[Redacted], Richard K., 1 Complainant,v.Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency.

Equal Employment Opportunity Commission

Aug 3, 2021

Appeal No. 2020001339 (E.E.O.C. Aug. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Richard K.,1 Complainant, v. Jelena McWilliams, Chairman, Federal Deposit Insurance Corporation, Agency. Appeal No. 2020001339 Hearing Nos. 430-2017-00235X & 430-2018-00203X Agency Nos. FDICEO-16-039 & FDICEO-17-019 DECISION On November 21, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s October 21, 2019 final order concerning the above-referenced equal employment opportunity (EEO) complaints setting forth multiple allegations of 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Complainant worked as a Senior Complex Financial Institutions Specialist, GS-0570-15, within the Division of Risk Management Supervision in Charlotte, North Carolina. On August 16, 2016 (and later amended), Complainant filed a formal EEO complaint (Agency No. FDICEO-16-039) alleging that the Agency discriminated against him on the bases of race (mixed), religion, disability (speech impediment), age (44), and reprisal (prior protected EEO activity) when: 1. On May 6, 2016, Complainant was issued a letter of warning; 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. 2020001339 2 2. On May 6, 2016, Complainant’s supervisor (S1) removed anti-money-laundering from his assigned duties; 3. On an unspecified date during the first quarter of 2016, Complainant was denied the opportunity to attend a training session; 4. On June 27, 2016, Complainant was denied compensation for overtime hours that he worked; 5. On August 12, 2016, S1 audited Complainant’s travel expense reports; 6. On July 27, 2016, management denied him permission to apply for an Expression of Interest detail opportunity; 7. Since December 9, 2015, Complainant was subjected to a hostile work environment; 8. On December 1, 2016, Complainant received a rating of “II” for his 2016 performance appraisal; and 9. On one or more unspecified dates, S1 discussed Complainant’s EEO complaint with his coworkers and on December 6, 2016, an armed security guard patrolled the floor where Complainant worked and spent time outside of Complainant’s office. On July 6, 2017 (and later amended), Complainant filed a second formal EEO complaint (Agency No. FDICEO-17-019) in which he alleged that the Agency discriminated against him in reprisal for prior protected EEO activity when: 10. On May 3, 2017, S1 issued Complainant a mid-year overall performance rating of “I,” which resulted in Complainant being denied an annual salary raise; 11. On May 29, 2017, Complainant was placed on a Performance Improvement Plan (PIP) which was not possible to successfully complete; 12. Since May 30, 2017, S1 interfered with Complainant’s opportunity to successfully complete the PIP by refusing to meet with him, denying him the necessary training, refusing to timely answer his questions, and yelling at him; 13. Since April 4, 2017, Complainant had been subjected to a hostile work environment as evidenced by multiple incidents involving S1 and a Labor and Employment Relations Specialist (LERS) who reviewed Complainant’s harassment allegations assisted S1 in retaliating against and harassing Complainant; 14. On July 17, 2017, Complainant requested a reasonable accommodation for a possible concussion he sustained, but S1 did not respond; 2020001339 3 15. On August 1, 2017, Complainant was issued a letter of reprimand; and 16. On August 1, 2017, S1 physically attacked Complainant. The Agency investigated each complaint separately and thereafter provided Complainant with copies of the investigate reports and notice of his right to request hearings before an EEOC Administrative Judge (AJ). The AJ assigned to the matters consolidated the complaints. On October 29, 2018, the Agency filed a motion for summary judgment. On September 25, 2019, the AJ assigned to the case granted the motion and issued a decision finding that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued its final order fully implementing the AJ’s decision. The instant appeal followed. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of 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 fact is “material” if it has the potential to affect the outcome of the case. 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. (as revised, August 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). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. 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 fact-finder could not find in Complainant’s favor. Disparate Treatment Generally, discrimination claims are examined under the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). For Complainant to prevail, he must first 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. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). 2020001339 4 The prima facie inquiry may be dispensed in this case, however, since S1 articulated a legitimate and nondiscriminatory reasons for his actions. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to claim (1), S1 issued Complainant the Letter of Warning based on his performance deficiencies and missed deadlines that related to the most basic elements of Complainant's position. Regarding claim (2) Complainant being relieved of anti- money-laundering duties, S1 stated that he took that action in response to Complainant’s own request and later asked Complainant to resume those duties based on the needs of the office. With respect to claim (3), Complainant did receive guidance and assistance from S1 on the relevant topic, and S1 stated he was willing to allow Complainant to attend the training in question when it was available. As to claim (4), S1 stated that while the Agency’s policy allows overtime, its practice had been to grant compensatory time only, and that he did not have the authority to approve overtime. Regarding claim (5), the audit was initiated by the Government Accountability Office as part of its bi-annual audits of random travel expense reports submitted by Agency employees. With regard to claim (6), the Associate Director stated that he could not support Complainant’s request because it would keep Complainant out of his normal position during a critical time period during which Complainant needed to be engaged in his regular duties. With respect