[Redacted], Augustine S., 1 Complainant,v.Katy Kale, Acting Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2021001576 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Augustine S.,1 Complainant, v. Katy Kale, Acting Administrator, General Services Administration, Agency. Appeal No. 2021001576 Agency No. GSA-20-R9-Q-0044 DECISION On December 14, 2020, 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 November 24, 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. BACKGROUND During the period at issue, Complainant worked as a Collection Officer, 1104, GS 05 at the Agency’s Pacific Rim Region facility. On December 27, 2019, Complainant filed a formal EEO complaint. Complainant claimed that the Agency discriminated against him based on race (Hispanic), national origin (Latino), religion (Christian Non-Denominational), color (Light Brown), and in reprisal for prior protected EEO activity when, on December 3, 2019, he was terminated during his probationary period.2 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 Complainant raised additional allegations in April 2020, and they were the subject of an Agency partial dismissal on May 11, 2020. The Agency dismissed two claims, regarding co- workers writing false statements about Complainant, and the guidance of a Human Resources Specialist that led to Complainant’s termination. The Agency further determined that another 2021001576 2 After an 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. On appeal, Complainant does not provide a brief in support of his appeal. Instead, Complainant provides a variety of documents, including email correspondence with attachments, remittances, and other documentation, with notes stating the purpose of the inclusion of some of the documents. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For a 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. 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, non-discriminatory 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 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). matter was a spin-off complaint (names in affidavit attachments were redacted). An Agency complaint-processing official wanted to discuss the redaction by telephone, but Complainant declined the invitation, and requested instead the submission of a “written narrative.” There is no record of Complainant appealing the Agency dismissal of these issues. Therefore, we will not address them further herein. 2021001576 3 Here, the Agency’s articulated legitimate, nondiscriminatory rationale for terminating Complainant’s employment during his probationary period, was that Complainant did not perform at the requisite level to maintain employment. Complainant was hired on January 22, 2019, subject to the successful completion of a two-year probationary period, and his employment was terminated on December 3, 2019, less than one year into his two-year probationary period. Complainant’s first-level supervisor (S1) (race - Asian-American; national origin - American; religion - unknown; color - unknown) testified that Complainant’s initial review period was from his date of hire through September 30, 2019. S1 also testified that the major concerns involving Complainant began after the end of his September 30, 2019 review period. S1 stated that these major issues included Complainant’s failure to timely take action on work, unwarranted accusations against a co-worker, and a lack of productive and professional relationships with his colleagues. S1 stated that, on October 15, 2019, Complainant accused a co- worker of watching as Complainant entered his security password. S1 averred that Complainant did not raise the incident as a security breach and would not listen when the co-worker attempted to explain that the matter was a misunderstanding. S1 testified that, on October 28, 2019, Complainant was assigned a task, but instead passed the task on to another colleague on October 30, 2019, which may have resulted in a customer loss for default of $2,500. S1 further testified that, during the November 7, 2019 one-on-one Annual Performance Appraisal discussion, she informed Complainant of written feedback she received from his colleagues. S1 testified that she also counseled Complainant on maintaining a professional demeanor and conduct with his colleagues. On November 14, 2019, Complainant and his three colleagues joined in a meeting in which all discussed their respective roles, expectations, and need for professionalism. S1 stated that she again counseled Complainant regarding professionalism in his relationships with his colleagues on November 14, 2019. S1 stated that another of Complainant’s colleagues reported that his relationship with Complainant continued to deteriorate and that he felt Complainant was micromanaging and belittling him. Complainant’s second-level supervisor (S2) (Caucasian, American, Roman Catholic, White) testified that he began the process of terminating Complainant’s employment. S2 stated that S1 conducted Complainant’s Annual Performance Appraisal and that Complainant received a level 3 rating. S2’s testimony corroborated S1’s regarding Complainant’s ongoing issues with co- workers. Complainant bears the burden to demonstrate that the Agency’s articulated legitimate, nondiscriminatory rationale for its action was pretext for discriminatory animus. Complainant fails to do so here. In his appeal, Complainant provides copious documentation without providing a narrative to demonstrate how it is illustrative of how the Agency’s true motivation was discrimination based on his race, national origin, religion, color, and/or reprisal. Documentation that management officials were aware of any of his statutorily protected bases does not, in and of itself, demonstrate that discrimination on any or all of those bases was the 2021001576 4 reason for his termination. Instead, the record and testimony of the Agency officials support the Agency’s articulated rationale. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision, finding of no discrimination. 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. 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. 2021001576 5 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. 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 July 12, 2021 Date