[Redacted], Oliver M., 1 Complainant,v.Tami Perriello, Acting Administrator, Small Business Administration, Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 2020005043 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oliver M.,1 Complainant, v. Tami Perriello, Acting Administrator, Small Business Administration, Agency. Appeal No. 2020005043 Agency No. 04-19-016 DECISION On September 9, 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 August 28, 2020, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 finding no discrimination. BACKGROUND Complainant began working as a Lender Relations Specialist, GS-1102-12, for the Agency, New Jersey District Office on December 10, 2018, and was subject to a one-year probationary period. Complainant’s first level supervisor was the Deputy District Director. Complainant’s second level supervisor was the District Director (Director). The Lead Lender Relations Specialist was assigned to train Complainant (Lead). Prior to being able to go out in the community and meet with Agency stakeholders, Complainant had to be able to effectively deliver a Lending Relations Specialist 101 brief/presentation. Complainant was to first make a mock presentation to the Lending Relations Specialist team (LRS team) and then to management. On February 6 and February 27, 2019, Complainant presented to the LRS Team. On March 6, 2019, Complainant gave his final presentation to LRS Management on Agency products and services which was the 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. 2020005043 2 final step before going out to train the public. Complainant was terminated from his position on March 8, 2019, for performance issues. On June 11, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (72) when: 1. On March 8, 2019, Complainant was terminated without an explanation or representation; and 2. On January 28, 2019, Complainant was assigned a Lead Lender Specialist to train him in which he was met with several derogatory comments about his age, generation, and performance. Following an investigation of Complainant’s complaint, on August 28, 2020, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency noted assuming Complainant established a prima facie case of discrimination, it met its burden of articulating legitimate, nondiscriminatory reasons for its actions. The Deputy District Director stated Complainant had a number of performance issues that lead to his termination including being unprepared for his presentations to the LRS team. The Deputy District Director noted that Complainant presented three times and each time he did not seem to be prepared. The Deputy District Director also noted that Complainant was late to a mandatory meeting that he was given notification of the day prior. The Agency stated that in response to Complainant’s contention that he was not properly trained, the Deputy District Director noted that in addition to being assigned to the Lead, Complainant was given standard operation procedures (SOPs) to study, power point presentations that he was to use in presenting to the LRS team, an LRS brief, and other materials. The Deputy District Director stated during his interview prior to being hired, Complainant stated he had over 30 years of lending experience and could speak in front of large crowds. The Deputy District Director noted Complainant presented on February 6 and 27, 2019, and in both cases his colleagues gave him constructive criticism and told him how to prepare better. He noted that on March 5, 2019, Complainant delivered another presentation at which the Director left the presentation after finding Complainant unprepared. The Director confirmed that Complainant was assigned to the Lead for training and that she gave him materials to study. The Director stated he heard Complainant did not do well on his first and second presentations. He stated at the March 5, 2019 presentation, Complainant was unprepared and did not know the topic. He explained the information in Complainant’s presentation was accurate, but Complainant did not know the material. The Lead noted she was part of the hiring process and recommended Complainant be hired. The Lead stated after Complainant was hired, she conducted virtual and on-sight trainings with him. 2020005043 3 She noted Complainant was given a presentation to review and present, and this material included notes that employees were expected to review so that they were able to explain information to their audience. The Lead stated that employees present to the LRS team prior to their presentation to management so that they were able to receive feedback. The Lead states Complainant was completely unprepared for this presentation on February 6, 2019. She stated at the February 27, 2019 presentation, he was unprepared again. The Lead explained that she and the other Specialists went over each slide with Complainant in hopes he would be better prepared for his next presentation. The Lead stated at the March 5, 2019 presentation, Complainant was to present to members of management, including the Director. The Lead noted as Complainant started to present it was clear that he did not know the material. The Agency noted in an attempt to show pretext, Complainant argued that during his interview for the position, he referenced his age and that management hired him and proceeded to plan ways to get rid of him because of his age. The Agency claimed this argument failed because other than his bare assertions, there was no supporting evidence. Further, the Agency found it not reasonable that management would hire an employee because they wanted to fire them. The Agency noted Complainant also argued that he was not given proper training. The Agency noted there was no evidence to support a conclusion that Complainant was not given proper training. The Agency noted the evidence reflected that on occasion Complainant did not follow his trainer’s directive to come to her and not coworkers for assistance. The Agency noted Complainant named two witnesses who he stated witnessed the alleged discrimination. However, the Agency noted that although both witnesses believed Complainant’s trainer did not train him well, there was no evidence to support their belief. Regarding Complainant’s contention that the Lead was biased against him because of his age, the Agency noted Complainant mentioned four statements were made by the Lead when she told him he did not learn like Coworker 1, that he stayed in the past and did not keep up with the changes, that because of his age he was not familiar with anagrams used by her generation, and that as the oldest member of the staff he needed to keep up with the times. The Agency noted that the Lead denied making these statements. The Agency noted that Complainant alleged that Witness 1 witnessed these statements; however, in Witness 1’s statement she does not indicate that she personally heard any ageist statements made by the Lead. Thus, the Agency found Complainant failed to establish pretext for discrimination based on age. On appeal, Complainant contends he was not given the opportunity to perform according to the job description of the position for which he was hired. He states that during the three months he was at the Agency, due to the government shutdown2 and holidays he was only in the office for 30 days. He states that the Lead assigned to train him came into the office only one day per week and by his calculations only spent a total of three office hours training him. 2 The federal government shutdown of 2018-2019 occurred from midnight eastern standard time on December 22, 2018, until January 25, 2019. 2020005043 4 Complainant notes that when he sought help from the Lead, in the majority of cases she would respond that he should read the SOP. Complainant claims he was not given the proper materials to study. Regarding alleged comments about his age by the Lead, Complainant admits it was “her word against mine and that the only way I could obtain credibility is to show that my many years of experience did qualify me for the job and was not ultimately given the chance to prove that.” In response to Complainant’s appeal, the Agency notes the record contains a February 7, 2019 memorandum from Complainant’s first level supervisor with the subject: “Counseling Probationary Status” to address deficiencies in Complainant’s performance. The Agency notes Complainant’s performance did not meet expectations even after his first line supervisor warned him of concerns regarding his performance and conduct. The Agency also notes that the Director prepared an undated memorandum concerning Complainant’s March 5, 2019 presentation. In the memorandum, the Director explained that Complainant was not prepared and did not seem to care when given suggestions on improvement. Further, the Agency noted there was no evidence supporting Complainant’s contention that he did not receive proper training. The Agency noted in response to being told to learn the District Office’s Power Point Presentations, Complainant stated, “It’s just that somehow I felt it made no sense to memorize these things when I can use some of my knowledge and occasionally look at the slides to emphasize the point.” Additionally, the Agency noted that Complainant only considered face-to-face training as official training although training was being conducted via telephone and email. 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”). Generally, claims of disparate treatment are examined under the tripartite 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). 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2020005043 5 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 her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant was terminated for poor performance. Despite Complainant’s contention, there is no evidence to support his assertion that he did not receive proper training. Rather, the record shows that virtual training was not Complainant’s preferred method of training. Moreover, Complainant failed to establish that the Lead made the ageist comments he alleged. Thus, we find Complainant failed to establish that he was subjected to discrimination based on his age. 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. 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). 2020005043 6 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. 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. 2020005043 7 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 January 25, 2021 Date