U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Christopher U.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency. Appeal No. 2021000791 Hearing No. 531-2016-00162X Agency No. HHS-HRSA-0314-2015 DECISION On October 13, 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 final action, 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 final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Public Health Analyst, GS-0685-15, in the Agency’s Division of Transplantation, Healthcare Systems Bureau, in Rockville, Maryland. On September 8, 2015, Complainant filed an EEO complaint alleging that he was subjected to discrimination and a hostile work environment on the bases of race (Caucasian), sex (male), color (White), and age (57) 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. 2021000791 2 1. Ongoing since 2013, he was harassed as evidenced by multiple incidents, including: a) He received lower ratings in 2013 (“Fully Successful”) and 2014 (“Achieved Expected Results”), without prior notice that his performance was declining; b) On February 11, 2015, he was demoted from his supervisory status; c) Management advertised his then current position, with supervisory requirements, and attempted to discourage him from applying, by reposting the position; and d) Management caused him embarrassment and emotional trauma by posting a position that he had been working in and performed supervisory responsibilities; and 2. On March 27, 2015, Complainant was not selected for the position he performed over the last four years and his application was not referred, because he was not among the best qualified, though he had received exceptional ratings during this period. From October 10, 2010 until February 11, 2015, Complainant served as the GS-685-15 Deputy Director, Division of Transplantation (DoT) in the Health Systems Bureau (HSB). His first-line supervisor was the Director of DoT (Caucasian, White, male) (S1). His second-line was the Deputy Director of HSB (African-American, female) (S2). Complainant’s performance appraisals for the years prior to these claims were “Outstanding;” however, Complainant’s performance appraisals moved from “Exceptional” to “Satisfactory.” Complainant claimed that S1 did not provide any written or oral comments about his performance in 2013 when he presented his performance rating and had never mentioned any performance problems, causing him to assume there were no problems. Complainant alleged that when he asked why his 2013 rating was lower, S1 replied that “it’s not a bad rating.” Complainant claimed the rating process was similar in 2014. Complainant did not appeal his ratings to S2 because he believed that S2 dictated his ratings to S1. Complainant believed that S2 was orchestrating a change in HSB employees by forcing current employees to leave. S1 entered duty as Complainant’s supervisor in or around April 2013. S1 explained that he explained to Complainant and his other employees that they would receive ratings of “Fully Successful” if they had performed the duties of their positions. S1 stressed that he did not believe in grade inflation and that if they aspired to something higher, they needed to go above and beyond to develop new processes and products. S1 noted that he never told Complainant his performance was “declining” since it had not declined as far as he was concerned. S2 affirmed that she played no role in the rating process for Complainant and had not instructed directors to give staff specific ratings. The Executive Officer of HSB stated that he reviewed position descriptions of HSB employees to ensure that they were accurate and up to date. The Executive Officer discovered that a form in the position description for Complainant had checked the box for managerial, but not for supervisory. 2021000791 3 The Executive Office believed that this would be a problem for the office as Complainant would be operating outside of his position description. After checking with the Labor and Employment Relations office, the Executive Officer informed S1 that Complainant should not be performing supervisory duties. The Executive Officer, S1, and S2 all determined that to have a deputy director, the position would have to be announced. Complainant believed that the discrepancy could have been fixed through an administrative correction. The position was announced as open only to department employees, but the announcement was removed because S2’s supervisor wanted a larger number of people to apply for the position, including candidates outside of the federal government. The position was reposted, and Complainant applied. The applications for the position were routed to the Human Resources Specialist. The Human Resources Specialist did not rate Complainant qualified for the vacancy, i.e., having experience as a GS-13 Public Health Analyst. She testified that she disregarded much of Complainant’s supervisory experience because his work was in a different job series from the vacancy. The Human Resources Specialist sent the certificate of eligibles to the selecting official, S1, who ultimately did not make a selection. Complainant believed that S2, who is an African-American woman, had manipulated the system and that he was the victim of a conspiracy. He offered evidence that the racial make-up of his division had been reversed. When S2 came, four out of five managers were Caucasian. He testified that after S2 became in charge, Caucasians no longer held the majority of the management positions. He testified “she continued to push for a level of diversity that I think was disproportionate.” All officials involved stressed that Complainant was never “demoted,” because there was no personnel action against him and he simply had been acting as a “Deputy” with nothing in his position description giving him that title. 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 AJ held a three-day hearing and then issued a decision finding that Complainant was not subjected to discrimination as alleged. In the decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Regarding his performance appraisals, the AJ concluded that the evidence adduced during the three-day hearing was insufficient to support the conclusion that S2 was involved or acted with discriminatory animus regarding any of the incidents alleged. The AJ noted that S1 was White and that there was no evidence that S1 rated employees outside Complainant’s protected classes higher. The record revealed that S1 was relatively new to federal service management and therefore inexperienced in evaluating employees. For his 2013 appraisal, S1 believed that Complainant was doing his job satisfactorily but that he did not warrant a higher rating. S1 told Complainant that he needed to increase workflow and efficiency. For his 2014 appraisal, Complainant’s score was similar to 2013 and S1 provided a written narrative explaining the rating. 