U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stacey R.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Bureau of Alcohol, Tobacco, Firearms & Explosives), Agency. Appeal No. 2020004725 Agency No. ATF-2019-00469 DECISION On August 7, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), per 29 C.F.R. § 1614.403(a), from a July 21, 2020 final Agency decision (FAD) on 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 Human Resources (HR) Specialist (Recruitment and Placement), GS-0201-13 in the HR Operation Division, Professional & Technical Staffing Branch until October 15, 2018, then transferred to the co-equal Executive & Supervisory Staffing Center. The Branch and the Center are on the staffing side of the HR Operation Division, in Washington, D.C. On May 24, 2020, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile working environment based on race (African American) and sex (male) when: 1. On October 29, 2018, he got an annual performance appraisal of “Fully Successful” for his performance in the Branch by the Branch Chief (Black female), his direct supervisor 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. 2020004725 2 there, for the period of October 1, 2017 - September 30, 2018, lower than he previously received. 2. On November 19, 2018, the Center Chief - his new direct supervisor (“S1” race - “other”, male); the Deputy Chief, HR Operation Division, staffing side - his second line supervisor (“S2” African-American female); and the Chief of the HR Operation Division, his third line supervisor (“S3” Caucasian male) denied his request to continue having outside employment. 3. On November 30, 2018, S1 after consulting S2 denied his compensatory time request to complete an assignment due on November 30, 2018. 4. From January 28, 2019 thru February 26, 2019, S1 denied his sick leave requests. 5. On or around February 2019, S1 revoked his telework privileges. 6. He got a formal Letter of Reprimand by S1 dated February 7, 2019. 7. On March 8, 2019, S1 suspended his participation in the Health Improvement Program. 8. From November 13, 2018 to March 15, 2019, S1 denied his annual leave requests. 9. By written notice dated March 22, 2019, S1 put him on administrative leave effective March 22, 2019 through April 1, 2019, 10 consecutive days. 10. On April 9, 2019, management referred him to Internal Affairs Division for investigation.2 Following an EEO investigation, the Agency gave Complainant a report thereof and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). He requested a FAD without a hearing. The FAD found no discrimination. The instant appeal followed. On appeal, the parties make no comment. 2 The Agency dismissed incidents 8 - 10, as individually actionable claims because Complainant did not timely initiate EEO counseling on them but accepted them as part of his hostile work environment claim. On appeal, Complainant does not contest this. 2020004725 3 ANALYSIS AND FINDINGS In the annual appraisal (incident 1), the Branch Chief was critical of Complainant’s performance, writing as follows. Complainant did not demonstrate the level of performance seen in previous years, nor as expected. In numerous instances he was behind on posting job vacancy announcements and determining which applicants were qualified, including routine positions that could be done quickly causing complaints by manager customers and applicants. Complainant could not give a reasonable or detailed explanation on why. He was counseled on this. In many instances, Complainant only did the above tasks and other work with constant prompting from other HR Specialists, the Branch Chief, and S2, who all assisted in doing his work to alleviate complaints. Also, complaints by payroll customers evidenced errors and delays by Complainant in setting pay, onboarding, and effective dates, and employees who wanted their promotions processed also complained. Payroll and manager customers complained Complainant did not notify them so they could take steps required on their end to onboard new employees. Complainant did not do well in managing his caseload. In his EEO investigatory affidavit, Complainant wrote that considering the staff shortage, he performed well. In the appraisal, the Branch Chief conceded there were staff shortages, but noted Complainant’s service areas were comparable to others in the Branch. When Complainant transferred from the Branch to the Center, he brought his old caseload with him, including a recruitment action with a vacancy announcement with an August 23, 2018 application deadline covering multiple locations. In the week of November 12, 2018, with still no certificates of best qualified candidates a selection official uses to select from, S1 told Complainant this was unacceptable and at S2’s direction gave him until November 30, 2018 to finish. On November 26, 2018, S1 and S2 met with Complainant to get status updates on this and other recruitment actions. At the time, none of the certificates due on November 30, 2018, were issued. Complainant stated he explained that the Branch Chief had told him the priority was completing new vacancy announcements, not getting the above certificates done. Complainant stated he explained there was a system malfunction that caused the names of all the applicants to populate in the certificates for all geographical areas, and this work must be submitted to a Compliance Specialist for review, which can hold things up. S1 wrote as follows. Complainant’s explanations at the meeting were vague and ambiguous, and he said he was not sure why the population issue was occurring. S2 told Complainant she expected him to give specifics about his cases, especially the one with the November 30, 2018 deadline, and he replied he did not have time to prepare and his workload prevented him from finishing. S2 countered this was not an acceptable explanation since there was no movement on the recruitment since August 2018, he received help from the Branch Chief, S1 and S2, and asked again for clarification on why the certificates were not issued. 