Complainant request to attend the NAFEO
conference because Complainant had not completed his required assignments.

As to claim (4), the record shows that REACH is the system used by the Agency for tracking and
rating employee performance. Complainant was provided with a copy of his fiscal year 2012
REACH plan in October 2011, and was asked to provide feedback. The record shows that
despite S1 requesting input into the REACH plan from Complainant on 12 separate occasions,
Complainant failed to explain his objections to the plan or offer any substantive feedback.
Accordingly, S1 states that due to lack of “meaningful feedback” he entered the REACH plan
into the Agency’s system on March 21, 2012.

With respect to claim (7), S1 states that the delay of Complainant’s within-grade increase was
due to his performance, including numerous incomplete, delayed, or untimely assignments. The
record shows that S1 followed Agency procedures for denying a within-grade increase, and once
Complainant’s performance improved, the within-grade increase was processed, effective the
date he became eligible.

As to claim (8), the record shows that S1 informed Complainant that the request to travel to meet
with university administrators would be considered once Complainant completed his
assignments and explained fully the purpose of the meetings. The record shows that Complainant
failed to respond to S1’s request and, therefore, was not approved to travel for the meetings.
With respect to claim (9), S1 states that Complainant did not request or receive prior approval to
attend the conference in Norfolk, Virginia, and was therefore not eligible to be reimbursed for
his travel expenses. We note that Complainant failed to proffer any evidence to show that he had
received prior approval for his travel.

As to claim (12), the record shows that, on August 8, 2012, Complainant was issued a
notification of “unsatisfactory results” performance and issuance of a performance improvement
plan (PIP). In support of this action, the PIP cites, in extensive detail, Complainant’s failure to
timely complete assignments, lack of thoroughness in report submissions, failure to respond to
inquiries and requests, and failure to manage his workload. We find that the evidence of record
supports these statements regarding Complainant’s unsuccessful performance.

Finally, with respect to claims (13) and (14), the record shows that Complainant was issued a
notice of proposal to suspend for 20 calendar days, dated October 16, 2012. The notice details, at
length, six incidents of Complainant’s failure to follow instructions, including sending emails to
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various officials that were “abrasive, misleading, and damaging to [the] Office.” The notice also
cites Complainant’s failure to contact a specific NIH official, despite specific instructions to do
so, and the sending of an email to members of the HBCU community that was “embarrassing to
the Office, unprofessional, and factually incorrect.” In issuing the notice of proposed suspension,
S1 states that he considered the seriousness of the offense, as well as prior discipline issued to
Complainant for failure to follow instructions, including a three-day suspension in June 2012. S1
states that the 20-day suspension was appropriate, and commensurate with the Agency’s table of
penalties. Following Complainant’s appeal of the proposed suspension through the Agency’s
internal process, an Agency Judge reduced the suspension to five calendar days.

We find that Complainant has proffered no evidence to show that the Agency’s actions were
motivated by discriminatory or retaliatory animus. Further, we find that he has not shown that
any of the Agency’s articulated reasons for its actions were a pretext for disability, age, or
reprisal discrimination.

CONCLUSION

Based on a thorough review of the record, 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. 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
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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. 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

January 4, 2018
Date