[Redacted], Alphonse L., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Jun 30, 2021

Appeal No. 2020003466 (E.E.O.C. Jun. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alphonse L.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2020003466 Agency No. EPA-2018-0027-R04 DECISION On May 19, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 21, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a GS-12 Environmental Protection Specialist at the Agency’s USEPA Region 4 Superfund Division in Atlanta, Georgia. On February 28, 2018, Complainant filed a formal complaint alleging he was subjected to a hostile work environment based on race (Native American), disability, and in reprisal for engaging in protected activity (prior EEO activity, reasonable accommodation, and served as an AFGE Union Steward2) when: 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 We note that Complainant cannot allege retaliation for engaging in union activity within the EEO complaint process. He must pursue any claim on that basis within the Agency’s negotiated grievance process or with the Federal Labor Relations Authority. 2020003466 2 1. since September 2012, he has been assigned GS-13 grade duties not described in his Position Description (PD); 2. on December 28, 2012, and August 2, 2013, he received disciplinary actions; 3. in September 2014, the Section Chief, also Complainant’s immediate supervisor, did not solicit input from his detail supervisor for his Performance Appraisal and Recognition System (PARS) evaluation; 4. between February 2015 and June 2015, while Complainant was on detail, his supervisor did not reassign his work and/or duties; 5. in September 2015, the supervisor did not solicit input from his detail supervisor for his PARS evaluation; 6. in July 2015, the supervisor failed to authorize his leave slips within the required timeframes, causing him to receive $600 less pay; 7. on July 28, 2015, he was informed that he was not selected for the Aquatic Flow Alteration Expert (RTP-R4-2015-0041) position, located in the EPA Region 4, Water Protection Division, Wetlands Regulatory Section; 8. in August 2015, management officials failed to look nationwide for a position for him to move to as a part of the reasonable accommodation - they only looked locally; and 9. on October 26, 2017, he was informed that he was not selected for a Life Scientist (GS0401/GS1301 Physical Scientist) position, Vacancy Announcement RTP-R4-MP- 2017-0035, located in the EPA Region 4 Science and Ecosystem Support Division (SESD), Athens, Georgia. Following an investigation, on April 21, 2020, the Agency issued a final decision based on the evidence developed during its investigation of the allegations, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.3 The instant appeal followed. 3 The record reflects that during the investigation, Complainant did not submit an affidavit. Instead, he resubmitted his formal complaint. 2020003466 3 ANALYSIS AND FINDINGS Disparate Treatment: Claims 1 - 7 and 9 A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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, the 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Based on the evidence developed during the investigation of the complaint, we concur with the Agency’s determination that the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. During the relevant period, Complainant worked as a GS-12 Environmental Protection Specialist at the Agency’s USEPA Region 4 Superfund Division in Atlanta, Georgia. The Supervisory Scientist was Complainant’s supervisor from October 2012 to May 2016. Regarding claim 1, Complainant asserted that since September 2012, he has been assigned GS- 13 grade duties not described in his Position Description (PD). The Supervisory Scientist (Caucasian, over 40), also Complainant’s supervisor, stated that he did not assign Complainant duties other than those consistent with his PD. The supervisor stated that Complainant had requested a desk audit, and the audit findings were that Complainant’s position was properly classified and his duties were commensurate with his grade level. The record contains a copy of the Human Resources Specialist’s memorandum dated July 2, 2013, in which she notified Complainant that based on the review of the documentation 2020003466 4 submitted, interviews with Complainant and his supervisor, and an examination of the position description against the appropriate classification standards, she determined that his position was properly classified as a Life Scientist, GS-0401-12. Regarding claim 2, Complainant alleged that on December 28, 2012, and August 2, 2013, he received disciplinary actions. The supervisor acknowledged that on December 28, 2012, he issued Complainant a warning notice for inappropriate communications for asserting that he (Complainant) would make decisions on his assigned work. The record contains a copy of the supervisor’s Warning Notice dated December 28, 2012 to Complainant in which the supervisor explained the purpose of the memorandum was to reiterate points from their July 19, 2012 and subsequent counseling sessions. He stated that the sessions were to discuss the tone of some