[Redacted], Herb L., 1 Complainant,v.Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2020002502 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb L.,1 Complainant, v. Gina M. Raimondo, Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency. Appeal No. 2020002502 Agency No. 54-2019-00139 DECISION On February 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 January 15, 2020, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 decision. ISSUE PRESENTED Whether the Agency in its Final Agency Decision (FAD) correctly determined that Complainant was not subjected to discrimination and harassment constituting a hostile work environment based on race, national origin, religion, color, disability, age, and reprisal for prior EEO activity as alleged. 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. 2020002502 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Research Mathematical Statistician, ZP-1529-III at the Agency’s National Marine Fisheries Service (NMFS) in Galveston, Texas. On April 1, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Middle Eastern), national origin (Iranian), religion (Islam), color (Brown), disability (diabetes), age (73), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when: 1. on November 23, 2018, Complainant received a threatening e-mail, which also contained false accusations from his first-line Supervisor (S1); 2. S1 interfered with the publication of his work paper, "Iterative Approaches to Handling Heteroscedasticity with Partially Known Error Variances;" and 3. he was given a mid-term rating which cited "Areas of Concern." Claim 1 Complainant stated that he received an email from his second-line supervisor (S2) in which S2 allegedly falsely accused Complainant of failing to incorporate comments from reviewers selected by S2 and S1 that Complainant believed were incorrect and violated the Agency's policy on publications. Complainant also alleged that he was falsely accused of confronting his coworker; and that S2 threatened Complainant with disciplinary action. Complainant indicated that the alleged management actions were taken because he is the oldest employee, and the only employee who is foreign-born with a slightly different skin color. Complainant asserted that he is the only employee who has been discriminated and retaliated against. S2 stated that he sent the email after consulting with other management officials because S2 learned that Complainant was acting outside of the publication review process. S2 asserted that Complainant's behavior was insubordinate, and S2 believed that he had to take a firm stance to limit such behavior. S2 denied threatening Complainant in the email, asserting that he was rather informing Complainant that there would be consequences for Complainant’s actions that contradicted Complainant’s direct supervisor's requests and Agency policies. S2 asserted that he did not take the alleged actions to harass or create a hostile work environment for Complainant and that he did not discriminate or retaliate against Complainant. 2020002502 3 Included in the record is the email at issue which corroborates management’s explanations. The email also warned that disciplinary action may be taken should Complainant choose to publish the paper without following identified applicable Agency policies and processes. In the email, S2 also indicated that Complainant could set up a meeting to discuss what would be needed for Complainant to appeal management’s rejection of his paper. Also included in the record is the applicable Agency Guidance on Internal Review and Approval of Fundamental Research Communications that describes the process for reviewing manuscripts such as Complainant's. The guidance supports management’s statements and S2’s email. In rebuttal, among other things, Complainant asserted that S1 has frequently violated the review process by not responding to requests for feedback or by providing vague or invalid information. Complainant argued that an internal review of a scientific work should never take three years and that his papers have gone to unqualified reviewers with no subject matter expertise, who have insulted him, offended him, and severely damaged his personal integrity. Claim 2 Complainant alleged that S1 and S2 did not properly process the review of his manuscript. Complainant asserted that S1 and S2 identified unqualified reviewers to review the manuscript, alleging that the reviewers submitted improper or irrelevant comments about his paper. Complainant asserted that the review process delayed the publication of his paper, stating that S1 interfered with the publication of the paper and that irregularities existed in how his manuscript was reviewed. Complainant also alleged that S1 shared information from his prior EEO complaint with others. Complainant reiterated his belief that the alleged management actions were based on his protected classes. S1 stated that he sought extra review of Complainant's paper to ensure that the reviews were impartial. S1 also indicated that, consistent with applicable procedures for reviewing research in an impartial manner, his actions were based on interest in seeing improvement in Complainant’s performance and conduct. S1 asserted that he did not attempt to harass, discriminate, or retaliate against Complainant and that he did not take actions to interfere with publication of Complainant’s paper. S2 provided supporting statements, asserting that the lengthy review process of Complainant's manuscript was due to the significant work required, indicating that it was not uncommon that the Agency could take more time to review the manuscript in such an instance. S2 also asserted that management wanted to find external impartial reviewers considering that Complainant had challenged their actions and the actions of reviewers in the past. Management’s statements are supported by statements of the other reviewers included in the record. 2020002502 4 In rebuttal, among other things, Complainant disagreed with S1's statements that S1 did not attempt to harass, discriminate, and retaliate against Complainant, or that S1 did not take actions to interfere with publication of Complainant’s paper. Claim 3 Complainant alleged that, during his mid-year review meeting with S1, S1 asked Complainant what Complainant had done during the prior two years, a question that Complainant asserted that S2 asked twice during Complainant’s previous presentation. Complainant also asserted that the comments on his 2019 mid-year review are similar to those he received in the past. S1, Complainant’s reviewing official, stated that Complainant received a performance review of "eligible" with certain noted performance deficiencies/areas of concern. S1 stated that he apprised Complainant of the areas of concern prior to the mid-year review. S1 also indicated that Complainant had been tasked with a model project, but Complainant tried to change the assignment and did not want to follow directions, and that Complainant had not completed the assignment. S2 provided supporting testimony. He stated that Complainant's performance in Element 1, regarding the model project which constituted approximately 50% of the work required in Complainant's performance plan, and the final project after all of the three years Complainant had spent working on the project, was far below what is expected of a scientist or statistician