[Redacted], Scott K., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Oct 28, 2021

Appeal No. 2020004088 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scott K.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Contract Management Agency), Agency. Appeal No. 2020004088 Hearing No. 520-2019-00320X Agency No. DCAA-CASE-FD18-007 DECISION On July 7, 2020, Complainant filed an appeal, per 29 C.F.R. § 1614.403(a) with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s June 30, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Senior Auditor, GS-0511-12, at the North Central Branch Office, Field Detachment, Rochester Office in Rochester, New York. Complainant was removed for unacceptable performance effective September 4, 2018, and appealed this to the Merit Systems Protection Board (MSPB) on September 20, 2018, alleging sex discrimination. 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. 2020004088 2 Meanwhile, on November 7, 2018, Complainant filed an EEO complaint alleging that after he was transferred to a female Supervisory Auditor’s team, who became his direct supervisor (“S1”), he was subjected him to harassment/hostile work environment based on his sex (male) and reprisal for prior EEO activity when under Title VII when: 1. In October 2017, his request to transfer off S1’s team to another team was denied by his Branch Manager - who is his second line supervisor (“S2” - female). 2. Since October 1, 2017, S1 did not give him work-related training, adequately familiarize him with his assignment to the mobile-audit team, and he got less managerial guidance and attention than his female coworkers. 3. Around March 2018, S1 gave him an “Unacceptable” performance rating. 4. On April 3, 2018, he was placed on a Performance Improvement Plan (PIP) which was implemented in a manner by S1 and S2 that would not allow him to succeed. For example, he did not receive any relevant training or guidance and was assigned unreasonable workloads during the PIP. 5. On or about July 9, 2018, he was “ambushed” by S1 and a female Supervisory Auditor of another team (“Team 2 Supervisor”) who informed him he failed his PIP and she was recommending his removal. 6. S1 assigned the female auditors on his team more desirable work related tasks, first choice on assignments that were more interesting, and fewer high demand work related tasks than him. 7. During 2018, he was treated differently by S2 when she did not investigate his report that a blue filmy goo was put on the backside of his desk drawer handle, but investigated an incident S1 reported happened to her around the same time. The Agency did an EEO investigation on the complaint, and around May 9, 2019, Complainant asked for a hearing before an EEOC Administrative Judge (AJ). Meanwhile, on May 21, 2019, following a hearing, an MSPB Administrative Law Judge (MSPB Judge) issued an initial decision upholding the removal charge and finding no sex discrimination. She ruled that before an agency initiates an action for unacceptable performance under 5 U.S.C. § 4303, it must give the employee a reasonable opportunity to demonstrate acceptable performance. The MSPB Judge found the Agency gave Complainant formal training in conducting audits and disagreed with his contention that he lacked a reasonable opportunity to improve his performance during the PIP. 2020004088 3 In finding no sex discrimination, the MSPB Judge recounted Complainant was previously viewed by male supervisors as having severe performance issues. Specifically, for the period of October 1, 2014 - September 30, 2015, a Supervisory Auditor (“Team 3 Supervisor”) rated Complainant’s performance as Unacceptable and put him on a PIP starting January 19, 2016, and for the period of October 1, 2016 - March 31, 2017, another male Supervisory Auditor (“Team 4 Supervisor”) rated him Minimally Successful. That rating level ceased to exist after May 2017, when the Agency switched to the three tiered rating system of Unacceptable, Fully Successful, and Outstanding. The MSPB Judge further reasoned that S1 rated a female auditor Minimally Successful for the period of October 1, 2016 - March 31, 2017, and Complainant acknowledged another female Auditor retired after learning S1 was going to place her on a PIP. On June 23, 2019, Complainant filed with the Board a petition for review of the MSPB Judge’s decision. We take administrative notice that the petition is still pending before the MSPB. Meanwhile, on June 28, 2019, Complainant filed another petition for review of the MSPB Judge’s decision with the United States Court of Appeals for the Federal Circuit. The Court, via an August 16, 2019 order, which recounted the full MSPB procedural history above, transferred the court matter to the United States District Court for the Western District of New York. Meanwhile, after the Agency filed a motion for summary judgment in the case before us with an EEOC AJ, which Complainant opposed, on June 26, 2020, the AJ issued a decision by summary judgement. The AJ found that because all seven of the alleged hostile work environment incidents occurred after Complainant initiated EEO counseling on August 26, 2018, he could not make out a retaliation claim. The AJ found that Complainant did not prove sex discrimination. Specifically, the AJ found incident 1 concerned the denial of Complainant’s request in October 2017, to transfer from S1’s team just a few weeks after being placed on it. The AJ found Complainant was not similarly situated to the female comparative employees cited because they were not supervised by S1 or requested to be moved from her team after only a few weeks, and he did not point to any evidence creating a reasonable inference of sex discrimination. On incident 2, the AJ found that the record showed S1 gave Complainant extensive one-on-one guidance and he did not request or was denied any trainings. Incident 3 regards Complainant’s mid-year progress review by S1 for the period of August 5, 2017 - December 31, 2017, which he received on February 6, 2018, indicating he needed improvement in audit planning and approach, monitoring audit timeliness and budgeted hours, auditing quality in numerous specified ways, and documentation and reporting results. Regarding issue 3, the AJ found the record showed Complainant had extensive performance issues during the 2017 - 2018 performance year, and after being promoted to GS-12 in 2013 was never rated Fully Successful - only Minimally Successful or Unacceptable, all by male supervisors whose appraisals were remarkedly consistent with S1’s review of Complainant’s performance and her rating. The AJ found this undermined Complainant’s assertion that S1 engaged in sex discrimination and the record contained no evidence from which a reasonable inference of sex discrimination could be drawn. 