[Redacted], Dallas T., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021001473 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dallas T.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021001473 Hearing No. 570-2017-00942X Agency No. EPA-2016-0093-HQ DECISION On December 30, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 7, 2020 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. BACKGROUND During the period at issue, Complainant worked as a Program Analyst at the Agency’s Office of Land and Emergency Management, Office of Emergency Management (OEM), Resources Management Division (RMD) in Washington D.C. On September 5, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency discriminated against him based on race (African-American), color (Black), sex (male) and in reprisal for prior protected EEO activity when: 1. on August 31, 2016, Complainant was issued a Leave Restriction Notice; 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. 2021001473 2 2. from July 18, 2016 to August 30, 2016, he was harassed and he was directed to create Purchase Requests (PR) for OEM, Preparedness, Readiness and Operations Division when no previous Contract Officer Representative for Emergency Management Portal was directed to create a PR for another Division of Office; 3. on May 19, 2016, his first and second-line supervisors demanded that he pay their conference fees by close of business without completing the proper paperwork as directed by Agency policy; 4. on May 5, 2016, he was asked to use the purchase card to make a payment, even though the primary card holder was present; 5. from March 3, 2016 to March 22, 2016, management demanded and harassed Complainant to make purchase of iPad cases from Amazon.com within an unreasonable timeframe, including being harassed to deviate from the small acquisition policy/guidance that requires him to use Agency approved third party vendors; 6. from June 2015, he was harassed about not wearing headphones while listening to online training; 7. in April 2015, he was issued a Letter of Warning; 8. in October 2014, he was “chewed out/yelled at” for not attending a voluntary meeting; and 9. in August 2014, his position description was changed from an IT Specialist to a Program Analyst. After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). The initial AJ assigned to the case issued a Notice of Proposed Summary Judgment (Notice) on September 12, 2018. However, on November 6, 2020, the case was reassigned to a different AJ. The AJ noted that the Notice outlined the legal standard for summary judgment. Both Complainant and the Agency responded to the Notice. On November 30, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency thereafter issued the instant final order implementing the AJ’s decision. The instant appeal followed. 2021001473 3 ANALYSIS AND FINDINGS 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). 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 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. 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). In finding no discrimination by summary judgment, the record developed during the investigation established the following undisputed facts. As part of his job, Complainant was responsible serving as a Contracting Officer’s Technical Representative, a Federal Managers Financial Integrity Act coordinator for the OEM and serving as a Purchase Card Holder, among other duties. 2021001473 4 The RMD Deputy Division Director was Complainant’s immediate supervisor and the RMD Division Director was Complainant’s second line supervisor. Complainant’s supervisor (Caucasian, female, white) acknowledged issuing Complainant a Leave Restriction Notice because of his frequent absences, overuse of unscheduled leave, and failure to follow the Agency leave requesting procedures. Specifically, the supervisor stated that from January 1, 2016 to August 29, 2016, Complainant used 106.50 hours of annual leave, 193.20 hours of sick leave, and 0.00 hours of leave without pay. As of August 20, 2016, Complainant had a balance of 111.50 hours of annual leave and 192.50 hours of sick leave. In addition, she noted Complainant consistently deviated from his tour of duty. The supervisor explained that the Leave of Restriction Notice requires Complainant’s adherence to Agency leave policy. She also noted that the memorandum is not a disciplinary action and that it would remain in effect for at least six months. After six months, if Complainant’s attendance has improved, this memorandum would be withdrawn. The supervisor stated that if Complainant’s attendance has not improved, this memorandum would remain in effect. With respect to Complainant’s allegation that in April 2015, he was issued a Letter of Warning, the supervisor confirmed she issued Complainant a memorandum dated April 24, 2015, concerning his time and attendance and notice of leave procedures. The record contains a copy of the April 24, 2015 memorandum in which the supervisor placed Complainant on notice that she has concerns regarding Complainant’s time and attendance, specifically regarding regular tardiness and frequent extended absences from the work-station during duty hours. The memorandum indicated that the unreliable attendance was having a major impact on the work performed in the Resources Management Division (RMD) of the Office of Emergency Management (OEM). The supervisor also stated Complainant’s job is to serve as OEM’s timekeeper, serve as the OEM lead for IT security plans and more recently, as a purchase card holder. The supervisor stated that Complainant’s start time is at 9:00 a.m. which is already well into the morning, and that added tardiness has an impact upon Complainant’s availability for other staff and managers. Moreover, the supervisor stated that his memorandum is not a disciplinary action and that it is meant to formally notify Complainant of the proper procedures for requesting leave and work schedule adjustments as to ensure future compliance with the Agency’s policies. Finally, the supervisor acknowledged changing Complainant’s position from an IT Specialist to Program Analyst because all of the work in RMD was that of a Program Analyst and position descriptions should be consistent with the work assigned. Here, the undisputed facts fully support the AJ’s determination that the responsible management official clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext designed to mask unlawful discriminatory animus. 2021001473 5 Harassment To prove his discriminatory 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 a protected basis - in this case, his race, sex, color or prior protected activity. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). See also, Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994). As an initial matter, to the extent that Claims 1, 9 and 9 are intended as part of Complainant’s discriminatory harassment claim, we conclude they cannot be considered based on our conclusion, discussed above, that there is no evidence of discriminatory or retaliatory animus as a motivating factor in these matters. