Brandon M.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Institute of Standards and Technology), Agency.

Equal Employment Opportunity Commission

Jun 28, 2018

0120162174 (E.E.O.C. Jun. 28, 2018)

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

Brandon M.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Institute of Standards and Technology),
Agency.

Appeal No. 0120162174

Hearing No. 531-2015-00175X

Agency No. 57-2014-00049

DECISION

On June 16, 2016, 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
May 4, 20162, final decision 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

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 The Agency argued that Complainant’s appeal was untimely as his non-attorney representative
received the final Agency decision on May 11, 2016 and Complainant “delayed” picking up his
copy of the decision until May 21, 2016, even though he knew it was available for pick up as of
May 7, 2016. We find this argument to be incorrect as the regulations state that the time frames
in 29 C.F.R. Part 1614 are to be calculated on actual receipt by a complainant when not
represented by an attorney. See 29 C.F.R. § 1614.605(d). Therefore, we deem Complainant’s
appeal to be timely filed.
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BACKGROUND

Complainant worked as a Health Physicist, ZP-1206-IV, at the National Institute of Standards and
Technology’s facility in Gaithersburg, Maryland.

In an EEO complaint that he originally filed on March 1, 2014 and amended on April 30 and
August 26, 2014, Complainant alleged that the Radiation Facilities Group Leader, his first-line
supervisor (hereinafter referred to as “Group Leader”), subjected him to a hostile work
environment because of his gender (male), age (61), and prior protected EEO activity. He
identified the following incidents in support of his claim:

1. Complainant had been subject to unwelcome comments by the Group Leader, including
unsubstantiated criticism of performance-based writings and structure of his reports
without being provided any performance standards and having one of his reports being
called “unprofessional” during a meeting.

2. Complainant had been required to submit weekly progress notes, even though coworkers
were not required to do so.

3. Meetings were often canceled or postponed at the last minute.

4. In November 2013, he was given a performance evaluation rating which was not an
accurate reflection of his performance and which was based on subjective assertions and
false accusations.

5. On April 10, 2014, the Group Leader sent him an email message admonishing him for
being late to a meeting.

6. On July 31, 2014, the Group Leader sent him an email with commentary admonishing him
for not meeting a deadline for submission of a report.

After the investigation, the Agency provided Complainant with a copy of the investigative report
(IR) and notice of his right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing, but the AJ dismissed the hearing request as a sanction after
Complainant’s repeated failure to comply with his orders. The AJ remanded the complaint to the
Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision
concluded that Complainant failed to prove that the Agency subjected him to discrimination as
alleged.

Incident (1): Complainant averred that he had not been provided with specific standards, either in
his performance plan, in the Agency’s standard operating procedures, or in the radiation safety
instructions on the format and structure of his written reports. He stated that the Group Leader
referred to his writings as “unprofessional” during biweekly goal and progress review meetings,
and that he was the only person in his workgroup whose work products were singled out for
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criticism. IR 165-66. The Group Leader responded that every performance plan has benchmark
standards for written work products, and that these standards were used to rate all employees. IR
177. He also averred that everyone who reported directly to him received feedback, criticism, and
mentoring from him regarding their work. IR 179. He also averred that Complainant received the
same type of guidance and feedback on the preparation of reports and other communications as
everyone else in his workgroup. The Group Leader noted that Complainant was held to a higher
level of scrutiny because he was a senior scientist whose reports would be more widely
disseminated than those of others in the group. IR 180.

Incident (2): Complainant averred that he was required to submit weekly goal and progress notes
but admitted that he never asked the other Health Physicists in his group if they were also required
to provide such notes. IR 166. The Group Leader responded that requiring his subordinates to
report regularly on their progress was his method of managing his staff. He averred that he had
individualized discussions with each staff member under his supervision at regular intervals
regarding their progress toward their individual and organizational goals. The Group Leader stated
that initially he had met with Complainant on a weekly basis, but had changed the schedule to
biweekly after receiving feedback that weekly meetings were too frequent. IR 173. The Group
Leader reiterated that the purpose of the goal and progress meetings was to remain updated on the
status of projects and to advise his subordinates as to any changes or improvement that might be
needed. IR 176.

Incident (3): Complainant averred that the Group Leader frequently cancelled goal and progress
meetings as well as other meetings, often without giving a reason. He admitted, however, that he
was notified of the cancellations on most occasions. IR 166. The Group Leader admitted that he
did frequently cancel or postpone meetings because of frequent changes in his schedule. He
averred that he attempted to provide his employees with as much notice as possible. IR 176.

Incident (4): Complainant averred that the Group Leader had given him an appraisal rating for FY
2013 of “marginal,” and that the rating was based on subjective assertions and false accusations.
He maintained that the Group Leader had failed to clearly identify a benchmark for professional
papers and reports. He also stated that the Group Leader had threatened to place him on a
performance improvement plan (PIP). IR 166-67. The Group Leader responded that, based upon
his assessment of Complainant’s work products during the biweekly goal and progress meetings,
he had determined that while Complainant’s performance was good in some areas, it was
marginally satisfactory in others. He noted that the Agency had a grievance process in place for
contesting performance appraisals but that Complainant had never availed himself of that
procedure. IR 173-74. He also stated that in accordance with Agency policy, the only time an
employee could be placed on a PIP was if his or her performance was rated as unsatisfactory, and
that Complainant’s performance had not been rated as unsatisfactory. IR 179.

Incident (5): Complainant averred that on April 10, 2014, he received an email from the Group
Leader admonishing him for being ten minutes late to a meeting. He stated that earlier in the day,
the Group Leader had asked him to cover the phones until the secretary had returned. He also
stated that when he arrived at the meeting, everyone had left. IR 168-69. The Group Leader
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responded that he asked Complainant why he did not attend the meeting and reminded him that
those meetings were important and that he needed to attend. He denied that he had assigned
Complainant to cover the phones. IR 177-78.

