U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gaylord I.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2020003652 Hearing No. 570-2019-00239X Agency No. HS-FEMA-00373-2018 DECISION On June 3, 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 May 27, 2020 final order concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as Director of the Installations and Infrastructure Division, GS-1640-15, in Washington, D.C. On January 23, 2018, Complainant filed a formal EEO complaint claiming the Agency subjected him to harassment, a hostile work environment, and discrimination based on age (56) when, on November 6, 2017, Complainant received an “unsatisfactory” rating on his 2017 3rd Quarter performance progress review.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 This was not an annual performance evaluation, but a written quarterly progress review. 2 2020003652 On July 22, 2018, the 180th day after Complainant filed his formal EEO complaint, but before the investigation was completed, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The Agency apparently completed the investigation in November 2018 and uploaded a copy of the report of investigation to the EEOC’s online portal on March 20, 2019, in response to the AJ’s request for the record. On March 24, 2020, the AJ assigned to the case issued a Notice of Proposed Summary Judgment, after he determined sua sponte that the formal complaint did not warrant a hearing. Complainant did not submit any opposition to the AJ’s Notice of Proposed Summary Judgment. The AJ issued a decision by summary judgment in favor of the Agency on April 16, 2020. On May 27, 2020, the Agency issued a final order adopting the AJ’s decision finding no discrimination. Through counsel, Complainant filed the instant appeal.3 On appeal, Complainant, through counsel, states that his second-level supervisor (age - 60 years old) (“S2”) favored Complainant’s younger, first-level supervisor (age - under 40 years old) (“S1”) over Complainant. Complainant argues further that he has been disadvantaged because the Agency never sent him the report of investigation and that the Agency should be sanctioned for this action. ANALYSIS AND FINDINGS Complainant’s Failure to Receive the Report of Investigation As a threshold matter, we first address the issue that Complainant, for the first time on appeal, seeks sanctions against the Agency for failure to timely produce the ROI. We find that the sanctions request should not be granted, as set forth below. The record indicates that the ROI was completed on November 7, 2018 and was uploaded to the Commission’s online portal on March 20, 2019, in response to the AJ’s notice of the hearing request. On January 28, 2020, Complainant’s counsel had informed Agency’s counsel that neither he nor Complainant had received the ROI. Complainant’s counsel requested the ROI on a thumb drive or compact disc (CD). Agency’s counsel later emailed Complainant’s counsel to see if the Agency might email the ROI encrypted and password protected, but Complainant’s counsel never responded. The record shows that the ROI was sent via United States Postal Service (USPS) certified mail to Complainant and Complainant’s counsel. While the USPS records are somewhat unclear, there is no evidence establishing delivery to either Complainant or his attorney. 3 In a Notice of Withdrawal filed on March 8, 2021, Complainant’s counsel informed the Commission that he was no longer representing Complainant. 3 2020003652 However, Complainant did not make the sanctions argument at the hearing level before the AJ. To wit, Complainant’s counsel received the March 24, 2020 AJ’s Notice of Proposed Summary Judgment, with a fifteen-day response window. However, Complainant provided no response to the AJ’s Notice, or any indication that he had not received the ROI. In his March 24, 2020 Notice of Proposed Summary Judgment, the AJ specifically determined that discovery was not necessary as the record appeared to be complete. The AJ stated that if Complainant believed that discovery was necessary that he should file a Statement Requesting Discovery that identified specific information sought that was not already contained in the ROI. Complainant did not do so or indicate in any way that he did not have the ROI. Thus, while Complainant asserts on appeal that he did not receive the ROI, the record does not support that he took any measures to make a request to the AJ, even after the AJ specifically provided an opportunity for discovery requests to be made. Moreover, as the Agency noted, Complainant was not unduly prejudiced by the problems attendant with the transmission of the ROI. All the documents relied on by Complainant on appeal (Complainant’s affidavit and the affidavits of named Agency management personnel) were within Complainant’s possession before his receipt of the AJ’s March 24, 2020 Notice of Proposed Summary Judgment. The record shows the EEO investigator provided the affidavits to him in October 2018 in order to solicit a rebuttal statement from Complainant. Further, Complainant’s attorney would have had access to the online copy of the ROI which it has been established was uploaded to the EEOC portal on March 20, 2020. Finally, even assuming arguendo he could not access the ROI at the time he received the Notice, we again note that Complainant could have easily made the exact arguments he now makes to the AJ in response to the notice of proposed summary judgment. He chose, however, not to make any arguments at that stage at all, including failing to tell the AJ he had not received the ROI. Therefore, it appears that any harm Complainant suffered was almost entirely self-inflicted. Based on these factors, we deny Complainant’s request for sanctions against the Agency. Summary Judgment The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 4 2020003652 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. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. 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, a complainant 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). Here, the Agency has articulated its legitimate, non-discriminatory reason for giving Complainant unsatisfactory rating on his 3rd Quarter CY2017 performance review. S1 issued a memorandum to Complainant on November 2, 2017, explaining in detail why his performance was determined to be unacceptable. Specifically, for each performance goal, S1 explained the goal, stated that Complainant was unsuccessful or unacceptable, and then gave examples for why Complainant was determined to be unsuccessful or unacceptable. The AJ found that Complainant failed to demonstrate that the Agency’s rationale for the unacceptable performance review was a pretext for discrimination on the basis of Complainant’s age. On appeal, Complainant also fails demonstrate by a preponderance of the evidence that the Agency’s rationale was pretext for discriminatory animus. Complainant also makes a claim of discriminatory harassment. To establish his harassment claim, Complainant must show 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. 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). 5 2020003652 Here, the AJ correctly determined that the singular issue did not rise to the level of sufficiently severe or pervasive to be considered harassment.4 The claim accepted was that Complainant received an unsatisfactory rating on his 3rd Quarter CY2017 performance review. While, on appeal, Complainant cites to other workplace disagreements, he fails to demonstrate how they were more than that and that they were motivated by discriminatory animus based on his age. Complainant appears to be identifying “everyday workplace interactions - which include professional disagreements, differences in management styles, and personality conflicts.” Day- Hill v. Department of Justice, EEOC Appeal 0120101307 (August 28, 2012). The Commission has consistently recognized that Title VII is not a civility code and forbids only behavior so “objectively offensive” that the behavior alters the conditions of employment. Furthermore, a finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus because of his age. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order, adopting the AJ’s finding of no discrimination, without a hearing. 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. 4 The Commission has routinely affirmed agency dismissals of claims involving only mid-year or quarterly performance reviews. See, for example, Tyson A. v. Dep’t of Homeland Sec., EEOC Appeal No. 120131869, (Dec. 17, 2015) (affirming dismissal of claim concerning quarterly review of FEMA employee); Hodges v. FDIC, EEOC Appeal No. 0120121023 (May 9, 2012) (finding that a mid-year evaluation is a “preliminary step” to issuing an annual performance appraisal); Flanagan v. Dep’t of Commerce, EEOC Appeal No. 0120110304 (March 31, 2011). 6 2020003652 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. 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. 7 2020003652 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 December 8, 2021 Date
