[Redacted], Herbert M., 1 Complainant,v.Merrick B. Garland, Attorney General, U.S. Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Jul 7, 2021

Appeal No. 2020001670 (E.E.O.C. Jul. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herbert M.,1 Complainant, v. Merrick B. Garland, Attorney General, U.S. Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020001670 Hearing No. 570-2016-01240X Agency No. FBI-2015-00237 DECISION On January 8, 2020, 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 December 18, 2019 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Special Agent (EEO Investigator), GS-1811-14, at the Agency’s Office of EEO Affairs (OEEOA) in Washington, D.C. On October 15, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when his supervisors did not extend the term of his temporary position as a GS-14 Supervisory Special Agent and, on 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. 2020001670 2 July 26, 2015, he was therefore “demoted” back to his permanent position of record as a GS-13 Special Agent. Complainant began employment with the Agency on April 22, 1990. His permanent position was as a Special Agent, GS-1811-13, at the Agency’s Washington Field Office. In 2011, Complainant applied for an appointment to one of eight Supervisory Special Agent (SSA) (EEO Investigator, GS-14 positions) in the OEEOA. The position was advertised as a two-year term assignment, with up to three one-year extensions, not to exceed a total of five years. Complainant completed the initial two-year term in July of 2013. He received an extension to July 2014 and another extension to July 2015. During the time at issue, he reported to the Supervisory Attorney Advisor, Chief, Complainants Processing Unit (S1) (Caucasian female). S1 was his immediate supervisor in the Complainants Processing Unit from the time she reported on June 24, 2014. Report of Investigation, (ROI), p. 110. His second level supervisor since 2013 was the Assistant Director, who functioned as the Deputy EEO Officer, Office of Equal Employment Opportunity Affairs, SES (White male) (S2). S1 informed Complainant that she was not recommending him for another extension. The deciding official was S2. Both management officials wanted to increase SSA turnover and improve the functioning of OEEOA. S2 averred that when he assumed his position, OEEOA was largely non-functional and he intended to improve the operations. The average case processing time was 233 days, which was in excess of the 180-day regulatory requirement for EEO investigations. EEO investigators were allocated 45 days of the 180 days to complete their investigations and prepare the reports of investigation. Complainant had been an SSA for four years. S1 affirmed that Complainant’s average case processing time was 84 days. Complainant conceded that he exceeded the 45-day deadline “more times than it was met.” Although S1 told Complainant he was “doing a fine job,” S1 also stated that Complainant failed to communicate with her, and his cases were returned for revisions. Complainant did not receive a third extension and was returned to his GS-13 position of record. Complainant believed that his race was a factor because there is a “perception problem with White male SSAs investigating allegations of discrimination.” He also objected to the Agency’s reliance on “highly subjective criteria” and the Agency’s conflicting reasons for not extending his term. Complainant acknowledged that he was not aware of any Agency policy addressing the renewal or extension of term assignments. ROI, p. 53. Complainant averred, however, that he believed the practice has been to extend each SSA’s term assignment to the maximum of five years. Management has the discretion to extend or terminate a term appointment. There is no guarantee that any employee will be retained for five years. After the completion 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). 2020001670 3 Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s May 21, 2018, motion and issued a summary judgment finding that Complainant was not subjected to discrimination as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant says there were remaining issues of fact about the motives of his supervisors for terminating his assignment as an EEO investigator, which should have precluded summary judgment in favor of the Agency. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For 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. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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. 2020001670 4 Where, as here, 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 Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health & Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Further, in order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a genuine dispute of material fact. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor on the race or sex discrimination claims. It is undisputed that both officials had decided to improve the performance of the SSAs in the OEEOA. The officials began implementing new policies and practices to improve the unit, including strict adherence to processing deadlines. We recognize that Complainant disagreed with the Agency’s perceptions and reasoning, but Complainant acknowledged that he routinely failed to meet the case processing deadline of 45 days. Ultimately, extending the term was at management’s discretion and management had the discretion to end a term promotion at any time. Based on Complainant routinely exceeding deadlines, management decided not to renew his term in the position. Complainant has not demonstrated that management’s reasons for its actions were pretextual. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the entry of summary judgment was appropriate. Accordingly, we AFFIRM the Agency’s final order adopting the AJ decision. 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. 2020001670 5 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). 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. 2020001670 6 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 July 7, 2021 Date