[Redacted], Stan H., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency.

Equal Employment Opportunity Commission

Feb 7, 2022

Appeal No. 2021000053 (E.E.O.C. Feb. 7, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan H.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Food and Drug Administration), Agency. Appeal No. 2021000053 Hearing No. 531-2016-00296x Agency No. HHS-FDAOC-102-15 DECISION On September 29, 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 final action 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-2210-13 at the Agency’s headquarters in Bethesda, Maryland. On December 22, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American), color (Black), age (41), and 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. 2021000053 2 1. On August 15, 2015, Complainant was informed by the Acting Branch Chief (C1) that he was not selected for the GS-2210-14, Supervisory IT Specialist (Telecom Lead) position; 2. Complainant was not paid for the work he did as the GS-14 Acting Supervisory, IT Specialist (Telecom Lead) beginning in January 2014 to September 2014; 3. Complainant sought clarification from the C1, the Deputy Director (DD), and the Director (D1) regarding his Supervisory role for 2015 and why his Performance Management Appraisal Program (PMAP) was listed as a non-supervisor; and 4. Complainant’s 2015 PMAP was very low compared to his mid-year review on July 29, 2015.2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s December 4, 2017, motion for a decision without a hearing and issued a decision without a hearing on July 10, 2020. As an initial matter, the AJ noted that claim 3 did not involve an adverse employment action and therefore, failed to state a claim. For claims 1 and 2, he found that Complainant failed to establish a prima facie case of race discrimination because Complainant did not offer any evidence of similarly situated persons outside of his protected class who were treated differently. The AJ also determined that Complainant failed to establish a prima facie case of reprisal for claims 1 and 2 because the events occurred prior to September 3, 2015, the date of Complainant’s initial contact with the EEO counselor in the instant matter and his only EEO activity. See Report of Investigation (ROI) at 101; Ex. D to Agency’s Motion for Summary Judgment at 15. As for claim 4, the AJ found that, assuming Complainant had established a prima facie case of both race and reprisal discrimination, the Agency had provided a legitimate, nondiscriminatory reason, i.e., that the PMAP was based on the information provided by Complainant regarding his accomplishments for the year. The AJ observed that Complainant chose to only provide information about his non-supervisory activities. Therefore, concluded the AJ, Complainant did not establish that the Agency’s legitimate, nondiscriminatory reason was a pretext for discrimination. The AJ also found that Complainant had not established a hostile work environment because he failed to present any evidence linking his claims to any protected basis. 2 Complainant later withdrew his claim of age discrimination. See Report of Investigation (ROI) at 102. 2021000053 3 On September 4, 2020, the Agency issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.3 CONTENTIONS ON APPEAL Complainant did not submit any arguments on appeal. In response, the Agency argues that the AJ properly issued summary judgment because there are no genuine issues of material fact in dispute. On the merits, the Agency contends that the AJ correctly found that Complainant failed to establish a prima facie case because he had not identified any similarly situated employees who were treated differently. The Agency also notes that even assuming Complainant established a prima facie case, he did not present any evidence to show that the Agency’s legitimate, nondiscriminatory reason for its actions was pretext for discrimination. 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”). Summary Judgment We will first 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). 3 We note that because the Agency did not issue its final order until more than 40 days after receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). 2021000053 4 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 oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant asserted, without evidence, that issues of fact existed which should preclude a decision without a hearing. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Therefore, we find that the AJ properly determined that the issuance of a decision without a hearing was appropriate. Disparate Treatment To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). As an initial matter, we find that the AJ correctly determined that claim 3 fails to state a claim. Simply seeking clarification from his supervisors concerning his PMAP does not constitute an adverse employment action. