Sidney S.,1 Complainant,v.Neil Chatterjee, Chairman, Federal Energy Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Aug 24, 2018

0120161775 (E.E.O.C. Aug. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Sidney S.,1
Complainant,

v.

Neil Chatterjee,
Chairman,
Federal Energy Regulatory Commission,
Agency.

Appeal No. 0120161775

Hearing Nos. 570-2012-00548X, 570-2014-00742X

Agency Nos. EEO2011-RTF-001, EEO2012-RTF-001

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated April 11, 2016, finding no discrimination
concerning his 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, we AFFIRM the Agency’s final decision.

BACKGROUND

At the time of events giving rise to the complaints, Complainant worked as an Energy Industry
Analyst, GS-1101-14 at the Division of Logistics and Security (L&S), Office of Electric
Reliability (OER), Federal Energy Regulatory Commission (FERC) in Washington, D.C.

On July 20, 2011, Complainant filed his first complaint, Agency No. EEO2011-RTF-001, which
was later amended. The Agency defined the complaint as whether:

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.
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(A) He was discriminated against based on sex (male) and age (over 40) when he was not
selected for the position of Supervisory Energy Industry Analyst, GS-1101-15, by the
OER under vacancy announcement MP-11-040.

(B) He was discriminated against in reprisal for prior EEO activity when: on July 26, 2011,
his performance evaluation was unjustifiably downgraded in numerical score and written
comments; and management took away additional assignments appropriate for his grade
level.

Complainant does not challenge the Agency’s framing of the claims. The record indicates that
on September 16, 2011, the Agency dismissed claim (B) for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)(1). On March 11, 2012, the Agency completed the investigation of
claim (A) and Complainant requested a hearing before an EEOC Administrative Judge (AJ).

On April 8, 2012, Complainant filed his second complaint, Agency No. EEO2012-RTF-001,
which was amended on April 24, 2012, and again on August 20, 2012. The Agency framed
Complainant’s complaint as alleging discrimination based on sex (male), age (over 40), and in
reprisal for prior EEO activity when he was subjected to a hostile work environment on the part
of his supervisors in that:

(1) Since January 11, 2012, when he sought EEO counseling, he has not been assigned to
work any other L&S teams or to work with other FERC offices on assignments, and
therefore his career development and advancement potential, as well as his ability to take
leadership roles and speak on these assignments was being prevented.

(2) Since January 11, 2012, he continued to be further isolated from interacting and
collaborating with other people on team assignments in L&S as well as other OER
Divisions and FERC offices.

(3) Since January 11, 2012, he was dismissed without explanation from a team leadership
role associated with his review and analysis of the North American Electric Reliability
Corporation (NERC)’s 2012 Business Plan & Budget filing.

(4) Since January 11, 2012, he has been given assignments as an individual contributor, and
has not been assigned to any other teams or team assignments conducted throughout
L&S, which at times may have involved other FERC offices.

(5) On March 16, 2012, he received a negative mid-cycle performance review from his first
level supervisor (S1).

(6) Beginning in April 2012, and continuing, S1 has isolated him from working on filing
teams in the Logistics Group.

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(7) S1 imposed performance standards for final work products on his draft work products, a
higher level of performance than is required by critical elements.

(8) On April 24, 2012, two days after he filed an EEO complaint alleging a hostile work
environment, his second level supervisor (S2) issued him a Letter of Warning for abusive
and disrespectful conduct.

(9) On July 6, 2012, S1 issued him an unjustified “Unacceptable” annual performance
appraisal, and informed him that he would be on a Performance Improvement Plan (PIP).
S1 also informed him that he would no longer be entitled to AWS (Alternative Work
Schedule)/Telework benefits as a result of the rating.

(10) On July 20, 2012, S1 directed another employee not to provide him with legal
assistance with an assignment regarding NERC.

