0120152745
12-20-2017
Otis B.,1 Complainant, v. Jeff B. Sessions, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Otis B.,1
Complainant,
v.
Jeff B. Sessions,
Attorney General,
Department of Justice
(Federal Bureau of Investigation),
Agency.
Appeal No. 0120152745
Hearing No. 450-2012-00207X
Agency No. 2011-00149
DECISION
On August 21, 2015, 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 July 21, 2015, 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. For the following reasons, the Commission AFFIRMS the Agency's final order which fully implemented the EEOC Administrative Judge's (AJ), finding following a hearing that Complainant did not prove that he was subjected to discrimination, reprisal, or a hostile work environment.
ISSUE PRESENTED
The issue presented in this case is whether the AJ erred in finding that Complainant did not establish discrimination in this case.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Intelligence Analyst, GS-12 for the Cyber Division in Dallas, Texas. In 2009, Complainant was assigned a new first-line supervisor (S1) and a new second-line supervisor (S2).
In January 2011, Complainant was given a file review with which he did not agree. Complainant stated that in November 2010, he received an email from S1 which commented on his accent. Complainant asked that the comment about his accent be removed since Complainant thought the comment regarding his Egyptian accent was discriminatory. S1 encouraged Complainant not to rebut the review, but Complainant did so anyway. Complainant said that after this, his relationship with S1 went "downhill."
Thereafter, on January 19, 2011, Complainant was placed on a monthly file review, instead of a file review every three months. Complainant indicated that he was told that he was not doing his work and that his productivity was low. Complainant stated that he had never been told this before and believed that the monthly file review was a threat. Complainant met with S1 on February 10, 2011, and was instructed to give her a weekly report. In March 2011, Complainant maintained that he received an email which contained a lot of false accusations about his communication skills and work product.
Complainant contacted an EEO Counsel and notified S1 that he had filed an EEO complaint. On March 25, 2011, Complainant testified that he was called into S2's office. During this meeting. Complainant said that S2 went over a file review, indicated that there were some positive elements, but he also told Complainant that he did not understand Complainant. Complainant also testified that he was threatened with insubordination when he was silent during the meeting. Complainant responded that he communicated with S1, but because she did not give him a fair file review, he did not want to discuss it with her.
On October 17, 2011, Complainant was placed on a PIP. Complainant was ordered to meet with S1 every two weeks during the PIP. Complainant received an "Unsuccessful" rating on his 2012 performance appraisal dated January 27, 2012. Complainant grieved the rating but it was denied. Thereafter, Complainant was demoted to a GS-11, Step 10, Identification for Firearms Forensics Examiner. The positon was changed to a GS-11, Step 1 due to what the Agency called an administrative error. Complainant maintained that he had no choice but to take the lower step level or decline and lose his job.
On April 22, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of national origin (Egyptian) and reprisal for prior protected EEO activity when:
Agency No. FBI-2011-00149
(1) In February 2011, he was placed on a thirty-day file review, and thereafter his work was overly scrutinized, his accomplishments were not recognized, he was given short deadlines and insufficient guidance and he was required to submit weekly reports;
(2) His accent was criticized;
(3) He was forced to cancel pre-approved annual leave for April 18, 2011 to complete a work assignment on April 19, 2011;
(4) In April 2011, his supervisor recommended that he be placed on a Performance Improvement Plan (PIP);
(5) His performance was rated "unsuccessful" on a file review conducted on May 26, 2011; and
(6) During the period between July 18, 2011, and August 23, 2011, his supervisor required him to submit a white paper that was critical of his work performance, and would not allow him to submit a self-assessment.
Agency No. FBI-2012-00103
During the processing of the above complaint, on December 10, 2012, the AJ granted Complainant's Request to Consolidate a second complaint filed on June 15, 2012. The issues were whether Complainant was discriminated against based on national origin (Egyptian) and reprisal for his participation in protected EEO activity when:
(7) On October 18, 2011, he was placed on a PIP;
(8) On January 27, 2012, he received a rating of "Unacceptable" on his 2011 Performance Appraisal Report (PAR);
(9) He worked 65 hours of overtime without compensation;
(10) His February 9, 2012, PAR grievance was denied;
(11) On February 27, 2012, he was removed from his position as an Intelligence Analyst; and
(12) On March 23, 2012, he was reassigned into the position of Identification for Firearms Sales Forensics Examiner, at the GS-11, Step1 level instead of at the GS-11, Step 10 level.
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). Complainant timely requested a hearing and the AJ held a hearing on March 30 and 31, 2015, and issued a decision on July 1, 2015. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination, reprisal or a hostile work environment as alleged. Specifically, the AJ found that testimony revealed that Complainant was placed on a thirty-day file review and his work was scrutinized because S1 had questions about his work performance. During one of his oral reports a comment was made to S1 that Complainant was hard to understand because he spoke very quickly. Management testified that as part of Complainant's PIP, performance requirements deadlines were placed on his assignments. Management explained that Complainant worked through a scheduled leave because it was not uncommon for employees to have to cancel their plans if deadlines were due.
