U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Gregory F.,1
Complainant,
v.
William P. Barr,
Attorney General,
Department of Justice
(Federal Bureau of Investigation (FBI)),
Agency.
Appeal No. 2019000823
Hearing No. 520-2016-00460X
Agency No. FBI-2016-00013
DECISION
On October 8, 2018, 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 31, 2018, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant served as a Contract Linguist at
the Agency’s FBI, New York Division, Language Services Section in New York performing work
for the United States Intelligence Community, National Virtual Translation Center.2
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.
2 In EEOC Appeal No. 0720110014 (July 19, 2012), the EEOC ruled on appeal on a prior EEO
complaint that Complainant was an employee of the Agency under common law for the purposes
of using the 29 C.F.R. Part 1614 complaint process. In the case before us, the Agency does not
question that it was Complainant’s common law employer.
20190008232
On November 12, 2015, Complainant filed an EEO complaint alleging in relevant part that the
Agency unlawfully retaliated against him based on prior protected EEO activity when:
1. in August 2015, the Agency conducted a security investigation of Complainant;
2. on August 31, 2015, Complainant’s first line supervisor rated him “Does not Meet
Expectations” on his Contractor Product Performance Review; and
3. his contract was not renewed effective October 1, 2015.
The record shows that Complainant had filed a prior EEO complaint in January 2007. On that
complaint, the EEOC found discrimination, resulting in Complainant being reinstated as a Contract
Linguist around August 2013. After further litigation, the Agency paid Complainant $632,0055.43
in damages around June 2015. Complainant’s instant retaliation claim is based on an allegation
that Agency management harbored retaliatory animus towards him as a result of the 2015 damages
payment he received on his prior complaint.
Following an EEO investigation into his current complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ). After the hearing, the AJ found no unlawful retaliation
had been established. The Agency’s final order fully implemented the AJ’s decision.
The instant appeal followed.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-
Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de
novo standard of review, whether or not a hearing was held.
An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the testimony
or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC
Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).
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).
20190008233
He must generally 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
or unlawful retaliation. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with in this case, however, since the Agency has 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 or unlawful retaliation.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981);
Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).
Regarding issue 1, the AJ found that late on August 6, 2015, just before leaving work for the day,
another Contract Linguist (“Coworker 1”) reported to her supervisor (“CWS”) that Complainant
was angry and frustrated and said to her if he had a gun he would shoot some people there. The
next day, CWS asked Coworker 1 to speak to CWS’s supervisor about the threat, but Coworker 1
retracted her story and told CWS that she never reported a threat to her.
Despite Coworker 1’s retraction, by email on August 7, 2015, CWS reported to her supervisor
(“S2” – also Complainant’s second line supervisor), that Coworker 1 told her about Complainant’s
threat, but later retracted her story. CWS said no one directed her to report the incident, and she
reported it because she felt if someone threatened to shoot anyone it should be reported, even if
the witness retracted the report. The AJ found that Agency policy required that personnel who
learn of threats of bodily injury to employees report it to their supervisor. Agency protocol also
provided that whenever someone received a threat of workplace violence, the alleged perpetrator
was suspended until an investigation was conducted.
S2 forwarded CWS’s email about the threat to security. As a result, on August 7, 2015, the Special
Agent In Charge (“SAIC”) of the Intelligence Division in the FBI’s New York Division, which
includes the Language Services Section, decided to restrict Complainant’s access to the office until
the security incident was investigated and resolved. Management indicated that it was their
experience that reporters of information concerning threats of workplace violence often retract
their report for many reasons including not wanting to be involved or realizing the seriousness of
the consequences.
The AJ determined CWS, S2, and the SAIC all credibly testified that they were unaware of the
payment to Complainant resulting from his prior EEO complaint.
20190008234
The AJ determined CWS was a credible witness with no motive to lie.3 She was never
Complainant’s supervisor and credibly testified that she simply felt it was her duty to report the
alleged threat, even after CW1 recanted, so it could be investigated. After that, the AJ found the
Agency was bound by its policy to investigate any alleged threat of workplace violence, and the
Agency’s decision to initiate doing so after CWS’s report was reasonable and legitimate. The AJ
concluded Complainant failed to prove reprisal played any role in this matter.
Regarding issue 2, the AJ found that on or about August 6, 2015, prior to the performance review,
Complainant’s first line supervisor (“S1” – an Agency supervisor) had given Complainant a
Corrective Action Request Form (CARF), advising him that certain conduct of his was
unprofessional, agitated, angry, and uncooperative, recounting numerous examples. On August
31, 2015, S1 completed Complainant’s Contractor Product Performance Review, finding that his
performance did not meet expectations and recommending that his contract not be renewed. S1
rated Complainant as not meeting expectations regarding both meeting translation deadlines and
giving service in a cooperative and professional manner. The rating was supported with numerous
examples, some by incorporation of the CARF. Management indicated that Complainant did not
produce any work product for several assignments, which then had to be reassigned to other
linguists. By August 18, 2015, Complainant billed the Agency for 302.25 hours ($12,392) without
producing any work product for these hours and completed only 54.6% of his assignments.
The AJ found that the ratings were supported by the record, including several significant examples,
including:
On or about June 1, 2015, Complainant was assigned a project that involved translating
Facebook messages, and was responsible for electronically saving his work. He billed the
Agency 225.5 hours.
3 The AJ also found that during his own testimony at the July 2018 hearing, Complainant recalled
little, and repeatedly contradicted the statements he made in his June 2017 deposition, often
admitting he did not know if his testimony in his deposition was truthful. Without an accurate
memory of events, the AJ concluded Complainant was unable to credibly establish facts that
supported his claims.