Incident (6): Complainant averred that on July 31, 2014, the Group Leader sent him an email
admonishing him for not meeting a deadline for submission of a report. He did not elaborate on
this incident in his affidavit. The Group Leader averred that at a progress meeting held on July 2,
2014, Complainant reported that a project with a due date of June 6, 2014 had still not been
completed. According to the Group Leader, Complainant had informed him at that meeting that
the project would be finished by July 10, 2014. The Group Leader averred that he had accepted
Complainant’s plan, but advised Complainant that due to the project’s priority, the deadline could
not be extended again. At the next meeting held on July 31, 2014, however, Complainant reported
that no further progress had been made on the project. The Group Leader stated that he had
explained to Complainant that he did not see any reason why the project could not have been
completed by July 10, 2014, as Complainant had promised at the July 2, 2014 meeting. The Group
Leader further stated that although he extended the project’s deadline until August 8, 2014,
Complainant had given him the report on July 31, 2014. IR 178.

CONTENTIONS ON APPEAL

In addition to contesting the Agency’s final decision on its merits, Complainant contends that the
AJ erred in dismissing Complainant’s hearing request, that neither he nor his representative were
notified of a status conference, that the AJ abused his discretion by ignoring his requests to compel
discovery, and that the AJ improperly failed or refused to issue status/settlement conference
scheduling orders or memoranda memorializing teleconference discussions. The Agency
responded that Complainant submitted his motion to compel discovery after the hearing request
had already been dismissed. It also responded that the AJ ordered a settlement teleconference to
be held on March 3, 2016, and that Complainant’s representative was on a conference call when
that order was issued.

ANALYSIS AND FINDINGS

The Commission shall first address Complainant’s contentions on appeal regarding the manner in
which the AJ conducted the hearing phase. 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. Complainant’s representative had been warned that sanctions for failure
to respond to the AJ’s orders could include dismissal of Complainant’s hearing request. We
therefore find no abuse of discretion by the AJ with respect to Complainant’s contentions regarding
discovery or his decision to ultimately dismiss Complainant’s hearing request. See e.g. Ward B.
v. Dept. of the Army, EEOC Appeal No. 0120151448 (Nov. 22, 2017) (no abuse of discretion
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where AJ dismissed hearing request after notifying Complainant and his attorney that failure to
comply with AJ’s orders could result in sanctions, including dismissal of the hearing request).

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”).

To establish a claim of discriminatory harassment, 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 classes; (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).

To ultimately prevail on his harassment claim, Complainant must prove that the incidents occurred
because of a protected basis. Beyond motive, Complainant must show that S1 had subjected him
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. Since Complainant has also
alleged reprisal, he must prove that S1’s actions were harmful to the point that they could dissuade
a reasonable person from making or supporting a charge of discrimination. Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). See also EEOC Enforcement Guidance
on Retaliation and Related Issues, EEOC Notice No. 015.004, § II(B)(3) & n. 137 (Aug. 25, 2016).
Only if Complainant satisfies his burden of proof with respect to these elements, motive and either
hostility or chilling effect, will the question of Agency liability for discriminatory or retaliatory
harassment present itself.

Complainant established the first element of a claim of harassment by his sex, age, and prior EEO
activity. We would also agree that the Group Leader’s conduct in the various incidents identified
by Complainant is unwelcome from his own subjective perspective, which is enough to satisfy the
second element. See Floyd L. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120150737 (Apr.
27, 2017).

To establish the third element of a claim of discriminatory harassment, Complainant must show
that in taking the actions that comprise his harassment claim, the Group Leader relied on
considerations of his sex, age, and prior EEO activity that are expressly proscribed by Title VII
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and the ADEA. See Aldaberto P. v. Dept. of Veterans Affairs, EEOC Appeal No. 0120142387
(Mar. 29, 2016). Beyond his own assertions, Complainant has not presented affidavits,
declarations, or unsworn statements from witnesses other than himself nor documents that expose
any weaknesses, inconsistencies, or contradictions in the Group Leader’s explanation for the
various incidents to such an extent that a reasonable fact finder could rationally find those
explanations unworthy of credence. See Opare-Addo v. U.S. Postal Service, EEOC Appeal No.
0120060802 (Nov. 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211
(May 30, 2008).

Even if Complainant’s harassment claim somehow survived the third element of the harassment
analysis, it would not survive the fourth. In order to establish that element, Complainant must
show that the actions of the Agency were so severe or pervasive such that a legally hostile work
environment existed. The conduct alleged to constitute harassment 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 (March 8, 1994). Complainant must
bear in mind, however, that anti-discrimination statutes are not general civility codes designed to
protect against the “ordinary tribulations” of the workplace. See Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998); see also Lassiter v. Dept. of the Army, EEOC Appeal No. 0120122332
(Oct. 10, 2012) (personality conflicts, general workplace disputes, trivial slights and petty
annoyances between an alleged harasser and a complainant do not rise to the level of harassment).
Instead, EEO laws address discriminatory conduct that alters the work environment. See Oncale
v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). In this case, every single incident
comprising Complainant’s harassment claim involved the Group Leader’s criticism of his written
work products and his tendency to miss meetings, nothing more. None of these incidents, either
singly or collectively, are severe or pervasive enough to rise to the level of harassment or would
otherwise dissuade employees from exercising their EEO rights.

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 finding that Complainant
did not establish that he was discriminated against as alleged.

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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.
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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

June 28, 2018
Date