[Redacted], Jonathan M., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency.

Equal Employment Opportunity Commission

Jun 15, 2022

Appeal No. 2021001385 (E.E.O.C. Jun. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jonathan M.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (Bureau of the Census), Agency. Appeal No. 2021001385 Hearing No. 531-2019-00489X Agency No. 63-2018-00218 DECISION On December 18, 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 November 20, 2020 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. 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 Program Analyst, GS-0343-07, at the Agency’s Field Operations Directorate, Office of Survey and Census Analytics in Suitland, Maryland. On July 17, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the basis of disability (Asperger’s syndrome) 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. 2021001385 2 1. On unspecified dates, individuals in the workplace discussed his autism and said he should not be provided any assistance; 2. He was not given much work; 3. Agency management failed to follow the proper protocol when terminating him; and 4. On May 10, 2018, he received a letter terminating him from his position. Claims (1) and (2) - Hostile Work Environment (Office Gossip and Little Work) The record shows that on September 16, 2016, Complainant was hired under a Schedule A hiring authority, which was subject to the satisfactory completion of a two-year probationary period. Complainant averred his condition is autism (Asperger’s). Complainant stated it is difficult to communicate with colleagues and supervisors to understand their points of view, as well as to understand the expectations of the office. Complainant acknowledged that he did not report to management any issues that he was having and did not advise management about his condition. Complainant contended, however, that his medical condition was noted in a database which was accessible to management. Complainant reported to the Survey Statistician (no disability) (S1), who averred he was not aware of Complainant’s condition. His second line supervisor (formerly the Assistant Chief) (no disability) (S2) acknowledged she was aware Complainant’s condition, because he had been hired under Schedule A, but S2 averred that she was not aware of any gossip about him in the office. The Human Resources (HR) Specialist (disability) (S3) who serviced the Field Division averred she was not aware of Complainant’s condition and was not aware of the other allegations. The record includes testimony from a co-worker (no disability) who averred they were not aware of Complainant’s disability. S1 stated that Complainant was tasked with gathering data, turning the data into a report, and disseminating the report to the stakeholders. S1 affirmed this was how staff learned from what is done in the office. He acknowledged Complainant was doing the work, but the “results of the work were an issue.” Despite having specific steps, the results or products varied each time. S1 averred that “some months, Complainant would create the reports accurately and other months, there were significant errors.” Complainant did not express any concerns, but he asked S1 for more advanced work. S1 affirmed that he worked with Complainant to give him specific challenges, but Complainant failed to understand the goals of the assignment. S1 added that Complainant did not retain the reasoning behind the system or build the knowledge required to draw the data and produce useful information. S2 asserted Complainant was given the opportunity to improve upon the existing products and be creative, but he did not embrace the opportunity. S2 averred that she believed he was not fulfilling the duties and responsibilities of the position and was not keeping his status sheets up to date. 2021001385 3 Complainant’s mid-year review showed that he was deficient in the critical element of planning. Specifically, he received a Level 2 rating on the Planning, Development and Evaluation element. Complainant claimed that his supervisors belittled him. He felt belittled when asking questions, but he testified that he was not aware that discrimination was taking place. Complainant did not inform management of his disability and did not request a reasonable accommodation. Complainant claimed that a colleague who oversaw office operations disclosed to Complainant’s union representative, who then told Complainant, that Complainant’s colleagues discussed his condition behind his back, including saying that he had autism and that others should not give him any assistance. Complainant was not aware of the alleged gossip and was not present when it allegedly occurred. S1, S2 and S3 denied any knowledge of the alleged gossip. Claims (3) and (4) - Termination Process and Termination During Probationary Period On May 10, 2018, Complainant was told to report to S2’s office, at which time he was terminated. S2 testified that she issued Complainant a letter terminating his appointment as a Program Analyst during the probationary period for unsatisfactory performance. She explained she did not consider it in the best interest of the Agency to retain him in the federal service. The Letter of Termination stated, in relevant part: During your probationary period, your performance has been at an unsatisfactory level. Specifically, you have not demonstrated the ability to follow verbal instructions and have difficulty following written instructions and retaining new information. Your planning, development, and evaluation skills jeopardize the team’s ability in identifying, evaluating, and solving fundamental business problems to improve operational analytics. Complainant averred the Agency failed to follow the proper process regarding his termination, as there was no one present from Human Resources at the time of his termination. He was also made to sign the document, but he was not provided with the actual termination letter. He had been in his position for one year and seven months prior to his termination. He said he had no prior warning. 