2020004725 4 Complainant got argumentative and repeatedly told S2 she did not understand the staffing process and interrupted her. S2 asked Complainant not to be disrespectful, told him all the certificates must be issued by November 30, 2018, no excuses would be accepted, asked if he understood and Complainant replied, “I do but I feel sorry for you” and turned to S1 and said the same thing. On February 7, 2019, S1 issued Complainant a letter of reprimand for inappropriate, disrespectful, and unprofessional behavior at the above meeting (incident 6), which would remain in his official personnel file for two years. In his February 22, 2019 reply, via his attorney, Complainant stated the intention of his sorry remark was that he did not want to bring any confusion to the Center. He denied being argumentative or disrespectful. S2 stated that S1 reprimanded Complainant, with her support, for being disrespectful to her. Complainant stated S1 told an HR Specialist (Compliance), GS-14 that he denied Complainant’s request for compensatory time (incident 3) to complete the certificates due on November 30, 2018, because he missed the deadline. But S1 explained the denial was because Complainant did not request it in advance. The above Compliance Specialist stated she had no knowledge of this denial of compensatory time matter. Since he started working for the Agency in 2015, Complainant had an agreement allowing him to have outside employment, which he did while working for the Branch Chief. He took some time off to do this. S1 stated he discontinued approval of Complainant having outside employment (incident 2) in November 2018, because Complainant’s work performance and attendance spiraled in a downward trend of failing to meet deadlines, sloppy work, and not taking care of his customers, and separately wrote he felt it impeded his ability to do his Agency job duties. S1 did this with the written approval of S2 and S3. S1 stated he did not deny Complainant any sick leave from January 28, 2019 thru February 26, 2019, as alleged (incident 4). Complainant’s EEO investigatory affidavit indicates this matter actually concerns S1 requiring that to get approval for sick leave requests for medical appointments, he must submit a note in advance confirming the appointment was made. S1 stated he did this on the advice Agency counsel because Complainant was suspected of using sick leave to perform outside employment. S2 stated S1 did so because S1 suspected Complainant of this. Under his September 2016 telework agreement Complainant was to telework for short times as needed on an irregular basis during inclement weather, to focus on special projects, etc., but the Branch Chief allowed him to telework much more to give him more flexibility to get Agency work done while having outside employment, and because Complainant liked working late hours. S1 denied Complainant’s allegation that he revoked his telework privileges (incident 5), explaining his telework agreement only covered inclement weather. S2 stated S1 did not approve Complainant for expanded telework because of his poor performance. 2020004725 5 Participants in the Health Improvement Program (HIP) were given excused absence to exercise for fitness up to three hours per work week. Incident 7 concerns S1 suspending Complainant’s participation in HIP on March 8, 2019. S1 stated he did so because of Complainant’s poor work performance and attendance. In his EEO investigatory affidavit, Complainant added that on his 30 minute lunch break on March 11, 2019, he was working out and S1 harassed him by in an angry and aggressive manner approaching him in the gym and asking why he was there since his HIP privileges were suspended. But one of Complainant’s coworkers, a HR Specialist, GS-13, stated he witnessed Complainant’s supervisor come into the “HIP Center”, and say to Complainant he did not have HIP privileges and lunch was 30 minutes. The witness stated Complainant was there 45 minutes to an hour, and S1 said he needed to return to work. S1 related that he asked Complainant in the gym why he was there, and he responded by saying “I’m at lunch!” and stepping toward him. S1 stated he denied Complainant’s annual leave requests (incident 8) because of his poor work performance and attendance. Complainant’s statement indicates S1 also cited his caseload On March 15, 2019, Complainant emailed S1 asking for a telework agreement that allowed much more telework, and approval to work on Sunday, and on March 18, 2019, S1 curtly denied this, adding his excessive sick leave usage was affecting his performance. Hours later, Complainant emailed back that S1’s behavior was antagonizing and unprofessional, that “All of this will come to an end soon,” and finished by writing one day they would come to an agreement and move on. S1 related that on March 21, 2019, he entered Complainant’s cubicle to talk and Complainant aggressively jumped from his seat and taken aback asked why he did that and Complainant responded, “I have to defend myself!” By memo to Complainant on March 22, 2019, S1 with S2’s concurrence placed him on paid administrative leave for 10 consecutive days through April 1, 2019, explaining this was to give him time away to cool off, and was not discipline (incident 9). In his EEO investigatory affidavit, S1 stated he did this because of Complainant’s hostile remarks and body language toward him and he viewed the language in the email about all this ending soon as a threat. S2’s statement corroborated this. S1 stated he referred Complainant to the Internal Affairs Division (incident 10) because he threatened him and he suspected he continued to do outside employment, albeit the record documentation only relates to the first reason. 