[Redacted], Ian C., 1 Complainant,v.Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency.

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2021003177 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ian C.,1 Complainant, v. Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency. Appeal No. 2021003177 Agency No. 20-20-081220 DECISION On May 8, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 21, 2021 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the relevant time, Complainant worked as a Construction Control Representative for the Office of Planning, Design and Construction (OPDC), part of the Office of Facilities, Management and Reliability (OFMR), Smithsonian Institution in Washington D.C. On August 12, 2020, Complainant filed the instant formal complaint alleging that he was subjected to discriminatory harassment based on race (African American), disability, and age (over 40) when: 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. 2021003177 2 a. From February 2015 until November 2019, for an approximate four-and-one-half- year period, Complainant was denied a career-ladder promotion from Grade 9 to Grade 11; b. Due to management’s failure to promote Complainant from Grade 9 to Grade 11 that period of time, between February 2015 and November 2019, Complainant’s ability to be promoted up the career ladder due to management’s failure to promote Complainant initially from the GS-9 to the GS-11, prevented Complainant from reaching his ultimate career ladder potential in a timely fashion. Complainant has a similarly situated colleague that was promoted annually through his career ladder and has been a GS-13 for over two years; c. Complainant’s OPDC supervisor (S1) has made several derogatory and dismissive remarks regarding his past employment and position, saying things like: “You were only a painter before coming to OPDC;” and d. In the fall of 2014, Complainant’s request for the 32-hour safety training course was denied. However, Complainant was advised during the three years in his position, that the “32-hour safety training course” was required to be completed before promotion could occur. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision on April 21, 2021, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.2 The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS 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, he or she 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). 2 Complainant identified his disabilities as hip osteoarthritis. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2021003177 3 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). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where, as here, the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). During the investigation, the responsible management officials articulated legitimate, non- discriminatory reasons for the disputed actions. Complainant began his career with the Smithsonian in 2010 as a painter, WG-10. In February 2015, Complainant was hired as a Construction Control Representative, GS-9. The position has a career ladder of full performance potential to a GS-13 position. From January 2015 to present, Complainant’s first-level supervisor was the Deputy Director, OPDC (S1). S1 hired Complainant into OPDC. As the GS grade increases, the duties of a Construction Control Representative become more advanced and complex, with less supervisory oversight. The promotion criteria checklist specifically states that to be promoted, the employee “must demonstrate the ability to perform at the next grade level.” S1 (African American, over 40, no disabilities) stated that during one of Complainant’s performance evaluations in 2016 or 2017, Complainant asked him about the steps necessary to get a raise. S1 stated that he explained to Complainant that he needed to fulfill the career ladder requirements, such as to write more, document the projects he was assigned to, and adopt the procedures to manage, document and archive project information. S1 stated that the next performance evaluation, he reiterated the need to show his work. For instance, S1 noted that Complainant set up files “but [was] still not collecting information spelled in our procedures. I told him I understand his projects aren’t large and deal with leasing contracts (non-SI) but he should capture all project information as if it were ours. This discussion continues to reoccur. His files have not changed.” 2021003177 4 S1 asserted that an increase in grade is merit based, and is not “time-in-service” as Complainant is attempting to establish. S1 stated further that Complainant has not assumed positive intent or open to the constructive feedback given to him several times during evaluation discussions. With respect to Complainant’s allegation that S1 made several derogatory and dismissive remarks regarding his past employment and saying things like “you were only a painter before coming to OPCC,” S1 asserted that he did not make any derogatory remarks about Complainant’s past employment. Moreover, S1 stated that he and Complainant never developed an employee/supervisory relationship. Specifically, S1 stated that most of his conversations with Complainant related to his performance and advancement to the next grade. He noted that their discussions “start off relatively civil, then progress into very frustrating angst-driven outbursts about salary and increased activities. His annual performances have been very good, but they were evaluated at that current level….the most frustrating part of this discussion is not whether or not [Complainant] deserves the next grade…it is that he’s not applied himself, not showing the initiative and adopting the program that we set forth for all construction managers.” Finally, S1 noted that Complainant had assumed that time in grade was sufficient for increased salary without modifying or changing his activities. Regarding Complainant’s allegation that in the fall of 2014, his request for the 32-hour safety training course was denied, S1 stated at that time Complainant, was not under his supervision during the fall of 2014. He explained that the required safety training is provided by the Office of Safety Health and Environmental Management (OSHEM) at no cost. Furthermore, S1 stated that there was no reason to deny the course. The Deputy Director/Director, OPDC (Italian, disability, over 40), also Complainant’s second- line supervisor (S2), stated that the S1 explained to him multiple times that he felt Complainant was not capable of performing the next higher level. He noted that Complainant finally demonstrated to S1 that he could be capable of the next level (GS-11) and was promoted. S2 also noted that Complainant’s 2019 and 2020 performance clearly indicated that S1 felt that Complainant did not have the knowledge, accountability or proactiveness to be promoted to the GS-13. S2 stated that just because an employees are on a career ladder “does not mean they are automatic promotions - you still have to demonstrate that you currently have some ability, capability, accountability, knowledge and project leadership at the next level - all of which are critical as a construction manager GS 12 or 13.” Furthermore, S2 stated that there was no “delay” except Complainant did not display his ability to perform at the higher level. Here, Complainant failed to meet his ultimate burden of proving, by a preponderance of the evidence, that S1 and S2 acted on the basis of a prohibited reason. In sum, Complainant has simply provided no evidence to support his claim that his treatment was the result of his race, disability and age. 2021003177 5 CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record 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. 2021003177 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 September 16, 2021 Date