[Redacted], Jerrold K., 1 Complainant,v.Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Apr 27, 2021

Appeal No. 2020001681 (E.E.O.C. Apr. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jerrold K.,1 Complainant, v. Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2020001681 Agency No. FDICEO-19-019 DECISION On January 8, 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 3, 2020 final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Human Resources Specialist, CM-0201-1, at the Agency’s Division of Administration (DOA), Human Resources Branch facility in Arlington, Virginia. On May 15, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African- American), sex (female), color (Light), age (55), and in reprisal for prior protected EEO activity when: 1. On November 21, 2018, an employee (not in his supervisory chain) made an allegation that Complainant was rude to a coworker and reported him to 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. 2020001681 2 Complainant’s second-level supervisor for referral to the Labor and Employee Relations Office for further action; 2. On December 17, 2018, after Complainant requested two days of sick leave, Complainant’s supervisor questioned his request for sick leave for two consecutive Fridays; 3. On December 17, 2018, Complainant’s supervisor informed Complainant that he would not be receiving an award for 2018; 4. On January 24, 2019, Complainant’s supervisor threatened to discipline Complainant and told him that if he was not retiring soon, she would take some sort of action against him; and 5. On January 31, 2019, Complainant’s supervisor issued Complainant’s 2018 Leadership Performance Management and Recognition (LPMR) evaluation, which contained negative comments. Claim One - Harassment On November 20, 2018, during a meeting with a contract vendor, there was a heated discussion about a module which was not in use. Employee 4 made a statement in an elevated voice, in the presence of Complainant’s subordinate staff. Complainant thought Employee’s 4’s comments were inappropriate. Complainant was sitting in the back of the room, so that he spoke loudly so that those in the front of the room could hear him. He asked if this matter could be tabled or taken outside of the meeting. Despite his objections, Employee 4 continued to speak. The next day, S1 called him into her office and informed him that Employee 3 said that he had been yelling and was rude to Employee 4 during the meeting. He was told that Employee 3 would be reporting the incident to his second-level supervisor to determine if some action should be taken against him. On November 21, 2018, Employee 3 (who was a manager, but not in Complainant’s supervisory chain) made an allegation that Complainant was rude to a coworker and reported him to S2 for referral to the Labor and Employee Relations Office for further action. S2 acknowledged that Employee 3 told him “about a difference of opinion” Complainant had with one of his fellow managers (Employee 4) at a meeting. S2 averred that Employee 3 did not ask him to do anything about it. S2’s “only action was to tell S1, Employee 3, and Complainant that they should be respectful to each other.” On November 30, 2018, Complainant told S2 that he had submitted a harassment inquiry. Specifically, Complainant claimed that in December 2017, Complainant had also reported Employee 3 to his second-level supervisor for calling him “Loser” and “Trouble.” The employee stated that she made the comments in jest, but she acknowledged that she ceased making the comments after Complainant objected and she was told to stop. 2020001681 3 Claim Two - Sick Leave On December 17, 2018, Complainant submitted two requests for sick leave for the two Fridays before Christmas and New Year’s Eve. His supervisor approved the leave requests, but she also asked Complainant if he meant to ask for those particular days off. Complainant explained that he requested the leave based on his doctor’s availability. He considered her question as equivalent to being accused of sick leave abuse. S1 averred that she and Complainant were the only two managers in the section and she needed to ensure there was adequate coverage. Claim Three - Award On December 11, 2018, S1 submitted a request for approval for awards for some of Complainant’s subordinate employees. Complainant sent her an email and asked if he was not receiving an award because Employee 3 had reported him as being rude and asked for an investigation, or because he reported her comments and filed a harassment complaint. S1 responded that “the awards are discretionary, and performance based and not guaranteed.” She stated there were “challenges related to Complainant’s work volume and accomplishments.” S1 explained that she had not recommended an award for him, because she believed that he had not done anything above and beyond his normal duties as a manager to justify an award. He responded that he had served as a de facto first line supervisor for the Payroll Processing Group, even though it was not part of his duties, and that he dealt with a number of employee conduct issues within the group. He also stated that his supervisor never talked to him or counseled him about being inefficient and noted that there were no standards in place upon which to evaluate him. Claim Four - Threatened with Discipline At a meeting on January 24, 2019, Complainant, S1, and the Supervisory HR Specialist were in a discussion of some issues for the Payroll Processing Groups. After the Supervisory HR Specialist left, S1 told Complainant that he was too passive during the past year and that she had received reports he was “hanging out” in the benefits center and had not been fully engaged as a manager. Complainant believed that he was being unfairly held responsible and that Supervisor 1 had threatened him. On January 31, 2019, Complainant approached S1 to discuss his concerns about not getting an award. S1 said she would set milestones for him and he would receive an award if he met the milestones. Complainant then informed S1 that he did not want an award at that point. S1 denied threatening him, but she told him there were issues of him not following through on assignments. Claim Five - Evaluation Complainant received a “4-Performance Leader” rating on his 2018 LPMR. The evaluation as first presented to him originally contained what Complainant perceived as negative comments that he believed could harm his post-retirement career. Complainant raised his objections with 2020001681 4 S2. S2 instructed S1 to remove the comments from Complainant’s evaluation and the comments were deleted. The comments suggested that Complainant “needed to be prompted to identify needs and to follow up on next steps.” It was suggested that he increase communication with his staff and be more proactive in addressing the concerns with HR, related to the “Monster contract.” 