U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carl V.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2021000923 Hearing No. 570-2019-00116X Agency No. HS-FEMA-01723-2017 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 21, 2020 final order concerning an 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. At the time of events giving rise to this complaint, Complainant worked as a Cadre of On-Call Response/Recovery Employee (CORE), Data Management Analyst, IC-0343-11, Reporting and Analytics Division, Recovery Directorate, Office of Response and Recovery, Federal Emergency Management Agency (FEMA) in Winchester, Virginia. On July 21, 2017, Complainant filed his complaint alleging discrimination and a hostile work environment based on sex (male) and in reprisal for prior EEO activity when: 1. On November 17, 2016, May 3, 2017, May 4, 2017, and May 11, 2017, Complainant's supervisor singled him out in meetings and belittled him in front of his peers. 2. On February 8, 2017, Complainant's supervisor implied he had altered a doctor's note. 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. 2021000923 2 3. From February 17, 2017, to June 16, 2017, Complainant's supervisor refused to answer Complainant's questions regarding various projects, how to improve Complainant's performance evaluation, and provide clarification of Complainant's performance goals. 4. On April 20, 2017, Complainant's supervisor rated him as “Unsatisfactory” on his first quarter performance evaluation and failed to provide him guidance on how to improve his rating. 5. On May 10, 2017, Complainant's supervisor scheduled daily meetings with him to last indefinitely. 6. On May 11, 2017, and May 12, 2017, Complainant's supervisor informed him that he needed his permission before Complainant could speak to anyone, including Complainant's team members. 7. On May 11, 2017, Complainant's supervisor replaced him as a point of contact on a project without providing a reason for doing so. 8. On June 6, 2017, Complainant's supervisor reassessed his performance goals and provided him approximately one month to complete all of his goals for the current year. 9. On June 20, 2017, Complainant requested permission from his supervisor to speak with a coworker about a project, and Complainant's supervisor told him that the employee was not at the office that day. However, Complainant saw the coworker at his desk after Complainant's supervisor told him he was not in the office. 10. Complainant's supervisor harassed him because of his sex and reprisal for his current EEO activity. Complainant's female coworker is not treated in the same manner as Complainant is treated. 11. On June 23, 2017, Complainant was presented with a memo on poor performance. 12. On June 27, 2017, Complainant's request for a 120-day temporary detail reassignment was denied. 13. On July 3, 2017, management denied Complainant's request for extension for one of his performance goals. 14. On July 20, 2017, Complainant was denied feedback on his performance goals 2, 3, 5, and 7. 15. On July 26, 2017, management issued Complainant a memo of conduct, and issued his second quarter performance review, which contained six failed performance goal ratings. 2021000923 3 16. On August 18, 2017, management issued Complainant a Notice of Termination of Appointment memo, effective that date. Shortly afterwards, Complainant received a call on his personal cellphone from his supervisor, but there was no voicemail message. 17. On August 22, 2017, management sent a message to Complainant, both on his personal email and his personal cellphone, to make arrangements to return all FEMA property. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. Regarding claim 1, Complainant’s first level supervisor (S1) indicated that he did not recall the November 17, 2016 meeting or belittling Complainant. S1 indicated that for the other meetings, he was professional while interacting with Complainant. Regarding claim 2, S1 indicated that he was instructed by Complainant’s second level supervisor (S2) and the Administration Services Section to request Complainant provide his medical documentation directly from his doctor because Complainant submitted his medical note containing language that Complainant had inserted into the document. Regarding claim 3, S1 denied Complainant’s claim and stated that he provided Complainant guidance and feedback, including a model and a data set in an Excel spreadsheet for him to build additional functionality. S2 indicated that as a GS-11, Complainant was expected to use his best judgment to utilize the necessary tools for successful completion of his assignments. Regarding claims 4, 5, and 8, S1 indicated that he provided Complainant appropriate guidance and informed Complainant that he did not meet expectations on his performance goals 2 - 7 and he needed to provide more documentation with respect to his progress on Goal 1. Upon Complainant’s subsequent request, S1 consulted with Employee Labor Relations and S2 and provided him with written clarifications of his performance goals on June 6, 2017, including reasonable due dates ranging from June 21, 2017 to December 31, 2017. S1 stated that S1 had daily meetings with Complainant to answer his questions about his performance goals and upon his request, S1 stopped meeting with him on June 16, 2017. Regarding claim 6, S1 stated that he did not tell Complainant that he needed his permission before he could speak to anyone. S1 further stated that his supervisor advised him that Complainant was distracting others from completing their work and merely addressed this issue with Complainant and advised Complainant to establish a process to coordinate Complainant’s requests to meet with others. 2021000923 4 Regarding claim 7, S1 indicated that he reassigned a point of contact on ancillary projects to himself and other members of the team so Complainant could focus on completing his other assigned tasks. Regarding claim 9, S1 believed at that time that the subject employee (E1) was not in the office. S1 stated that he subsequently talked to E1 who told him that E1 told Complainant to reach out to someone else about Complainant’s project inquiry. Regarding claims 10 and 11, S1 denied harassing Complainant; rather it was his supervisory obligation to address poor performance and issued him a memorandum for his poor performance. S1 indicated that no one under his supervision was performing the same functions at the same performance level as Complainant. Regarding claims 12, 13, 14, and 15, S1 indicated that he denied Complainant’s detail request because he did not achieve expectations of his last performance review and he was under review for allegations of misconduct. S1 did not recall denying Complainant’s request for an extension for a performance goal. S1 stated that Complainant was provided oral and written comments, guidance, and clarification on several occasions regarding his performance goals approved by S2 and Employee Labor Relations. S1 further stated that Complainant was issued the July 26, 2017 memorandum for his conduct when he failed to follow S1’s instructions in requesting resources from other sections; he failed to provide a documented confirmation of training requirement completions; he failed to keep his work on the shared drive; and he falsely represented that he had been working on his assignment when he had not. Therein, Complainant was informed that any future acts of misconduct may result in disciplinary action including removal. S1 also indicated that Complainant was also issued his second quarter performance review indicating six failed performance goals. Regarding claims 16 and 17, S1 indicated that Complainant was issued the August 18, 2017 Notice of Termination of Appointment effective on that day due to his unacceptable performance. Specifically, for his first and second quarters of the 2017 rating cycle, Complainant failed to meet the Achieved Expectations standard in six of his seven performance goals, i.e., goals 2 - 7. S1 acknowledged that he did call Complainant on August 18, 2017, but he did not leave a message because he needed to notify Complainant immediately of the need to return all government property. On August 22, 2017, S1 stated that he sent a message to Complainant’s personal email and cellphone to arrange for Complainant to return all government property because Complainant no longer had access to government devices. The AJ found that Complainant did not offer any evidence to rebut the Agency’s articulated legitimate, nondiscriminatory reasons for its actions, i.e., his poor performance, deficient doctor’s note, and his possession of Agency property post-termination. The AJ further found that Complainant failed to demonstrate that the Agency’s actions were connected to his protected status, or that the alleged harassment was severe or pervasive enough that a reasonable person in his position would have considered it abusive or hostile. 2021000923 5 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact finder could not find in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding 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. 2021000923 6 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. 2021000923 7 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 March 10, 2022 Date