Lowell H.,1 Complainant,v.Charles F. Bolden, Jr., Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Mar 29, 2016

0120140069 (E.E.O.C. Mar. 29, 2016)

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

Lowell H.,1
Complainant,

v.

Charles F. Bolden, Jr.,
Administrator,
National Aeronautics and Space Administration,
Agency.

Appeal No. 0120140069

Hearing No. 531-2012-00151X

Agency No. NCN-11-GSFC-050

DECISION

Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant’s appeal from the
Agency’s September 16, 2013 final order 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. The Commission’s review is de
novo. For the following reasons, the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-14 Mission
Operations Assurance Manager at the Agency’s Goddard Space Flight Center in Greenbelt,
Maryland. During his first year of managing and leading his team, Complainant developed
communication issues with his contractors. The contractors lodged a complaint with
Complainant’s first-level supervisor (S1) claiming that Complainant was argumentative, did not
listen to their concerns, and was dismissive. In 2009, S1 added a supervisory contractor (SC)
to Complainant’s team to improve the working relationships between Complainant and the
contractors; however, the relationships did not improve by the end of the 2008-2009 evaluative
period.

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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Additionally, Complainant and S1 had numerous work disputes. Complainant often argued
with S1 and resisted S1’s instructions to work more closely with his contractors. Complainant
accused S1 of micromanaging after S1 suggested that Complainant visit with his contractors
and meet with his other Branch teams more often. Complainant did not believe that regular
meetings were worth the effort and instead held irregular meetings to obtain feedback on his
contractors.

In April 2009, Complainant became eligible for a promotion to the GS-15 level. S1 rated
Complainant’s overall performance as “Accomplished” and gave him a numerical rating of
four out of five on his performance evaluation in June 2009. S1 rewarded Complainant with a
cash bonus and an eight-hour time-off award. Complainant requested that S1 approach the
Director (Director 1) about a promotion for him and provided information about his
accomplishments. Director 1 subsequently denied the request for promotion because
Complainant had not displayed the leadership abilities expected of a GS-15 employee. Further,
Director 1 noted that Complainant needed to work on his presentation and briefing skills. S1
discussed these issues with Complainant and created a plan to allow Complainant to display his
leadership skills to obtain a GS-15 promotion.

Senior management continued to receive reports that Complainant did not manage his team
well during the 2009-2010 evaluation period. Complainant’s team members reported that
Complainant did not listen to their ideas, resisted criticism, and became argumentative during
team meetings. S1 and Complainant’s second-level supervisor (S2) attempted to coach
Complainant on several occasions to improve communications with his team, but Complainant
would become argumentative, resist constructive criticism, and storm out of the meetings. In
addition, during the 2009-2010 evaluation period, S1 developed an individualized development
plan (IDP) for Complainant to improve Complainant’s presentation, communication, and
leadership skills.

During the 2009-2010 evaluation period, Complainant verbally attacked SC during meetings
with S2. Complainant would also become angry and argumentative during these meetings, and
frequently interrupted SC. S2 found Complainant’s behavior to be unprofessional and
confronted Complainant about his conduct, which caused Complainant to become angry at S2.

In October 2009, S1 provided Complainant an opportunity to present at a conference to the
Safety and Mission Assurance Directorate, including Director 1, to further Complainant’s IDP
goal of improving his presentation skills. Complainant performed poorly during the
presentation. Director 1 found Complainant’s presentation was too long, lacked clarity, was
poorly organized, and noted that Complainant did not stay focused or effectively convey
information.

In June 2010, Complainant received a “Fully Successful” rating and numerical rating of three
out of five on his performance evaluation. S1 and S2 commented that Complainant needed to
improve his presentation and team management skills, and noted that he continued to require
assistance with his leadership and communication skills. Complainant did not formally request

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a promotion during the 2009-2010 period; however, he inquired periodically with S1 about
how to receive a promotion. S1 and S2 did not recommend Complainant for promotion at the
time because they agreed that he still needed to improve his leadership and communication
skills.

In June 2010, a new Director (Director 2) entered duty. Complainant was assigned to deliver
a presentation to other Branch divisions. Complainant practiced in front of Director 2 and
other senior management to receive constructive criticism. Complainant presented poorly once
again and failed to accept constructive criticism. As a result, the Deputy Director removed
Complainant from the presentation and assigned S2 to restructure and deliver the presentation
to the Agency Branch directors.

