[Redacted], Henry P., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (International Trade Administration), Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2020000952 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry P.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (International Trade Administration), Agency. Appeal No. 2020000952 Hearing Nos. 460-2018-00104X Agency Nos. 55-2017-00040; 55-2018-00020 DECISION On November 15, 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 October 15, 2019, 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. 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 Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior International Trade Specialist, GS-1140-13, with the United States & Foreign Commercial Service (CS), International Trade Administration (ITA) at the Houston U.S. Export Assistance Center in Houston, Texas. Complainant filed two EEO complaints alleging that the Agency discriminated against him and subjected him to a hostile work environment based on sex (male), age (45), and reprisal (prior protected EEO activity) as evidenced by the following incidents: (1) he has been 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. 2020000952 2 denied work assignments and work opportunities and his duties have been changed or interfered with; (2) on or about July 16, 2015, his first-level supervisor (S1) threatened him by saying: “Who knows, maybe you'll retire soon;” (3) on or about July 16, 2015, S1 referred to him as “an angry dog in a cage being poked by a stick;” (4) on or about April 28, 2016, S1 made “unfair and unsubstantiated negative claims” on his mid-term review which “"were either patently false or were based on the scaling back of his responsibilities;” (5) on or about April 28, 2016, S1 and his second-level supervisor (S2), attempted to trick him into calling a staff meeting; (6) on or about October 28, 2016, S1 gave him a poor rating on his performance review for the period of October 1, 2015 through September 30, 2016; (7) on or about December 2, 2016; he received an e-mail dated December 2, 2016 from S2 informing him that he would be receiving a Southwest (SW) Region award and that it would be reflected in his earnings and leave statements. On December 19, 2016, he notified S2 by e-mail that he did not receive an award. On December 19, 2016, S2 responded, stating: “That message was sent to you in error, [Complainant]. You had no award;” (8) on or about December 12, 2016, S1 issued him memorandum advising that he would be placed on a Performance Opportunity Plan (POP). At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing and the complaints were consolidated. Over Complainant's objections, the AJ assigned to the case granted the Agency’s November 27, 2019, motion for summary judgment and issued a decision without a hearing on October 9, 2019. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged. FACTUAL BACKGROUND As a Senior International Trade Specialist, Complainant is required to independently perform trade promotion, negotiation, issue and trade policy analysis and complete highly complex analytical work to address trade development initiatives in key industries or world regions. Three essential functions of this position are (1) distributing or presenting key positions, programs, and recommendations of the Agency and negotiating bilateral and multilateral agreements between international trading partners and united states businesses in the Houston area; (2) operating with low level of supervision from the CS Houston Director while complying with Agency policies and priorities; and (3) working well alongside colleagues in institutions that are significant to the “area of assignment.” Institutions significant to Complainant’s area of assignment could include trade-involved federal agencies and institutions; state and local governments; local or foreign business officials; business/industry associations; or foreign governments. Complainant’s performance was evaluated annually on a five-level scale. According to the Department of Commerce Performance Management Handbook, if an employee’s performance on one or more critical elements falls below a Level 1, management is required to issue the employee a written Performance Improvement Plan (PIP). 2020000952 3 While a Level 2 rating does not require a PIP, it is recommended that the rating official develop a written plan to assist the employee in improving performance to Level 3. In such a case, the rating official must discuss the instances of deficient performance and outline in writing what is required of the employee to bring his or her performance to a Level 3. At all relevant times, Complainant’s supervisors described a written plan for an employee performing at a Level 2 as a Performance Opportunity Plan (POP) to distinguish it from a PIP and less formal counselling. While not a formal designation used across federal agencies, the purpose of a POP is to prevent an employee’s performance from devolving into a Level 1 by proactively engaging the employee in performance corrections. Between January and April 2015, five employees at CS Houston either retired or were promoted