[Redacted], Jay C., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency.

Equal Employment Opportunity Commission

Mar 16, 2022

Appeal No. 2021000110 (E.E.O.C. Mar. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jay C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Drug Enforcement Administration), Agency. Appeal No. 2021000110 Agency No. DEA 2019-01142 DECISION On October 6, 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 September 1, 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. 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 an Accountant, GS- 0510-13, at the Agency’s Office of Finance at its Headquarters in Arlington, Virginia. On March 19, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. From 2017 to December 19, 2018, Complainant was subjected to ongoing harassment and a hostile work environment including but not limited to the following incidents: 1.1. One of Complainant’s first-line supervisors (Section Chief 1) removed 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 2021000110 the accomplishments that one of Complainant’s first Unit Chiefs (Unit Chief 1) wrote in Complainant’s 2018 mid-year Performance Work Plan (PWP); 1.2. Section Chief 1 rejected travel authorization for a business meeting after learning that Complainant permanently transferred to a different section; 1.3. Section Chief 1 did not allow Complainant to take his work supplies (including a printer/scanner) to Complainant’s new position in a new section; 1.4. Section Chief 1 forced Complainant to return to work which caused Complainant’s “Achilles tendon” to swell and caused headaches; 1.5. Section Chief 1 forced Complainant to sign a blank PWP in October/November 2018; 1.6. Since 2017, Section Chief 1 has stopped speaking to Complainant in the workplace; and 2. On December 19, 2018, Complainant learned that he was not selected for the position of Supervisory Accountant, GS-0510-14, Vacancy Announcement No. H- FN-18-10247328-MP-LSK, in the Financial Operations Division. The Agency accepted the complaint for investigation. 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, 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 Complainant did not submit a statement on appeal. On appeal, among other things, the Agency reiterates its explanations. The Agency asserts that the record supports its conclusion of no discrimination. The Agency argues that either the incidents did not occur as alleged or there was a legitimate and non-discriminatory reason for the incident; and Complainant has not provided any evidence of pretext. The Agency requests that the Commission sustain its decision. 3 2021000110 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 Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission applies the McDonnell Douglas analysis to complaints involving retaliation claims. Hochstadt v. Worcester Found. for Experimental Biology Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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. 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, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, 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. St. Mary’s Honor Ctr. 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 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. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). 4 2021000110 Here, we find that the Agency has articulated non-discriminatory reasons for its actions. With respect to claim 1.1, Unit Chief 1 conducted Complainant’s Fiscal Year (FY) 2018 mid-year review around May 2018. She rated Complainant “excellent” in all performance areas. Unit Chief 1 also included comments about Complainant’s accomplishments for the FY. However, after discussing the appraisal with Section Chief 1, Unit Chief 1 removed the comments because some of the listed accomplishments were part of Complainant’s duties at his grade level; and did not require the comments that Unit Chief 1 had included in the appraisal. Consequently, Complainant’s final mid-year review did not have comments, as, according to Unit Chief 1, comments were not required since Complainant received ratings of “Excellent.” ROI at 504- 513, 675-676. Regarding claim 1.2, Complainant requested to be part of the team that would conduct training in data entry and document certification for a new division in Louisville. Since Complainant came from the Financial Operations Section, and assuming Complainant had the proper experience processing invoices, Complainant’s first-line supervisor in his new section (Section Chief 2) selected Complainant to be part of the training team. Thereafter, Complainant made a training request for himself in the specific subject areas of the training. When Section Chief 2 learned of that request from Section Chief 1, she removed Complainant from the training team and revoked his travel approval. Specifically, Section Chief 2 relied on Section Chief 1’s explanation that Complainant lacked the requisite subject matter expertise to train others. ROI at 107, 174-176, 270-271, 677. Regarding claim 1.3, when Complainant transferred to the new section, he wanted to take his supplies and equipment, including a printer/scanner with him. Complainant alleged that Section Chief 1 refused. Section Chief 1, affirmed by The Deputy Assistant Administrator, stated that the “gaining office/section would ordinarily provide the supplies/equipment for the employee, and/or request the equipment from the losing office/section if needed.” ROI at 678. Therefore, Section Chief 1 could not authorize Complainant to take the