[Redacted], Bryan T., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022003105 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryan T.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (U.S. Marshals Service), Agency. Appeal No. 2022003105 Agency No. USMS-2020-02020 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated May 12, 2022, finding no discrimination concerning Complainant’s 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. §791 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Safety Communications Specialist, GS-7, subject to a one-year probationary period, at the Agency’s Communications Center, Office of Emergency Management, Tactical Operations Division Facility in Springfield, Virginia. 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. 2022003105 2 On October 21, 2020, Complainant filed his complaint alleging discrimination based on disability (anxiety/post traumatic stress disorder) and in reprisal for prior EEO activity when in September 2020, he was placed on telework status pending an investigation, and on September 25, 2020, his probationary employment with the Agency was terminated. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The record indicates that on November 24, 2019, Complainant was hired as a Public Safety Communications Specialist, GS-7, via a Career Conditional appointment, subject to a one-year probationary period. As a Public Safety Communications Specialist, Complainant provided customer service to internal and external customers, including answering phone calls from the general public. Public Safety Communications Specialists, including Complainant, rotated their work shift to cover 24 hours per day customer service. At least two specialists were assigned for each rotation. Complainant indicated that on September 1, 2020, he asked management to be allowed to bring in a firearm to work for personal protection because he, and his coworkers, received numerous threats from telephone callers. He also indicated that due to the coronavirus, the Communications Center facility doors were being propped open which could allow anyone to enter the facility, and during the evening shift, he worked with only one other person in the facility. On September 2, 2020, Complainant’s second-level supervisor (S2), a GS-14, Assistant Chief, held a meeting to discuss Complainant’s concerns. When S2 informed Complainant that he was not allowed to bring a firearm into the facility, he became upset and argumentative over S2’s response. S2 indicated that he thus invited a GS-14, Chief Inspector into the meeting to help Complainant understand the situation. Upon S2’s invitation, the Chief Inspector attended the meeting. The Chief Inspector stated that when she denied Complainant’s request to bring a firearm into work, as he was not a sworn law enforcement officer, she thought he wanted to get into a physical altercation and was going to attack her at one point. She thus placed Complainant on telework pending a workplace violence investigation for the safety of her staff and her safety based on his conduct. The Chief Inspector noted that while Complainant was on telework status, she reviewed Complainant’s work performance and learned that he was counseled on multiple occasions due to his inappropriate behavior with callers. Complainant’s first-level supervisor (S1), a GS-13, Supervisory Public Communications Specialist, stated that the doors inside the building were left often so the employees did not have to touch the door handles because of the coronavirus but the outside doors were secure, and a security code was required to enter the facility. 2022003105 3 Complainant’s work leader, a GS-12, Lead Communications System Specialist, indicated that the facility had the local police department patrols and a contract service to protect the facility, especially at night. The work leader stated that Complainant was observed being very angry to callers, and on one occasion, he screamed at a caller, causing one of his coworkers to walk out of the office. The record indicates that a Senior Executive Service, Assistant Director notified Complainant that effective September 25, 2020, he would be terminated during his probationary period for unacceptable performance. In his September 25, 2020 termination letter, the Assistant Director stated that on August 11, 18, and 25, 2020, Complainant was counseled concerning his poor handling of calls; and during the September 2, 2020 meeting, he was very upset and he was sent home due to his unprofessional conduct and insisting on bring a firearm into work. Complainant acknowledged that he was counseled on several occasions in August 2020, concerning his work performance. The Agency found that it did not discriminate against Complainant as alleged. Complainant appeals the Agency’s decision and submits a brief in support of the appeal. 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 (EEO MD-110), Chap. 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"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she 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, 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. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). 2022003105 4 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Commission shall assume without deciding (for the purposes of this decision) that Complainant is an individual with a disability. Complainant has not claimed that he was denied a reasonable accommodation. Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered a legitimate, nondiscrimination reason for its actions. Regarding his being placed on telework status, the record indicates that during the September 2, 2020 meeting with S2 and the Chief Inspector, Complainant became upset, yelled, and was argumentative when they denied his request to bring a firearm into work. Based on Complainant’s conduct, the Chief Inspector believed that Complainant might get into a physical altercation and attack her. Thus, stated the Chief Inspector, Complainant was placed on telework pending a workplace violence investigation for the safety of her and her staff based on his conduct. The Agency stated that Complainant was terminated on September 25, 2020, during his probationary period for his unacceptable performance based on his poor handling of calls on several occasions in August 2020, and his unprofessional behavior during the September 2, 2020 meeting. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant has failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 2022003105 5 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). 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). 2022003105 6 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 26, 2023 Date