[Redacted], Randolph A., 1 Complainant,v.Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Mar 7, 2022

Appeal No. 2021001311 (E.E.O.C. Mar. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randolph A.,1 Complainant, v. Martin J. Gruenberg, Acting Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2021001311 Hearing No. 430-2019-00159X Agency No. FDICEO-18-024 DECISION On December 15, 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 November 16, 2020 final order 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Complex Financial Institutions Specialist, CG-1160-15, within the Agency’s Division of Risk Management Supervision at the Charlotte Field Office in Charlotte, North Carolina. On May 31, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment in reprisal for prior protected 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. 2021001311 2 1. He was not issued his Performance Management and Recognition (PMR) evaluation for 2017 until May 25, 2018, and he received a rating of “I,” Unsatisfactory;” 2. He was charged as Absent Without Leave, and money was withheld from his final paycheck from the Agency; 3. The Agency has refused to provide him with the Federal Occupational Health report related to the Sick Leave he took in July 2017; 4. The Agency has refused to provide him with any internal investigative report regarding his allegation that he was attacked by his supervisor (S1); 5. On August 11, 2017, his second-level supervisor (S2) initiated an investigation of his personal business; and 6. On August 3, 2016, S1 requested and accessed phone call logs for his Agency- issued cell phone. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On October 20, 2020, the AJ granted the Agency’s motion for summary judgement and issued a decision finding that Complainant was not subjected to reprisal or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS In rendering this appellate decision, we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review . . .”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § VI.B. (Aug. 5, 2015) (providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). 2021001311 3 We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A “material” fact has the potential to affect the outcome of a case. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. To successfully defeat the Agency’s motion, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Disparate Treatment Complainant must satisfy a three-part evidentiary scheme to prevail on a claim of disparate treatment discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). First, Complainant must establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Second, the burden is on 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). Third, should the Agency carry its burden, Complainant must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the Agency were not its true reasons, but were a pretext for discrimination. McDonnell Douglas, 411 U.S. at 804; St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in protected activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). 2021001311 4 A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a time and in such manner that a retaliatory motive may be inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005); Dominica H. v. Dep't of Health & Human Servs., EEOC No. 0120150971 (Nov. 22, 2017). The Commission has a policy of considering reprisal claims with a broad view of coverage. See Carroll v. Dep't of the Army, EEOC Request No. 05970939 (April 4, 2000). Under Commission policy, adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Enforcement Guidance on Retaliation and Related Issues, No. 915.004 § II.B(2) (Aug. 25, 2016). The statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Lindsey v. U.S. Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Here, assuming arguendo that Complainant established a prima facie case of reprisal, the Commission finds that the Agency has articulated legitimate, non-retaliatory reasons for its actions. Regarding claim (1), it undisputed that S1 drafted a PMR for Complainant on November 30, 2017. Complainant admitted that this was within a few days of when his co- workers’ PMRs were drafted. Shortly thereafter, S2 concurred with S1’s draft rating. The initial overall rating was a “1” (the lowest rating possible) based upon performance failures described in Complainant’s Performance Improvement Plan (PIP) and PIP monthly counseling update memoranda.2 These performance failures were the bases for Complainant’s removal from federal service on February 15, 2018.3 The record supports, and Complainant does not challenge, that his performance during the rating period was unacceptable. Under the provisions of the Agency’s Collective Bargaining Agreement (CBA), the next step in the ratings procedure would normally be for the proposed rating to be released to the employee and the scheduling of a meeting between the employee and the supervisor to discuss the rating. The release of the PMR is performed automatically by the Agency’s computer system without any further action on the part of the supervisors. However, under Agency security rules, PMRs cannot be sent outside the Agency’s firewall and cannot be sent by mail (without an express waiver) because they contain personally identifiable information (PII). Therefore, the CBA contains an exception for employees who are unable to report in person to the workplace to get their PMR. The CBA states: The year-end evaluation will be presented to the employee at a performance discussion meeting within ninety (90) calendar days after the end of the rating period. When the employee is not available to receive the evaluation, it will still 2 Complainant’s job was to ensure that information and conclusions provided by banks were correct. As noted in his job description, this required his own independent compilation of data, analysis and conclusions. 