Tommie R.,1 Complainant,v.Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency.

Equal Employment Opportunity Commission

Nov 5, 2020

2020000130 (E.E.O.C. Nov. 5, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommie R.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020000130 Hearing No. 451-2017-00139X Agency No. HS-FEMA-24408-2015 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 August 2, 2019 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND During the period at issue, Complainant worked as a Reservist at the Agency. On July 27, 2015, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (white), age (60 years old at the time of the alleged incidents), and in reprisal for protected EEO activity (the instant complaint). The Agency accepted the formal complaint for investigation. 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. 2020000130 2 After an investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. However, Complainant subsequently withdrew his request. On December 13, 2018, the AJ issued an Order of Voluntary Dismissal remanding the matter to the Agency to issue a final decision.2 Consequently, on August 2. 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The Agency framed Complainant’s claims in the following fashion: 1) From 2013 to 2016, management failed to issue Complainant a position task book (PTB) for the Crew Leader position.3 2) Since November 17, 2014, and ongoing, management officials have failed to correct Complainant’s FEMA Qualified System (FQS) title in the Deployment Tracking System (DTS) to show that Complainant is a Disaster Survivor Assistance (DSA) Specialist rather than DSA-qualified with an addendum as a trainee. 3) On or June 15, 2015, Complainant learned that he was not selected for the DSA Branch Director position, advertised under Job Announcement Number FEMA-15-SB-228- IMAT. 4) On or about July 15, 2015, after asking for time to work on his EEO complaint, Complainant was told that he could not take a DSA Coach/ Evaluator course Regarding claim (1), the Agency found that it articulated, legitimate, nondiscriminatory reasons for its actions. The Agency reasoned that Complainant did not receive a PTB due to a limited number of positions for Crew Lead. 2 The AJ’s Order of Dismissal also remanded Complainant’s subsequent EEO complaint, Agency Case No. HS-FEMA-00137-2018 to the Agency for a final decision. The Agency issued a separate final decision on Agency Case No. HS-FEMA-00137-2018 which Complainant appealed to OFO and was docketed as EEOC Appeal No. 2019004221. 3 Complainant also alleged that he did not receive “equal pay for equal work.” However, Complainant referenced this matter in the context of not being issued the Crew Leader Task Book but performing the duties of Crew Leader at times. Orig. ROI at 92. Thus, we find this to be background information to claim (1) rather than a separate claim under the Equal Pay Act. Moreover, Complainant has not shown that he received less pay than an individual of the opposite sex for equal work, requiring equal skills, effort, and responsibility, under similar working conditions within the same establishment. Sheppard v. EEOC, EEOC Appeal No. 01A02919 (Sept 12, 2000). 2020000130 3 The Agency also found that “[t]o the extent that Complainant is alleging discrimination under the Equal Pay Act, Complainant presented no evidence that FEMA paid different wages to employees of opposite sexes for substantially equal work under similar working conditions.” Regarding claim (2), management failed to correct the position title in the database, the Agency asserted that this action was due to human error and that it was corrected in June 2015. Regarding claim (3), Complainant’s non-selection for the position of Branch Director, the Agency found that management did not interview Complainant because his work experience did not warrant an interview in comparison with other candidates. The Agency further found that Complainant failed to establish that the Agency’s reason was pretext for discrimination and/or retaliation and reasoned that Complainant’s qualifications were not plainly superior to that of the selectee. Regarding claim (4), being denied a specified training course, the Agency found that Complainant was subsequently approved to take the course in question. The Agency further found that Complainant did not establish that the Agency’s articulated reasons for its actions was pretext for discrimination. In addition, the Agency found that Complainant failed to establish that he was subjected to a hostile work environment because he had not shown that the alleged actions at issue were based on his protected classes. The instant appeal followed. On appeal, Complainant reiterates that he has been subjected to repeated discrimination. Complainant asserts that claim (1) was not due to human error. Regarding claim (3), Complainant asserts that he was not interviewed for the position even though he was among the best qualified. Complainant asserts that the Agency is seeking a younger workforce. In response, the Agency requests that we affirm its final decision finding no discrimination. The Agency reiterates it reasoning set forth in its final decision. 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”). 