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994) (defining an “aggrieved employee” as one who suffers a present harm or loss 2021000053 5 with respect to a term, condition, or privilege of employment for which there is a remedy). With regard to the basis of reprisal, the Commission interprets the statutory retaliation clauses “to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.” EEOC Compliance Manual, Section 8 (Retaliation) at 813, 8-14 (May 20, 1998). The action in claim 3 is not one that is likely to deter an individual from engaging in EEO activity. With respect to the remaining claims, even assuming, for purposes of analysis only, that Complainant established a prima facie case, the Agency has presented a legitimate, nondiscriminatory reason for its actions. Regarding claim 1, D1, the selecting official for the GS-14 Supervisory IT Specialist position, stated that he did not take any action to move forward with the vacancy because management was engaged in an ongoing dialogue about restructuring the organization. See ROI at 217-18. Complainant confirmed that no one was selected for the position. See ROI at 101-102. As for claim 2, the Agency explained that there was a delay in processing Complainant’s temporary pay increase. The record reflects that, beginning in January 2014, Complainant served as an acting Supervisory IT Specialist in the Network Operations Center and then in the Enterprise Communications Network Team. See ROI at 26. Complainant testified that he accepted the temporary promotions with the understanding that until the paperwork for the temporary promotion was processed, he would continue to be paid at the GS-13 level. See Ex. A, Comp’s Opp. to Motion for Summary Judgment, at 23. The DD explained that due to an increase in staff reorganization, it took some time for the temporary promotion to be approved. See ROI at 227, 235-36. The Deputy Chief Information Officer further stated that, at the time, issues with Human Resources resulted in vacancies remaining unfilled. See ROI at 247. In April 2015, Complainant’s temporary pay increase to a GS-14 Supervisory IT Specialist position was processed. See ROI at 103, 303. With respect to claim 4, Complainant’s low rating on his 2015 PMAP, the record reflects that the first page of Complainant’s 2015 PMAP identified him as being in a Supervisory position of GS- 13 IT Specialist Program Manager while the remaining pages included the phrase “Template- Nonsupervisory.” See ROI at 289-302. C1, Complainant’s second-level supervisor, stated that employees only receive one PMAP per year and she requested that Complainant submit all his accomplishments for the year. See ROI at 229. Complainant admitted that he did not offer information regarding his supervisory duties, citing the limitations of the non-supervisory PMAP template he was provided. See Ex. D, Agency Mot. For Summary Judgment, at 60-61. He also attested that the lower rating was based on his submitted accomplishments for the non- supervisory position. See id. We further find that Complainant has not established that the Agency’s stated, legitimate, nondiscriminatory reasons for its actions was pretextual. In an effort to show pretext, Complainant only stated that he believes D1 is stereotyping him as an “angry black man,” because C1 told him that D1 described him as having an “attitude problem.” See ROI at 101- 102. 2021000053 6 Even assuming that D1 made the alleged comment about Complainant, it is not clear that it refers to any protected category. We further note that, with respect to claim 2, Complainant did not submit any evidence of other similarly situated employees who were treated differently. Instead, Complainant admitted that there were numerous other employees who served in acting positions and were not paid at the associated higher-grade level, as established by the instant record. See ROI at 105, 260; Ex. G, Agency Mot. For Summary Judgment, at 29-31. There is no evidence in the record to support Complainant’s assertions of discrimination based on any of his protected classes. Mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We therefore affirm the Agency’s determination that Complainant did not establish that he was subjected to disparate treatment due to any protected basis. Hostile Work Environment To establish a claim of hostile environment harassment, Complainant must show that: (1) he is a member of 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 the 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); see also Flowers v. Southern Reg’l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001); Humphrey v. U.S. Postal Serv., EEOC Appeal No. 01965238 (Oct. 16, 1998). As noted above, regarding claims 1, 2, and 4, Complainant did not prove he was subjected to disparate treatment because of his protected basis. Therefore, a case of harassment is precluded based on our finding that Complainant did not establish that any of the actions taken by the Agency were motivated by his protected bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). 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 finding of no discrimination. 2021000053 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). 2021000053 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 February 7, 2022 Date