Further, management explained that Complainant was placed on a PIP to give him an opportunity to improve his work performance. Management explained that it found Complainant's written product to be unorganized, and his work production to be slower than other employees doing his job. Therefore, he was tasked with timed assignments and required to meet with S1 for comment. One of the assignments required Complainant to complete an outline and a white paper. Upon review of the white paper, S1 testified that Complainant's work was found to be unsuccessful and he was rated as such.
The AJ found management's testimony to be credible. The AJ determined that Complainant failed to establish a prima facie case of national origin discrimination but did establish a prima facie case of reprisal after May 24, 2011, when he notified S1 about his contacting an EEO Counselor. Notwithstanding, the AJ found that the Agency articulated legitimate nondiscriminatory reasons for its actions and Complainant failed to establish that any of the actions were motivated by discriminatory animus. Further, the AJ found that Complainant did not prove his hostile work environment claim because the Agency articulated legitimate, nondiscriminatory reasons for each separate action and the incidents were work related incidents that were not severe or pervasive enough to constitute harassment.
With respect to Complainant's amended claims, claims 7 - 12, the AJ found that Complainant failed to establish a prima facie case of discrimination or reprisal because he failed to show that other employees not of his protected bases were treated more favorably. Moreover, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant was placed on a PIP because there were questions about his work performance, he received a rating of Unacceptable because he did not successfully complete the projects that were related to his PIP, Complainant was not told to work overtime without compensation, management did not deny his grievance, he was removed from his position as an Intelligence Analyst because he was not successfully performing his position, and Complainant was reassigned into a new position in order for him to be successful. Finally, the evidence showed that the Agency mistakenly listed Complainant at the wrong step but there was no discriminatory animus shown.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that substantial evidence in the record does not support the AJ's decision and should be reversed. Complainant asserts that S1 was motivated by retaliation and not a legitimate business reasons. Complainant also argues that more weight should have been given to his coworkers who stated that his work was fine. He maintains that they saw his work in peer reviews and could and did testify that S1's actions were retaliatory. Complainant provided additional statements from coworkers.
In response, the Agency contends, among other things, that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not show that the reasons were pretext for discrimination. Further, the Agency argues that Complainant is attempting to submit two new depositions that were not part of the hearing record. The Agency maintains that this material should be excluded as new evidence. Moreover, the Agency asserts that his coworkers were not able to judge Complainant's work and therefore their opinions were not relevant.
ANALYSIS AND FINDINGS
Standard of Review
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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. 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. Texas Dep't. of Cmty. 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. St. Mary's Honor Ctr v. Hicks, 509 U.S. 502 (1993).
Agency No. FBI-2011-00149
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that assuming arguendo that Complainant established a prima facie case of discrimination, we agree with the AJ that the Agency articulated legitimate, nondiscriminatory reasons for its actions as addressed above. We find that Complainant did not show that the Agency's reasons were pretext for discrimination. Moreover, we agree with the AJ that the incidents alleged, even when considered all together were work related incidents that were not severe or pervasive enough to establish a hostile work environment. We note, that Complainant alleged that his accent was criticized. Upon review of the record, however, there is substantial evidence in the record to support the AJ's conclusion that the concern was with regard to the speed in which Complainant spoke, not his accent or national origin. In fact, Complainant acknowledged that no one had ever said anything to him about his accent. And, while we note that Complainant's coworkers provided ample support for Complainant's work ability, we agree with the AJ that coworkers do not stand in the same position as a supervisor to judge the quality of his work.
Agency No. FBI-2012-00103
With respect to the allegations in this complaint, we agree with the AJ that Complainant did not demonstrate that discriminatory animus was involved. The AJ found that Complainant did not establish a prima facie case of discrimination. We find that even if we assume arguendo that he did so with respect to all claims, the Agency articulated legitimate, nondiscriminatory reasons for its actions, as discussed above, and there was no persuasive evidence of pretext provided.
Finally, with regard to Complainant's hostile work environment claim, we agree with the AJ that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).
With respect to Complainant's contentions on appeal, we find that other than his conclusory statements that disagree with the AJ's decision, we find that he has not provided any evidence which suggests that the AJ erred in finding no discrimination. Therefore, upon careful review of the AJ's decision and the evidence of record, as well as the parties' arguments on appeal, we conclude that substantial evidence of record supports the AJ's determination that Complainant did not prove discrimination by the Agency as alleged.
CONCLUSION
Accordingly, we AFFIRM the Agency's final order adopting the AJ's decision.
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
__12/20/17________________
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.
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