Al W.,1 Complainant,v.Linda McMahon, Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Aug 21, 2018

0120162665 (E.E.O.C. Aug. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Al W.,1
Complainant,

v.

Linda McMahon,
Administrator,
Small Business Administration,
Agency.

Appeal No. 0120162665

Hearing No. 570-2015-00295X

Agency No. SBA-02-14-028

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal from the Agency’s August 1, 2016 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 final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Business
Opportunity Specialist, GS-1101-09, at the Agency’s Washington Metropolitan District Office in
Washington, D.C. Complainant entered duty with the Agency on July 28, 2013, subject to a one-
year probationary period. On July 31, 2013, Complainant was given a copy of the training
syllabus and began training thereafter on how to complete 8(a) annual reviews. Complainant’s
training was interrupted around August 12, 2013, and he was reassigned to provide market
research for the District Office’s 2014 Strategic Plan. Complainant returned to training after the
research assignment was completed. Complainant received training from several co-workers,
including the Team Lead.

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.
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Management officials determined that Complainant required more training in November 2013,
and wished to help improve his performance. On November 5, 2013, Complainant’s supervisor
(S1) issued Complainant a memorandum stating that she and Complainant’s second-level
supervisor (S2) had counseled Complainant to improve his job performance and that his work
schedule would be 8:00 a.m. to 4:30 p.m. for a 90-day period. Additionally, S1 informed
Complainant he must include her or one of his trainers or her designee when meeting with new
companies; that all of his work needed to be reviewed by a trainer or her designee and submitted
to her for her review and approval; and instructed him that he should continue to ask questions to
her or his trainers. Complainant was denied the option of telework based on his probationary
status and because Complainant had not yet demonstrated that he could perform his duties
independently.

In November 2013, Complainant met with his third-level supervisor (S3) and fourth-level
supervisor (S4) to discuss his concerns regarding his training and supervisors. On November 12,
2013, S2 requested the Business Opportunity Specialist (BOS-1) who had been training
Complainant to provide an assessment of Complainant’s training progress. BOS-1 determined
that Complainant was performing less than average on many syllabus topics and that
Complainant’s knowledge of annual reviews was five on a 10-point scale. Around the same day,
Complainant refused to express the concerns he had with S1 during a meeting with S1 and S2.
S2 and S3 offered Complainant the opportunity to switch teams, but he declined.

In December 2013, S2 assigned a new trainer (BOS-2) to Complainant. On January 7, 2014,
BOS-2 provided feedback to S2 on Complainant’s training progress. BOS-2 assessed
Complainant as less than average overall and cited Complainant’s consistent errors with data
entry, BOS recommendations, missing documentation, and stated inability to review his own
work.

On February 11, 2014, Complainant met with S1 and S2 and received his 2014 performance
review. Therein, management indicated that Complainant’s performance had been less than
expected and his training progress was “very slow.” In addition, during this meeting,
management informed Complainant that his employment could be terminated during his
probationary period.

In January 2014, S1 had sent Complainant an email requesting eight annual reviews that had
been input into the 8(a) electronic system as complete but without being submitted to her. On
February 12, 2014, S1 sent Complainant an email directing him not to input his
recommendations into the electronic 8(a) system until his annual reviews had been reviewed by
her for completeness and she had approved the entry. That same day, S1 forwarded a
Probationary Period Report for Complainant to S2 and S3 with her certification that
Complainant’s performance and conduct were unsatisfactory and recommended that
Complainant be terminated immediately.

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On February 12 and 19, 2014, Complainant met with S3 and S4 about his issues with his training
and supervisors. Complainant reported for the first time during this meeting that he felt harassed
by his supervisors and that they were out to get him. S2 and S3 requested that Complainant
provide specific examples and began an inquiry into Complainant’s allegations.

On March 11, 2014, S1 sent an email to Complainant confirming that Complainant had not
submitted any work for her review since her February 12, 2014 email requesting the completed
annual reviews and other requests. On March 12, 2014, at Complainant’s request, S2 met with
Complainant. During this meeting, Complainant became angry; cursed; and expressed his
perceptions of management’s racism toward him. S2 sent Complainant an email memorializing
the meeting after consulting with Human Resources.

On March 13, 2014, S1 submitted a memorandum supporting Complainant’s removal to
Employee Relations Specialist at her request. The Employee Relations Specialist prepared a
termination letter. S2 ultimately approved S1’s recommended termination of Complainant. On
March 14, 2014, S2 issued Complainant a letter terminating his employment for failure to follow
her directives or comply with office procedures and poor quality of work.

