Brendan D.,1 Complainant,v.Gordon Hartogensis, Director, Pension Benefit Guaranty Corporation, Agency.

Equal Employment Opportunity Commission

Aug 9, 2019

0120182069 (E.E.O.C. Aug. 9, 2019)

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

Brendan D.,1
Complainant,

v.

Gordon Hartogensis,
Director,
Pension Benefit Guaranty Corporation,
Agency.

Appeal No. 0120182069
Agency No. FC17007F

DECISION

On May 30, 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
April 30, 2018, 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 final Agency decision (FAD).

ISSUE PRESENTED

Whether Complainant established that he was subjected to discrimination and a hostile work
environment based on national origin (American, born in Ghana), age (72), and reprisal for prior
protected EEO activity under Title VII and the ADEA.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511-
13, at the Agency’s facility in Washington, DC. On February 22, 2016, Complainant filed an EEO
complaint alleging that the Agency discriminated against him as set forth above 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.
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1. On or about September 12, 2016, his supervisor, S1, “complained bitterly” that he was
“underperforming,” but provided no evidence to substantiate his claim.

2. On or about September 13, 2016, S1 was “intolerant” but “refused to explain what
[Complainant] should do to match [his] grade.” Complainant further alleged that he
“could not control his stress from [his] supervisor’s utterances and had to excuse
[himself] from the meeting.”

3. On or about November 21, 2016, S1 “coerced [Complainant] into signing [his] name
to the evaluation form without fulling sharing the full and complete performance
evaluation matrix and results with [Complainant].”

4. On or about February 14, 2017, Complainant requested and received a copy of his
FY2016 performance evaluation from the Human Resources Department which
contents had not been shared with him before being submitted by his supervisor.
Complainant further alleges that the Level 2 rating received was the result of the
disagreement with S1 stemming from the September meeting.

Complainant is a Certified Public Accountant with more than 38 years of experience with the
federal government. At the time of his Complaint, he had worked with the Agency for 16 years.
Complainant states that he has been involved in prior EEO activity which included a grievance
that he filed on January 13, 2017, challenging the Level 2 rating he received for FY 2016, coupled
with a designation as ineligible for telework. Complainant further avers that he understood that
there were multiple EEO cases the department was facing due to “job conflicts” with S1.

Regarding Issue 1, Complainant avers that S1 was aware of his national origin and age based on
conversations and interactions in office meetings. Complainant stated that he believed he was
discriminated against based on S1’s treatment of him in the two meetings that took place on
September 12 and 13, 2016. During the meeting on September 12, 2016 Complainant stated that
S1 “bitterly accused” him and a co-worker, W1, age 50, of underperforming as GS-13s, but
“provided no evidence to substantiate his claim.” When S1 was asked to provide examples,
Complainant avers that S1 gave examples of minor errors in paperwork documentation.
Complainant “reminded S1 that even though he had worked sixteen (16) years in another
department,” he had limited experience in this division. He stated that he asked for continued
guidance in this division but has not received it. Complainant stated that the work performed in
his new position required time to learn to upgrade his performance.

Regarding Issue 2, on or about September 13, 2016, Complainant attended a meeting with S1 and
the Audit Team Lead to discuss Complainant’s performance. At this meeting, Complainant stated
that he was attacked with a barrage of questions and was accused of issues of which he was not
aware. According to Complainant, he excused himself and left the meeting.

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Complainant stated that after he left the meeting, a witness overheard S1 state that Complainant
had “served his years and needed to retire immediately if he cannot perform his work as
expected.”2 Complainant also alleged that S1 stated that he and W1 needed to work like the
younger workers. The record reflects that W1 was also counselled on his production rate.

Regarding Issue 3, on or about November 21, 2016, Complainant stated that S1 “coerced” him
into signing his name to an evaluation form without sharing the full and complete performance
evaluation matrix and results with him. Complainant stated that he met with S1 and was told that
his evaluation would not be any different from his previous evaluations by his previous supervisor.
Complainant stated that he was asked to sign the document, which he did. The Employee
Performance Appraisal Plan and the final rating determination were not reviewed with him.

Regarding Issue 4, Complainant requested and received a copy of his FY-2016 performance
evaluation from HR. The contents of the evaluation had not been reviewed by Complainant.
Complainant stated that he received an eligibility withdrawal of telework privileges form, and a
few other administrative requirements, but no paperwork concerning his evaluation. He was
advised to file a grievance, which he did on January 13, 2017.3 Because of his downgraded
evaluation, his telework privileges were revoked. Complainant stated that the experience caused
him to suffer psychological, and mental and emotional trauma, which manifested into heart
palpitations, headaches, stomach virus problems, difficulty concentrating, irritability and
panic/anxiety attacks.

