Hal T.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Apr 8, 2016

0120141586 (E.E.O.C. Apr. 8, 2016)

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

Hal T.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Contract Audit Agency),
Agency.

Appeal No. 0120141586

Agency No. E12-009

DECISION

The Commission accepts Complainant’s appeal from the January 13, 2014 final Agency
decision (FAD) 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. The Commission’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Auditor at the
Agency’s Gulf Coast Branch Office in Pascagoula, Mississippi. On September 14, 2012,
Complainant received his performance appraisal covering the period of January 17, 2012 to
June 30, 2012. Complainant’s first-level supervisor (S1-1) was transferring on June 1, 2012,
and issued him an exit appraisal. In the appraisal, she rated him as “Minimally Successful.”
Complainant believed that he should have received a “Fully Successful” rating. Complainant
met with S1-1 and his second-level supervisor (S2) and expressed his dissatisfaction with the
performance rating.

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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Complainant’s new first-level supervisor (S1-2) began supervising him in June 2012. S1-2
issued Complainant’s annual performance appraisal based on S1-1’s exit rating, and rated him
as Minimally Successful.

On November 9, 2012, Complainant filed a formal complaint alleging that the Agency
discriminated against him and subjected him to a hostile work environment on the bases of race
(Black), national origin (Afro-Caribbean), sex (male), and age (52) when on September 14,
2012, he received a Minimally Successful on his exit review and annual performance appraisal.

At the conclusion of the investigation, Complainant was provided with a copy of the report of
investigation (ROI) and notice of his right to request a hearing before an Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a FAD. In
accordance with Complainant's request, the Agency issued a FAD, pursuant to 29 C.F.R. §
1614.110(b).

In the FAD, the Agency determined that the alleged incidents were not sufficiently severe or
pervasive to establish a hostile work environment. Further, the Agency determined that
management had articulated legitimate, nondiscriminatory reasons for its actions. Specifically,
S1-1 affirmed that she rated Complainant as Minimally Successful because he did not follow
supervisory guidance and instruction, he took too long to complete assignments, he required
close direction from his supervisor, and his work papers lacked supporting documentation.
Additionally, S1-1 asserted that Complainant lacked computer skills and failed to follow
direction. S1-1 stated that she had a mid-year discussion with Complainant on May 17, 2012,
and informed him that he needed improvement in several areas. S1-1 encouraged Complainant
to take advantage of training opportunities, but Complainant declined insisting that he preferred
the “self-study method.” S1-1 confirmed that she saw no improvement in Complainant’s
performance. S2 was the reviewing official, and she concurred with S1-1’s rating. S1-2
issued Complainant’s annual appraisal, and based her rating on S1-1’s exit review. The
Agency concluded that Complainant failed to show that management’s reasons for its actions
were pretextual. As a result, the Agency found that Complainant had not been subjected to
discrimination or a hostile work environment as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that Agency officials were not truthful in their statements
and that there is contradictory evidence in the record. Complainant argues that favoritism
existed in the office and other employees outside of his protected classes were treated more
favorably. Complainant claims that his performance was satisfactory and positive elements
should have been included in his exit and annual appraisal. Complainant alleges that
management was biased and, as a result, he could not receive a fair and equitable rating.
Accordingly, Complainant requests that the Commission reverse the FAD.

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ANALYSIS AND FINDINGS

Disparate Treatment

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). 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 Constr. Corp. 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. Tx. Dep't of Cmty. 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 Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination, record
evidence shows that Agency officials articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, S1-1 explained that she rated Complainant as Minimally Successful on
three out of five critical elements. ROI, at 350. S1-1 affirmed that Complainant did not
follow supervisory guidance in the preparation of risk assessment and sample selection and was
not responsive to supervisory risk assessment review comments for corrections. Id. Further,
S1-1 stated that Complainant’s work papers lacked supporting documentation; he did not
adhere to supervisory instruction in regard to sampling performance, work paper format, and
documentation; and he did not efficiently use Agency software to accomplish detailed work
papers. Id. Additionally, Complainant required close direction from both the supervisor and
mentor during the performance of risk assessment, invoice reviews, and fieldwork. Id. S1-1
provided more detailed examples of Complainant’s performance deficiencies and noted that she
held a performance discussion with Complainant in May 2012, to discuss the areas where he
needed improvement. Id. at 350-51. Finally, S1 emphasized that she saw no improvement in
Complainant’s performance. Id. As a result, she rated Complainant as Minimally Successful
in her exit appraisal. S1-2 incorporated S1-1’s exit appraisal in Complainant’s annual rating
because she agreed with the rating which reflected performance deficiencies in quality,
performing independently, and work preparation. Id. at 361-62.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256.

As Complainant chose to not request a hearing, the Commission does not have the benefit of
an Administrative Judge's credibility determinations after a hearing. Therefore, the
Commission can only evaluate the facts based on the weight of the evidence presented. The

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Commission finds that the record lacks evidence that the Agency’s actions were based on
discriminatory animus. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that discriminatory animus was a factor in its actions. Complainant failed to carry
this burden. Finally, to the extent that Complainant contends that he was subjected to a hostile
work environment with respect to the matters herein, the Commission finds that a finding of a
hostile work environment is precluded by the Commission's determination that Complainant
failed to establish that any of the actions taken by the Agency were motivated by
discriminatory or retaliatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No.
01982923 (Sep. 21, 2000). As a result, the Commission finds that Complainant has not
established that he was subjected to discrimination or a hostile work environment as 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 Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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 or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 request or opposition must also include proof of service on the other party.

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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

April 8, 2016
Date