[Redacted], Minh G., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.

Equal Employment Opportunity Commission

Nov 4, 2021

Appeal No. 2020003739 (E.E.O.C. Nov. 4, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Minh G.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020003739 Hearing No. 570-2016-00451X Agency No. FBI-2015-00054 DECISION On June 11, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 12, 2020 final order concerning an 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked as a Telecommunications Manager at the Agency’s Critical Incident Response Group/Technical Services and Support Unit, Operational Technology Division in Quantico, Virginia. On February 27, 2015, Complainant filed a formal EEO complaint alleging the Agency subjected him to harassment/hostile work environment based on his national origin (Hispanic/Puerto Rican), disability2 and in reprisal for prior protected EEO when: 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. 2020003739 2 1. On August 6, 2014, his Unit Chief (“S1”): (a) asked him to create daily work logs for her review; (b) requested his medical documentation and asked him to provide it to the Health Services Unit; (c) asked him to share his confidential medical information with his co-workers; and (d) denied his request to alleviate his workload. 2. On August 26, 2014, the S1 informed him she was creating a Performance Improvement Plan (PIP) for him. 3. Around September 5, 2014, the S1 informed him: (a) the Office of Professional Responsibility (OPR) was investigating him for misconduct; (b) his co-workers caught him dozing off at work; (c) his condition had caused him to become a “joke” in the office; (d) he needed writing lessons because it was evident English was not his first language; (e) she needed to review and approve everything he wrote; and (f) he needed to expand his daily work logs. 4. On September 15, 2014, S1 denied his request to alleviate his workload. 5. Between September 2014 and December 2014, S1 told him: (a) he needed to be ready to “do some time” because he would definitely be found to be in the wrong with regards to the OPR investigation against him; (b) he should consider doing a different job because his current position was not the right position for him; and (c) if he wanted to contact the Employee Assistance Program (EAP), he needed to tell her if he was contacting EAP, and he needed to use leave in order to communicate with EAP. 6. Around the end of October 2014 and the beginning of November 2014, he was placed on a PIP. 7. On February 2, 2015, S1 told him: (a) she knew he filed an EEO complaint against her and she was documenting everything in order to deal with the matter; and (b) in front of his co-workers, he was incompetent, he did not know his job, and he did not meet the minimum qualifications to be in his position. After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. 2 Complainant identified his disabilities as Traumatic Brain Injury (TBI) resulting in ringing in the ears, migraine headaches, Post-Traumatic Stress Disordered (PTSD), anxiety, and severe sleep apnea. For purposes of this analysis, we assume, without so finding, that Complainant was a qualified individual with a disability. As a reasonable accommodation, Complainant took a voluntary change to a lower-graded position. This change to a lower grade forms no part of the accepted issues in this case. 2020003739 3 Thereafter, the AJ held a hearing on March 2 and 3, 2020. Following the hearing at which three witnesses testified, the AJ issued a decision finding no discrimination or unlawful retaliation was proven. In its May 12, 2020 final order, the Agency adopted the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “sS1h relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility, that a reasonable fact-finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). 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). 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 - that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco ConstrS1tion Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas 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, as here, 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 2020003739 4 Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In his decision, the AJ determined that the following relevant evidence was presented during the investigation into the formal complaint and at the hearing, which established that responsible management officials articulated legitimate, non-discriminatory reasons for the disputed actions. During 2012, Complainant worked as a GS-14 Telecommunications Manager (TM) position at the FBI’s Technical Support Services Unit, Critical Incident Response Group (CIRG). As a TM, Complainant had significant supervisory, advisory, and operational responsibilities. Complainant’s former supervisor rated him as “Excellent” and “Successful” on his 2012 and 2013 Performance Annual Reviews. S1 entered on duty with the FBI as a Special Agent. In August 2012, she became Complainant’s first-level supervisor. S1 stated that Complainant was already in place as Telecommunications Manager when she arrived in TSSU. The evidence showed that Complainant fell asleep at work on multiple occasions, was not always conscious of falling asleep