2021000791 4 While Complainant believed that S2 was involved in the lowering of his appraisal ratings, both S1 and S2 testified that S2 had no involvement in the decision-making for Complainant’s appraisals. With respect to his demotion, the Executive Officer at the time, testified that he conducted a periodic review of the position descriptions for the director and deputy director positions, and that during that review they determined that Complainant’s position description was listed as managerial but not supervisory. The Executive Officer also testified that he performed similar reviews in his previous positions, and he currently performs roughly three similar reviews of position descriptions per year. Both the Executive Officer and S2 testified that the notation that a position description is not supervisory requires that the Agency not assign an employee subordinates to supervise, or that it remove those subordinates upon the determination that the position is deemed non-supervisory. The AJ did not find Complainant’s testimony credible that the issues with his position description could have been rectified through an administrative correction. Moreover, the AJ determined that there was nothing adduced during the hearing that suggested an Agency can simply make a nonsupervisory position supervisory without at least posting a job vacancy and evaluating the candidates. With regard to the reposting of the announcement of his previous position, S2 testified that her supervisor informed her during a meeting that the original posting was too narrow, and that it would be reposted to provide opportunities for persons inside the Department as well as those outside to apply. Regarding Complainant’s non-referral for the second announcement, the AJ did not find credible the Agency’s explanation that Complainant was not rated as among the best qualified candidates because either the Agency did not review cover letters or the only experience the Agency recognized relevant to a vacant position was experience within the same job series. Rather, the AJ concluded that the Human Resources Specialist’s testimony suggested that her rating was simply incorrect because it was an error of judgment, rather than incorrect because of a discriminatory motive. The AJ found no evidence that the Human Resources Specialist ever communicated with S2 concerning Complainant’s application nor was there any evidence that the Human Resources Specialist exhibited any discriminatory bias against Complainant’s protected classes. The AJ concluded that there was simply not enough evidence to sustain the Complainant’s burden of proving by a preponderance of the evidence that he was the victim of a conspiracy engineered by S2, or that the Human Resources Specialist took it upon herself to deny Complainant the vacancy due to his protected classes.2 2 The AJ noted that the Agency subsequently reposted the position a third time and Complainant again applied and was not selected. While Complainant argued that this third vacancy should have been included in the case, Complainant never amended his complaint to add the third vacancy and never filed a motion to amend to include it while the matter was pending before the AJ; therefore, the AJ found that it was not properly before him. We find no basis to disturb the AJ’s decision in that regard. 2021000791 5 When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant, through counsel, argues that the AJ’s finding of no discrimination is not supported by substantial evidence. Complainant contends that his Deputy Director duties were taken away by administrative error and there was no authority to support the testimony that it could not be corrected as such. Complainant claims that Agency officials were not credible in their testimony and acted with discriminatory animus. Accordingly, Complainant requests that the Commission reverse the final order. 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). Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2021000791 6 Here, as more fully articulated above, Agency management provided legitimate, non- discriminatory reasons for its actions. Regarding his performance appraisals, substantial record evidence supports that S1 was new to federal management and he preferred to rate employees more strictly than his predecessor. S1 believed that Complainant preformed his job satisfactorily, but not greater than would warrant a higher rating. As to the events that led to his “demotion” and the posting of his position, the Executive Officer testified that a review of Complainant’s position description revealed that he did not have supervisory authority. The Agency was unable to place anyone in the deputy director position without competitively announcing it and decided to open the position up to a larger candidate pool. Complainant was not deemed to be qualified for the position by the Human Resources Specialist because she determined, based on her review of his application materials, that his work was not in the applicable series for the position. Ultimately, S1 did not select anyone from the second vacancy announcement. After a thorough and comprehensive review of the record, including all statements on appeal, we conclude that the AJ's factual findings and credibility determinations are supported by substantial record evidence. In this case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Commission finds that substantial record evidence supports the AJ's finding that Complainant has not shown that the Agency's reasons were pretext for unlawful discrimination. As we have said before: the focus of a pretext analysis is on whether the Agency's actions were motivated by discriminatory animus. A complainant cannot establish the existence of pretext merely by asserting that a decision was arbitrary, unfair, a mistake, or an error in judgment. Nor is it enough for a complainant to disagree with or question the Agency's actions. A complainant must show that discrimination was the real reason for the Agency's actions. He has to provide evidence and facts that would enable a fact finder to conclude that the reasons given by the Agency are a sham to cover up its real and unlawful motive. Complainant v. Dep't of Housing & Urban Develop., EEOC Appeal No. 0120140517 (Oct. 21, 2016). In this matter, we find that substantial record evidence supports that Complainant has not carried his burden to demonstrate that the Agency's proffered reasons were pretext for discriminatory animus. Moreover, to the extent that Complainant is alleging that he was subjected to a hostile work environment, we find under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that any claim of hostile work environment that includes such incidents must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded based on our finding that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021000791 7 As a result, the Commission finds that substantial record evidence supports the AJ's finding that Complainant has not established that he was subjected to discrimination or a hostile work environment as alleged. CONCLUSION The Commission AFFIRMS the Agency's final action implementing the AJ's summary judgment 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. 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. 2021000791 8 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 February 9, 2022 Date
