U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julia R.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, Department of Homeland Security (Federal Emergency Management Agency), Agency. Appeal No. 2022001161 Agency No. HS-FEMA-00100-2021 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated November 19, 2021, finding no discrimination concerning her 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, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Federal Coordinating Officer, GS-15, in the Agency’s Operational Coordination Division, Field Operations Directorate in Oakland, California. On November 30, 2020, Complainant filed her complaint alleging discrimination based on race (African American), color (beige), sex (female), age (over 40), disability (service-connected 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. 2022001161 2 hearing impairment), and in reprisal for prior EEO activity when on September 8, 2020, management terminated her employment with the Agency. After completion of the investigation of the complaint, Complainant did not request a hearing before an EEOC Administrative Judge (AJ). The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.2 Complainant’s first level supervisor (S1) indicated that he was previously Complainant’s second level supervisor and became her first level supervisor after her former first level supervisor (FS1) left for a new job in July 2020. S1 indicated that he issued a notice of termination of appointment to Complainant effective September 8, 2020, due to her unacceptable performance in a core competency. Specifically, S1 stated that Complainant was required to meet at least the “Achieved Expectations” standards for the core competencies and individual performance goals set forth in her annual Performance Plan and Appraisal. However, during the 2019 rating period, stated S1, Complainant failed to meet the “Achieved Expectations” standard for Core Competency #7, Leadership. Complainant’s Performance Plan reveals that her performance was rated based on seven Core Competencies (i.e., communication, customer service, representing the Agency, teamwork and cooperation, technical proficiency, assigning/monitoring/evaluating work, and leadership). The possible ratings for each Competency was Achieved Excellence, Exceeded Expectations, Achieved Expectations, or Unacceptable, from the highest to lowest. The plan also reveals that an Unacceptable rating in any one Core Competency would result in an Overall Unacceptable rating for an annual rating period. In the termination notice, S1 stated that FS1 provided his feedback concerning Complainant’s leadership deficiency during her 2019 Quarters 2, 3, and 4 Performance Reviews which were held on August 4, 2019, October 30, 2019, and February 10, 2020, respectively. Specifically, FSI informed Complainant during the reviews that she needed to improve on her leadership relating to her communication skills dealing with her staff by clearly articulating her expectations and enforcing those expectations in the manner most appropriate. 2 The Agency, on an alternative ground, dismissed the instant complaint for stating the same claim that was previously decided by an AJ and the Agency, related to Complainant’s prior EEO complaint, Agency No. HS-FEMA-011195-2018, pursuant to 29 C.F.R. § 1614.107(a)(1). Complainant’s prior complaint concerned a “Does Not Meet Expectations” of her 2017 performance appraisal. Upon review, we find the Agency’s dismissal of the instant complaint was improper. In EEOC Appeal No. 2021002701 (April 4, 2022), request for reconsideration denied, EEOC Request No. 2022003150 (September 20, 2022), we affirmed the Agency’s final order finding no discrimination in the prior complaint and stated that Complainant’s subsequent termination issue was not raised in her formal complaint in Agency No. HS-FEMA-011195-2018 and was not considered by the AJ. As the Agency investigated the instant complaint and addressed the merits thereof, we will address the merits of the instant complaint accordingly. 2022001161 3 Further, S1 stated that when he was deployed as Complainant’s Coach-Evaluator (CE), he wrote in his final report that Complainant’s “efforts fell short to meet expectations and requirements of a Field Leader.” As a CE, stated S1, he observed Complainant perform 18 separate tasks and found deficiencies with her leadership in the areas of communication, customer service, teamwork, cooperation, and ability to assign, monitor, and evaluate the work of others. S1 noted that Complainant’s impact on the team was not professional, did not have a positive effect, and created mistrust and confusion among the staff. S1 also noted that another CE also commented about Complainant’s insufficient communication skills, delegation, empowerment, and leadership style. The record indicates that Deputy Assistant Administrator issued Complainant a memorandum, dated July 12, 2018, placing her on Field Leadership Cadre Remedial Experiential Training Program (FLCRETP) due to her unsatisfactory Fiscal Year 2017 performance evaluation and employee records, including deployment history/performance documentations, and training records. In