[Redacted], Bert G., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Oct 31, 2022

Appeal No. 2022002878 (E.E.O.C. Oct. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bert G.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2022002878 Hearing No. 570-2018-00425X Agency No. DIA-2017- 00012 DECISION On May 2, 2022, 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 March 31, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor Program Analyst, GS-14 at the Agency’s Office of the Chief Financial Officer of Mission Services in Washington, D.C. On March 14, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), national origin (Jamaican), and reprisal for perceived EEO activity 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. 2022002878 2 1. On November 10, 2016, the Principal Deputy (PD) nominated Complainant to serve as Acting Branch Chief; however, the Chief Financial Officer (CFO) responded, “[Complainant] had an [EEO] violation so egregious that I almost had to terminate him,” and another employee was selected as Acting Branch Chief. 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. The Agency filed a motion for summary judgment, which the AJ granted in part and denied in part, dismissing the bases of race and reprisal because the Selectee for the Acting Branch Chief position was of the same race as Complainant and because Complainant had not engaged in any prior EEO activity.2 The AJ held a hearing on the issue of Complainant’s not being selected for the Acting Branch Chief position on the basis of his national origin on December 7 and 8, 2021. The AJ issued a decision on February 28, 2022, finding that Complainant failed to show a causal connection between his national origin and the Agency’s actions. The AJ further found that, even assuming arguendo that Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for the non-selection and Complainant did not submit any evidence to support his assertions of a discriminatory motive. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS 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). 2 The AJ dismissed one of Complainant’s claims, that he received feedback on his Performance Assessment Form (PAF) which indicated his packet did not make it past the first CFO internal board, because she found that Complainant had not established a prima facie case as the evidence indicated that the PAF was part of a newly-instituted panel promotion process, which resulted in a lot of confusion about the process which also negatively impacted the other candidates. Complainant does not appeal the dismissal of this claim and it will therefore not be addressed in this decision. 2022002878 3 Upon our review of the record, we find that the AJ’s decision accurately recounted the material facts and set forth the legal standards for Complainant to establish that he was subjected to discrimination on the basis of his national origin. Contrary to Complainant’s argument on appeal, we do not find that the AJ’s decision misrepresented any of the relevant, material facts nor that the AJ’s findings are unsupported by the record. While Complainant takes issue with the AJ’s credibility findings, we find that the AJ’s credibility determinations are reasonable and the witnesses’ testimonies are not so contradicted by any other evidence in the record that no reasonable fact-finder would credit them. The mere fact that Complainant disagrees with the AJ’s interpretation of the facts is unfortunate, but it is not sufficient grounds to overturn the AJ’s factual findings. We agree with the AJ that the evidence in the record does not establish that the Agency’s legitimate, nondiscriminatory reasons for not selecting Complainant were a pretext for discrimination. The PD testified that when she discussed her suggestion that Complainant be promoted to Acting Branch Chief with the CFO, she got the impression that the CFO felt that Complainant lacked the professional demeanor to supervise. See Hr’g Tr. 1 at 184, 188; Report of Investigation (ROI) at 247. She stated that she later learned that the CFO had been referring to complaints from other personnel in the office that Complainant was “overly aggressive and was unprofessional in his demeanor” with other employees. See ROI at 250. The CFO testified that he had been told by some individuals as they were leaving the Agency that one of the reasons they were leaving was because Complainant had been “heavy-handed” in his treatment of women and “treated them rather abrasively.” See Hr’g Tr. 2 at 174-76. He also testified that he was concerned about Complainant’s unprofessional conduct in the workplace by engaging in loud arguments about personal matters with his then-significant other, who was also an Agency employee. See Hr’g Tr. 2 at 177; ROI at 187-88. The evidence indicates that while the CFO did not actually make the decision not to select Complainant, his comments influenced the PD’s decision to select the Selectee rather than Complainant. See ROI at 190-91; Hr’g Tr. 1 at 201, 217. While we acknowledge that two of Complainant’s co-workers testified that the CFO appeared to have a negative attitude towards Complainant, see Hr’g Tr. 1 at 147-48; 210-12, there is no evidence in the record to indicate that the CFO’s attitude towards Complainant was due to his national origin or any protected basis. The opinion of Complainant without any specific supporting evidence in the record, is not sufficient to find that the CFO was motivated by discriminatory animus. See Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003) (subjective belief, however genuine, does not constitute evidence of pretext). Moreover, while Complainant argues that he was better qualified than the Selectee, we agree with the AJ that the record does not establish that Complainant was plainly superior to the Selectee for the Acting Branch Manager position. The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. Pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. See Marvin W. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120170438 (Dec. 12, 2018). 2022002878 4 Upon review of the AJ’s decision and the evidence in the record, as well as the parties’ arguments on appeal, we find that substantial evidence supports the AJ’s determination that Complainant did not establish that the Agency subjected him to discrimination as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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. 2022002878 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 October 31, 2022 Date