Ramon L.,1 Complainant,v.Sonny Perdue, Secretary, Department of Agriculture (Agricultural Research Service), Agency.

Equal Employment Opportunity Commission

Nov 9, 2018

0120170305 (E.E.O.C. Nov. 9, 2018)

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

Ramon L.,1
Complainant,

v.

Sonny Perdue,
Secretary,
Department of Agriculture
(Agricultural Research Service),
Agency.

Appeal No. 0120170305

Agency No. ARS-2016-00206

DECISION

On October 31, 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
September 28, 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons,
the Commission AFFIRMS the Agency’s final decision.

ISSUES PRESENTED

Whether the Agency discriminated against Complainant based on his age, and in reprisal for prior
EEO activity, when it issued him an Unacceptable performance appraisal and placed him on a
Performance Improvement Plan.

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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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Research
Entomologist, GS-0414-14, at the Agency’s Arid Land Agricultural Research Center, Pest
Management Biocontrol Research Unit in Maricopa, Arizona.

On August 10, 2015, Complainant emailed his first line supervisor (S1) (59, prior EEO activity)
regarding statistical data to include in a manuscript. Complainant sent the raw data, and S1
provided a statistical analysis. Between September 18-23, 2015, Complainant and S1 met and
exchanged additional emails regarding the manuscript data; one point of discussion was the
DuPont data,2 and S1 suggested that Complainant ask for additional help from the Area Statistician
(AS). ROI at pgs. 322-330.

On September 24, 2015, Complainant submitted the manuscript to S1. Later that day, S1 responded
to Complainant stating that the manuscript was not “ready for review.” For example, S1 stated that
the paper lacked organization; contained inconsistencies between the described experiments and
reported results; and some studies lacked a description of experimental design. Regarding the
statistical analyses, S1 stated that the analyses that S1 ran were “not very well described”; and S1
did not understand the analyses that Complainant performed. S1 concluded that the paper “needs
a lot of work,” and provided a copy of Complainant’s manuscript containing his notes and edits.
ROI at pgs. 50-79. Complainant submitted a second, different manuscript on September 27, 2015,
which S1 approved. ROI at pgs. 211-212.

On November 3, 2015, S1 gave Complainant a “Does Not Meet” Performance Appraisal, noting
that he did not meet a Fully Successful level in the critical element of Reports Research Results.
Complainant disagreed with the rating, stating that “the review of the manuscript was unfair and
the superior caused abstractions.” In addition to the previously discussed issues in Complainant’s
manuscript, S1 noted that Complainant did not attempt a revision, except to complete the list of
authors. ROI at pg. 253, 272. Based on Complainant’s Unacceptable rating, S1 placed him on a
Performance Improvement Plan (PIP) on November 24, 2015.3 ROI at pgs. 47-49.

On November 20, 2015, Complainant emailed his second line supervisor (S2) (60, prior EEO
activity) to initiate an informal grievance against S1. S2 requested all the versions of the
manuscript to review. ROI at pgs. 83-89. On December 4, 2015, S2 sent Complainant an email
stating that he reviewed the manuscript, and provided his feedback. ROI at pgs. 339-340. On
December 18, 2015, S2 sent Complainant his response to the grievance.

2 DuPont provided financial support for Complainant’s research, and reserved the right to review
the manuscript that incorporated results of the experiments which used their products.

3 Complainant passed his PIP, and his rating was changed to Fully Successful on March 31, 2016.
ROI at pg. 284.
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S2 stated that he found that Complainant’s manuscript “required significant revisions before final
submissions could occur.” S2 stated that he considered input from Complainant and S1, and denied
Complainant’s requested relief to have his performance rating invalidated. ROI at pgs. 90-93.

On December 7, 2015, the DuPont representative raised his concerns with the data. Complainant
made additional changes to the manuscript based upon the feedback until the DuPont
representative had no further comments on January 29, 2016. ROI at pgs. 425-428. Complainant
and S1 also continued to work on the data analyses until the manuscript was submitted on February
12, 2016. ROI at pgs. 513-514.