of Complainant’s email communications which have come across as inappropriate, unprofessional, and inconsistent with the Branch management’s stated objectives. In addition, the supervisor stated that on August 2, 2013, Complainant was issued a Letter of Reprimand for sending inappropriate emails and providing inaccurate information about his assignments. Specifically, he had to remind Complainant that he was not a manager and does not make decisions on assignments of work. Regarding claims 3 and 5, Complainant alleged that in September 2014, the Section Chief, also Complainant’s immediate supervisor, did not solicit input from his detail supervisor for his Performance Appraisal and Recognition System (PARS) evaluation, and that in September 2015, the supervisor did not solicit input from his detail supervisor for his PARS evaluation. The supervisor stated that while he does not have Complainant’s personnel files, he recalled speaking to his detail supervisor and she stated Complainant performed well during the detail and he took that information into account when developing Complainant’s PARS. Regarding claim 4, Complainant claimed that between February 2015 and June 2015, while Complainant was on detail, his supervisor did not reassign his work and/or duties. The supervisor stated that in his email dated May 29, 2015 to Complainant, he informed him that he could not extend his detail since others were “filling” in behind Complainant. He further stated that he worked with his staff and Complainant assigning work to others during his detail. In addition, the supervisor asserted that he considered the detail supervisor feedback on Complainant’s assignment during his detail to her office. The supervisor stated that on January 26, 2015, Complainant sent him an email requesting to maintain some of his duties while on his detail. He stated that he agreed to Complainant’s request. The supervisor stated that in May 29, 2015, he told Complainant that he could agree to his request to extend the detail because others were “filling” in behind Complainant. Regarding claim 6, Complainant alleged that in July 2015, the supervisor failed to authorize his leave slips within the required timeframes causing him to receive $600 less pay. The supervisor stated that he was unaware that Complainant lost $600 in pay which would have been related to his authorization of Complainant’s leave slip. He further noted that Complainant was out of the office and on leave for a period of time after he was informed on July 28, 2015, that he was not 2020003466 5 selected for a position in the supervisor’s section. The supervisor stated, however, he approved Complainant’s unscheduled leave within five hours of it being requested. Regarding claim 7, Complainant alleged that on July 28, 2015, he was informed that he was not selected for the Aquatic Flow Alteration Expert (RTP-R4-2015-0041) position, located in the EPA Region 4, Water Protection Division, Wetlands Regulatory Section. The supervisor stated that he was the selecting official for the Aquatic Flow Alteration Expert position and implemented a panel of three Agency officials which included the Chief, Drinking Water Section, the Environmental Engineer and himself. He stated that the panel reviewed four candidates’ resumes and conducted interviews. Following the interviews, the panel determined three candidates, including Complainant, had considerable wetlands experience. In his selection memorandum, the supervisor stated that he determined that the selectee was the most qualified because of his leadership skills, his ability to manage complex projects, his ability to work cooperatively with people, his technical and policy knowledge, and his ability to learn and grow professionally from his successes and failures. The supervisor stated that he chose the selectee over the second candidate because of the selectee’s direct experience in the 404 program as a permit reviewer and his demonstrated effectives in negotiating solutions to complex wetlands issues. The supervisor stated that while the second candidate has wetlands experience, the selectee has had more extensive and direct wetlands program experience. In addition, the supervisor explained that Complainant was not selected for the subject position because he needs improvement in the area of Agency collaboration and teamwork, which are integral components for this position. The supervisor noted that the subject position requires considerable leadership skills and an ability work well with staff across the Water Protection Division and the Region. Furthermore, the supervisor stated that Complainant’s race, disability and prior EEO activity were not factors in his decision to select the selectee for the subject position. Regarding claim 9, Complainant asserted that on October 26, 2017, he was informed that he was not selected for a Life Scientist (GS0401/GS1301 Physical Scientist) position, Vacancy Announcement RTP-R4-MP-2017-0035, located in the EPA Region 4 Science and Ecosystem Support Division (SESD), Athens, Georgia. The Supervisory Environmental Engineer (male, over 40) was the selecting official for the Life Scientist position. He vetted his selection