into non-client facing positions, leaving Complainant as the only client-facing international trade specialist at CS Houston until September 2015. Also, in early 2015, the Under Secretary and Assistant Secretary for the Commercial Service decided to reorganize all Commercial Service offices in industry sector territories instead of strictly geographic territories.2 Beginning in June 2015 and continuing to 2018, Complainant expressed continuing dissatisfaction with the Industry-Forward (IF) organization. Despite the Agency’s decision to go in a different direction, Complainant persistently preferred a purely geographic organization. In June 2015, ITA reassigned S1 from his prior position in Washington, D.C. and Dallas, Texas, to CS Houston. On June 5, 2015, S1 spoke with Complainant by phone. Complainant followed up by email and provided his proposal for the CS Houston territory map to S1. This map was a purely geographic approach to distribute trade specialist’s client portfolio based on zip codes. On June 30, 2015, S1 emailed Complainant and asked for his assistance in creating a “strawman” to lay the groundwork for aligning CS Houston Trade Specialists territory assignments with the undersecretary’s 2015 policy change using a mixed industry sector/geography approach to client assignments. Ignoring his supervisor’s decisions and instructions, Complainant responded, “I am going to continue to ask for the alignment of covering the same territory.” S1 assured Complainant that he would end up on the territory he was on already, stating, “If you need to stabilize on all sectors in your zip codes for legal reasons, others will accommodate you. For instance, if I were the healthcare person sectorally [sic] and you wanted healthcare in your zip codes, I would just defer to you and let you have healthcare in those zip codes.” S1 asked Complainant to make sure he understood the concern correctly and advised him that he was obligated by the under-secretary to “get the office into a sector-specific lineup, but again…we are keeping you stabilized as we discussed by phone a few weeks ago.” S1 asked again for Complainant’s assistance in undertaking the territory realignment. In response, Complainant again expressed his opposition to the reorganization plan. 2 Previously, CS Houston operated on a purely geographic territory system wherein trade specialists were assigned all companies headquartered within a given zip code. 2020000952 4 On July 15, 2015, S1 reported to CS Houston and began working on hiring new trade specialists for the office and reorganizing the office into an industry-sector approach. On July 16, 2015, S1 met with Complainant and spoke about CS Houston for about an hour. During this discussion, Complainant told S1 that he believed the other trade specialists who worked at CS Houston in the past had “tried to take away his territory and his clients.” During the discussion, S1 attempted to express empathy with Complainant’s concerns that he was treated unfairly by his former colleagues. S1 stated that he utilized a Texas colloquialism that he picked up while in the military that Complainant’s prior colleagues treated him wrongly, like “an angry dog in a cage being poked with a stick.” S1 explained that he did not intend to offend Complainant and did not make the comment in reference to Complainant’s sex, age, or EEO activities. Complainant’s second-line supervisor (S2) explained that “[i]n general, S1 speaks with colloquialisms and expressions” and was not surprised to hear about S1’s expression. When S2 called S1 about a client complaint regarding Complainant, they discussed S1’s comment, who explained that he meant that “Complainant is quick to get angry and upset” when discussing his former coworkers. S2 explained that he was not aware that S1 made any type of similar comment to Complainant again after that. Between August and September 2015, S1 hired three male Trade Specialists (C1, age 42); (C2, age 53) and (C3, age 52). On October 28, 2015, S1 issued Complainant his Fiscal Year (FY) 2015 end-of-year performance evaluation, an overall Level 4. S1 praised Complainant for handling the entire Houston client-load after his colleagues retired or were reassigned. S1 noted that Complainant authored four Written Impact Narratives (WINs) and collaborated on another nine, had counselled over 100 clients, and conducted numerous trade events in place of former employees. In November 2015, S1 and Complainant signed his FY2106 performance management plan, which included a critical element for participation in the IF program. On April 28, 2016, S1 issued Complainant his FY2016 mid-year progress report. S1 noted that despite Complainant’s good performance in FY2015, he had multiple issues in FY2016 and was concerned that Complainant’s performance was lagging. S1 specifically noted that Complainant had received four WINs at that time and counselled only 36 clients (compared to FY2015 where Complainant had drafted numerous WINs and counselled 67 clients by mid-year). S1 also explained that Complainant’s clients and colleagues in other offices had informed S1 that they had difficulties working with Complainant. S1 informed