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). She must generally establish a prima facie case by demonstrating that she 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. 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). 2020004725 6 To establish a claim of harassment, 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 her statutorily protected class; (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 employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been "sufficiently severe or pervasive to alter the conditions of [complainant's] employment and create an abusive working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., OLC Control #EEOC-CVG-1194-5 (Mar. 8, 1994). The Branch Chief’s explanation for giving Complainant a Fully Successful rating was detailed and persuasive. She stated that while she gave Complainant an appraisal with an Outstanding rating for the period of October 1, 2015 - September 30, 2016, and an appraisal with an Exceeds rating for the period of October 1, 2016 - September 30, 2017, his performance kept decreasing. The FAD credited the Branch Chief’s reasons. Complainant’s disagreement with the Fully Successful rating is not evidence of pretext. Complainant contended that the Branch Chief’s letting him telework routinely and use annual leave as needed or work at night allowed him to have outside employment and perform well with accolades from customers. While Complainant may have gotten accolades from customers, the Branch Chief indicated that by his third year working for her payroll customers, hiring manager customers, and applicants all complained about Complainant’s service, she gave specific examples of this, and other HR Specialists, the Branch Chief and S2 had to prompt him and assist him in doing his work. Management explained that that it discontinued its approval of Complainant having outside employment, revoked his telework privileges, suspended his participation in HIP, and denied his requests for annual leave because of his poor work performance, e.g., making errors, not getting work done, not taking care of his customers, and customers and applicants complaining. The FAD found that Complainant did not show management’s assessment of his performance was discriminatory and noted multiple management officials over time had the same assessment - the Branch Chief, S1 and S2, and Complainant did not prove pretext. We agree. S1 explained that he denied Complainant’s compensatory time request because he made it untimely. While Complainant stated S1 gave the Compliance Specialist a different reason for denying the compensatory time request, the Compliance Specialist denied any knowledge of the matter. S1 explained he required that to get approval for sick leave for medical appointments, Complainant must submit a note in advance confirming the appointment was made because he suspected he was using leave to perform outside employment. 2020004725 7 With Complainant’s declining performance and consternation over being prohibited from continuing to have outside employment, S1’s stated belief is credible. The FAD recounted S1’s explanations, and found Complainant failed to prove pretext. We agree. By the time S1 put Complainant on 10 days of paid administrative leave as a cooling off period on March 22, 2019, and later referred him the Internal Affairs Division, Complainant had very recently acted in ways S1 indicated was threatening, i.e., S1 related that when he approached Complainant in the gym on March 11, 2019, and asked why he was there (lunch is 30 minutes and he was already there 45 minutes to an hour and his HIP privileges were revoked) Complainant both responded by saying “I’m at lunch!” and stepping toward him, on March 18, 2019, in response to S1’s email denying Complainant expanded telework and so forth Complainant wrote “All this will come to an end soon”, and on March 21, 2019, when S1 entered Complainant’s cubicle to talk, Complainant aggressively jumped from his seat, and S1, taken aback, asked why he did that and Complainant responded, “I have to defend myself!” Complainant’s email above was heated - accusing S1 of trying to “bury” him, being antagonizing, and belittling S1 for talking about how he will retire in few years with two pensions as “braggadocios tales”. And this behavior happened just after S1 disciplinarily reprimanded Complainant on February 7, 2019, for inappropriate, disrespectful, and unprofessional behavior. The FAD found that Complainant did not show that S1’s perception of Complainant’s behavior as threatening was discriminatory. While, significantly, Complainant ended the above email by writing one day they would come to an agreement and move on, we agree. Such behavior by a subordinate to a superior is unexpected, making it concerning. The FAD 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). 2020004725 8 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. 2020004725 9 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 January 26, 2022 Date
