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

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020002426 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ken M.,1 Complainant, v. Lonnie G. Bunch III, Secretary, Smithsonian Institution, Agency. Appeal No. 2020002426 Agency No. 19-05-040819 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 14, 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. 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 The issue is whether Complainant established that the Agency subjected him to discrimination or harassment based on his age or sex. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Historian (GS-12) at the Agency’s National Portrait Gallery (NPG) in Washington, D.C. Complainant stated that in August 2017, he requested a promotion to the GS-13 level from his first-line supervisor (S1) (64, female). 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. 2020002426 2 Complainant stated that a few days later, S1 stated that she had “good news,” and that Complainant’s second-line supervisor (S2) (54, female) agreed with the promotion but that it had to wait due to budgetary reasons. Report of Investigation (ROI) at 98-9. Complainant stated that on March 5, 2018, S2 informed him that her vision for NPG was for it to be “hip,” and that she would not select Complainant for a Supervisory Historian position. Complainant stated that three days later, S2 sent him the job announcement for the Executive Director position at the B&O Railroad Museum. ROI at 99-100. Complainant stated that after waiting for almost one year for a promised promotion, he requested a desk audit. Complainant stated that he expected a grade increase based on an accretion of duties over time. Complainant stated that he never received the audit report and that management reneged on his grade increase. ROI at 101-2. On September 25, 2018, the Agency announced a vacancy for a Supervisory Historian, (GS- 13/14), under vacancy number 18A-MP-304224-DEU-NPG. ROI at 265-70. Complainant stated that on December 18, 2018, he learned that he was not selected for the position. ROI at 103. There was no selection made for this vacancy. ROI 169. The Agency posted a vacancy for a Senior Historian, Director of History, Research and Scholarship in March 2019. ROI at 190. Complainant stated that the Agency selected a Senior Historian (SH) (50, female). ROI at 103. On April 8, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment on the bases of sex (male) and age (67) when: 1. in August 2017, Complainant requested a promotion to the GS-13 level, which was never granted; 2. on March 5, 2018, S2 informed Complainant that, given her vision for NPG, it would not be possible to select him for the Supervisory Historian position that had been left unfilled since May 2017; 3. on March 8, 2018, S2 emailed Complainant a job announcement for the Executive Director position at the B&O Railroad Museum in Baltimore and suggested that he apply. S2 also stated, “let me know if you want me to mention you to the recruiters when they call”; 4. on May 29, 2018, Complainant requested a desk audit and received the results on September 17, 2018, finding that he was working at his current GS-12 level; and 5. on or about December 18, 2018, Complainant learned that he was not selected for the position of Supervisory Historian (GS-13), announced under vacancy number 18A-MP-304224-DEU-NPG. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge. 2020002426 3 In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency assumed that Complainant established a prima facie case of discrimination based on his age and sex, and found that management officials articulated legitimate, nondiscriminatory reasons for their actions. The Agency then determined that Complainant’s rebuttal did not show that the management officials’ reasons were pretexts for discrimination. The Agency also found that Complainant did not establish that he was subjected to a hostile work environment because the complained of incidents were not severe or pervasive enough to create a hostile work environment, and Complainant did not produce evidence that the alleged harassment was a result of a prohibited basis. The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant filed the instant appeal and submitted a statement in support of his appeal. The Agency opposed Complainant’s appeal. CONTENTIONS ON APPEAL Complainant argues that S1 and S2 provided “substantially false and misleading” statements. Specifically, Complainant states that S2 testified that during their meeting on March 5, 2018, she stated that she just learned of the job announcement at the B&O Railroad Museum and Complainant stated that he was interested. Complainant asserts that this was false, and that S2 did not learn of the announcement until the following day on March 6, 2018. Complainant also states that the Agency “muddled” his claim related to the desk audit, which was terminated when the Office of Human Resources (OHR) was informed that management officials would not support his grade increase. Complainant asserts that based on false testimony; the Agency implied in its final decision that his desk audit was completed. Regarding his non-selection, Complainant argues that the Agency’s “dubious and protracted hiring process” was aimed at disqualifying him. Complainant states that he was highly rated for the Supervisory Historian position, and that management officials then changed the focus to research and scholarship for a position which required a PhD, which he did not have. Complainant also alleges that he was retaliated against when key duties were removed from his performance plan. The Agency asserts that the record reveals that the Agency’s actions were proper, well- documented, and unrelated to Complainant’s protected categories. For claim 1, the Agency notes that Complainant requested a non-competitive promotion to the GS-13 level, and that when his supervisors reviewed his request with OHR, they determined that Complainant’s duties had not changed, which were correctly graded at the GS-12 level. The Agency found that the conclusion was the same for Complainant’s desk audit request (claim 4). 2020002426 4 The Agency states that on March 5, 2018, Complainant and S2 discussed his interest in leaving NPG, and S2 asked if Complainant would be interested in receiving any job announcements she received, and Complainant responded affirmatively. S2 then forwarded the B&O Railroad Museum job announcement. The Agency notes that when it posted the vacancy announcement for a Supervisory Historian, Complainant applied for the position and was interviewed in December 2018. The Agency states that during the interview, Complainant refused to answer the questions the interview panel had prepared, and he stated that the Agency should just give him the position and threatened legal action against the museum if he was not selected. S2 then decided to cancel the vacancy announcement because she did not receive the high caliber of candidates she was looking for, and the Agency advertised a senior-level position of a Senior Historian, Director of History, Research and Scholarship, which was filled in July 2019, by SH. The Agency states that Complainant did not qualify for the senior-level position, which was a determination made by OHR. The Agency requests that the Commission affirm its final decision. 