2020000130 4 Disparate Treatment Analysis Regarding claim (1), the PTB for the Crew Leader position, the record contains an affidavit from the Reservist Program Manager (RPM). Therein, RPM asserts that the DSA Specialist was the largest category and that the need for Crew Leads was much smaller and not everyone gets to progress to the position of Crew Lead at the same time. Original ROI at 116. Regarding claim (2), the Agency not providing Complainant’s proper title of DSA Specialist (rather than trainee) in the database, the record contains an affidavit from the RPM at the time in question. RPM asserts that she was involved with this matter. RPM states: I received an email from the Ombudsman saying that [Complainant] was qualified for DSA Specialist. Upon researching the matter, I discovered that we had not changed his title in the system…Rather than calling them ‘unqualified’ we added the work ‘addendum’ at the end of the title which meant they had to learn and perform the new duties, and be evaluated before Addendum work would be removed from their FQS title. In fact, [Complainant] had successfully performed the duties in the summer of 2014. However, that was not communicated to the database until June 25, 2015 when the ombudsman contacted me and I researched the issue. At that time, I removed the word addendum from [Complainant’s] title and asked for this to be reflected in the Deployment Tracking System (DTS). Original ROI at 115. Regarding claim (3), Complainant’s non-selection for the position of Branch Director, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record contains an affidavit from a Human Resource Specialist (HR1). Therein, HR1 asserts that she created and posted the vacancy at issue. Supplemental (Supp). ROI at 56-57. HR1 also states that she was responsible for determining if applicants were qualified for the position. Id. HR1 states that applicants were notified by an email generated by a computer system if they were qualified.4 HR1 confirmed that Complainant was referred to the hiring manager for consideration. Id. The record also contains an affidavit from a Human Resources Unit Leader (HR2). HR2 asserts that 18 of the applicants were deemed qualified for the position and all qualified applicants were referred to the selecting official (SO1) for consideration. Supp. ROI at 95. However, HR2 states that not all qualified applicants were interviewed.5 Id. 4 The email Complainant received that he was among the best qualified and referred to the selecting official appears to have been generated from the computer system. Supp. ROI at 160. 5 The record reflects that four candidates were interviewed for the position at issue. Supp. ROI at 98. 2020000130 5 Finally, the record contains an affidavit from the SO1. Therein, SO1 asserts that applicants on the certification list had their resumes reviewed by members of the interview committee who then met and agreed which candidates would be interviewed. Supp. ROI at 46. SO1 asserts that he never met Complainant and that because Complainant was not interviewed for the position, his resume did not warrant an interview in comparison to the candidates who were selected for interviews. Id. SO1 asserts that consideration of candidates was based solely on skills and qualifications. Supp. ROI at 47. SOI asserts that the selectee was agreed upon by the interview committee unanimously because he had the best interview. Supp. ROI at 46. We concur with the Agency’s final decision that Complainant failed to establish that the Agency’s reason was pretext for discrimination and/or retaliation. We do not find that Complainant’s qualifications were superior to the selectee’s. As properly set forth in the Agency’s final decision, the selectee served as a DSA Branch Director in another FEMA office for 10 years prior to his application, while Complainant never served as a FEMA Branch Director. Supp. ROI 75-77, 80- 82. Regarding claim (4), being denied a specified training, the record contains an affidavit from his second-level supervisor (S2) during that time. S2 stated that he requested guidance from his supervisor regarding this matter because becoming a Coach/Evaluator is a Cadre Management decision. S2 stated that his supervisor stated that headquarters was not approving DSA staff for Coach/Evaluator at that time.6 Orig. ROI at 98-99. S2 stated that Complainant transferred out of his branch on July 17, 2015. Orig. ROI at 99. Complainant stated he has since taken the course at issue. Orig. ROI at 87. We find that Complainant has not shown, by a preponderance of the evidence, that the Agency’s articulated reasons for these actions (claims (1)-(4)) were pretext for discrimination and/or retaliation. Complainant asserts that the Agency was seeking a younger workforce. This assertion is insufficient to establish pretext. In the instant matter, Complainant withdrew his hearing request. As a result of Complainant’s decision to withdraw his request for a hearing before an AJ, we do not have the benefit of an AJ’s credibility determinations or an AJ overseeing the further development of the record. Complainant has not met his burden to establish that the Agency’s articulated reasons for its actions were pretext for discrimination and/or retaliation. Harassment/Hostile Work Environment Analysis To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment 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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 6 We note that S2’s supervisor does not recall this matter. Supp. ROI at 106. 2020000130 6 Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). We find that Complainant failed to establish that he was subjected to unlawful harassment. Complainant has not established that the Agency’s actions were based on his protected classes. As set forth above, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to establish was pretext for discrimination and/or retaliation. Accordingly, we AFFIRM the Agency’s final decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020000130 7 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. 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 November 5, 2020 Date