[Redacted], Matt A., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency.

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2020005125 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matt A.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior (Bureau of Reclamation), Agency. Appeal No. 2020005125 Agency No. DOI-BOR-19-0169 DECISION On August 24, 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 July 23, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Civil Engineer, GS- 13 at the Agency’s Bureau of Reclamation, Denver Technical Center in Lakewood, Colorado. On April 26, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability (physical), age (64), and reprisal for prior protected EEO activity when: 1. In or around the summer of 2015, Complainant’s supervisor (Supervisor 1) asked Complainant to set up a calendar and establish a plan to meet deadlines; 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. 2020005125 2 2. In or around the summer of 2015, Supervisor 1 removed projects from Complainant; 3. On or about November 3, 2015, Complainant received an email questioning his qualifications and expertise; 4. Starting on or around November 18, 2018 and continuing through February 1, 2019, a Supervisory Physical Scientist (SPS), a Civil Engineer (CE1), and a Supervisory Geologist (SG) and a Supervisory Civil Engineer (SCE) did not treat Complainant in a respectful manner, accused Complainant of wrongdoing, and conspired to obstruct Complainant in his career as a result of discriminatory animus; 5. Starting on or around November 18, 2018 and continuing through February 1, 2019, the SPS, CE1, SG, and the SCE accused Complainant of improperly billing to a cost code while allowing others to bill to the cost code in a similar manner; 6. In fiscal year 2018-2019, the SPS, CE1, SG, and the SCE removed instrumentation work assignments from Complainant and gave them to younger employees; and 7. On or about April 8, 2019, another Supervisory Civil Engineer (SCE2) did not select Complainant for the position under vacancy announcement BR-DO-2019- 057. Complainant stated that he suffers from arthritis and at the time relevant to this complaint, he had a broken clavicle that restricted the movement of his right arm. See Report of Investigation (ROI) at 111-12. He further stated that he had previously engaged in EEO activity in November 2018 when he lodged a harassment/bullying complaint against CE1.2 See ROI at 113. Complainant explained that in the summer of 2015, Supervisor 1 asked him to set up a calendar to set up deadlines for projects and also removed some of Complainant’s duties related to certain projects. See ROI at 120-21. On or about November 3, 2015, Complainant stated he received an email from someone who was unrelated to his work service or his chain of command, that questioned his qualifications and made him feel like he was being told he was “an old guy and can’t possibly know anything.” See ROI at 122-23. Supervisor 1 stated that to his knowledge, the email was from the Manger of the Corrosion Group asking Complainant to no longer discuss his concerns with the tests used to evaluate corrosion with the Corrosion Group staff because it was outside of Complainant’s area of technical expertise. See ROI at 207. Supervisor 1 stated that he advised Complainant to comply because Complainant’s division is not responsible for the work of the Corrosion Group. See ROI at 207. 2 The record indicates that the complaint was investigated and closed because the Agency found that there was no basis to conclude CE1’s behavior was due to any protected basis. See ROI at 249-50; 274-75. 2020005125 3 Complainant asserted that from November 2018 through February 2019, the SPS, CE1, SG, and the SCE held secret meetings accusing Complainant of wrongdoing such as charging incidentals to an overhead account when others were also doing the same thing, not completing some of his assigned work, and improperly billing to a cost code. See ROI at 114-15. Complainant further asserted that, during the secret meetings, these management officials decided to remove Complainant’s work duties related to instrumentation and assign them to younger employees. See ROI at 115. Complainant stated he applied for the position of Civil Engineer (Geotechnical) on March 20, 2019 and was found to be qualified and was interviewed for the position by a panel. However, he was not selected even though he is better qualified and has many more years of experience than the Selectee. See ROI at 125-27. Complainant asserted that he believed his disability may have been a reason he was not selected because he was asked about his ability to travel during the interview. See ROI at 127. The SCE2, the selecting official, stated that she was not a member of the interviewing panel but accepted the panel’s recommendation that the Selectee should be chosen. See ROI at 230-31. The panelists explained that they recommended the Selectee rather than Complainant because the Selectee had been a team leader, had superior technical capabilities, and had more recent relevant experience, specifically project management experience and current research experience. See ROI at 385; 389-90; 393-95. 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). The Agency assumed for purposes of the decision that Complainant was a qualified individual with a disability and had engaged in prior protected EEO activity. The decision found, however, that management officials articulated legitimate, nondiscriminatory reasons for its actions and Complainant had not presented any evidence to indicate the reasons were a pretext for discrimination. The decision also found that Complainant had not established that he was subjected to harassment based on any of his protected bases. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant challenges the Agency’s conclusion that he had not established that he was subjected to discrimination and harassment, emphasizing that one of his coworkers agreed that age discrimination exists in the Agency. In response, the Agency contends that Complainant has not provided any actual evidence to support his assertions of pretext and that its decision should be affirmed. 2020005125 4 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 A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, 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, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. 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. 