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 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”). ANALYSIS AND FINDINGS New Claims As an initial matter, we note that Complainant raised new claims on appeal alleging retaliation regarding some of his duties. However, the Commission has held that it is not appropriate for a complainant to raise new claims for the first time on appeal. See Hubbard v. Dep’t of Homeland Sec., EEOC Appeal No. 01A40449 (Apr. 22, 2004). Accordingly, we will not address these new claims in the instant decision. Should he wish to pursue these new claims, Complainant is advised to contact an EEO Counselor to initiate the administrative process. Disparate Treatment Generally, claims of disparate treatment are examined under the analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F. Supp. 318, 324 (D. Mass.), aff’d, 545 F.2d 222 (1st Cir. 1976). 2020002426 5 For Complainant to prevail, he 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas, 411 U.S. at 802 n.13. Once Complainant has established a prima facie case, 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). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency’s reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is his obligation to show 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); U.S. Postal Serv. v. Aikens, 460 U.S. 711, 715-716 (1983). Assuming, arguendo, that Complainant established a prima facie case of discrimination based on his age and sex, we find that the Agency proffered legitimate, nondiscriminatory reasons for its actions. For claim 1, S1 stated that when Complainant requested a promotion, they had hoped to grant his request, but that once they consulted with OHR, it became clear that Complainant’s duties had not changed, and they could not grant the promotion. S1 confirmed that she stated something to the effect that S2 agreed to the promotion, but they had to wait due to budgetary reasons; however, this was prior to consulting with OHR. ROI at 165. Regarding claims 2 and 3, S2 denied Complainant’s allegations and stated that she encouraged him to apply for the Supervisory Historian position. S2 noted that the conversation with Complainant on March 5, 2018, was “difficult,” and she suggested that they try mediation. S2 stated that during the meeting, Complainant stated that he was considering leaving the Agency. S2 offered to send him job announcements and Complainant responded that he would be interested. S2 stated that she often forwards job announcements when she is aware that an employee is looking to take the next steps in their careers. ROI at 184-5, 187-8. For claim 4, S1 stated that OHR informed Complainant that he was not eligible for a promotion. S1 stated that Complainant’s current duties were considered and found not be at the GS-13 level, and no additional duties were being considered for Complainant. ROI at 168. Regarding claim 5, S2 stated that Complainant was interviewed on December 12, 2018, and that it did not go well. Specifically, S2 stated that Complainant refused to answer the prepared interview questions and suggested that S1 and S2 were incompetent. S2 stated that Complainant was incredulous that anyone else was being interviewed and stated that he informed his local Congressman that he had applied for the position and would take legal action if he was not selected. S2 stated that the position was rewritten to put less emphasis on administration and supervision and more on scholarship, publications, and proven peer-reviewed academic experience because they had not found a qualified candidate, and they posted the vacancy in March 2019. ROI at 189-90. 2020002426 6 We find that Complainant has not shown that the proffered reasons were pretext for discrimination. Pretext can be demonstrated by showing such weaknesses, inconsistencies, or contradictions in the Agency’s proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. See Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007) (finding that the agency’s explanations were confusing, contradictory, and lacking credibility, which were then successfully rebutted by the complainant), request for recon. denied, EEOC Request No. 0520080211 (May 30, 2008). On appeal, Complainant argued that the Agency relied upon false statements by S1 and S2. Complainant alleged that S2 lied when she stated that she informed Complainant of the B&O Railroad Museum position on March 5, 2018, and that the record showed that S2 did not learn of the position until March 6, 2018. However, even crediting Complainant’s assertions that S2 was not truthful when she stated that she informed Complainant of the B&O Railroad Museum position on March 5, 2018, a showing that the employer’s articulated reasons are not credible permits, but does not compel, a finding of discrimination. See St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502 (1993). In this case, there is no evidence that any of the Agency’s actions were based on Complainant’s age or sex, and Complainant made bare assertions that S2 discriminated against him, which are insufficient to prove pretext or that her actions were discriminatory. We also find that Complainant did not provide any evidence showing that S1 provided false statements. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep’t of Homeland Sec., EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep’t of Agric., EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). As such, we find that Complainant did not establish that the Agency discriminated against him based on his age or sex. Harassment As discussed above, we found that Complainant did not establish a case of discrimination on any of his alleged bases. Further, we conclude that a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Accordingly, we find that Complainant did not show that the Agency subjected him to harassment based on his age or sex. 2020002426 7 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 that Complainant did not establish that the Agency subjected him to discrimination or harassment based on his age or sex. 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. 2020002426 8 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 May 19, 2021 Date