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, but he subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency found that Agency management articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 stated that Complainant was not given much work other than a standard set of operations or standard reports assigned according to his grade and experience. 2021001385 4 S1 affirmed that Complainant was tasked with gathering data, turning the data into a report, and disseminating reports to stakeholders which is how staff learned what is done in the office. S1 asserted that Complainant did not express any concerns regarding this issue, but, at a certain point, he requested more advanced work. S1 stressed that he worked with Complainant to give him specific challenges, but Complainant failed to understand the results or the goals of the assignment. S2 corroborated S1’s statements and stated that management wanted Complainant to master the work he was given but he failed to improve even after being provided mentors and additional training. Complainant was terminated because his performance was deficient, despite their offers of assistance and support. Further, Agency officials confirmed that they followed protocol, as directed by Human Resources, when it terminated Complainant’s employment. With regard to his hostile work environment claim, even assuming that the alleged comments occurred, the Agency determined that the alleged conduct was insufficiently severe or pervasive to establish a hostile work environment. As a result, the Agency found that Complainant was not subjected to discrimination or a hostile work environment as alleged. This appeal followed. 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, 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”). Disparate Treatment 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 Constr. Corp. 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. Tex. Dep’t of Cmty. 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 Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2021001385 5 The prima facie inquiries may be dispensed with where the Agency articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, supra; Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim); Prewitt v. United States Postal Service, 662 F.2d 292 (5th Cir. 1981) (applying this analytical framework to cases brought under the Rehabilitation Act). Regarding claim (2), management officials affirmed that Complainant was provided the standard work for his grade and certain repeated tasks, but Complainant demonstrated continued performance issues. S1 stated they expected Complainant to learn to produce reports without errors, but he did not do so. S1 asserted that although he attempted to provide Complainant additional more challenging work, Complainant failed to understand the results or goals of the assignment. S2 confirmed that Complainant was provided an opportunity to improve on the work he had and was provided a lot of assistance and feedback, but he did not improve. As to claims (3) and (4), management officials made the decision to terminate Complainant based on his demonstrated performance issues during his probationary period. S1 cited Complainant’s repeated failure to follow instructions and to conduct basic review of his work product which caused additional work for his colleagues. In addition, S1 noted that they provided additional assistance; coaching; and feedback, but Complainant’s performance did not improve and they decided to terminate him during the probationary period. Agency officials stressed that they followed Agency procedures and guidance from Human Resources. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the basis of discriminatory animus. Complainant provides no persuasive evidence tending to demonstrate management’s explanations are pretext for discrimination. As a result, the Commission finds that Complainant was not subjected to discrimination as alleged. Hostile Work Environment To establish a hostile work environment claim, 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 2021001385 6 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 to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); 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 (March 8, 1994). Therefore, to prove his harassment claim, Complainant must establish that she was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected classes. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. In this case, Complainant has presented no corroborating evidence that the alleged gossip and comments occurred. Even assuming that the conduct occurred as alleged, we find that the alleged incidents were not sufficiently severe or pervasive to establish a legally hostile work environment. The antidiscrimination statutes are not civility codes. Rather, they forbid “only behavior so objectively offensive as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). Accordingly, we find that Complainant has not shown that he was subjected to a discriminatory hostile work environment. 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 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. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. 2021001385 7 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. 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. 2021001385 8 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 June 15, 2022 Date