equipment. ROI at 113, 117, 302, 336. Regarding claim 1.5, at the beginning of October 2018, Complainant’s new first-line supervisor (Unit Chief 2) provided Complainant with a blank PWP for the new FY (2019). Complainant alleged that he was forced to sign the blank PWP. Management explained that all employees signed blank PWPs at the beginning of a new FY. The new blank PWP contains each employee’s required work expectations. Complainant “voluntarily signed” the new PWP. ROI at 214-15, 220, 260. Regarding claim 2, Complainant applied, and was qualified for the position of Supervisory Accountant, Unit Chief, GS-0510-14, in the Financial Operations Division, under Vacancy Announcement Number H- FN-18-10247328-MP-LSK. Complainant and three of his coworkers made the best qualified (BQ) list. Section Chief 1 was the Selecting official. He was responsible for the entire hiring process, including reviewing resumes, selecting interviewees, and making the final selection. Section Chief 1 interviewed all three of Complainant’s coworker candidates but not Complainant. 5 2021000110 According to Section Chief 1, not all applicants were interviewed, and interviews were not required. Section Chief 1 stated that Complainant was not interviewed because, when compared, Complainant was relatively junior with his five years of experience to the eight and 10 years of experience possessed by the interviewed candidates. He also noted that Complainant did not have experience with internal controls or audits and did not have experience with leading teams or training staff, which the three candidates he interviewed all had. Section Chief 1 eventually selected a Unit Chief (the Selectee [no prior EEO activity]) who had seniority with eight years of relevant experience. ROI at 143, 227-229, 232-233, 683-684. Finding that the Agency has articulated legitimate, nondiscriminatory reasons, we next turn to Complainant to show that the Agency’s reasons were pretext. Complainant did not refute the Agency’s explanations in claims 1 and 2, only arguing that he was not interviewed. We find the agency’s legitimate nondiscriminatory reasons are supported by the evidence in the record, and Complainant has not shown these reasons were pretext for discrimination. Therefore, we find that Complainant did not establish disparate treatment with respect to each of these claims. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were 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.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). To ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep't of Commerce, EEOC Appeal No. 0120160024 (Dec. 20, 2017). 6 2021000110 We are precluded from finding harassment with respect to the disparate treatment claims, namely claims 1.1, 1.2, 1.3, 1.5, and 2, based on the finding above. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Regarding claim 1.4, during Complainant’s telework period between February and August 2017, he had numerous connectivity issues such as “connecting to the VPN and to “Lync”. ROI at 524. Therefore, Complainant’s laptop was taken from him for repairs; and he was unable to work from home. Complainant came into the office at that time without being ordered to do so. While in the office, Complainant wanted to participate in the Agency’s Voluntary Wellness Program (VWP). Section Chief 1 stated that he contacted Complainant’s doctor to obtain required ability to participate in VWP information that Complainant did not provide. There is no evidence that Complainant was forced to return to work while his equipment was sent for repairs or that he was ordered to do so while his injury healed. ROI at 180, 183, 219, 679. Rather, Complainant had made the decision to return to work, even before the connectivity issues, because he "just didn't want that bad vibe,” and “and forced himself to deal with the medical complications.” ROI at 91-96, 120, 326. Regarding Claim 1.6, Complainant asserted that Section Chief 1 “went out of his way to avoid him and would not look at or speak to him.” However, we find the alleged actions by Section Chief 1 lack the requisite severity and pervasiveness to constitute actionable harassment. The Commission has explained that, “not every unpleasant or undesirable action which occurs in the workplace constitutes an EEO violation. Rather, Title VII’s prohibitions are directed towards employment practices that discriminate against an employee for a prohibited reason.” Complainant v. Peace Corps, EEOC Appeal No. 0120132177 (Apr. 9, 2015). Complainant has failed to describe any such practice. Also, Section Chief 1 did not always talk to his employees, not just Complainant, unless it was work-related. ROI at 130, 221, 682. Additionally, a complainant seeking to prevail on a hostile environment harassment claim must demonstrate the requisite link between the alleged harassment and the protected class(es) in question. Jake H. v. U.S. Postal Serv., EEOC Appeal No. 0120142181 (Dec. 9, 2015). Here, there is no nexus between Complainant’s protected bases and the alleged harassment. Neither is there any evidence that Section Chief 1 made any statements or took any actions that would deter a reasonable employee from future participation in the EEO process. Therefore, Complainant has failed to sustain his harassment claim. 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 finding no discrimination. 7 2021000110 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). 8 2021000110 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, Director Office of Federal Operations March 16, 2022 Date