[Redacted], Agustin L., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Mar 22, 2023

Appeal No. 2022000832 (E.E.O.C. Mar. 22, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Agustin L.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Appeal No. 2022000832 Hearing No. 520-2020-00327X Agency No. GSA-19-R2-P-0072 DECISION On December 1, 2021, 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 22, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Facilities Management Program Specialist, GS 14 at the Agency’s Public Building Service, Facilities Management Division, One World Trade Center facility in New York, New York. On April 17, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), age (YOB: 1955), and reprisal for prior protected EEO activity when: 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. 2022000832 2 1. On February 2019, he learned that two GS-15 promotions had been filled through lateral assignments, thereby denying him an opportunity to be promoted. 2. On May 17, 2019, he received a level 3 mid-year performance rating and on November 8, 2019, he received a level 3 final performance rating. 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 timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s January 15, 2021, motion for a decision without a hearing and issued a decision by summary judgment on July 7, 2021. The AJ dismissed claim 1 pursuant to 29 C.F.R. §1614.107(a)(1) for untimely EEO counselor contact because the AJ found that Complainant knew or should have known that he was subjected to discrimination when the Agency announced the lateral reassignment in October 2018. The AJ further found that with respect to claim 2, Complainant did not submit any evidence to indicate that he should have received a higher rating or that the rating he received was due to discriminatory animus. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant appealed, arguing that the AJ failed to consider the evidence of retaliatory motive.2 In response, the Agency contends that the AJ’s decision was supported by the evidence in the record and should be affirmed. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). Upon review of the Agency’s motion for summary judgment and the record as a whole, we agree with the AJ that the Agency’s motion accurately recounted the relevant material facts and 2 To the extent Complainant appears to argue on appeal that he has been subjected to retaliatory harassment, we note that he did not mention a harassment claim before the Agency and no new claims may be raised for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (April 22, 2004). 2022000832 3 identified the legal standard for granting summary judgment. We find that the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. While Complainant argues on appeal that the AJ failed to consider all the facts and appears to argue that there are material facts in dispute as to whether or not claim 1 was timely, his argument is mostly focused on challenging the merits of the AJ’s finding.3 We find that the AJ properly issued a decision without a hearing. We will proceed directly to address the merits of Complainant’s claims, assuming without deciding, that claim 1 was timely filed. We note that the Agency initially accepted both claims for investigation and did not challenge the possible untimeliness of claim 1 until its motions for summary judgment before the AJ.4 See Report of Investigation (ROI) at 49-51. 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 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. See McDonnell Douglas, 411 U.S. at 802; 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. See 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. See St. Mary’s Honor Center 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 the personnel action at issue, 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. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, 3 To the extent Complainant appears to argue on appeal that the AJ erred by not considering evidence from his prior EEO cases, we note that his prior EEO cases are not relevant to the merits of his current complaint except insofar as they establish that Complainant has engaged in protected activity. 4 We further note that the evidence in the record does not clearly establish when Complainant was actually notified of the lateral reassignments. The October 10, 2018, email in the record announcing the lateral reassignments on temporary details does not include a list of recipients, see ROI at 398, and Complainant contends that he did not receive the email at the time because it was only sent to supervisors, which did not include him. 2022000832 4 EEOC Request No. 05900467 (June 8. 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). We assume for purposes of this decision that Complainant established a prima facie case with respect to both claims.5 We find that the Agency has articulated legitimate, nondiscriminatory reasons for its actions. The Acting Regional Commissioner (Commissioner) stated that when two GS-15 positions became available, he had enough GS-15s on staff to effectively fill the vacancies without posting vacancy announcements. See ROI at 386. Two Human Resources Officers both confirmed that the Commissioner acted within his discretion in not posting vacancy announcements for the two positions. See ROI at 402-404; 478-82. They also stated that the Commissioner followed the Agency’s merit promotion plan in filling the two positions, filling one position through a non-competitive promotion because that individual had previously been a GS-15 and filling the other position through a lateral reassignment detail, moving a current GS-15 to another position. See ROI at 402-404; 478-82. With respect to claim 2, the Director of the Facilities Management Division (Director), who is Complainant’s first-line supervisor and issued his performance evaluations, stated that she rated him fully successful for both his mid-year and final performance rating. See ROI at 563, 567. She explained that Complainant’s performance did not warrant a level 4 rating because he did not exceed the expectations for each critical element. See ROI at 567. For example, she stated that Complainant did not proactively engage on issues and subject matter throughout the entire process involved in awarding a recurring service contract. See id. We further find that Complainant did not establish that any of the Agency’s reasons are a pretext for discrimination. As an initial matter, there is no evidence in the record to support Complainant’s assertions of discriminatory animus on the basis of either Complainant’s race or age with respect to either of his claims. The Commission has repeatedly stated that 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. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). With respect to claim 2, while it is clear that Complainant disagrees with the Director’s assessment of his performance, Complainant cannot demonstrate pretext based on his own subjective assessment of his performance. See Palmer N. v. Dep’t of Defense, EEOC Appeal No. 0120140070 (March 18, 2016). With respect to claim 1, we acknowledge that there is some evidence that the Commissioner harbored retaliatory animus against Complainant because two of Complainant’s former coworkers stated that they have heard the Commissioner making negative comments about Complainant being a troublemaker who made trouble for senior management and who was not to be trusted. See ROI at 541-42; 546-47. While we find the Commissioner’s comments to be highly troubling, we note that the evidence in the record indicates that the comments were made in 2016 during these coworkers’ tenure at Complainant’s work facility and as such, were made at least two years prior to the incidents in claim 1, which we find makes the comments too 5 We note that to the extent the AJ appears to have believed that Complainant would not have been qualified for the GS-15 positions, it is not clear how the AJ arrived at this conclusion. 2022000832 5 remote in time to establish a nexus to claim 1.6 See Moore v. Equal Emp’t Opportunity Comm’n, EEOC Petition No. 03A50010 (May 12, 2005) (finding two-year time period too temporally remote to establish a nexus between protected activity and adverse treatment). We further note that there is no evidence of any retaliatory animus on the part of the Director nor was the Commissioner at all involved in Complainant’s performance evaluation. While we acknowledge that Complainant clearly feels aggrieved, under the circumstances, we do not find that the evidence in the record is sufficient to establish that the actions in claim 1 were based on retaliatory animus. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order finding that Complainant did not establish that he was subjected to discrimination as alleged. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). 6 While we do not find a nexus to claim 1 here, in light of the Commissioner’s statements and the evidence that another member of management who was not involved in either of the claims also allegedly made similar retaliatory comments concerning Complainant in 2016, see ROI at 554- 55, we strongly remind the Agency of its obligation to ensure that employees are not deterred from engaging in protected activity and advise the Agency to instruct Facilities Management Division management in the One World Trade Center facility that they are prohibited by law from engaging in such reprisal. 2022000832 6 Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2022000832 7 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 March 22, 2023 Date