Julius P.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Jun 6, 2018

0120162754 (E.E.O.C. Jun. 6, 2018)

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

Julius P.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120162754

Agency No. 54-2015-00253

DECISION

On August 29, 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
August 1, 2016, 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. For the following reasons, the Commission AFFIRMS
the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator
(Special Agent), ZA-1811-111, at the Agency’s National Marine Fisheries Service, Office of Law
Enforcement in Sunrise, Florida. On October 4, 2015, Complainant filed an EEO complaint
alleging that the Agency discriminated against him on the bases of race (African-American) and
reprisal for prior protected EEO activity when:

1. on May 5, 2015, he was denied training;

2. on October 7, 2015, he was issued a Letter of Reprimand;

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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3. he received an unfavorable performance review and score, which resulted
in him receiving no raise; and

4. since December 12, 20152, his supervisor subjected him to discrimination with
respect to work assignments, including denying him cases and trying to remove him
from cases.

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). 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.

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”).

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). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie
inquiry may be dispensed with where the Agency has articulated legitimate and nondiscriminatory
reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17
(1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To
ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s
explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S.
133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995).

2 In its notice of acceptance, the Agency modified this issue to limit it to Agency actions occurring
within the 45-day period preceding January 26, 2016, the date on which Complainant initiated
EEO counselor contact regarding the issues raised in Claim #4. Earlier actions were dismissed as
untimely. On appeal, Complainant does not challenge the propriety of the Agency’s action and,
therefore, we will not address it further herein.
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Claim #1 (Training Denied)

Complainant filed a training request to attend the Situational Leadership Training Program (SLTP)
which the Agency never acted upon. The Agency explains that Complainant was denied the
training he sought because the Agency had discontinued its participation in that training program.
The same SLTP training was offered as a part of another training program called Learning Through
Understanding Human Behavior (LTUHB). According to the Agency, Complainant was offered
the opportunity to undergo LHUTB training but never availed himself of it. This is a legitimate,
nondiscriminatory reason for the Agency’s action. Complainant has failed to show it to be a
pretext designed to conceal discriminatory animus. Complainant does not dispute that he was
offered the opportunity to attend LTUHB.

Claim #2 (Letter of Reprimand)

According to the Agency, Complainant was issued a Letter of Warning for failure to comply with
his supervisor’s orders. Specifically, Complainant was directed in writing to provide, by a date
certain: 1) “specifics on vessels, subjects, and clear details” concerning one of his investigations;
and 2) details on his efforts to contact the Florida Fish and Wildlife Commission for assistance
with an investigation. Complainant failed to comply with those instructions, responding only in
generalities. The Letter of Warning was issued as a result. This is a legitimate, nondiscriminatory
reason for the Agency’s action. Complainant has failed to show that it is a pretext designed to
conceal discriminatory animus. Complainant does not dispute that he failed to comply with his
supervisor’s directions.

Claim #3 (Unfavorable Performance Review)

According to the Agency, Complainant received a Fiscal Year 2015 Performance Summary
Review score of 48 because of his lack of effective communication with his supervisor and
repeated failure to make required entries into the Agency’s law enforcement database.
Complainant’s “communication with supervisor continued to be minimal.” ROI at 836, 837. This
is a legitimate, nondiscriminatory reason for the Agency’s action. Complainant has failed to show
that it is a pretext designed to conceal discriminatory animus. Complainant does not dispute that
he had problems communicating with his supervisor.

Claim #4 (Discriminatory Work Assignments)

Complainant has failed to establish a prima facie case with respect to this claim. Complainant
alleges that his supervisor improperly denied him case assignments. However, the record shows
that the Agency’s investigators typically develop their own cases through contacts and
observations and only occasionally receive case assignments from their supervisor. Complainant
has failed to show that, during the relevant period, his supervisor refused to assign him any
particular case or removed him from any particular case. Accordingly, we find that Complainant
has not proven that he was harmed by the Agency’s action as alleged.

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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.

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).

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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

June 6, 2018
Date