Herb L.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.Download PDFEqual Employment Opportunity CommissionDec 7, 20180120172086 (E.E.O.C. Dec. 7, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb L.,1 Complainant, v. Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 0120172086 Agency No. 54-2016-00248 DECISION On May 26, 2017, 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 21, 2017, 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Research Mathematical Statistician, ZP-III, with the Agency’s Galveston Laboratory, Southeast Fisheries Science Center, National Marine Fisheries Service (NMFS). During the relevant time, the Supervisory Research Fishery Biologist was Complainant’s first level supervisor (S1). Complainant’s second level supervisor was the Supervisory Research Fishery Biologist/Lab Director (S2). Complainant first began working with the Agency as a Research Mathematical Statistician on September 9, 2013. In September 2014, Complainant was terminated from his position. 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. 0120172086 2 After appealing his termination to the Merit Systems Protection Board (MSPB), he was reinstated, which was effectuated on January 24, 2015. Complainant stated that in 2014, he filed an EEO complaint alleging that S1 and S2 terminated him based on his age. In the present matter, Complainant stated that on April 7, 2016, he was viewing work on his computer screen when S1 entered his office and told him he could not sleep on duty. Complainant denied that he was sleeping and invited S1 to check the timestamp on a file he had saved moments earlier. Complainant stated he became “demonstrably upset.” Complainant and S1 went into S2’s office to discuss the incident. Complainant stated S2 acted friendly and helped Complainant calm himself. Complainant noted he brought up S1’s poor attendance and the meeting ended peacefully. Complainant denied engaging in any physical contact with S1. On June 7, 2016, S1 issued Complainant an Official Reprimand due to Unprofessional Conduct. Specification 1 noted that Complainant repeatedly told S1 that he should not have said that Complainant was sleeping at his desk and what S1 did was wrong. S1 noted that after a discussion with management in which the issue was considered closed, Complainant still proceeded to state that S1 “should not have done that.” Specification 2 stated that when Complainant later came into S1’s office for a discussion, he placed his hand on S1’s left shoulder and stated, “I would have never said anything like you did and I will never forget it,” or words to that effect. Complainant noted that in 2013, NMFS took over an Electronic Logbook Program which had previously been outsourced to a private company. He states in October 2013, he was appointed to lead the newly named Cellular Electronic Logbook (cELB) program. Complainant called the program “very challenging” and said he was involved in every facet of the program resulting in 472 out of 500 logbook units being programmed and deployed to fishing vessels. Complainant learned in June 2016, that all team members who worked on the cELB project had been nominated for a Bronze Medal Award, except for him. On September 8, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (White), national origin (Iranian), age (69), and in reprisal for prior protected EEO activity when: 1. On June 7, 2016, his supervisor (S1), issued him a Letter of Reprimand which will be placed in his Official Personnel Folder for two years. 2. On June 20, 2016, he discovered that he was the only individual from the team who worked on the Cellular Electronic Logbook Program who was not recognized with a Bronze Medal Award. 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 (AJ). 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. 0120172086 3 Regarding claim (1), the Agency noted that S1 stated he witnessed Complainant sleeping at his desk on April 7, 2016, consistent with his observations of Complainant sleeping at his desk on March 31 and April 1, 2016. He stated that Complainant’s reaction made him feel uncomfortable, so they held a meeting in S2’s office, during which Complainant accused S1 of lying and disrespectfully accused him of lacking leadership skills and needing new eyeglasses. S1 stated that when they were leaving S2’s office, Complainant told S1 that he was going to “think, not sleep,” or words to that effect. S1 states that Complainant then came to his office later that afternoon and continued to insult his professional experience, then placed his hand on S1’s shoulder and said he should not have accused him of sleeping on duty and that he would remember it “for the rest of his life.” S1 states that Complainant said he “must tell others about the things [S1 had] done,” and said he would raise his hands in the air whenever they saw each other in the future to show that he was not sleeping. Regarding claim (2), S2 stated that he and other members of the Bronze Medal award nominating committee selected nominees based on involvement in the development and deployment phases of the cELB project, which resulted in significant reduction of costs to the Agency. He said that those involved in the development phase began working on the project in 2012, while the deployment phase of the project commenced at the end of 2013. S2 indicated that Complainant worked on the project during its deployment phase from September 2013 to September 2014, and that S2 and other members of the nominating committee excluded Complainant from being nominated on that basis. S2 also noted that when he submitted the nomination package in November 2014, Complainant was not employed by the Agency since he was terminated in September 2014, and was not reinstated until January 2015. S2 stated due to the timeframe in which