with SESD senior management including the Division Director and Deputy Director. The selecting official stated that there were only two applicants for the subject position and following the interviews, he and the panel members agreed that the selectee was better qualified for the subject position. Specifically, the selecting official stated that the selectee demonstrated significant experience conducting water quality studies and leading field teams including participation in over 50 SESD field projects. He also noted that the selectee demonstrated technical expertise in sediment oxygen demand, turbidity and nutrient measurement. Finally, the selecting official noted that the selectee demonstrated leadership abilities through experience as a Branch Field Manager and 2020003466 6 Branch Safety as well as mentoring newer divers. The selecting official stated that Complainant was not selected because the selectee met the needs for the subject position. After careful consideration of the evidence of record, we conclude that the legitimate, non- discriminatory reasons proffered by management witnesses were not proven, by a preponderance of the evidence, to be pretexts designed to mask discrimination or unlawful retaliation. Reasonable Accommodation: Claim 8 Under the Commission’s regulations, an agency is required to make reasonable accommodations to the known physical and mental limitations of an otherwise qualified individual with a disability unless the agency can show that accommodation would cause an undue hardship. 29 C.F.R. § 1630.9. Here, Complainant identified his disability as deterioration of his hip. The Commission will assume for purposes of analysis only, and without so deciding, that Complainant is an individual with a disability. Regarding claim 8, Complainant asserted that the hip deterioration rendered him incapable of performing “the physical aspects of [his] position.” Complainant claimed that in August 2015, management officials failed to look nationwide for a position for him to move to as a part of the reasonable accommodation, and that they only looked locally. The Chief, Ocean Wetlands and Stream Protection Branch stated that on August 10, 2015, Complaint requested a transfer from his current position as a reasonable accommodation. He stated that he approved Complainant’s request to move forward with the formal reassignment process as a reasonable accommodation. The Chief forwarded Complainant’s request to the Local Reasonable Accommodation Coordinator (LORAC) for assistance. He noted that his knowledge of the specific steps that were following for conducting the reassignment for Complainant is limited to information in the emails from the Human Resources (HR) Manager to Complainant. He stated that he does not recall being involved or informed of the subsequent steps of the reassignment process for Complainant until he learned of his reassignment to the Superfund Division in EPA Region 4. The HR Manager explained that in her role as the Acting National Reasonable Accommodation Coordinator (NRAC), she forwarded Complainant’s resume to the appropriate Shared Services Center (SSC), which provided her with a determination of grade and occupational series for which Complainant generally qualified for as well as a list of the positions available. Once the search was completed and there were vacancies, the SSC conveyed this information to the HR Manager. She then forwarded the list of vacant positions to the LORAC on December 28, 2015. Furthermore, the LORAC requested the SSC to conduct a nationwide and Region 4 search for a position for Complainant to move into as part of reasonable accommodation. He noted that there were two positions identified by SSC: one in the Water Division and one in the Superfund Division in Region 4. 2020003466 7 In sum, the evidence supports a finding that the Agency found two positions for Complainant: one in the Water Division and one in the Superfund Division in Region 4. Complainant has not proven a violation of the Rehabilitation Act with respect to the accommodation issue. Harassment: Claims 1 - 9 Harassment of an employee that would not occur but for the employee’s race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. Wibstad v. United States Postal Service, EEOC Appeal No. 01972699 (August 14, 1998); Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his protected bases -- in this case, race, disability and prior EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the evidence simply does not establish that the incidents occurred as alleged by Complainant and/or occurred because of his race, disability and prior EEO activity. Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, disability and prior EEO activity. His claim of discriminatory harassment is precluded based on our findings that Complainant failed to establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION After a review of the record in its entirety, including considerations of all statements on appeal, we AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2020003466 8 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003466 9 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 June 30, 2021 Date