the memorandum, Complainant was notified that she must successfully complete the required remedial program by July 12, 2019; otherwise, she may be terminated from the Agency. S1 indicated that because Complainant completed less than 50% of the remedial program by June 2019, he requested and was granted an additional six more months for her to complete the requirements. We note that the FLCRETP is not at issue. The Agency stated that Complainant’s failed to establish that management’s legitimate, nondiscriminatory reasons were a pretext for discrimination. The Agency found that Complainant failed to prove that the Agency discriminated against her. Complainant appealed from the Agency’s final decision. Complainant’s attorney indicates that he did not receive the Summary of Investigation (SOI) and further, the Agency’s investigation of the instant complaint was insufficient. ANALYSIS AND FINDINGS Initially, we note that in his February 21, 2022 appeal brief,3 Complainant’s attorney states that he nor Complainant received the SOI which was referenced in the Agency’s final decision. We note that the Agency did not make a reference to the SOI in its final decision; rather it indicated that it forwarded Complainant (and the attorney) a copy of the Investigative File, including her right to request a hearing before an AJ. The record reveals that the Agency provided the Investigative File, password protected, and an election letter, to the attorney and Complainant electronically via their respective email addresses on August 26, 2021. 3 Our records indicate that Complainant’s arguments, filed by the attorney, in the instant appeal brief are identical, except a few words, to her May 9, 2022 arguments requesting the Commission reconsider its prior appeal decision, EEOC Appeal No. EEOC Appeal No. 2021002701 (Apr. 4, 2022), request for reconsideration denied, EEOC Request No. 2022003150 (Sept. 20, 2022). 2022001161 4 We note that the attorney does not contest that he (or Complainant) did not receive the election letter providing Complainant her right to a hearing before an AJ. The record reveals that the Agency provided its final decision, via the same email address, to the attorney on November 22, 2021, of which he admits his receipt on the same day. The Agency indicates that it also uploaded the Investigative File into the appellate record on December 28, 2021. The attorney also argues that the Agency failed to provide signed declarations or sworn testimonies by Complainant’s former supervisor (FS2) who issued Complainant a “Does Not Meet Expectations” of her 2017 performance appraisal and other witnesses related to FS2’s actions. However, we note that Complainant’s 2017 performance appraisal is not at issue here. We also note that FS2, retired in February 2020, is not involved with the termination at issue. Despite Complainant’s contentions on appeal, we find the Agency’s investigation of the complaint adequate and sufficient. We note that Complainant does not claim she was denied a hearing before an AJ. Thus, we will address the merits of the case accordingly. 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 (EEO MD-110), Chap. 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"). To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction 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, 411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 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. 2022001161 5 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. 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). Assuming, arguendo, that Complainant established a prima facie case of discrimination, we find that the Agency proffered legitimate, nondiscrimination reasons for her September 8, 2020, termination from her employment at the Agency. Specifically, S1 indicated that Complainant’s performance was unacceptable, i.e., not meeting the “Achieved Expectations” rating, in the Core Competency of Leadership, in her 2019 Performance Plan. S1 also indicated that Complainant’s impact on the team was not professional, did not have a positive effect, and created mistrust and confusion among the staff. S1 stated that Complainant was informed of her leadership related communication deficiencies during her 2019 Quarter Performance Reviews. On appeal, Complainant disputes her Fiscal Year 2017 performance appraisal of a “Does Not Meet Expectations” rating, which resulted her being placed on performance plan, i.e., FLCRETP, on July 12, 2018. However, we note that these matters are not at issue. Upon review, we find that Complainant failed to show that the Agency’s legitimate, nondiscriminatory reasons for her termination were pretext for discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in her protected groups who were treated differently under similar circumstances. Based on the foregoing, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as she alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 2022001161 6 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 file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2022001161 7 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 October 5, 2022 Date