(11) On August 13, 2012, S1 directed him to deliver a verbal presentation on two
Agency’s orders (FERC Order 672 and the NERC Three Year Performance Assessment)
to a panel of the Office of Energy Market Regulation (OEMR) senior management
officials. While other Logistics Group employee were assigned to give presentations
regarding their own work assignments, Complainant had little or no industry or first-hand
experience with either order or with the teams assigned to work on them.

(12) On August 15, 2012, S2 informed him that his inter-governmental outreach duties
would be transferred to another employee.

(13) He was not provided with specific opportunities to demonstrate a difference in his
performance before the end of the 2012 rating period. In particular, the two orders
mentioned above were assigned to him in May 2012, and were not acted by the Agency
by the end of the rating period.

(14) He was not reassigned away from S1’s supervision as he had requested.

Complainant does not challenge the Agency’s framing of the claims in the second complaint. On
January 9, 2013, the Agency issued its final decision dismissing the second complaint for failure
to cooperate pursuant to 29 C.F.R. § 1614.107(a)(7). Upon Complainant’s appeal, the
Commission, in EEOC Appeal No. 0120131229 (June 14, 2013), reversed the final Agency
decision and remanded the case back to the Agency for further processing. Accordingly, the
Agency accepted and investigated the complaint. During the investigation, the investigator
unsuccessfully tried to obtain Complainant’s affidavit on several occasions. On December 11,
2013, the Agency completed the investigation without Complainant’s affidavit. On January 10,
2014, Complainant requested a hearing before an EEOC AJ.

The AJ subsequently consolidated both complaints for a hearing process. During the pendency
of discovery, on February 9, 2016, Complainant withdrew his hearing requests.
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Accordingly, on February 10, 2016, the AJ dismissed the cases from the hearings process and the
complaints were returned to the Agency for the issuance of its final Agency decision. On April
11, 2016, the Agency issued its consolidated final Agency decision concluding that it asserted
legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut.
Complainant files the instant appeal.

ANALYSIS AND FINDINGS

Initially, we find that the Agency properly dismissed claim (B) for failure to state a claim. The
Agency stated that Complainant received fully successful for both his 2010 and 2011
performance appraisals and a mere difference of .2 in numerical score was not sufficient to
support a claim of retaliation. The Agency also stated that Complainant failed to provide
description as to the content or nature of the alleged adverse comments. The Agency indicated
that Complainant also failed to provide the type of work or duties that were removed from his
responsibility or provide details about assignments he no longer received following his EEO
activity. Based on the foregoing, we find that the Agency properly dismissed claim (B) for
failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Even if we were to find that this claim stated
a claim, we still find no discrimination. The appraisal is in the record and Complainant has not
shown that the narrative or numerical score in the appraisal are incorrect or motivated by
discrimination. Complainant has failed to provide any other specifics showing he was harmed,
let alone harmed by discrimination.

Turning to claim (A) and the second complaint, as this is an appeal from a decision issued
without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the agency's decision is subject to de
novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015)
(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").

After a review of the record, assuming arguendo that Complainant had established a prima facie
case of discrimination, we find that the Agency has articulated legitimate, nondiscriminatory
reasons for the alleged incidents.

Agency No. EEO2011-RTF-001

Regarding claim (A), on March 9, 2011, Complainant, an Energy Industry Analyst, GS-14,
applied for the Supervisory Energy Industry Analyst (Reliability)/Logistic Manager, GS-15,
position but was not selected for the position. The Agency indicated that it originally posted a
vacancy announcement for the subject position under MP-11-022 in January 2011. Complainant
applied for the position. But the vacancy expired without a selection.
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In March 2011, the Agency re-posted the vacancy under MP-11-039 but the posting was
removed shortly thereafter before its closing day and no applications were received.
Management indicated that they decided to close the posting because they decided to change the
qualifications for the position by removing the cyber security and critical infrastructure
protection experience requirements which were not necessary for the position. After removing
these requirements, the Agency re-posted the position under MP-11-040. Complainant applied
for this vacancy.

For the position, management was looking for someone who had experience in managing,
leading and directing teams/projects, and experience in the life cycle of the FERC order writing
process. On March 30, 2011, Complainant was notified of his nonselection for the position.
Despite Complainant’s claim, there is no evidence that the Agency’s closing of two prior
vacancy announcements, explained above, was based on discrimination as alleged by
Complainant.

