0120162479
06-21-2018
Lonny C.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Intelligence Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Lonny C.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Defense Intelligence Agency),
Agency.
Appeal No. 0120162479
Hearing No. 570-2016-00027X
Agency No. DIA201500029
DECISION
On July 27, 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 June 22, 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.
ISSUES PRESENTED
Whether Complainant established that he was discriminated against based on race (African-American), color (Black) and/or reprisal (prior EEO activity) when he received a performance appraisal he believed was lower than his performance deserved and was subjected to reprisal regarding several events.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contract Specialist-GG-1102-14 at the Agency's Defense Intelligence Agency, Pentagon facility in Washington, District of Columbia. W1 (Caucasian) was Complainant's Supervisor. W2 (Caucasian) was Complainant's second-line Supervisor. W3 was his third level supervisor.
On January 26, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
a. On or about November 24, 2014, he received his annual performance evaluation which contained "untrue comments about his performance and had an overall score of 2.6," and
b. He believed that his November 24, 2014 appraisal was manufactured to prevent any consideration for promotions and/or selective assignments.
Complainant also alleged that he was subjected to reprisal for engaging in rom EEO activity based on a current EEO complaint, DIA-2015-00029, filed formally on December 16, 2014), when:
a. On January 23, 2015, W1 and W2 failed to respond to his email requesting instructions regarding a "highly important" and time sensitive issue;
b. On February 9, 2015, W1 and W2 blamed him for a contract requirement package the formal review board found confusing when W1 edited the documents in the package and then reviewed the final package prior to forwarding for formal review;
c. On February 11, 2015, a meeting was called to discuss the contract requirement package the formal review board found confusing. W2 was dismissive on why the meeting was taking place and dismissed Complainant's concerns about the contract requirement package saying all was going to be worked out, and he will discuss the requirement with the board;
d. On February 18, 2015, W2 advised him, in the presence of W1 and B3 (from the Office of Human Resources) that he was being investigated for abuse of the government telephone for making nonofficial calls from a desk that he occupied over a year ago;
e. On January 21, 2015, he verbally requested to meet with W1 to discuss his new performance objective; however, she did not respond;
f. On January 21, 2015, Complainant emailed W1 his concerns about his performance objectives and offered to seek any training available to assist in the implementation and/or guidance on "performance metrics;" however, she did not immediately respond;
g. On February 23, 2015, W1 sent an email stating, "If you would like to have a conversation about your performance objectives, please set up a time with me this week;"
h. On February 26, 2015, Complainant emailed W1 to add him to her calendar to discuss his performance objectives;
k. On March 17, 2015, Complainant met with W1 concerning his performance objectives, and she included C1 via video teleconference;
l. On March 30, 2015, W2 verbally (telephonic) debriefed a contractor and told Complainant that he did not have to do anything formally (in writing);
m. On April 10, 2015, Complainant advised W1 that W2 stated that he debriefed the contractor and was told that was final, however, W2 denied it and stated that he only "talked" with the contractor. Complainant responded that he sent W2 a draft to formalize the debriefing, W1 reviewed it and asked W2 to sign off and for Complainant to immediately send the formal debriefing letter to the contractor; and
n. (Accepted Amendment) Complainant was advised, by W3, that if he did not acknowledge his next year performance objectives they would be a forced acknowledgement because they were late and he just need(sic) to acknowledge it.2
Complainant maintained that there was sufficient evidence to support a finding of discrimination on each of his claims. Complainant argued that he was not provided with tasks at the 14 level, and thus, was deemed to have failed to perform work at the l4 level. He also asserted that his phone records were pulled after Management learned of an allegation that he made non-business calls from an Agency phone. Complainant claimed that there was a culture of racial discrimination within the Agency, e.g., he maintained that W3 referred to him as "boy," a racial slur. Complainant indicated that W3's racial views were pushed on the other management officials.
Complainant states that the issues between him and management related to contracting matters and executing contracts in a timely fashion. He states that when he asked management for their input when he had concerns, they would not respond back him even though they would tell him the situations were urgent.
Complainant stated that W1 and W2 did not really respond to any of his e-mails, even though they were supposed to be working together. He stated that part of his job was to correspond back and forth, and it was better to have it in e-mails so there was no misunderstanding, but he "cannot get them to send an e-mail anymore." Two other agency employees shared the view that there was racial hostility in the department.
Complainant asserted that a reasonable employee could find that management's failure to respond to requests for instructions on important and time-sensitive issues and using any resulting delay as grounds for downgrading him, could be attributable to a desire to retaliate against him or her.
Complainant noted a statement made by W1 in her affidavit that:
the problem is it - it appears from his - from his going back to the EEO office that anything I do. He's going to run back to them and that kind of puts me at a complete disadvantage to - to get my job done. So how am I supposed to function when everything I do is considered retaliation?
Report of Investigation at p. 416.
Complainant argued that this is evidence of discrimination and a reflection of the mindset of the higher levels of management.
Complainant also claimed that a white male employee watched television extensively and did not perform his job, but was not negatively impacted. In fact, according to Complainant, he received a promotion. This, he argued, was direct evidence of disparate treatment and proof of a racial bias in the Agency.
Complainant stated that his supervisors wrote things in his evaluation that were not true. He gave an example of an "RFI package" where he believed that his supervisors were wrong with respect to their evaluation of him, and that because of his "persistence, he stopped sensitive data from going out when it should not have." He also states that he later found out that the person management told him was a subject matter expert, was not.3
Complainant states his performance appraisal also pointed out that he was not engaged with his peers and that he was not the go-to person. He stated, however, that he was one of the people that the junior employees would come to and ask questions about how to perform a certain task, and he would share that information with them.