2020004088 4 Incident 4 regards Complainant being placed on a PIP on July 1, 2018, which lasted 98 days, and S1 and S2 implementing it in way that would not allow him to be successful by not giving relevant training and an unreasonable workload. The AJ found Complainant received adequate training, he was given two assignments which was not an unreasonable workload, and the record was devoid of evidence of discriminatory intent. Incident 5 regards Complainant being “ambushed” on July 9, 2018, by S1 and Team Supervisor 2, who S1 used as a witness, with the information that he failed his PIP and she was recommending his removal. The AJ found that while the notice may have been abrupt, nothing beyond Complainant’s speculation pointed to a discriminatory motive in the method of notice. On incident 6, the AJ found Complainant did not identify what qualified as “interesting work” he was denied or “high demand” work he got too much of, and pointed to nothing but his subjective belief on disparate assignments. Incident 7 concerned S2’s investigation of separate incidents involving Complainant and S1, the AJ found this claim of discrimination was only supported by Complainant’s generalized assumption, and this matter did not rise to the level of actionable harassment. By final order, the Agency fully implemented the AJ’s decision. The instant appeal followed. Meanwhile, on September 9, 2021, the United States District Court for the Western District of New York issued a written decision on Complainant’s removal. On the MSPB Judge sustaining the Agency’s removal performance charge, the Court noted Complainant was only entitled to judicial review of the administrative record and affirmed the MSPB Judge because there was substantial evidence supporting this charge. The Court found the record was replete with documentation of Complainant’s performance issues dating back to 2015 when he was supervised by other males. It found the MSPB Judge’s rejection of his testimony that he was unable to improve his performance due to external factors was based on credibility and virtually unreviewable. In granting the Agency’s motion for summary judgment and finding no sex discrimination on the removal the Court, using the de novo standard, found that while two female auditors were transferred to the same team which Complainant requested and was denied, the evidence did not show he was similarly situated to them, that S1 rated two female auditors less than Fully Successful, one of whom retired before she could be placed on a PIP, that Complainant’s subjective disagreement with S1’s assessment of his performance was insufficient to prove sex discrimination. Complainant’s appeal to the appellate court is pending. ANALYSIS AND FINDINGS As an initial matter, under the doctrine of res judicata, a final judgment on the merits bars further claims by the same parties based on the same claim or cause of action and issues relevant to that claim, treating the judgment as the full measure of relief to be accorded between the same parties. Under true res judicata, when the judgment is rendered for the defendant, the plaintiff's claim is extinguished, and the judgment then acts as a bar. A doctrine under res judicata is collateral estoppel or issue preclusion. It recognizes that suits addressed to particular claims may present issues relevant to suits on other claims. Thus, issue preclusion bars the re-litigation of issues actually adjudicated and necessary to the judgment in a prior litigation between the parties. 2020004088 5 In the administrative process, these doctrines apply to claims which were fully litigated before the MSPB. Syndor v. Office of Personnel Management, EEOC Appeal No. 0120101050 (June 3, 2010). While we find the MSPB Judge’s determination that Complainant had a reasonable opportunity to improve his performance during the PIP was necessary to the MSPB Judge’s judgment upholding the removal, because the removal is still pending before the full Board and a federal court of appeals, there has been no final judgment and res judicata does not apply. The Commission's regulations allow its administrative judges to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. To prevail on his disparate treatment claims, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally 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. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2020004088 6 For purposes of analysis, we will assume without finding that Complainant engaged in prior protected oppositional activity, and S1 and S2 were aware of this. On appeal, Complainant argues that S1’s assessment was fraudulent that his performance was unacceptable during the PIP, that he was assigned work during the PIP he was not trained to do, and he was subjected to harassment and discrimination. In reply, the Agency requests that its final order be affirmed. Complainant disagreed with S1’s assessment that she gave Complainant an opportunity to be successful during the PIP by assigning him a progress payment audit which was the type of audit successfully performed by a GS-07 auditor and an incurred cost audit for a non-major segment of their major contractor with intensive training in the form of step by step guidance on how to complete these assignments, but he has not shown her assessment was pretext to mask discrimination. This is also true regarding S1’s assessment of Complainant’s overall performance. We note Complainant stated incident 5 actually concerned S1 including the Team 2 Supervisor as a witness to her advising him he failed his PIP and was recommending his removal, which he viewed as an invasion of privacy. But he has not shown that S1’s explanation that she did so, with prior clearance from Human Resources, S2 and S2’s supervisor because she feared how Complainant would react was pretext to mask discrimination. We find that the EEOC AJ properly found no discrimination because Complainant has not established a nexus between his sex and EEO activity regarding all his claims herein. The Agency’s final order 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). 2020004088 7 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. 2020004088 8 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 October 28, 2021 Date