Complainant that during the first six months of FY2016, Complainant’s overall performance was equivalent to a Level 2 out of a possible 5, commensurate with performing at a minimally successful level. S1 issued Complainant a directive to complete specific training programs about interpersonal communication and project management, to assist Complainant in returning his overall performance to a Level 3 in all critical elements. Additionally, S1 assigned Complainant to complete an Industry-Forward (IF) project focused on “developing and implementing a significant new export promotion strategy for the Houston area in the Construction Sector.” S1 instructed Complainant to collaborate with the Construction IF Project team leader (TL) (male), in designing his market development project and provided Complainant nine deadlines to complete his project by September 30, 2016. 2020000952 5 On October 28, 2016, S1 issued Complainant his FY2016 annual performance review with a Level 2 rating. S1 informed Complainant that he would issue Complainant a POP due to his Level 2 rating in Critical Elements 3 (Outreach and Partnerships), 4 (Industry-Forward), and 5 (Administration). Specifically, S1 found that Complainant failed to deliver any complete or usable work product for his assigned IF project despite being given nine specific deadlines on April 28, 2016. S1 explained that the only work product that Complainant submitted was in response to an email from S1 on August 17, 2016 requesting an update after Complainant had missed another deadline. S1 stated that five days later, Complainant submitted four unorganized word documents that appeared to be limited to a literature review and lacked any analysis to develop or implement a significant new export promotion strategy. S1 further explained that despite having another month to catch up on the IF project, Complainant did not submit any additional work product. Additionally, S1 documented an issue he had with Complainant’s claim that he had successfully provided project management, client communication, and on-the- ground client support for a client (TFE) who wanted to meet with certain foreign delegates during the annual Offshore Technology Conference in Houston. While Complainant emailed his willingness to assist the company, S1 and three other CS Houston employees initiated and managed the service, located the venue, and provided onsite assistance the day of the TFE event. S1 also documented an issue with Complainant’s conduct during a Bureau of Industry and Security seminar sponsored by the Houston District Export Council (DEC). The DEC organizer had requested assistance manning the event and aiding attendees with registration. While the organizer asked volunteers to advise of their availability and reach out if they required an assignment, Complainant did not inform her that he did not have an assignment. Additionally, while Complainant was present at the event, he only took part as an observer and did not offer to assist his colleagues or the organizer and appeared more interested in attending events and networking. Lastly, S1 noted that Complainant’s end-of-year accomplishments appeared disingenuous and misleading insofar as Complainant omitted issues where clients refused to continue to work with him, included some client quotes from FY2015, and mostly quoted simple statements of thanks without providing further context. The record shows that other CS Houston employees took leadership roles on their IF teams, created Industry Snapshots for general distribution, established working relationships with new business organizations, supported and co-counseled clients during the Discover Global Markets: Healthcare Connection event, organized and moderated an event at the Offshore Technology Conference, contributed to the Energy IF team’s web development efforts, and assisted a Houston-based client with a liquified national gas (LNG) export project. On December 2, 2016, S2 sent Complainant an email stating he would receive a bonus. Subsequently on December 19, 2016, Complainant sent S2 an email stating he had not yet received his bonus, to which S2 responded the initial email was sent in error. S2 explained that he habitually used a time-saving Outlook tool to send emails to all employees within the SW Region, and he used the tool in December 2016 to email employees about the processing of bonuses. 2020000952 6 S2 realized in hindsight he should not have used the tool as Complainant was ineligible to receive an award due to his low performance rating, and he did not think about Complainant's ineligibility when he sent the email. He explained he used the tool to save time, and he felt embarrassed when he discovered his mistake. He denied sending the email to mislead Complainant or to be malicious towards Complainant. On December 12, 2016, S1 placed Complainant on a POP to increase his performance to an overall Level 3. S1 reiterated the issues with Complainant’s FY2016 performance, and instructed Complainant to complete a new IF project in a satisfactory manner more in line with the spirit of the IF initiative. 