3 The removal is not at issue herein but was litigated previously before the Merit Systems Protection Board (MSPB). 2021001311 5 be timely prepared by the Rating Official. The Rating Official will provide the rating to the employee following the employee’s return to work or, with the employee’s consent, may send the rating through the mail and discuss the evaluation with the employee telephonically in order to timely submit the final rating during the performance management process. (emphasis added). At the time S1 wrote the initial rating, Complainant was working from home because he had been proposed for removal and had been barred from the workplace and from the Agency’s computer system since he had been found to have violated the Agency’s security procedures. Accordingly, Complainant could not be sent his appraisal until and unless he returned to the office or he expressly asked that his initial rating be sent to him by mail. Given that release of the PMR is normally done by the Agency’s automated system, neither S1 nor S2 would have been aware that he did not receive the PMR. On March 9, 2018, Complainant, for the first time, requested a copy of his PMR (and, for the first time authorized that it be sent to him). It is undisputed that from the time the Personnel Specialist (PS) received Complainant’s request until the date she provided the PMR (May 25, 2018), PS was unaware that Complainant had engaged in any protected EEO protected activity.4 To the extent that Complainant asserts that he was unable to improve his performance because he did not have his PMR sooner, we find that the record is devoid of evidence to support this position. Moreover, the undisputed record shows that the Agency gave Complainant constant detailed feedback and assistance in varied forms to improve his performance over the course of more than a year as to how to improve his performance. Accordingly, we agree with the Agency that Complainant was fully on notice as to what he needed to do to improve his performance well before the issuance of the PMR. With respect to claim (2), the record shows that Complainant was absent from work July 10-14, 2017 and that he failed to provide acceptable medical documentation within the timeframe allowed by the CBA (no later than August 17, 2017). According to the provisions of the CBA, management was required to place Complainant in an AWOL status. It is also undisputed that Complainant submitted acceptable medical documentation on September 27, 2017 (six weeks after the deadline set out in the CBA). The undisputed record also establishes that the CBA contains no provision that allows (let alone requires) the Agency to consider information submitted after the deadline. Regarding claim (3), it is undisputed Complainant did receive the FOHR. Nevertheless, the Agency has certified that it followed all procedures and requirements with respect to the processing of Complainant’s Freedom of Information Act (FOIA)/Privacy Act request. 4 The record is devoid of evidence to suggest that 10 weeks is an unreasonable time to process such a request. Moreover, Complainant has not demonstrated that any similar employee’s request for a PMR took less than 10 weeks. 2021001311 6 It is undisputed that it is not uncommon for the processing of FOIA requests (let alone combined FOIA/Privacy Act requests) to take more than 70 days (the processing time for Complainant’s request). Similarly, as to claim (4), Complainant was provided with the investigative report, in response to a proper MSPB discovery request. However, even assuming Complainant is alleging undue delay in receiving a copy of the investigation, the undisputed record shows that the Agency officials initially denied Complainant’s request in accordance with FOIA and the Privacy Act. With respect to claim (5), during the relevant time frame, as noted above, Complainant was on a PIP. One of the reasons for the PIP was Complainant’s inability to complete tasks assigned to him in a timely manner. The record indicates that management was concerned that Complainant was spending his time on a personal real estate business during working hours. The undisputed record shows that S1 and other coworkers noticed suspicious activity by Complainant and S1 notified S2 of the suspicious activity. A search of Complainant’s computer showed that Complainant had created over 50 documents on his Agency computer, during work time, relating to his personal real estate investment business. Finally, we note that claim (6) is based solely upon a single email from S1 to a person who works as a technical support in South Carolina (IT). The email states: “[IT], if I am interested in getting telephone statements for their BB [Blackberry]. For usage (sic), who do I contact?” S1 denied making such a request (or accessing any documents) regarding Complainant and the record is devoid of evidence to support a finding that S1 made such a request. Moreover, the Agency noted that the email asked about “their” records. Thus, at best, multiple people were involved. We find that the record is devoid of evidence that S1 ever requested or obtained any telephone statements. Construing the evidence in the light most favorable to Complainant, the Commission finds that Complainant has not proffered any evidence from which a reasonable fact finder could conclude that the Agency's explanation for its actions was pretext for reprisal. As a result, the Commission finds that Complainant was not subjected to reprisal as alleged. Finally, to the extent that Complainant is alleging that he was subjected to a hostile environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency officials were motivated by retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 2021001311 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 order. 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. 2021001311 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 March 7, 2022 Date