Complainant alleged that in May 2014, following his termination, he learned from a former co-
worker that S1 felt threatened by Complainant because he “reminded her of another African-
American male” who she had issues with in the past at the Agency. Complainant further claimed
that a Caucasian employee told her that S1 made a remark to her that, “We white people have to
stick together in this office because we are the minority.”

On April 16, 2014, Complainant filed a formal complaint alleging that the Agency discriminated
against him on the bases of race (African-American), sex (male), and in reprisal for prior
protected EEO activity as evidenced by multiple incidents including, inter alia, his request for an
alternative work schedule was declined and his supervisor refused to process his telework
request; his supervisor imposed restrictive performance directives on him; he received a negative
Fiscal Year 2014 Quarter I Performance Review; he received an email directing him not to enter
Business Opportunity Specialist (BOS) recommendations until his work had been reviewed;
management sent an email indicating Complainant’s work status as “unknown;” management
informed him and sent an email entitled “Reporting Unplanned Sick Leave” that solely restricted
him and not others; management singled him out when he was directed to correct an annual
review; he received a termination letter; and he later learned that his supervisor had told another
employee that she felt threatened by Complainant because “he reminded her of another Black
male who was previously employed by the Agency.”

On May 6, 2014, the Agency dismissed the complaint finding that Complainant had first filed an
appeal with the Merit Systems Protection Board (MSPB) on April 4, 2014. On May 6, 2014, the
MSPB dismissed the appeal for lack of jurisdiction.
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On June 23, 2014, the Agency rescinded the May 6, 2014 dismissal decision and partially
accepted Complainant’s complaint with several amendments.2 At the conclusion of the
investigation, the Agency provided Complainant with a copy of the report of investigation (ROI)
and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant timely requested a hearing, and the AJ held a hearing on July 11, 2016. On July 14,
2016, the AJ issued a bench decision.

In the decision, the AJ initially determined that the alleged incidents were insufficiently severe or
pervasive to establish a hostile work environment. The AJ concluded that the challenged actions
constituted common workplace tribulations and disputes about work schedule, assignments,
performance and communications relative to work. Next, the AJ found that there was no
evidence that the conduct at issue was based on Complainant’s protected classes. For example,
as to Complainant’s termination, the record evidence established that S1 recommended the
termination of Complainant’s employment during his probationary period solely because of
Complainant’s performance and conduct issues that were documented and also supported by
input from Complainant’s trainers. The AJ determined that testimony and evidence established
that Complainant was not singled out or treated disparately based on his protected classes. The
AJ found credible the testimony of the Agency officials who testified about Complainant’s
performance and conduct shortcomings and their assessments regarding Complainants’ below-
average training progress and repetitive failures to produce as expected.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were
pretextual. As a result, the AJ found that Complainant had not been subjected to discrimination,
reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order
fully implementing the AJ’s decision. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ committed numerous errors, exhibited bias against
him, and attempted to create conditions that would justify the swift dismissal of his case.
Complainant argues that the Agency retaliated against him by terminating his employment
during his probationary period. Complainant challenges the Agency’s stated reasons for its
actions and claims officials altered or fabricated documents in the record. Complainant claims
that the hearing record evidence shows that S1 had made racially inappropriate comments.
Complainant argues that the AJ’s decision was grossly misaligned with the facts and purpose of
the law. Accordingly, Complainant requests that the Commission reverse the final order.

2 The Agency dismissed two claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. Complainant raised no challenges to the dismissal of these claims on appeal; therefore,
the Commission will exercise its discretion to only address those issues specifically raised on
appeal.
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STANDARD OF REVIEW

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. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A
finding regarding whether 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. See 29 C.F.R. § 1614.405(a).

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 Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-
110), Ch. 9, at § VI.B. (Aug. 5, 2015).

As an initial matter, the Commission will address Complainant’s contentions on appeal regarding
the manner in which the AJ conducted the hearing phase. Complainant claimed, among other
things, that the AJ was biased, routinely disrespected him, and interfered with his ability to
effectively represent himself. The Commission notes that AJs have broad discretion in the
conduct of hearings, including discovery and the determination of whether to admit evidence, or
permit or compel the testimony of witnesses. See 29 C.F.R. § 1614.109(e); Equal Employment
Opportunity Commission Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at
Ch. 7 (Aug. 5, 2015). The Commission has reviewed the record and finds no abuse of discretion
by the AJ. Further, the Commission is unable to find any evidence of bias, or other reversible
error, resulting from the manner in which the AJ managed this case.