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). An AJ may issue a summary judgment decision only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully oppose summary judgment, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. 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. Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). 2020000952 7 Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); see Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 144 (2000) (applying McDonnell Douglas paradigm to private sector ADEA claim). Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, S1 and the Agency documented its non-discriminatory/retaliatory rationale for evaluating Complainant’s performance as lacking in Complainant’s 2016 mid-year progress review, his 2016 end-of-year evaluation, his POP, his 2017 mid-year progress review, his 2017 end-of-year evaluation, and his 2018 PIP. Each of these plans provided Complainant clear pathways to improve his lagging performance in three critical performance elements, and specifically a clear and easy-to-follow plan to complete his IF project in a satisfactory manner that was in line with the spirit of the Agency’s reorganization around industry sectors. Without providing corroborating evidence, Complainant broadly asserts that S1’s statements in his performance evaluation were lies. In addition to Complainant’s mid-term and end-of-year performance appraisals for FY2016 and FY2017, which gave specific criticisms and areas for improvement for Complainant’s scores, the undisputed evidence in the record demonstrates that Complainant performed poorly in his IF project, was abrasive over email with colleagues in foreign offices, and failed to undertake trainings assigned to him. The record contains examples of Complainant failing to be proactive and independent at work despite being the senior-most international trade specialist at CS Houston with 19 years of experience. This record of performance problems provides a legitimate, nondiscriminatory reason for each interaction S1 had with Complainant attempting to improve Complainant’s performance. Given the lack of evidence that S1’s evaluations were factually inaccurate, we agree with the AJ and Agency that a reasonable fact-finder could not reach the conclusion that the performance evaluations and improvement plans were issued with discriminatory or retaliatory animus. Hostile Work Environment Harassment of an employee that would not occur but for the employee's race, color, sex, national origin, age, disability, or religion is unlawful, if it is sufficiently severe or pervasive. To establish a claim of harassment a complainant must show that: (1) he or she belongs to a statutorily protected class; (2) he or she was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment.” 2020000952 8 Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); See Enforcement Guidance on Harris v. Forklift Systems, at 9, EEOC Notice No. 915.002 (March 8, 1994) (Enforcement Guidance on Harris). Whether the harassment is sufficiently severe to trigger a violation of Title VII must be determined by looking at the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee's work performance. Harris 510 U.S. at 17, 23; Enforcement Guidance on Harris, at pp. 3, 6. The harassers' conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Id. A single incident or group of isolated incidents will generally not be regarded as discriminatory harassment unless the conduct is severe. Walker v. Ford Motor Co., 684 F.2d 1355, 1358 (11th Cir. 1982) The record shows that S1 only made a single comment that could be misconstrued as a negative comment about EEO activity when taken completely out of context. Nothing in the record supports that Complainant was subjected to anything even mildly offensive, let alone threatening or humiliating. To the contrary, the record shows that S1 used conciliatory phrases in his communications with Complainant and acknowledged Complainant’s questions and comments as valid and worth addressing. The record also shows that, rather than interfering with Complainant’s work, management’s conduct was intended to improve Complainant’s work product and convince Complainant to take a less adversarial approach towards his colleagues in foreign offices. We also find that the incidents Complainant cites in support of his harassment claim, taken together, are not sufficiently severe or pervasive to be unlawful. Rather, the incidents challenged by Complainant reflect common workplace disagreements between supervisors and subordinates that relate to disagreements with managerial decisions and processes, including those relating to assignments, scheduling, and performance evaluations. Without evidence of an unlawful animus, we have found that similar disputes do not amount to unlawful harassment. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final order which adopts the AJ’s finding that Complainant failed to present sufficient evidence to support his claims of discrimination and retaliation. 2020000952 9 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. 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). 2020000952 10 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 March 8, 2021 Date