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

Equal Employment Opportunity Commission

Apr 7, 2021

Appeal No. 2020000970 (E.E.O.C. Apr. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raphael C.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2020000970 Agency No. FBI-2018-00211 DECISION 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 September 27, 2019, final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Supervisory Information Technology Specialist, GS-13, at the Agency’s field office in Las Vegas, Nevada. On May 8, 2018, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on disability (spinal and neck injuries and sleep apnea) when, on April 19, 2018, an FBI manager placed Complainant on Performance Improvement Plan (PIP). 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. 2020000970 2 After its investigation into the accepted claim,2 the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). The record is unclear whether Complainant responded to the Agency’s notice. On September 27, 2019, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie 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 Department of Community 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 Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant is a disabled veteran with a 90% disability rating. Complainant asserts that his supervisor (S1) was aware of his disabilities when he and S1 previously worked at a different office. Complainant explained that he has spinal and neck injuries, as well as sleep apnea, which are all aggravated by stress. Therefore, we presume for purposes of analysis only, and without so finding that Complainant is an individual with a disability. 2 The record indicates that Complainant’s formal complaint included an additional claim which the Agency dismissed on procedural grounds. Complainant does not dispute this dismissal on appeal. Therefore, we need not address it further in this appeal. 2020000970 3 S1 acknowledged that she previously worked with Complainant in the El Paso field office. S1, however, denied being aware that Complainant had a disability back then or during the period at issue. S1 indicated that Complainant had already been promoted to the Supervisory Information Technology Specialist position before she became Complainant’s supervisor at the Las Vegas field office. S1 explained that she was aware that the Las Vegas Information Technology Unit (ITU) had “many issues that existed prior to [Complainant’s] arrival.” Specifically, S1 stated that ITU had poor customer service, personality conflicts, and low morale. However, S1 indicated that while Complainant had “inherited a bad situation,” she learned over time that Complainant was having his own difficulties as a supervisor. S1 noted that Complainant had difficulty building relationships with other field supervisors, he was unresponsive to requests, and he failed to follow through on projects. S1 testified that she provided Complainant feedback on how he could improve. S1 stated that she advised him to use a planner to organize his work, hold regular meetings to keep employees informed of updates, and to speak directly with his employees when issues arose. Complainant, however, was unresponsive to S1’s feedback. Consequently, S1 rated Complainant “minimally successful” for Organizing, Planning, and Coordinating in his May 2017 mid-year performance review. In that review, S1 documented Complainant’s delays in implementing and finishing projects, failure to keep staff updated, and inability to complete his assignments. Because S1 did not see an improvement in Complainant’s performance deficiencies, she scheduled meetings with Complainant in July 2017 and met with him every Monday. However, S1 noted that neither Complainant nor the ITU improved and in September 2017, she rated Complainant “minimally successful” on two critical elements, “Relating with Others and Providing Professional Service” and “Organizing, Planning, and Coordinating.” By February 2018, S1 explained that she sought information from staff in the Performance Appraisal Unit (PAU) for recommendations on how she could help Complainant improve his work. During this period, S1 stated that she had notified Complainant that he would be placed on a PIP if his performance did not improve as Complainant had a current rating of “unacceptable” in the critical element of Supervising. Consequently, on April 19, 2018, S1 placed Complainant on a PIP. S1 denied that Complainant’s disability played a factor in her decision to place Complainant on the PIP. Although Complainant asserts that S1 knew he had a disability when she approved his request for a standing desk, there is no evidence in the record, aside from Complainant’s testimony, that his request for the standing desk was connected to his disability. Furthermore, S1 has denied that she was aware of Complainant’s disability. Additionally, the Human Resources Specialist (HR Specialist) in the PAU, who advised S1 of the PIP process, also denied being aware that Complainant had a disability. The HR Specialist noted that Complainant elected to voluntarily step down from his supervisory position when he was unsuccessful on his PIP. 2020000970 4 Copies of Complainant’s performance appraisals conducted in May 2017 and September 2017 indicate that Complainant had an overall rating of “successful.” However, the May 2017 appraisal rated Complainant as “minimally successful” in criminal element, Organizing, Planning, and Coordinating. The appraisal further noted that Complainant was unprepared at manager meetings, failed to complete or timely complete assignments, and had difficulty working with other supervisors on projects. Similarly, the September 2017 appraisal indicates that Complainant was rated as “minimally success” in two critical elements and noted several of the same performance issues identified in the May 2017 appraisal. A copy of an April 13, 2018 notice indicates that Complainant’s performance as a Supervisory Information Technology Specialist was at the “unacceptable level.” The letter indicated that Complainant’s performance was “unacceptable” for critical elements, “Supervising” and “Organizing, Planning, and Coordinating.” Consequently, the notice informs Complainant that he would be placed on a PIP for a period of 90 days to improve his performance. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s disability. CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 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). 2020000970 5 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. 2020000970 6 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 April 7, 2021 Date