On appeal, Complainant argues that at his deposition and hearing he acted peculiarly and was not
able to think properly, and contradicted his earlier testimony, because the deposition and the
hearing began early, not long after he took medications. Complainant submits an undated letter by
his physician listing his medications and opining that he “might have been suffering from the side
effects of some of the [daily] medications he was prescribed… [which include] stress, agitation,
confusion, irritability and nausea… [which] might have accounted for [his] inability to testify in a
satisfactory manner at the hearing and deposition….” Arguing he was cognitively impaired at his
deposition and the hearing, Complainant asserts he was prejudiced by factors beyond his control
and should be allowed a new deposition and hearing.
20190008235
On August 4, 2014, Complainant met with the Special Agent who needed the translation
but could only produce eight very short translations because he failed to electronically save
his work. His failure to save was not from a one-time computer error – he had numerous
opportunities to realize that work from previous days had not been saved. The Special
Agent needed the project to be completed by another linguist, who translated half the
Facebook pages in 35.75 hours, and had no problem saving the work.
On June 19, 2015, Complainant was assigned to summarize an audio file of a telephone
conversation in Yiddish. The assignment should have taken about 100 hours, but by June
30, 2015, when he completed it, Complainant spent over 440 hours, and his work product
was asserted to be incoherent. The Special Agent who requested the translation found
Complainant confrontational and difficult to work with, asked not to work with him on
future projects, and on July 1, 2015, the project was reassigned to another linguist.
On July 20, 2015, S1 discussed with Complainant his knowledge of basic computer
functions. Complainant asked how he was supposed to know this type of information and
S1 replied it is required by the contract. Complainant then shouted that the contract was a
“piece of crap.” S1 walked away but Complainant followed him and continued to shout.
Complainant came across S2 who requested he stop yelling. Complainant explained he that
lost his temper because S1 was showing him something over and over again. S2 advised
Complainant that when he gets frustrated or angry to tell his supervisor he needs some time
to cool off and pick up the conversation later. S1 had counseled Complainant multiple
times before about losing his temper and yelling, but said Complainant continued to act
unprofessionally, lose his temper, raise his voice, and make angry gestures. Another
coworker (“CW2”), a Contract Linguist, testified that he witnessed Complainant yelling at
S1 four or five times and that while doing so banged on the table by slamming his hand.
S1 issued the CARF because of this behavior.
An example in the CARF included Complainant on October 28, 2014, making derogatory
remarks toward an employee with a different ethnic background. S1 also testified that
Complainant calling an FBI employee, a retired Lt. Colonel, an “Army reject.”
On issue 3, the AJ found that the Agency did not renew Complainant’s contract based on his low
productivity and lack of professionalism. Relative to all three issues, the AJ determined that S1,
S2, and CW2 all witnessed Complainant’s unprofessional behavior, and credibly described it.
Their testimony was consistent with others and corroborated by documents in the record. The AJ
also concluded that management witnesses credibly testified about Complainant’s deficiencies of
failure to work efficiently, loss of work product, poor computer skills, and complaints by Special
Agents who requested work, and this testimony was corroborated by written records, many written
contemporaneously. In sum, the AJ determined the Agency issued Complainant the unfavorable
Product Performance Review and did not renew his contract for the reasons provided by the
responsible management officials and not as a result of retaliatory animus.
20190008236
Here, the weight of the evidence fully supports the AJ’s conclusion that Complainant failed to
prove unlawful retaliatory animus played a role in the disputed actions. The AJ’s decision that the
responsible Agency officials fully articulated legitimate, non-retaliatory reasons for the actions
and Complainant did not prove pretext is supported by substantial evidence – particularly
management testimony the AJ found credible accompanied by supporting documentation.
Complainant failed to prove, by a preponderance of the evidence, that management’s proffered
reasons for its actions were pretext designed to mask retaliatory animus.
On appeal, with the exception of the issue surrounding the alleged threat, Complainant, through
his attorney, mainly raises arguments concerning a number of procedural evidentiary issues.
However, we are unpersuaded by Complainant’s argument that the AJ abused her discretion in
excluding the affidavit of Coworker 1 at the pre-hearing conference because she approved
Complainant’s request that Coworker 1 testify. Such testimony would have provided the AJ a
better opportunity to gauge Coworker 1’s credibility. However, after Coworker 1 later decided not
to testify, Complainant could have requested the AJ admit her affidavit, but did not do so, waiving
this matter. In any event, the AJ already knew Coworker 1 asserted that she never heard or reported
a threat by Complainant. Her affidavit would have had less weight than live testimony by CWS
about the report, which the AJ found to be credible.
In addition, while Complainant initially requested two Security Agents as witnesses for the
hearing, the record supports the Agency’s account that Complainant later withdrew the request. In
the AJ’s Order Following Pre-hearing Conference, the AJ wrote that all witnesses were approved.
Accordingly, we find that Complainant has waived this matter. Moreover, the relevance of these
witnesses is questionable. In his Pre-hearing Submission setting forth expected testimony,
Complainant did not contend that the Security Agents were expected to testify that CWS recanted
that Coworker 1 reported to her that Complainant made a threat, which is what is relevant, not
whether he made the threat.
Finally, Complainant’s argument that he should have a new hearing because of his asserted
medical state at the time he gave his deposition and later at the hearing is not persuasive at this late
stage. We agree with the Agency’s argument that the doctor’s note Complainant submitted about
what his cognitive state “might” have been during the deposition and hearing does not provide
sufficient reason to schedule a new hearing.
CONCLUSION
The Agency’s final order adopting the AJ’s conclusion that no unlawful retaliation has been proven
is AFFIRMED.
20190008237
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.
20190008238
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 17, 2019
Date