[Redacted], Harland B., 1 Complainant,v.Janet L. Yellen, Secretary, Department of the Treasury, (Office of the Comptroller of the Currency), Agency.

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2020000536 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harland B.,1 Complainant, v. Janet L. Yellen, Secretary, Department of the Treasury, (Office of the Comptroller of the Currency), Agency. Appeal No. 2020000536 Agency No. OCC-19-0448-F DECISION On October 27, 2019, 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 September 24, 2019 final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Bank Examiner in Large Bank Supervision (LBS), NB-V Step 02, at the Agency’s office in Jersey City, New Jersey. On March 19, 2019, Complainant filed an EEO complaint in which he alleged that the Agency discriminated against him on the bases of his race (Black) and sex (male) when: 1. On December 6, 2018, Complainant’s supervisor (S1) incorrectly mandated that Complainant resubmit a June 9, 2018 Expense Report (ERO) that would require him to pay travel costs out-of-pocket that the Agency should cover, and incorrectly required him to use eight hours of leave time while he was in travel status during pay periods 7 and 14; and 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. 2020000536 2 2. He was not compensated for his out-of-pocket expenses for a flight upgrade for work travel on March 17 and 18, 2018.2 Complainant’s position required regular travel across the United States for work assignments. As Complainant’s supervisor, S1 authorized time and attendance reports, and travel expense reports (EROs) for reimbursement. On June 14, 2018, Complainant submitted an ERO for pay period 11 (PP11) ending on June 9, 2018, which contained a cost comparison form for personal travel. Complainant had traveled from Newark, New Jersey to San Francisco, California, his temporary duty (TDY) station. For the weekend of June 1 through June 4, 2018, Complainant traveled to Los Angeles, California from his TDY location. Because Complainant traveled to an alternate location for the weekend, he was required to submit a cost comparison form for reimbursement of travel expenses. The Agency would reimburse Complainant either the costs of his authorized travel expenses (returning home to New Jersey) or his actual expenses to Los Angeles, whichever was lower. On this form, Complainant averred he followed the instructions for the cost comparison form to use the YCA fare, the standard authorized fare to use for cost comparing, for the normal travel route of Newark to San Francisco instead of the actual airfare. Additionally, Complainant listed the actual taxi fare costs instead of taxi fare estimates for travel to and from home/airport as he normally did when flying to an assignment. The actual transportation costs (to Los Angeles) totaled $963.41, which was lower than the authorized transportation costs (to return home to New Jersey) of $1023.19. Complainant stated S1 directed him to make corrections to his PP11 June 9 ERO report that ensured he would be reimbursed the least amount of money possible. S1 notified Complainant that his use of the YCA fare was improper and directed him to use the lowest actual airfare of $665.39 for the authorized transportation costs column instead of the YCA fare. She also determined that Complainant’s use of actual taxi fare was incorrect and needed to be replaced by taxi fare estimates. Complainant resubmitted his ERO report with S1’s changes which lowered his reimbursement claim from $963.41 to $733.86. Complainant stated he paid the out-of-pocket difference when he paid his June 2018 credit card statement. On October 1, 2018, Complainant was reassigned as an on-site Bank Examiner to the Agency’s LBS field office in New York City and the Compliance Team Lead (CTL) became Complainant’s first-level supervisor. On November 27, 2018, S1 sent Complainant an email stating she had determined Complainant had unexcused absences from his TDY stations during work hours. She explained this had been an open matter that she needed to close for the period of time she was his supervisor. 2 The Agency dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(2) for untimely EEO Counselor contact. The Agency found that this alleged incident occurred in March 2018, but Complainant did not raise the matter with an EEO Counselor until December 28, 2018, well beyond the 45-day limitation period. Upon review of the record, the Commission affirms the Agency’s dismissal of claim (2) for untimely EEO Counselor contact. 2020000536 3 S1 informed Complainant her review found he was not in travel status for eight hours of the 18 total hours of travel he previously reported. Complainant had reported he traveled a total of 18 hours during the workday to and from his TDY station during PP7 and PP14. S1 stated Complainant was absent from work when he left work early on two Fridays (April 6 and July 13) and when he left later than Agency guidance required when traveling to the TDY on two Mondays (April 9 and July 16). S1 concluded Complainant was absent from work for a total of eight hours from those four days in PP7 and PP14. She explained that the Agency expected employees to start their travel to a TDY location one hour prior to their scheduled start time and to end their travel one hour after their scheduled work time ends. S1 referred Complainant to the relevant sections of the Agency’s Federal Travel Regulation Supplement. S1 informed him he had the option to use any of his accrued compensatory time for travel, credit hours, annual leave or to take leave without pay to account for the eight hours of unexcused absences. Complainant was given until December 3, 2018, to make the necessary adjustments to his submission and warned he would be charged as absent without leave (AWOL) if he did not declare one of the choices presented. On December 6, 2018, S1 sent Complainant an email informing him that his resubmission of the ERO claims were not in compliance with her specific instructions and that he had not made the required corrections to his travel record for PP7 and PP14 to account for his unexcused absences. Complainant was informed his current supervisor, CTL, would follow-up with any corrective action. After meeting with CTL and his union representative, Complainant made S1’s corrections and submitted his ERO claims and adjusted his travel submission, using annual leave to account for eight hours. 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 EEOC Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision (FAD) pursuant to 29 C.F.R. § 1614.110(b). In the FAD, the Agency determined that, assuming arguendo that Complainant established a prima facie case of race and sex discrimination, management had articulated legitimate, non- discriminatory explanations for its actions and there was no evidence showing that these reasons were pretext for discrimination. As a result, the Agency found that Complainant had not been discriminated against as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant raises the same disagreements with S1’s corrections to his ERO forms. He argues the FAD did not take into account or reference his rebuttal to S1’s affidavit. Complainant’s arguments center on the FAD’s reliance on inaccurate facts regarding the PP7 ERO. On appeal, the Agency notes the FAD used the wrong pay period when referring to the June 9, 2018, ERO as PP7 ERO, instead of PP11 ERO. The Agency argues the Commission should uphold the FAD’s decision finding Complainant was not subjected to discrimination. 2020000536 4 ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI. A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). Disparate Treatment To prevail in a disparate treatment claim such as this, 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 she 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 802 n. 13. 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 a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In the instant case, assuming arguendo that Complainant established a prima facie case of sex and race discrimination, the Commission finds that Complainant failed to present evidence to rebut the Agency’s legitimate, nondiscriminatory reasons for its actions detailed above. The record evidence shows S1 repeatedly reached out to Financial Management (FM) and Workforce Relations and Performance Management (WRPM) to help her review, understand, and address the issues in Complainant’s ERO reimbursement requests and travel report submissions. FM reviewed Complainant’s ERO requests and emailed S1 the corrections that needed to be made. However, Complainant also sought guidance from FM on these same ERO requests and travel reports. S1 was aware FM gave Complainant incorrect, contradictory information on filling out the ERO reimbursement forms. S1 also encountered similar issues concerning reimbursement requests from other employees she supervised, and they were required, like Complainant, to correct their reports. Thus, based on various errors and miscalculations, S1 required Complainant to resubmit and correct his travel and reimbursement submissions for the pay periods in question. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the Agency's actions. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted on the bases of discriminatory animus. 2020000536 5 Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, it is the decision of the Commission to AFFIRM the Agency’s final decision because the preponderance of the evidence of records does not establish that discrimination occurred. 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. 2020000536 6 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 22, 2021 Date