Complainant was granted a developmental detail assignment in September 2010, in the
Agency’s New Business Opportunities Office. Complainant’s assignment required him to
manage teams drafting proposals of spacecraft and satellite designs for future Agency projects.
Complainant’s supervisor (S3) on the detail assignment reported that Complainant’s draft
proposals were often missing key sections which resulted in delays. S3 also reported that
Complainant refused to show her his progress on draft proposals, and he began avoiding her to
evade her status report requests. S3 subsequently submitted a summary of Complainant’s
strengths and weaknesses to the Office Chief to supplement his performance appraisal. S3
noted that Complainant had issues adequately organizing draft proposals, that he did not
meticulously read proposals and correct errors, and that he required explicit instructions for
things that were obvious to others.

While in his regular assignment, Complainant continued to have difficulties managing his team
and his personal work relationships deteriorated. In March 2011, Complainant approached S1
and the Associate Director seeking a promotion to the GS-15 level. The Associate Director
informed Complainant that his request would be discussed after his performance evaluation for
the year was completed in June 2011.

In June 2011, Complainant received a “Fully Successful” rating and a numerical rating of
three out of five on his performance appraisal. Complainant was not promoted to the GS-15
level following the evaluation. Director 2 told Complainant that she would support his
promotion to GS-15, but he needed to show the potential to work at the higher level and to
show leadership ability.

On June 21, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (Asian), national origin (Asian Pacific Islander),
and in reprisal for prior protected EEO activity when his requests for a career ladder
promotion were delayed on April 26, 2011.

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 Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely

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requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on August 14, 2013.

In her decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency articulated legitimate, nondiscriminatory
reasons for its actions. Management officials affirmed that Complainant was not promoted
because he did not display the leadership required of a GS-15 in supervising contractors, did
not behave in a respectful manner toward his supervisors, and his presentation skills were far
below that expected of a GS-15 level Aerospace Engineer. More specifically, Director 1
denied Complainant’s April 2009 request for promotion because he had not implemented
change in a timely fashion and needed work on his presentation and briefing skills. Director 1
emphasized that Complainant had not demonstrated an ability to lead. S1 noted that
Complainant had failed to keep a careful eye on his contractors and had failed to meet
regularly with them despite his suggestions.

While Complainant did not formally request a promotion from May 2009 through April 2010,
he inquired periodically about how to receive one. S1 and S2 did not recommend him for
promotion because he still needed to improve his leadership and communication skills. For
example, in October 2009, Complainant gave a poor presentation to the SMA sponsored
directorate. S1 and S2 attempted to help Complainant improve communications with his team
members, but he continued to have difficulties communicating and interacting with them.

In March 2011, Complainant again requested a promotion from S1. S1 attempted to meet with
Director 2, but could not because of the impending federal government shutdown. The
Associate Director informed Complainant that his request would be discussed during his
meeting about his performance evaluation in June 2011. Complainant’s 2010-2011
performance evaluation reflected that he continued to have difficulties communicating and
meeting with his team. Director 2 did not promote Complainant to the GS-15 level because he
had not shown the potential to work successfully at the higher level and, in particular, had not
shown leadership ability. In addition, Complainant continued to experience problems with
presentations. Director 2 observed Complainant perform a practice presentation, and he
presented poorly, failed to answer questions asked by senior management, refused to deviate
from his charts when asked to do so, and did not organize information in a clear manner. For
about seven months, Complainant was detailed to another office which did not require the same
level of leadership or communication as would be required of the GS-15 level and there were
criticisms about his performance. Thus, Complainant was not promoted to the GS-15 level
because he did not show the ability to work at the higher level and, in particular, did not show
leadership ability or effective communication skills.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination or reprisal as alleged. The Agency subsequently issued a final order fully
implementing the AJ’s decision. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency. Complainant argues that the main reason he did not get a promotion was due to
racial and retaliatory animus by the Director and S1. Complainant maintains that the AJ’s
decision was based only on the Agency’s false accusations. Complainant contends that he has
shown that he performed work at the GS-15 level. Accordingly, Complainant requests that the
Commission reverse the final order.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds
that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is
“genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-
moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect
the outcome of the case.

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).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. The Commission agrees with the AJ that assuming arguendo
that he established a prima facie case of discrimination and reprisal, Complainant failed to
present evidence to rebut the Agency's legitimate, non-discriminatory reasons for not
promoting him. Specifically, Agency officials affirmed that Complainant was not promoted
because he did not display the leadership, communication, and interpersonal skills required of
the GS-15 level. In addition, Complainant did not act in a respectful manner to his supervisors
and subordinates and performed poorly in presentations.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were factors in any of the Agency’s actions. At

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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 the Agency acted on
the basis of discriminatory or retaliatory animus. Complainant failed to carry this burden. As
a result, the Commission finds no basis to disturb the AJ's summary judgment decision finding
that Complainant was not subjected to discrimination or reprisal 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 order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence 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.

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

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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

March 29, 2016
Date