Regarding S1’s responses to Complainant’s allegations, S1 stated that he was not aware of
Complainant’s national origin or age, or that he felt he was being discriminated against based on
national origin, age, or reprisal. When asked if he subjected Complainant to harassment or a hostile
work environment based on national origin, age or reprisal, S1 stated “although I am not a lawyer,
and so I cannot say what constitutes a ‘hostile work environment and/or harassment’ in a legal
sense, the performance feedback provided to Complainant was in accordance with [Office] policies
and did not constitute a hostile work environment or harassment for any reason.”

S1, when asked to provide all information he had regarding the incident that occurred on or about
September 12, 2016, S1 asserted that he did not complain “bitterly” that Complainant was
underperforming, nor did he discriminate against him. S1 stated that when discussing the initial
issues with Complainant, Complainant responded to him with a loud voice. S1 stated that
Complainant’s work performance had been declining throughout 2016, and because he was
Complainant’s supervisor, it was his responsibility to ensure that Complainant was aware of the
decline and to provide him with helpful feedback.

2 According to the witness, “I am aware of similar trend of complaints made towards [S1] with
regard to his hostile actions with regard to performance, discussions of promotions by other staff
that reported to him.” He further stated that S1’s temperament, language, and voice level at the
meeting on September 13, 2016 was unprofessional and did intimidate.
3 According to Complainant, his rating was subsequently elevated to Level 3.
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S1 further stated that, considering Complainant’s grade level, years of experience and service as a
key team member, it was expected that he would meet the performance standards as set forth in
his performance plan.

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. In accordance with Complainant’s request, 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.

CONTENTIONS ON APPEAL

Complainant, in pertinent part, argues that the facts support his allegations of discrimination and
unlawful harassment.

The Agency submitted a brief arguing, among other things, that we affirm 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”).

Disparate Treatment Claim 4

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 Construction Co. 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
802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason
for its actions. Texas Dep’t of Community 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 Products, Inc., 530 U.S. 133, 143 (2000);
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993). Complainant can do this by showing
that the proffered explanations are unworthy of credence or that a discriminatory reason more
likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated
reasons are not credible permits, but does not compel, a finding of discrimination. Hicks at 511.
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Assuming, arguendo, Complainant established a prima facie case of discrimination based on
national origin, age, and reprisal, we find that the Agency provided a legitimate, non-
discriminatory reason for his Level 2 rating. S1 testified that Complainant’s work performance
had been declining throughout 2016. S1 further indicated that Complainant was provided with a
Notice of Performance Deficiency on January 11,2017, and that based on previous performance
discussions held with Complainant by himself and other Senior Auditors, and Complainant’s email
responses acknowledging his performance deficiencies, Complainant had a clear understanding of
how he earned his level 2 rating. We find no persuasive evidence of pretext here. As Complainant
did not request a hearing, we do not have the benefit of an Administrative Judge’s credibility
determinations after a hearing; therefore, we can only evaluate the facts based on the weight of the
evidence presented to us.

Harassment Claims 1, 2, and 3:

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the
holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable
if it is “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and
create a hostile or abusive working environment.” The Court explained that an “objectively hostile
or abusive work environment [is created when] a reasonable person would find [it] hostile or
abusive,” and the complainant subjectively perceives it as such. Harris, 510 U.S. at 21-22.
Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined
by looking at all the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.”

To establish a claim of harassment, Complainant must show that: (1) he is a member of a statutorily
protected class; (2) he was subjected to unwelcome verbal or physical conduct involving the
protected class; (3) the harassment complained of was based on the protected class; (4) the
harassment 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. Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238
(Oct. 16, 1998); 29 C.F.R. § 1604.11. 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 (Mar. 8, 1994) (Enforcement
Guidance on Harris).

We find that Complainant has not established a claim of harassment. We find no persuasive
evidence that the conduct set forth in claims 1, 2, and 3 was based on Complainant’s national
origin, age or in retaliation for his previous EEO activity. Complainant’s supervisor appears to
have been demanding and strict, but his actions appear to have been work-related, not based on
discriminatory animus. The Commission notes that Title VII is not a civility code. Rather, it forbids
“only behavior so objectively offensive as to alter the conditions of the victim’s employment.”
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Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998).4 The incidents presented by
Complainant appears to be a reflection of workplace instructions, activities and tensions found in
a normal work environment.

CONCLUSION

Accordingly, we find that Complainant has not demonstrated that the Agency subjected him to
discrimination or a hostile work environment. Based on a thorough review of the record and the
contentions on appeal, including those not specifically addressed herein, we AFFIRM the FAD.

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.

4 We certainly do not condone the unprofessional conduct attributed to S1 by Complainant and
other witnesses, but we simply find no persuasive evidence that it was based on discriminatory
animus towards Complainant.
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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. 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 9, 2019
Date