On February 4, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of age (64), and in reprisal for prior protected EEO activity arising under
Title VII when:

1. on November 3, 2015, he was given a rating of Unacceptable on his Performance
Appraisal; and

2. on November 24, 2014, he was placed on a PIP.

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 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.

The Agency found that Complainant did not establish a prima facie case of age discrimination
because he did not identify a specific comparator outside of his protected category who was treated
more favorably. Additionally, the Agency determined that Complainant had not established a
prima facie case of reprisal discrimination because he was unable to show a causal connection
between his EEO activity initiated in March 2015, and the management officials’ actions in
November 2015. Regardless, the Agency found that Complainant’s managers articulated
legitimate, nondiscriminatory reasons for their actions.

For claim 1, S1 stated that one critical element of the Complainant’s performance plan is to submit
two manuscripts for publication annually. S1 stated Complainant is a “procrastinator” and that he
submitted his first manuscript on September 24, 2015, and his second on September 27, 2015. S1
stated that he provided feedback on Complainant’s manuscript on September 24, 2015, but that
Complainant did not resubmit it prior to the end of the fiscal year on September 30, 2015. S2 stated
that he agreed that Complainant’s manuscript was “not fit for publication” by September 30, 2015.
Both S1 and S2 stated that since Complainant did not submit two manuscripts in the fiscal year,
he did not meet a critical element of his performance plan, and was rated Unacceptable. Regarding
claim 2, S1 and S2 stated that it was Agency policy that an employee be placed on a PIP when an
individual receives an unsatisfactory rating.

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The Agency then found that Complainant did not show that the reasons were pretext for
discrimination. Complainant asserted that his age was a factor in his performance appraisal and
PIP because S1 supervises the older scientists differently than the younger scientists. However,
the Agency found that Complainant did not provide a specific connection between his protected
categories and his rating or PIP. The Agency also noted that a “neutral third party concurred with
the Agency that Complainant’s manuscripts were unfit for publication on September 30th.”

The Agency concluded that Complainant had not shown that the Agency discriminated against
him based on age, or in reprisal for his prior EEO activity, when it gave him an Unacceptable
performance appraisal, and placed him on a PIP. Complainant filed the instant appeal, and
submitted a brief in support of his appeal. The Agency did not provide a response.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that his PIP was the culmination of more than a year of hostility
from S1 that included denial of leave requests, an attempt to place Complainant on a PIP in 2014,
and denial of compensation for Complainant’s official travel.

Additionally, Complainant argues that he did meet his performance plan requirement to submit
two manuscripts prior to the deadline of September 30, 2015, and that S1 obstructed him by
refusing to approve his first manuscript. Complainant alleges that he requested S1’s input on the
statistical analysis starting on August 10, 2015, and that S1 was untruthful when he stated that
Complainant “did not follow up for examination or explanation of the statistical output.”
Complainant states that he included the statistical analyses performed by S1 into the manuscript,
and that it was only after he submitted it that S1 expressed doubts about his own analyses, and
suggested that Complainant contact AS.

Complainant also argues that S2’s statement that the manuscript was not ready for publication is
at odds with his comment that the revisions to the manuscript should not take very long to
complete, sent in a December 4, 2015, email. Complainant also questions the Agency’s use of a
“neutral third party” reviewer. He asks if this person was an Agency employee, and what
information was communicated to the Agency.

Complainant also notes that he and a former coworker (C1), both over 60 years of age, had their
manuscripts held up by S1 involving disputes over statistics. With regards to S2’s statement that
older scientists were “more rebellious,” Complainant questions S2’s definition of rebellious,
asserting that if S2 means “holding onto the integrity of one’s research and reporting thereof, then
that adjective would be appropriate.”
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ANALYSIS AND FINDINGS

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”).

As an initial matter, we note that Complainant raises additional issues on appeal, such as denial of
leave requests and reimbursement for official travel. However, this decision will not address these
additional claims because the Commission cannot address an issue raised for the first time on
appeal.