to claim (8), S1 averred that Complainant had demonstrated a continuing pattern of performance deficiencies, including failure to attend or monitor exams that were in his risk areas. Regarding claim (9), S1 denied that he ever disclosed information about Complainant’s EEO complaint to anyone on his staff and averred that a coworker and the EEO investigator had approached him to discuss the need for cooperation in the investigation and the interview schedule. As to the presence of the security guard, S1 and several employees had expressed concerns about Complainant’s aggressive behavior toward them, and that in response to those concerns, S1 received approval from his supervisor to post the security guard. Regarding incidents (10) through (12), according to S1, Complainant’s performance deficiencies were thoroughly documented in his mid-year 2017 appraisal and in the PIP and were the basis for a subsequent removal action.2 As to incidents in claim (13), S1 averred that what Complainant called criticism and excessive scrutiny was his effort to get Complainant to improve his performance. S1 pointed out that providing daily and weekly updates was part of his responsibility as Complainant’s supervisor to monitor Complainant’s performance under the PIP. As for the LERS, she was assigned to investigate an internal harassment complaint filed by Complainant against S1. The LERS conducted the investigation and concluded based upon its results that there was no evidence to support Complainant’s harassment allegations. Regarding claim (14), Complainant was marked absent without leave (AWOL) for five days in July because the medical documentation he submitted in support of that absence was deemed insufficient and he failed to provide the appropriate documentation. 2 Complainant filed a Merit Systems Protection Board (MSPB) appeal regarding his removal. The MSPB Administrative Judge issued an initial decision on November 13, 2018, upholding the removal. 2020001339 5 Likewise, Complainant did not comply with management’s request to provide information that would enable the Agency to respond to Complainant’s request for a reasonable accommodation. As to claim (15), the letter indicates that Complainant had behaved inappropriately toward S1 and the LERS assigned to conduct the harassment investigation. Finally, concerning Complainant’s allegation that S1 attacked him physically as alleged in claim (16), S1 averred that when Complainant refused to sign the letter of reprimand, he took it back from Complainant. Complainant later filed an assault charge against S1 which was ultimately dismissed by the County Prosecutor’s Office. Complainant filed other charges against S1 as well, in an attempt to derail the PIP process. Complainant now bears the ultimate burden to show that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Questions of pretext can be raised by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for reconsid. den’d EEOC Request No. 0520080211 (May 30, 2008). Indicators of pretext include discriminatory statements or past personal treatment attributable to those responsible for the personnel action that led to the filing of the complaint, comparative or statistical data revealing differences in treatment across various protected-group lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. U.S. Postal Serv., EEOC Appeal No. 0120141697 (Nov. 12, 2015). Apart from his own assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than himself nor documents which contradict or undercut Agency management’s proffered explanations for its actions, which raise questions about S1’s veracity as a witness, or which raise genuine issues of material fact regarding the presence of at least one of the indicators of pretext listed above. Accordingly, the Commission finds that Complainant was not subjected to discrimination or reprisal as alleged. Hostile Work Environment To establish a claim of hostile work environment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2020001339 6 In short, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Here, the Commission agrees with the AJ that, construing the evidence in the light most favorable to Complainant, the totality of the incidents alleged were not sufficiently severe or pervasive to establish a hostile work environment. Even assuming that the conduct alleged was sufficiently severe or pervasive to create a hostile work environment, we find that Complainant has not shown that any of the alleged incidents were motivated by discriminatory or retaliatory animus. The record reflects that the alleged incidents were more likely the result of routine supervision and general workplace disputes and tribulations. As a result, the Commission finds that Complainant was not subjected to a discriminatory or retaliatory hostile work environment as alleged. Denial of Reasonable Accommodation As to Complainant’s claim that the Agency failed to provide him with a reasonable accommodation with respect to incident (14), agencies are required to reasonably accommodate the known limitations of qualified individuals with disabilities unless they can show that doing so would result an undue hardship upon their operations. See 29 C.F.R. §§ 1630.2 (o), (p); EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Enforcement Guidance), EEOC Notice No. 915.002 (Oct. 17. 2002); Barney G. v. Dep’t. of Agric., EEOC Appeal No. 0120120400 (Dec. 3, 2015). On appeal, Complainant argues that he had a stutter and that his condition constituted a disability. However, Complainant himself admitted that when he asked for a reasonable accommodation on July 17, 2017, it was not for his stutter but rather for a “possible concussion.” S1 affirmed that when Complainant notified him of his possible concussion, he provided Complainant documentation to complete to request an accommodation. S1 confirmed that Complainant did not submit the requested documentation or provide medical documentation in support. Based on these circumstances, the Commission finds that the Agency did not deny Complainant reasonable accommodation in violation of the Rehabilitation Act. CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2020001339 7 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. 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). 2020001339 8 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 August 3, 2021 Date