Lupe M.,1 Complainant,v.Arne Duncan, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Jan 6, 2016

0120142975 (E.E.O.C. Jan. 6, 2016)

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

Lupe M.,1
Complainant,

v.

Arne Duncan,
Secretary,
Department of Education,
Agency.

Appeal No. 0120142975

Agency No. ED-2013-FSA-0030

DECISION

Complainant filed an appeal from the Agency’s June 30, 2014 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. The Commission deems the appeal timely and accepts it for de novo
review pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

BACKGROUND

Complainant worked as an Institutional Review Specialist (IRS) at the Agency’s Federal
Student Aid Office in Denver, Colorado. On December 3, 2013, he filed an EEO complaint in
which he alleged that his first-line supervisor, a Program Specialist (S1), and his second-line
supervisor, the Division Director (S2), discriminated against him on the bases of race (African-
American), sex (male), color (Black), religion (Buwanism), and age (64) by denying him
training and mentoring opportunities during his probationary period (October 2012 –
September 2013), and by terminating him at the end of his probationary period on September
3, 2013.

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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S2 hired Complainant as a probationary IRS in October 2012. The duties of his position
required him to complete extensive training in various standardized procedures and processes
associated with the Agency’s mission, such as cash flow monitoring, reimbursements, stop
payment actions, eligibility applications, program reviews, and audit resolutions. He
participated in over twenty mandatory and non-mandatory training sessions in such areas as
cyber-security, communicating in conflict, internal controls, and fundamentals of accounting.
He also received on the job assistance from various subject matter experts anytime he
requested it. Investigative Report (IR) 208, 220, 305-06. According to S2, Complainant was
argumentative and resistant to the guidance he was receiving from the people assigned to
mentor him. IR 255-57, 263-68. When asked to provide a list of training and mentoring
opportunities he was denied, Complainant replied that he did not have one. IR 66.

Complainant was terminated near the end of his probationary period by S2. IR 281. In a
notice of proposed removal dated August 29, 2013, S2 informed Complainant that he was not
meeting the expectations of his position in that his written work products were full of
grammatical and typographical errors, that he failed to follow instructions provided to him
about needed corrections, and that he was unable to communicate appropriately with the
Agency’s customers. IR 229-30. S1 averred that Complainant not only submitted error-laden
reports, he refused to allow anyone to review his work prior to turning it in and other staff
members had to rewrite his reports. IR 297-303. The record includes copies of five of
Complainant’s written work products, all of which contain documentations of errors, along
with emails and annotations of needed corrections. IR 307-83.

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). On June 2, 2014, Complainant requested
a final decision without a hearing. In accordance with Complainant’s request, the Agency
issued its 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

The Commission cannot second-guess an Agency’s actions involving personnel unless there is
evidence of a discriminatory motivation on the part of the officials responsible for those
actions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981).
Therefore, in order to prevail on his claim disparate treatment, Complainant would have to
prove, by a preponderance of the evidence, that S1 or S2 were motivated by unlawful
considerations of his race, color, sex, religion, or age in not giving him training and mentoring
opportunities and in terminating him during probation. See Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 143 (2000).

In a circumstantial-evidence case such as this, Complainant can do so by submitting sworn
statements or documents tending to show that the articulated reasons for the disciplinary
actions at issue are a pretext. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993)
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citing Burdine, 450 U.S. at 253. Such evidence of pretext can take the form of discriminatory
statements or past personal treatment attributable to S1 or S2, comparative or statistical data
showing differences in treatment across race, color, gender, age, or religious lines, unequal
application of Agency policy, deviations from standard procedures without explanation or
justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F.
v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015).

When asked by the investigator why he believed that his race, color, sex, religion, and age
were factors in his not receiving training and mentoring opportunities, and in his being
terminated, Complainant responded that he was a member of a protected race. IR 68, 71-72.
When asked why he believed that the management officials he identified had discriminated
against him, he replied that he did not know. IR 70, 73. Complainant’s responses seem to
reflect an assumption on his part that an official’s bad acts in and of themselves are sufficient
to establish motive. This is simply not true. The statutes that the Commission enforces cannot
protect Complainant from S1 or S2’s actions toward him unless those actions are rooted in a
motivation based upon his race, color, sex, religion, or age. And on this crucial issue,
Complainant did not present evidence of any of the indicators of discriminatory motive
described above. He has not submitted any sworn statements from other witnesses or
documents that contradict the explanations provided by S1 and S2, or which call their veracity
into question, which is crucial to establish the existence of an unlawful motive in a case based
on circumstantial evidence, such as this one. We therefore agree with the Agency that
Complainant failed to prove that he had been discriminated against with respect to any of the
incidents comprising his claim of disparate treatment.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision.

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
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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
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 January 6, 2016
Carlton M. Hadden, Director Date
Office of Federal Operations