The Agency indicated that the Human Resources Office referred a certificate of eligibles for the
vacancy at issue which listed four qualified candidates, including Complainant, to the Selecting
Official (SO). The SO and the Deputy Division Director interviewed those candidates and
created an evaluation matrix based on candidates’ resumes, applications, and interviews. Four
interviewees had a total score of: 4.67 (the Selectee, SE), 4.17, 3.50 (Complainant), and 2.50 (5
highest to 1 lowest). The SE, also GS-14, Energy Industry Analyst, had been employed by the
Agency since 2004, and had team leader experience, including 7 years of experience in life cycle
of the FERC order writing and coaching experience. According to Complainant’s resume, he
had been employed by the Agency since 2008, and had team leader experience, and had 10 years
of managing experience in private companies.

The SO selected the SE because the SE had the highest total matrix score and had demonstrated
strong experience in the FERC order writing process whereas Complainant’s experience was
more as a consultant and facilitator and lacked the FERC order writing process. The Deputy
Division Director stated that he personally observed both Complainant and the SE in their
workplace and he believed that Complainant had high quality of oral presentation but had a
tough time in moving his teams forward. The Deputy Division Director noted that
Complainant’s private managerial experience was in a consultant and facilitation role and not a
front-line supervisory role that was needed for the position at issue. Complainant also had very
limited knowledge of FERC order writing process. Complainant does not dispute this.

Complainant argues that the SE had been promoted to GS-15 grade level too quickly since she
graduated from college. But, other than his mere assertion, Complainant failed to demonstrate
that the SE’s career advancement was based on discrimination as alleged. The SE’s resume
indicates that she obtained Bachelor’s degree in Science in Earth Sciences in 2004, and Master’s
degree in Science in Environmental Science and Policy in 2009. Complainant’s resume indicates
that Complainant obtained Bachelor’s degree in Environmental Studies (minor Chemistry) in
1978, and took some Master’s level course work in 1993.
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Based on the foregoing, we find that Complainant failed to show that his qualifications for the
position were plainly superior to the SE’s qualifications. See Wasser v. Department of Labor,
EEOC Request No. 05940058 (November 2, 1995).

Agency No. EEO2012-RTF-001

The record indicates that the SE, described above, became Complainant’s first level supervisor
(S1) on April 11, 2011. Regarding claims (1) – (4) and (6), S1 denied she isolated Complainant
from the Logistics Group as alleged. S1 indicated that she made assignments based on Agency’s
workload/needs and Complainant’s job performance. Specifically, S1 did not recall removing
Complainant from a leadership position regarding the 2012 NERC Business Plan & Budget
filing. S1 assigned projects to Complainant as a team lead, to work with other L&S teams. and
which afforded him an opportunity to interact and collaborate with other OER divisions and
FERC offices. Complainant was assigned Docket No. RR1Z-8-00 for which he was the team
lead and Docket No. RR12-13-000.

Regarding claims (5), (7), and (13), S1 indicated that on February 29, 2012, Complainant was
provided an in-person mid-cycle performance review as S1 was required to do so for all staff
members. In that meeting, S1 identified Complainant’s performance deficiencies. On March 16,
2012, S1 provided Complainant with a written performance memo of the foregoing mid-cycle
review. S1 denied that she imposed performance standards for final work products on
Complainant’s draft work products, a higher level of performance than was required by critical
elements. Complainant was given opportunities to improve his performance in that he was given
a number of assignments, involving team meetings, email exchanges, and document productions.

Regarding claim (8), S1 stated that on April 9, 2012, S1 met with Complainant to review his
work product which was assigned to him on March 15, 2012. During the meeting, Complainant
was abrasive and condescending and challenged S1’s knowledge and authority. After the
meeting, Complainant sent a series of emails on April 9 and 11, 2012, which further disputed
S1’s authority. Based on the foregoing incidents, S1 issued Complainant the letter for warning.