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that the Agency subjected him to the discrimination or reprisal as alleged. The Agency concluded that he failed to offer proof that the actions were taken due to his protected groups and that none of the actions, taken together, were sufficiently severe or pervasive to prove harassment. Regarding Employee 3’s comments, the Agency noted that the comments appeared to have been meant in jest and not as an offense towards Complainant. Nonetheless, when management was made aware, the allegedly offensive conduct ceased. Regarding leave, the Agency found the inquiry was due to a legitimate business need to make sure the office had adequate coverage. S1 did not issue Complainant an award because she determined that no award was warranted. She denied threatening him and stated that her comments were meant to be constructive criticism. As a result, the Agency found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. This appeal followed. 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 - Sick Leave, Award, and Performance Evaluation Section 717 of Title VII requires that “[a]ll personnel actions affecting [federal] employees or applicants for employment . . . shall be made free from any discrimination based on . . . race, color or sex.” 42 U.S.C. Section 2000-16(a). Similarly, Section 633(a) of the ADEA requires that federal agencies make all of its actions free of age discrimination. Reprisal is also unlawful under Title VII. See the EEOC regulations at 29 C.F.R. § 1614.101(b) and §1614.102. 2020001681 5 A claim of disparate treatment is generally examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). 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. See McDonnell Douglas, 411 U.S. at 802. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Tex. Dep’t of Community 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 Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Burdine, 450 U.S. at 256. 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. See U.S. Postal Service Board 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 Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). For purposes of our analysis, therefore, we will assume that Complainant established a prima facie case of discrimination and reprisal. We determine, however, that the Agency articulated legitimate non-discriminatory reasons for each of its actions. Management explained, as to claim (1), Employee 3 reported that Complainant had been rude to Employee 4 in a meeting. Complainant had previously accused Employee 3 of calling him names and she had been instructed to cease such joking with Complainant. S2 subsequently determined no disciplinary action was warranted regarding Employee 3’s accusation and simply instructed Complainant, S1, and Employee 3 to be respectful to each other. With respect to claim (2), S1 questioned Complainant regarding the sick leave because she needed to maintain coverage. Regarding claim (3), S1 denied the award because S1 determined that an award was not warranted for 2018. Finally, as to claim (5), S2 ordered the correction of the evaluation narrative that was intended as constructive feedback in the evaluation. Complainant did not offer evidence to dispute these reasons and Complainant has not established that the actions were based on unlawful discriminatory or retaliatory animus. The statutes under the Commission's jurisdiction do not protect an employee against all adversity. See Bouche v. U.S. Postal Serv., EEOC Appeal No. 01990799 (Mar. 13, 2002); Ferrell v. Dep't of Navy, EEOC Appeal No. 01994603. See also Jackson v. City of Killeen, 654 F.2d 1181, 1186 (5th Cir. 1981)(“Title VII is not a shield against harsh treatment at the workplace; it protects only in instances of harshness disparately distributed. The essence of the action is, of course discrimination.”). We find that Complainant failed to prove, by a preponderance of the evidence, 2020001681 6 that management’s proffered reasons were pretext designed to mask unlawful discrimination or retaliation. Hostile Work Environment To establish a claim of hostile work environment, 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) that harassment complained of was based on his or her 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. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Will K. v. Dep’t of Veterans Affairs (Veterans Health Administration), EEOC Appeal 0120142904 (Oct. 18, 2016). In other words, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant’s position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis - in this case, his, race, color, age or sex. Only if Complainant establishes both of those elements - hostility and motive - will the question of Agency liability present itself. Complainant identified his supervisor and Employee 3 as the responsible officials for the alleged harassment and asserted he reported the behavior to S2, who he says did not adequately address his concerns. We disagree. Here, S2 did intervene with S1 and E3 to address Complainant’s concerns. E3 was advised to cease joking with Complainant and he modified the proposed evaluation to delete the narrative portion that Complainant found offensive. In addition, S1 denied threatening Complainant with any disciplinary action. We find that there is insufficient evidence indicating that Complainant had been subjected to actual unlawful harassment. While Complainant perceived S1 and E3’s actions to be hostile, he provided insufficient evidence to show that the alleged incidents occurred as he stated or that the alleged conduct was directed at him because of his protected classes. He acknowledged that for most of his career, he had been highly respected. Accordingly, the Commission finds that Complainant was not subjected to discriminatory or retaliatory hostile work environment as alleged. CONCLUSION Accordingly, for these reasons and based on the statement of law delineated herein, we AFFIRM the Agency’s 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: 2020001681 7 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). 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 2020001681 8 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 April 27, 2021 Date