[Redacted], Paul D., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2020001138 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Paul D.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2020001138 Hearing No. 570-2019-00432X Agency No. 18-0019-HQ-LP DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 30, 2019, finding no discrimination concerning his 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 finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Loan Administrator, GS-13, in the Portfolio Management Division, Loan Program Office, located in Washington, D.C. On February 12, 2018, Complainant filed an EEO complaint, which was amended, alleging discrimination and harassment based on age (over 40), color (black), sex (male), race (African American), and in reprisal for prior EEO activity 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. 2020001138 2 1. On November 29, 2017, his first level supervisor (S1) gave him a performance rating of “Needs Improvement” for Fiscal Year (FY) 2017. 2. During an unspecified time, S1 failed to properly assign and assess his work and did not provide training opportunities for him. 3. During an unspecified time, S1 treated him unfairly with respect to telework and his schedule. 4. During an unspecified time, S1 denied his request to volunteer to assist the Federal Emergency Management Agency (FEMA) following Hurricane Harvey. 5. On or around January 19, 2018, his employment with the Department was terminated. 6. As of March 19, 2018, he had not received a copy of the correct SF-50. 7. As of June 7, 2018, the Department had not yet provided a response to his request for record(s) under the Freedom of Information Act (FOIA). After completion of the investigation of the complaint, Complainant requested a hearing before an EEOC Administrative Judge (AJ) but later withdrew the request. The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. The record indicates that Complainant began his position at the Agency on February 19, 2017, subject to a one-year probationary period. Regarding claim 1, S1 indicated that Complainant, as a GS-13, Loan Administrator, failed to learn the electronic workflow system Quicksilver to handle routine tasks that were performed by the lower level, GS-9 and GS-11, staff. Complainant made numerous mistakes in his accounts which had to be reassigned to another Loan Administrator. He also failed to follow instructions of a Portfolio Manager and his mentor. Regarding claim 2, management indicated that Complainant and another new employee were assigned to the same tasks upon starting with the office in February 2017. Complainant received extensive training and was mentored. Regarding claim 3, management indicated that Complainant, as a GS-13, Loan Administrator, were not permitted to telework since he was required to have face to face contact with other staff on a daily basis in order to obtain signatures on documents. Complainant did not indicate that he was treated differently than other GS-13 Loan Administrators in his team regarding his telework or schedule. Regarding claim 4, management indicated that although Complainant and a few other employees volunteered to assist FEMA, no one, including Complainant, from the office was sent to assist the FEMA due to the office’s extreme budget uncertainty at that time. 2020001138 3 Regarding claim 5, management indicated that Complainant was not terminated; rather he resigned in lieu of being terminated. Complainant’s termination notice was based on his failure to satisfactorily execute the essential duties and responsibilities of his position during his probationary period. Regarding claim 6, the record indicates that Complainant was issued his final SF-50 on May 9, 2018. Regarding claim 7, the Agency dismissed the claim on November 30, 2018, Complainant filed a civil action in the United States District Court for the District of Columbia, Case 1:18-cv-01872- EGC, regarding the same matter. The record reveals that the Agency provided the requested FOIA documents on August 28, 2018, to Complainant. Complainant filed the instant appeal. 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 (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"). After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Complainant was given the option of resigning rather than being terminated. The termination during Complainant’s probationary period was due to his poor performance. We note that the Agency’s dismissal of Complainant’s FOIA claim was proper since the Commission does not have jurisdiction over the processing of a FOIA request. Such a claim fails to state a claim and is properly dismissed pursuant to 29 C.F.R. §1614.107(a)(1). Regarding other discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Furthermore, the Commission finds that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). 2020001138 4 A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000). Based on the foregoing, we find that Complainant failed to show that the Agency’s actions were motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision 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). 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). 2020001138 5 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. 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 July 12, 2021 Date