Regarding claim (9), S1 indicated that Complainant’s “Unacceptable” annual performance
appraisal was based on his performance deficiencies. For examples, Complainant struggled to
complete routine assignments, required substantial supervisory guidance, struggled to
communicate effectively and struggled to complete analysis on NERC rules of procedure. S1
indicated that Complainant failed to meet his performance level to be minimally successful; thus,
he was given an “Unacceptable” level in two critical elements. Due to his failure to receive a
“Fully Successful” rating, Complainant was placed on a PIP and his AWS/Telework agreement
was revoked in accordance with the Agency’s policy.

Specifically, S1 indicated that Complainant was assigned to lead an effort to document concerns
regarding the NERC Business Plan and Budget in October 2011.
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Complainant failed to submit the first step of the outline for the project by its deadline on
January 3, 2012. Complainant does not dispute this. S1 also indicated that Complainant’s
Electric Sector Working Group (ESWG) oral briefing went beyond the designated five to ten
minute allotted time. Complainant does not dispute this. S1 stated that Complainant did not
present the foregoing briefing well. S1 also stated that Complainant’s ESWG written report was
not written clearly or concisely and contained grammatical errors.

Regarding claim (10), S1 denied the incident. Rather, S1 indicated that S1 instructed
Complainant that since the identified employee was not a member of the bar nor employed by
the FERC as an attorney, that employee should not be referred to as an attorney nor be asked to
act as one.

Regarding claim (11), S1 indicated that the assignment at issue was similar to that was given to
other Logistic Group employees. The assignment was limited to budget matters within
Complainant’s experience and job description and related in subject matter to the core work
performed by the Logistics Group.

Regarding claim (12), S2 indicated that while S2 was Complainant’s supervisor, Complainant
was assigned as FERC OER representative to the Energy Government Coordinating Council.
However, on July 29, 2012, the entire Logistics Group, including Complainant, was reassigned
from OER to the Office of Energy Markets and Regulations (OEMR). Since inter-government
outreach for the electricity sector was a function of OER and Complainant was no longer in
OER, those duties were reassigned to another employee in OER.

Regarding claim (14), the record indicates that this claim was originally stated as whether
Complainant was discriminated against when the Logistics Group (all staff) was reassigned from
OER to OEMR. After the investigation of the complaint and at the hearing stage, of which
Complainant withdrew, he clarified the claim as whether he was discriminated against when he
was not reassigned away from S1. The Agency indicates that Complainant failed to demonstrate
that the Agency was obligated to reassign him away from S1 or its action was based on
discrimination as alleged. There is no evidence that Complainant actually requested a
reassignment away from S1 and was denied.

After a review of the record, we find that Complainant failed to show that the Agency’s
articulated reasons were a mere pretext for discrimination. We note that on appeal, Complainant
merely mentions that he was constructively discharged when he resigned from his employment
at the Agency on November 16, 2012. The record indicates that the subject claim was not
accepted by the Agency; Complainant did not claim that the Agency misdefined the claims in the
complaints; and he did not try to amend his complaints with the Agency to include the subject
claim. The record also indicates that on December 11, 2015, Complainant filed a Statement on
Dismissed Charges to the AJ wherein which he asked the AJ to accept dismissed retaliation
claims and constructive discharge claim. On January 13, 2016, the AJ denied the request. Since
Complainant does not argue on appeal that a constructive discharge claim was improperly not
included in his complaints, we need not discuss such.
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Regarding the claim of harassment, management indicated that Complainant never complained
that he was subjected to harassment. After a review of the record, we find that Complainant
failed to establish the severity of the conduct in question or that it was related to any protected
basis of discrimination. It appears that Complainant objected to S1’s authority and was not
happy with S1’s managerial decisions. There is no evidence that S1’s carrying out her
supervisory duties of which Complainant disagreed was based on discrimination as alleged.
Based on the foregoing, we find that Complainant has failed to show that the Agency’s actions
were motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration.
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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 24, 2018
Date