The Agency stated that they rated Complainant in accordance with his performance and for no other reason. W1 stated that he got a 2, "minimally successful," on his first performance objective. She further stated that this reflected sound contracting, because he was not at all working at the level of a GG-14.
W1 stated that she did not give Complainant the most important things in the division to handle because she did not think he could handle them. She stated that if something was important, and a priority, and he was unsure how to address it and was unable to get an answer, Complainant should have let her know. W1 stated that she could not get to the e-mail he sent on the Thursday afternoon it was sent, because she came in late on Friday, and had other matters that she had to handle.
W1 stated that she did not recall an e-mail from Complainant requesting instructions regarding a highly-important and time-sensitive issue. She stated that she did not know whether she responded or not. She stated that if something was important, he needed to come to her office, stand in the doorway, and tell her he sent her an e-mail. She felt that anyone who needed something, and took responsibility for their work, would do that. According to W1, she probably gets over 100 emails a day, and it is very common for her to not respond to emails.
W1 stated that Complainant put roadblocks up for their customers, which slowed down all of his actions. She stated, for example, that Complainant would go beyond his contacting responsibilities - possibly into a security issues that have already been through a security review and approved by the security personnel.
W1 indicated that she gave Complainant a 3 for Objective Number 2, Managing Workload, because he successfully managed the work she gave him; however, she did not give him GG-14 work. She stated that, instead, she gave him some option exercises. She indicated that option exercises [contracts] are when they awarded a contract for a base period and for option years. These are pre-priced, and negotiated at the time of award; therefore, when the option year comes up for exercise, all that must be done is to make unilateral modifications. She stated it was GG-9 level work.
W1 stated that she did not have confidence in Complainant's skills and stated that she would give him administrative work, such as Freedom of Information Act requests, and contracts that involved small vendors and businesses, and which were very streamlined and simple. She stated that Complainant was successful with the workload she gave him.
W1 stated that she gave Complainant a 3 for Objective 3, Agency and Customer Support, which means he was "Successful." W1 stated that for teamwork, he was "Minimally Successful." W1 stated that because of roadblocks and slowing things down, Complainant caused the rest of the team to be overburdened because he was not carrying his weight as a GG-14. She stated that the objective was put in by senior leadership and everyone got a 3 or lower, none of their people got anything more than a 3, because it was put in to lower everyone's overall score. She states that everyone was to get a 3 on that or lower, if they had security violations or things of that nature. She stated that was to make everyone aware that they need to be cognizant of security classifications and such.
W2 stated that he thought they discussed the fact that they both felt that, at best, Complainant was minimally successful and that the rating should reflect that. He stated that where the strengths and weaknesses were assigned, he usually defers to the Supervisor, but they did tweak one area versus another. He stated that he agreed with everything that was on the performance appraisal, including the Supervisor's comments.
W2 stated that Complainant was reluctant to execute contract actions independently. He stated that if he mapped out a schedule for Complainant, Complainant constantly came back, and it did not matter what the requirement was, he constantly came back to seek approval of what were normal, mundane actions. He provided several examples of the kind of matters Complainant would come back to him about.
W2 stated that most of his people did not ask the same kind of questions that Complainant did. He stated that he thought Complainant's performance appraisal was accurate. W2 stated that it was frustrating with Complainant because they have had people that they brought along from interns, and they surpassed Complainant in short order.
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. Complainant timely requested a hearing but subsequently withdrew his request and requested a FAD. Consequently, the Agency issued a FAD 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
On appeal, Complainant, among other things, asserts that there is evidence of an atmosphere of racial discrimination, and a per se retaliation. The Agency, among other things, asks that its FAD be affirmed.
ANALYSIS AND FINDINGS
At the outset, we find no persuasive evidence that W3 called Complainant the racial slur "boy" as he alleges. Likewise, we do not find that W1's comments in her affidavit constitute a per se violation of our anti-retaliation provisions. Although W1 expressed her frustration with her actions being perceived by Complainant as retaliatory, she was responding to a question where she denied that a desire to retaliate played any role in her management decisions. In context, we do not find W1's comments to have been reasonably likely to deter protected EEO activity by either Complainant or other employees.
STANDARD OF REVIEW
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 and Reprisal
A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant contends that he is being subjected to discrimination and harassment with regard to his evaluation and work related treatment by the Agency. He contends that the Agency's actions have an impact on his current and future work assignments and promotional opportunities. For purposes of this decision, we will assume Complainant established a prima facie case of discrimination based on race, color and/or reprisal.
The Agency provided legitimate, non-discriminatory reasons for its actions involving Complainant as set forth above. Management indicated that they did not believe that Complainant was performing at the GG 14 level, and that he was given work to perform that reflected his abilities. Management also indicated that Complainant's rating was not a negative evaluation, but reflected its assessment of his performance.
We do not find that Complainant established that any of the Agency's actions were based on his race, color or previous EEO activity. We, also, do not find that Complainant's treatment was so severe or pervasive that Complainant was subjected to a hostile environment. As Complainant withdrew his request for 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. Based on the record before us, we are not persuaded that Complainant has shown that the Agency's conduct was based on his race, color, or prior protected EEO activity.
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 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.
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
__6/21/18________________
Date
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 Allegations 2(i) and 2(j) were not accepted for investigation and are not addressed in this decision.
3 Complainant indicated that the reason he received the 2.6 on his appraisal was due to his work on the RFI package. He also maintained that through the whole process, W2 agreed with all the steps that he was taking. Afterward, however, W2 and W1 wrote on the appraisal that he had done it all wrong, that he took too much time, and that they expected better from a senior.
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