[Redacted], Terrence F., 1 Complainant,v.Robin Carnahan, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 16, 2021

Appeal No. 2020004276 (E.E.O.C. Aug. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrence F.,1 Complainant, v. Robin Carnahan, Administrator, General Services Administration, Agency. Appeal No. 2020004276 Hearing Nos. 520-2018-00106X; 520-2018-00107X; 520-2019-00170X Agency Nos. GSA-17-R2-P-0061; GSA-17-R2-P-0120; GSA-18-R2-P-0040 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 9, 2020, final order concerning his equal employment opportunity (EEO) complaints 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 order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Building Manager, GS-1176-12, at the Agency’s Public Building Service, Property Management Division in New York, NY. Complainant filed three separate EEO complaints on February 10, 2017, May 30, 2017, and April 12, 2018, respectively, alleging that the Agency discriminated against him based on race (African-American), sex (male), color (black), age (53), and in 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. 2020004276 2 1. Subsequent to September 29, 2016, Complainant was not referred to the second round of interviews for the position of Supervisory Building Manager, GS-1176- 13, advertised under vacancy announcement number 1612180AFMP (Complaint 1); 2. On March 15, 2017, Complainant was notified that he would have to complete a background investigation as a result of a change to his position description (Complaint 2); and 3. On December 22, 2017, Complainant learned that he was not referred to the second round of interviews for the position of Supervisory Building Manager, GS-1176-13, advertised under vacancy announcement number 1802102LFMP (Complaint 3). After its investigation into each complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested hearings for each complaint. The AJ assigned to all three cases consolidated Complainant’s separate complaints so that they could be adjudicated in one set of proceedings. Over Complainant’s objections, the AJ granted the Agency’s motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued its final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the reports of investigation and viewing the evidence in the light most favorable to Complainant, he failed to create a genuine issue of material fact to establish discrimination. Regarding Complaints 1 and 3, the AJ concluded that Complainant had not established a prima facie case of disparate treatment discrimination because the other employees who were referred to the second-round interview panels were not similarly situated to Complainant. The AJ reasoned that, because the referred employees gave better interview answers during the first round of interviews than Complainant did, one would expect those employees to be treated more favorably than Complainant. The AJ ultimately found that Complainant was unable to show, for either Complaint 1 or 3, a nexus between his nonreferrals to the second-round interview panels and his protected characteristics. Even assuming that Complainant had established a prima facie case, the AJ determined that the Agency’s legitimate, nondiscriminatory reasons for not referring Complainant to the second round in both cases-namely, his interview answers were insufficient and the examples he provided lacked detail-were supported by the evidence, including the panelists’ contemporaneous interview notes. The AJ further concluded that, based on the record, there was no genuine dispute regarding whether the Agency’s stated reasons were pretext for discrimination. 2020004276 3 Regarding Complaint 2, the AJ concluded that Complainant was not an aggrieved employee because he did not suffer an adverse action. After Complainant was told to complete a background investigation due to a change in his position description, he refused to comply. Complainant admitted in his submissions to the AJ that no action was taken against him for the failure to complete the background investigation. The AJ therefore concluded that there was “no triable argument in favor of Complainant’s having suffered any adverse action or materially adverse treatment so as to be an ‘aggrieved employee.’ . . . Simply put, Complainant was not harmed.” The AJ also concluded that, “even considering the lower bar” required for adverse actions in retaliation cases, the terms and conditions of Complainant’s employment remained the same even after he refused to comply with the background investigation requirement. Moreover, the AJ found that because the change in Complainant’s position description that precipitated the background investigation requirement was a “nationwide initiative,” Complainant had not been specifically targeted; in fact, 241 Agency employees across the country required new background investigations as a result of the position description change. In the alternative, the AJ found that “the legitimate business reasons motivating the Agency’s” background investigation requirement-that is, the Agency’s “standardization initiative” for all 1176 positions-were supported by the record and that Complainant was unable to prove such reasons were pretextual. 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 factfinder could find in favor of the nonmoving 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 fully implementing 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 AJ’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 factfinder could not find in Complainant’s favor and we find no discrimination for all claims in the consolidated complaints. 2020004276 4 CONCLUSION Upon careful review of the AJ’s decision and the evidence of record, including 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 fully implementing the AJ’s decision finding no discrimination. 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. 2020004276 5 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. 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 16, 2021 Date