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 Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983): Hernandez v. Dep’t of Transportation, 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). We will assume for purposes of this decision that Complainant is an individual with a disability and that the bullying complaint he filed against CE1 constitutes protected EEO activity. Complainant alleged that he was subjected to disparate treatment on the bases of his age, disability, and reprisal when Supervisor 1 asked him to set up a calendar to establish deadlines and removed projects from him (Claims 1 and 2); he received an email questioning his qualifications (Claim 3); a group of management officials treated Complainant disrespectfully by accusing Complainant of wrongdoing, including improper billing to a cost code, and removing 2020005125 5 his assignments and giving them to younger employees (Claims 4, 5, and 6); and when he was not selected for the position of Civil Engineer (Claim 7). With respect to Claims 1 and 3, Supervisor 1 asking Complainant to set up a calendar and the email questioning Complainant’s qualifications, we find that Complainant did not establish a prima facie case. Complainant did not allege that he suffered any adverse employment action as a result of these actions and Complainant’s subjective assertion that he took offense at the email does not establish an adverse employment action. Therefore, Complainant did not establish a prima facie case. See Cheney v. Dep’t of the Air Force, EEOC Appeal No. 0120060647 (Sept. 7, 2007). With respect to the remaining claims, we find that the Agency articulated legitimate, nondiscriminatory reasons for each incident. With respect to Claim 2, Supervisor 1 stated that he removed some of Complainant’s projects because of lack of performance, explaining that he had received numerous complaints of Complainant’s performance. See ROI at 206. With respect to Claims 4, 5, and 6, the management officials treating Complainant disrespectfully and accusing him of wrongdoing, the SPS stated that the improper billing was not a matter of wrongdoing or something that warranted discipline. He further explained that the Instrumentation Group has funding agreements and accounts to charge work to and Complainant was only informed that the funding for his particular project had been used up and he would need to use a different account. See ROI at 213-14. With regard to removing some of Complainant’s duties, the SPS and the SG stated that, at the time, Complainant had been temporarily assisting the Instrumentation Group while it was short-staffed, until the vacancies could be filled on a permanent basis. See ROI at 215-26; 225. The SPS explained that the vacancies were filled at a lower pay grade due to the unavailability of employees at a higher grade. See ROI at 215-16. We further find that the Agency established a legitimate, nondiscriminatory reason for the non- selection (Claim 7). The selecting official, SCE2, stated that she only accepted the recommendation of the panel. See ROI at 230-31. The three panelists all stated that the Selectee interviewed better than Complainant and was recommended because he had more recent relevant experience, including being a team leader, project management experience, and research experience. See ROI at 385; 389-90; 394-95. Two of the panelists also noted that Complainant did not answer the interview questions directly and was not specific in his answers. See ROI at 389-90; 394-95. One panelist also expressed concerns about Complainant’s seeming reluctance to travel up to 25% of the time, as required by the position. See ROI at 390. The panelists’ statements are supported by copies of their contemporaneous interview notes with both Complainant and the Selectee. See ROI at 232-246. We find that Complainant failed to establish that any of the Agency’s legitimate, nondiscriminatory reasons were a pretext for discrimination. Complainant did not provide any evidence to support his claims but made generalized statements about being treated unfairly. Complainant acknowledged “[h]ard evidence I do not have.” See ROI at 117. 2020005125 6 Complainant’s only corroborating evidence consisted of a coworker’s affidavit asserting that he “believes others may have treated the Complainant disrespectfully based on what [he] both heard and observed,” and also that “[he] think[s] age discrimination is present in [their] organization.” See Supplement to ROI at 13-14. The coworker did not, however, provide any specific examples or evidence to corroborate his assertions and noted that much of his knowledge is based on what Complainant told him. See Supplement to ROI at 13. Complainant also did not establish that the Agency’s reasons were a pretext for discrimination with respect to his non-selection. Complainant cannot demonstrate pretext based on his subjective assessment of his own qualifications. See Palmer N. v. Dep’t of Def., EEOC Appeal No. 0120140070 (Mar. 18, 2016). The Commission has long held that a person’s length of experience does not necessarily mean he is better qualified. See Macready v. Dep't of Justice, EEOC Appeal No. 01991433 (Apr. 4, 2002). To the extent Complainant challenges the interviewers asking about his willingness to travel, contending that the vacancy announcement did not specifically define how much travel was required, we note that the vacancy announcement for the position explicitly stated that travel was required “25% or less.” See ROI at 294. We further note that none of the panelists were aware of Complainant’s prior protected activity. See ROI at 384; 389; 393. Finally, it is well established that employers have discretion to choose among qualified candidates, provided that the decision is not based upon unlawful criteria. See Burdine, at 259; see also Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). The record does not contain evidence to support Complainant’s assertions that the Agency’s explanations are merely pretextual. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agric., EEOC Petition No. 03A40016 (Dec. 11, 2003). We, therefore, find that the Agency properly concluded that Complainant did not establish that he was subjected to disparate treatment due to his age, disability, or reprisal. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on the 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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). 2020005125 7 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 any of his protected bases.3 See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). Moreover, the record indicates that the incidents Complainant characterizes as evidence of harassment involve routine work assignments, instructions, and admonishments, which are neither severe nor pervasive enough to alter a term or condition of employment. See Eckenrode v. U.S. Postal Serv., EEOC Appeal No. 0120113930 (Nov. 6, 2012); Quinones v. Dep’t of Homeland Sec., EEOC Appeal No. 01A53109 (Mar. 31, 2006). Complainant’s subjective assertion that management officials treated him in a “bullying, degrading, and intimidating” manner are not sufficient to meet the objectively offensive standard required by Title VII. ROI at 115; see Harris v. Forklift Systems, 510 U.S. 17, 21 (1993) (“Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview.”). We find that Complainant did not prove by a preponderance of the evidence that he was subjected to disparate treatment discrimination or a hostile work environment based on any of his protected bases. 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 decision finding that Complainant was not subjected to unlawful discrimination as alleged. 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. 3 To the extent Complainant also asserts that the disrespectful behavior was due to a “Ph.D. bias,” we note that educational level is not a protected category under any of the laws enforced by the Commission. See 29 C.F.R. § 1614.103(a). 2020005125 8 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. 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. 2020005125 9 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 March 8, 2022 Date