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). With regard to the remaining claims, Complainant alleged that from July 18, 2016 to August 30, 2016, he was harassed and directed to create Purchase Requests (PR) for OEM, Preparedness, Readiness and Operations Division, when no previous Contract Officer Representative for Emergency Management Portal was directed to create a PR for another Division of Office. The supervisor explained, however, that Complainant is the Contracting Officer’s Technical Representative for the OEM’s Blanket Purchase Agreement (also referred to as “CRGT Contract”) for Oracle services. She explained further that the Blanket Purchase Agreement supports the work in the RMD, the Preparedness and Response Operations Division, and the Regulations Implementation Division. Furthermore, the supervisor stated that Complainant’s the Contracting Officer’s Technical Representative for the CRGT contract which was within the scope of his authority to initiate the purchase request to complete that task. Complainant also claimed that his first and second-level supervisors demanded that he pay their conference fees by close of business, without completing the proper paperwork as directed by Agency policy. The supervisor asserted that on May 19, 2016, she did not submit a request to attend a conference. She noted that time was of essence in registering a manager and one staffer for a conference on or before May 5, 2016. At that time, Complainant was the Purchase Card Holder designed through the OEM’s purchase card database to pay the conference fees. The supervisor stated that on the same day, May 5, 2016, she emailed Complainant inquiring whether he made the purchase. On May 10, 2016, the supervisor notified Complainant that the funding was incorrectly coded as “training” and that the registration was not for “training.” Therefore, a SF-182 training form was not required. On May 12 and 17, 2016, the supervisor followed up on whether the purchase was made and reminded Complainant again that the conference was not a training. Complainant responded that the purchase was on hold until the Office Director returned to the office. He also noted that per an Agency official in the Training Office, the SF-182 had to be completed. 2021001473 6 The supervisor stated that on May 18, 2016, she contacted the Agency Official to find out what Complainant had conveyed to her regarding the conference and learned that he did not accurately characterize the nature of the registrant’s participation in the Tribal Conference. She clarified that the conference was training. The Agency Official confirmed that a SF-182 was not required. Thereafter, the supervisor directed Complainant to make the purchase. Furthermore, the supervisor noted that Complainant expressed his dissatisfaction in making the payment indicating that he was doing so under duress and that it was against the Process for Approved SF-182 Training Requests. The Branch Chief (Caucasian, female) explained that either she or the supervisor may have requested that Complainant pay for the conference fees by close of business because they wanted to ensure that the office received the discounted “early bird” conference fee. She also noted Complainant was instructed to make payment on the conference fees and that all paperwork was properly submitted and approved weeks prior. The Branch Chief stated, however, Complainant continued to incorrectly ask for a SF-182 Agency training form which was not required. Regarding Complainant’s allegation that on May 5, 2016, he was asked to use the purchase card to make a payment even though the primary card holder was present, the supervisor confirmed that only Complainant and a named co-worker (Co-worker) are Purchase Card Holders authorized to make purchases. She stated that on May 5, 2016, she asked Complainant to pay for conference fees for two Office of Emergency personnel, one manager, and one staffer for a conference on or before May 5, 2016. The supervisor stated that when she emailed Complainant inquiring the status of the purchase, Complainant questioned as to whether the primary card holder was present at the time of the request. She explained that there was no primary card holder and that either Complainant or Co-worker can make the purchase. The Branch Chief stated that she became aware of Complainant’s allegation that that on March 3, 2016, the supervisor asked him to make a purchase of iPad cases from Amazon because it was part of his responsibilities. She averred that Complainant’s Performance Assessment Rating System (PARS) states that purchases should be made in few days and when it is past the deadline, management follows up in order to meet the customer’s needs. The Branch Chief stated that when questioned whether the request to purchase the iPad cases from Amazon violated the Small Acquisition Policy, she stated that the request was vetted with the Agency’s purchase card team to confirm it was a proper purchase. The Branch Chief further noted that in June 2015, several of Complainant’s co-workers complained to her when he used speakers in the open cubicle instead of using a conference room or headphones. She explained to Complainant indicating that his co-workers were by the speakers and suggested him to use headphones or use the conference room next to his office to eliminate noise complaints. 2021001473 7 Regarding Complainant’s allegation that in October 2014, he was “chewed out/yelled at” for not attending a voluntary meeting, the supervisor stated that following the voluntary meeting, she went to Complainant’s work space and reminded him that they had a staff meeting and was wondering why Complainant did not attend. According to Complainant, he stated he emailed her, indicating that he had a conflict, but she did not receive his message that he was not going to attend the meeting. She stated that while speaking to Complainant, he interrupted her several times stating “are you threatening me?” and “are you creating a hostile work environment” in which she responded “no.” Furthermore, the supervisor noted that Complainant’s tone and volume became “increasingly aggressive.” The image which emerges from considering the totality of the record is that there were conflicts and tensions with the management style of his supervisors that left Complainant feeling aggrieved. However, the statutes under the Commission's jurisdiction do not protect an employee against adverse treatment due simply to a supervisor's personality quirks or autocratic attitude. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002). See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981) (“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). Discrimination statutes prohibit only harassing behavior that is directed at an employee because of his or her protected bases. Here, the preponderance of the evidence does not establish that the responsible management officials were motivated by any discriminatory animus. Complainant’s claim of harassment is precluded based on our findings that he failed to establish that any of the actions taken by the Agency were motivated by his protected bases. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, 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. 2021001473 8 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. 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. 2021001473 9 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 3, 2021 Date