Complainant had worked on the cELB project, the nominating committee did not discuss amending the nominations to include Complainant when he returned in January 2015. S2 concluded that Complainant’s contribution to the project was not commensurate with the contributions of the Bronze Medal award nominees, who all worked diligently on the project for a two-year period during its development and deployment phases. The Agency considered whether Complainant established the Agency’s actions were a pretext for discrimination. The Agency noted that despite Complainant’s contentions to the contrary, S1’s reasons for issuing the letter of reprimand made no reference to Complainant’s national origin. Thus, the Agency found Complainant’s belief that S1 used his national origin against him was speculative and unsupported. The Agency noted that in his rebuttal, Complainant claimed S1 “made up these stories” in response to Complainant’s health concerns raised in his EEO complaint. The Agency noted any newly raised allegations that S1’s actions were motivated by disability-based discriminatory animus will not be considered as they were not previously raised and any attempt to amend would be untimely. Regarding claim (2), Complainant argued it was hard to believe that S1 was “totally unaware” of the Bronze Medal nomination process. The Agency notes that S1 did not state that he was “totally unaware” of the Bronze Medal nomination process. 0120172086 4 Rather, he stated that he was not involved in nominating employees for the award and that neither S2 nor any other official sought his input in the nomination process. The Agency noted that S1’s statement is supported by S2’s assertion that S1 did not influence his decision to not nominate Complainant. The Agency found Complainant failed to provide any evidence that S1 “played a key role” in the nomination process, or that any of S1’s actions were based on discriminatory or retaliatory animus. Complainant also responded to S2’s assertion regarding the timespan of the cELB project. Complainant asserted that the actual work for the project started in September 2013, when he joined the Agency. Complainant also claimed there was no need for an entire team to be involved in the project prior to September 2013. Complainant noted prior to the first half of 2013, only 10 test units were installed on vessels so there was nothing to monitor. Complainant also stated he was “not sure if the technical parts such as software development were done by the staff at the lab,” as was alleged by S2. The Agency responded that since Complainant was not employed there until September 2013, his testimony concerning what occurred on the cELB project prior to that time is limited to his own speculation. Regarding Complainant’s statement that he was “not sure” whether software development was performed by Agency staff, S2 reported his personal knowledge that Agency staff “conducted research, developed programs to send and retrieve data, [and] developed software.” The Agency noted this contention was supported by voluminous evidence such as September 2012 emails that they had developed algorithms and were in the process of developing a “new system” with seven specific performance requirements. Thus, the Agency stated there was no reason to disbelieve S2’s statement that substantial development work was performed by the Bronze Medal award nominees prior to Complainant’s arrival, which guided the nomination committee’s decision-making. Further, Complainant claims that assuming the nominations were based on work performed by the team during September 2013 through November 2014, he should not have been excluded because he was unjustly forced out of the Agency in September 2014. The Agency found Complainant’s proposition was not relevant because S2 did not say that the nominations were based on work performed from September 2013 through November 2014, but explained that they were based on work performed over a two-year period, beginning in 2012 and continuing through November 2014. The Agency noted Complainant cited at length his involvement in the implementation phase of the cELB project. The Agency stated that Complainant’s many efforts during the deployment phase of the cELB project are confirmed in a summary of his assignments submitted by S2. However, the Agency stated regardless of how diligently Complainant worked over this 12-month period of the project’s deployment phase, this did not change the fact that he was not involved in the development phase of the project, which pre-dated his employment with the Agency. S2 described the other team members’ involvement in the development phase over the preceding time frame as the distinguishing difference in determining who was nominated. The Agency noted Complainant did not offer compelling evidence to disprove this assertion. 0120172086 5 The Agency concluded Complainant failed to establish that the Agency’s actions were a pretext for unlawful discrimination or retaliation. 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”). Assuming Complainant established a prima facie case for all bases alleged, we find that he failed to show that the Agency’s legitimate, nondiscriminatory reasons for issuing a letter of reprimand and failing to give him an award were a pretext for discrimination or retaliation. We note that on appeal, Complainant clarifies that he was not alleging disability based discrimination. Accordingly, the Commission finds that Complainant did not prove that he was subjected to discrimination or retaliation as alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120172086 6 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. 0120172086 7 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 December 7, 2018 Date Copy with citationCopy as parenthetical citation