and was aware his subordinates had reported this matter to S1. During July 2013, Complainant fell asleep during a CIRG-hosted SAC Conference with 56 field offices via SVTC. A considerable number of SACs observed Complainant sleeping in the back room during the conference. S1 informed Complainant he needed to address his health issues and recommended that he see a doctor. During her testimony, S1 stated that in 2012, she had a good work relationship with Complainant. She stated, however, her work relationship with Complainant changed “drastically in July of 2013.” Specifically, S1 noted Complainant’s confidence in himself and his communication with his staff seemed to decline. She also noted that Complainant’s comments and communication “were often unclear, confusing and sometimes conflicting.” She further stated that she had Complainant do work logs so she would know what Complainant was doing daily. Complainant admitted that he was not the only employee required to produce written work logs. The record contains a copy of the S1’s letter to Complainant dated October 21, 2014, in which she indicated that his performance as the Telecommunications Manager was at the “Unacceptable level.” S1 stated that Complainant would be given an opportunity of 90 days to improve his performance. She also notified Complainant that failure to achieve an acceptable level of performance for the critical elements in his performance plan during the opportunity period or to maintain it during the remainder of one year, could result in a reassignment, reduction in pay and grade or removal. S1 had done everything she could to help Complainant succeed and “was not looking for reasons to get rid of him.” The Deputy Assistant Director (“Deputy”) stated that Complainant complained about the manner he was treated by S1. He noted S1 was “intense, rigid and mission focused.” 2020003739 5 The Deputy recalled Complainant stating that “sometimes he felt like he was being singled out, and sometimes he thought [S1] was helping him. But then he went back and forth numerous times.” The Deputy testified that on December 29, 2014, the purpose of the meeting was for him (the Deputy) to understand where Complainant was with his performance improvement plan and “to satisfy myself that we had inquired whether all tools, experience, opportunities had been provided to [Complainant] for him to successfully complete that performance improvement plan.” In his sworn statement, the Deputy stated that he had been informed of Complainant’s argument that “neither his behavior nor work product changed significantly between the timeframe of the December 29 meeting and the date he was notified that he had passed the PIP on January 7, 2015.” Furthermore, the Deputy stated that he believed Complainant was deemed to meet the PIP requirements at a “Minimally SS1cessful” level based on input from both S1 and Human Resources Division (HRD) representatives. He stated the HRD representative in particular did not feel there was sufficient evidence to consider Complainant as “Unsuccessful,” the standard for PIP failure. In his decision, the AJ noted there was no evidence that either S1 or the Deputy singled Complainant out for harassment because of his national origin or disability. He noted that there were interpersonal conflicts between Complainant and S1 that stemmed from normal workplace matters, especially her perception of Complainant’s performance issues. The AJ also found that Complainant was not subjected to reprisal related to his claim that S1 retaliated against him in February 2015 when she told him that she knew he planned to file an EEO complaint against her and that she was documenting matters to respond to the complaint. On the issue of whether such a comment constituted reprisal, the AJ made explicit findings on the matter. The AJ determined that given the context in which the statement was made, it did not have a chilling effect and was not designed to intimidate or threaten Complainant or others from pursuing the EEO complaint process. Based on this evidence, the AJ concluded that Complainant failed to prove, by a preponderance of the evidence, that management’s articulated reasons for its actions were pretext. Complainant has offered no persuasive arguments on appeal regarding the AJ’s findings on the merits. The AJ’s decision, following a hearing where witness credibility could be assessed, is well-reasoned, and the conclusion that the Agency provided legitimate, non-discriminatory reasons for its actions, that were not proven to be pretextual, is abundantly supported by substantial evidence in the record, as referenced above. Beyond his bare assertions, Complainant did not point to evidence of record sufficient to prove that the reasons proffered were a pretext designed to mask discriminatory or retaliatory motivations. 2020003739 6 CONCLUSION We AFFIRM the Agency’s final order because the Administrative Judge’s ultimate finding, that unlawful national origin, disability and prior protected activity were not proven by a preponderance of the evidence, is supported by substantial evidence of record. 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. 2020003739 7 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. SS1h 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 November 4, 2021 Date