within the Agency. Included in the record are Complainant’s FY 2019 mid-year review and similar reviews for the preceding two fiscal years (FYs) in which S1 rated Complainant’s performance as eligible in all elements with certain performance deficiencies. Specifically, S1 listed deficiencies/areas of concern that support his statements regarding Complainant’s mid-year performance review. S1’s feedback indicated that, if Complainant did not meet the expectations and provide deliverables by September 1, 2019, Complainant would be failing Element 1 at the end of the performance cycle. S1 also offered suggestions/strategies for improvement to Complainant. An April 24, 2019 letter that S1 issued to Complainant and reviews of Complainant's presentation are included in the record supporting management’s statements. In rebuttal, among other things, Complainant stated that S1 ignored many of his major accomplishments, did not properly provide feedback, and failed to follow Agency procedures. Complainant also pointed out that S1 failed to mention S1’s offensive question asking what Complainant had done during the prior two years. 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). 2020002502 5 In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Letter, among other things, Complainant reiterates his allegations. Complainant also argues that a conflict of interest existed regarding his prior EEO complaint and S1’s alleged job insecurity at knowing that Complainant was better qualified for a position in which S1 was interested. Complainant also asserts that due process was not followed by the Agency when management rejected his paper. In its Appeal Opposition, among other things, the Agency asserts that Complainant has failed to demonstrate that he has suffered any adverse action and that he has failed to offer any evidence supporting his claims of discrimination, harassment, and retaliation. The Agency requests that the Commission affirm its FAD. STANDARD OF REVIEW 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”). ANALYSIS AND FINDINGS To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He 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. Co. 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, 441 U.S. 802 at 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, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). 2020002502 6 Assuming, arguendo, that Complainant established a prima facie case of discrimination based on race, national origin, religion, color, disability, age, and reprisal, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions. We also find no persuasive evidence of pretext. Regarding Claim 1, S2 explained, and the record indicates, that S2 sent an email to warn Complainant about Complainant’s insubordinate behavior. The email also warned that disciplinary action would be taken should Complainant choose not to comply with Agency procedures with respect to publication of Complainant’s paper. Complainant disagreed with S2’s statements but presented no evidence to refute the information from the email at issue which supports those statements. Regarding Claim 2, S1’s assertions, which are supported by S2, indicated that the delayed review of Complainant’s paper was due to the amount of work needed on the paper. Management’s assertions are supported by the applicable Agency guidance included in the record, which Complainant presented no evidence to refute. Regarding Claim 3, S1 asserted that the mid-term review feedback that Complainant received was the result of Complainant’s failure to perform necessary tasks and that Complainant submitted a final project that fell below quality expectations. S1’s review is supported by S2's statements; Complainant's performance reviews for three consecutive FYs; and Complainant’s April 2019 presentation which indicated deficiencies, areas of concern, and suggested strategies for improvement. Again, Complainant disagreed with management’s statements but presented no evidence to refute those statements and his performance documentation that are corroborated by the record. The Commission has posited that Complainant may demonstrate pretext - that the Agency's explanation for its action(s) as alleged is not the real reason but rather a "cover" to disguise unlawful discrimination - by offering credible evidence of one or more of the following: discriminatory statements or past personal treatment attributable to the Agency's responsible management official(s); comparative or statistical data showing differences in treatment across particular racial, ethnicity, sex-based, age-related, disability-related, or other statutory EEO- related lines; unequal application of Agency policy; deviations from standard procedures without explanation or justification; and/or inadequately explained inconsistencies, incoherencies, or contradictions in the evidentiary record. Lenny W. v. U.S. Postal Serv., EEOC Appeal No. 0120160470 (Apr. 5, 2018), (citing Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007)); Natalie F. v Dep't of Veterans Affairs, EEOC Appeal No. 0120150749 (Apr. 27, 2017); Melissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Here, Complainant failed to demonstrate pretext; and other than his own conclusory statements, Complainant did not link any of the alleged management actions to his protected classes. Therefore, Complainant’s claims fail. 2020002502 7 With respect to Complainant's harassment allegations, we have held that a complainant's testimony reflecting "mere assertions and subjective beliefs" about discrimination is not sufficient to prove discriminatory harassment. McKeey vs. Dep’t of Labor, EEOC Appeal No. 0120114021 (Sept. 19, 2013). See also Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000) (indicating that a finding of harassment is precluded by a determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus). In this case, Complainant has not shown that the Agency took the actions at issue for discriminatory or retaliatory reasons. Moreover, Complainant’s challenges involve the delays in reviewing his manuscript, an email from S2, his mid-year performance review, and other criticisms about his work from management and reviewers which are routine work assignments, instructions, and admonishments which, the Commission has held, do not rise to the level of discriminatory harassment. See, e.g., Joseph B. v. U.S. Postal Serv., EEOC Appeal No. 0120151459 (Sept. 25, 2017); See also Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113866 (Apr. 10, 2014) (alleged verbal insults, yelling, hazing note in mailbox, and grabbing of complainant's shoulder are insufficient to constitute harassment). We note Complainant’s contentions on appeal. However, because Complainant did not request a hearing or avail himself of the discovery process which would have allowed for an examination of the credibility or lack thereof of management’s explanations, we can only evaluate the facts based on the weight of the evidence presented to us. We therefore find that Complainant has failed to demonstrate by a preponderance of the evidence that discrimination, retaliation, or harassment occurred. 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 decision. 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. 2020002502 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. 2020002502 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