Disparate Treatment

Generally, claims of disparate treatment are examined under the analysis first enunciated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for
Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976).
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. McDonnell
Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978). Once
Complainant has established a prima facie case, the burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to
Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for
its action was a pretext for discrimination. At all times, Complainant retains the burden of
persuasion, and it is his obligation to show 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);
U.S. Postal Service v. Aikens, 460 U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
age and in reprisal for his EEO activity, we find that the management officials proffered legitimate,
nondiscriminatory reasons for their actions. S1 stated that he found Complainant’s manuscript
incomplete, and that the data was not properly analyzed and represented. S1 added that he provided
extensive notations to Complainant on the same day that he submitted the manuscript, but that
Complainant did not resubmit it prior to the end of the fiscal year.
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With respect to some of the data, S1 stated that he did not discover a problem before the draft was
submitted to him. S2 stated that he concurred with S1 that Complainant’s manuscript was not
sufficient for publication by September 30, 2015.

For claim 2, S1 and S2 stated that Complainant was placed on a PIP pursuant to an Agency policy
that when an individual receives an unsatisfactory rating in a critical element, he or she is
automatically placed on a PIP.

We find that Complainant has not shown that these reasons are pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer’s
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.

On appeal, Complainant argues that S1 was untruthful when he stated that Complainant did not
“follow up for examination or explanation of the statistical output” because they communicated
extensively prior to the manuscript submission. However, we are not convinced that this shows
that S1 is not believable. S1’s statement regarding Complainant’s failure to follow up referred to
“this problem [that] was not discovered before the draft manuscript was submitted.” The record
shows that Complainant and S1 communicated about multiple data sets and analyses in the weeks
prior to the manuscript submission, which S1 referred to as “additional experiments.” In his
statement, S1 referred to one “problem” which Complainant did not seek assistance with prior to
the manuscript submission.

Complainant also argues that S2’s statement that Complainant’s manuscript was not ready for
publication is inconsistent with his December 4, 2015, email noting that revisions should not “take
very long to complete.” However, in the same email, S2 also stated that “there are many areas
where improvements are need[ed],” which supports his opinion that he did not believe that the
manuscript was acceptable for publication.

Complainant also argues that S1 discriminated against C1 based on his age. While C1 did not
paint a flattering portrait of S1’s management style, he did not provide sufficient evidence showing
that S1 discriminated against Complainant based on his age or in reprisal for EEO activity. C1
stated that S1’s actions “could be due to age,” but admitted that he never heard S1 say anything
about one’s “age or slowing down or any backwardness because you are old.” C1 stated that S1
“definitely discriminated due to reprisal,” but in the context of Complainant “not bend[ing] over
backwards to [S1’s] supposed authority,” and not in reprisal for Complainant’s prior EEO activity.
ROI at pgs. 230-231.

S2 noted that “the older scientists have had trouble” with S1. However, S2 attributed that to the
“younger, junior scientist [falling] into line and [doing] as told whereas the older ones were more
rebellious.” While we understand that Complainant saw his “rebellion” as adhering to his
principles, he has not shown that S1’s conduct was motivated by Complainant’s age.
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Complainant argues that the Agency’s final decision should be invalidated because the Agency
relied on a “neutral third party,” and did not provide Complainant an opportunity to address this
person’s input. We note that the Agency’s use of the term “neutral third party” is vague, but there
is no indication that the Agency contacted anyone for an independent assessment of Complainant’s
manuscript. Rather, we interpret the “neutral third party” to be the DuPont representative who also
expressed concerns about the data in Complainant’s manuscript.

We find that Complainant has not shown by a preponderance of the evidence that the Agency’s
reasons were pretext for discrimination, or that the management officials’ actions were
discriminatory based on Complainant’s age or in reprisal for his 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 final decision finding that the Agency
did not discriminate against Complainant based on his age, or in reprisal for prior EEO activity,
when it issued him an Unacceptable performance appraisal and placed him on a PIP.

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.
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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

November 9, 2018
Date