ANALYSIS AND FINDINGS

Hostile Work Environment

To establish a claim of harassment a 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 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).
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).

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Therefore, to prove his harassment claim, Complainant must establish that he 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.

Complainant asserted that based on his protected classes, management subjected him to a hostile
work environment. Complainant alleged several incidents of what he believed to be
discriminatory harassment. The Commission finds that substantial record evidence supports the
AJ’s determination that Complainant has not shown that he was subjected to conduct sufficiently
severe or pervasive to create a hostile work environment.

Moreover, even assuming that the alleged conduct was sufficiently severe or pervasive to create
a hostile work environment, Complainant failed to show that the Agency’s actions were based on
discriminatory animus. The record reflects that the alleged incidents were more likely the result
of routine supervision, personality conflicts, and general workplace disputes and tribulations.
For example, as to his work schedule and initial work performance, S1 testified that she initially
declined Complainant’s request for an earlier schedule because new employees were typically
placed on a fixed 9:00 a.m. to 5:00 p.m. schedule; however, she ultimately allowed him to work
an earlier schedule. Hr’g Tr., at 41-42. Further, S1 testified that she declined Complainant’s
request for telework because probationary employees generally were not eligible and
Complainant had not demonstrated that he could work independently. Id. at 43. S1 denied
placing restrictive performance directives on Complainant; rather, she testified that she issued
Complainant a memorandum clarifying things such as his schedule and expectations that were in
line with how management treated all new employees. Id. at 44. S1 testified that she issued
Complainant a negative Fiscal Year 2014 Quarter 1 Performance Review because she found a lot
of errors in Complainant’s work and needed to address concerns management had. Id. at 45. S1
testified that she directed Complainant to correct an annual review in February 2014, because it
had errors. Id. at 60.

With respect to the March 13, 2014 email, S2 testified that Complainant became upset and raised
his voice during a meeting about his concerns as to how his performance was being rated and
how management officials were treating him. Hr’g Tr., at 159. S2 consulted with S3 and
Human Resources who gave him guidance to document Complainant’s unsuitable conduct in an
email to hold him accountable. Id at 159-60. Regarding his termination, S1 testified that she
recommended Complainant’s termination based on his performance and conduct. Id. at 135. S1
testified that Complainant was disrespectful, did not follow direction, and was difficult to work
with. Id. S2 concurred, testifying that the most serious parts of Complainant’s performance
were his unwillingness to learn, his lack of cooperation, his disrespect toward his supervisors and
trainers, and his constant insubordination. Id. at 161-62. S2 further testified that Complainant
was way behind in his work, which required others to complete his assignments. Id. at 162. As
Complainant’s training was not progressing and his performance was not improving,
management decided to issue Complainant a letter terminating his employment during his
probationary period. Id. at 228-30.
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Finally, S1 denied making any racially-insensitive comments. Hr’g Tr., at 75. A co-worker
testified that S1 once said, “It’s us versus them” and “Be careful who you’re friends with;”
however, she could not testify as to what S1 meant by it. Id. at 331-33. Additionally, there is no
evidence that S1 told another employee that she felt threated by Complainant because he
reminded her of another former African-American employee. Id. at 355.

After reviewing the record and considering the arguments on appeal, the Commission finds that
the AJ made reasonable credibility determinations, which are not contradicted by objective
evidence, and his factual findings are supported by substantial evidence. As a result, the
Commission finds that substantial record evidence supports the AJ’s finding that Complainant
has not shown that he was subjected to a discriminatory or retaliatory hostile work environment.
Furthermore, to the extent that Complainant is alleging disparate treatment with respect to his
claims, the Commission finds that he has not shown that the Agency’s reasons for its actions
were a pretext for unlawful discrimination or reprisal. Accordingly, the Commission finds that
Complainant has not established that he was subjected to discrimination, reprisal, or a hostile
work environment as to all claims alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
final Agency order because the Administrative Judge’s ultimate finding, that unlawful
employment discrimination was not proven by a preponderance of the evidence, is supported by
the record.

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.
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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.

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.

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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

August 21, 2018
Date