Wade K.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Mar 14, 2018

0120160449 (E.E.O.C. Mar. 14, 2018)

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

Wade K.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120160449

Hearing No. 570-2011-00414X

Agency No. 100013HQ

DECISION

On November 13, 2015, 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
October 14, 2015, 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. and the Equal Pay Act (EPA) of 1963, as
amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission AFFIRMS the
Agency’s final order.

BACKGROUND

Complainant began his employment with the Agency in July 2007 as an Accountant, GS-510-12,
in the Energy Finance and Accounting Services Center Division (EFASC) on the Accounts
Payable Team in Germantown, Maryland. Complainant’s first line supervisor at the time was
Manager A, Acting Team Lead.

On July 9, 2008, Manager B, Team Lead of Accounts Payable became Complainant’s first line
supervisor. Manager C, Acting Director of the Accounts Operations Division, became

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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Complainant’s second line supervisor. Manager D, the Director of EFASC was Complainant’s
third line supervisor.

In addition to Complainant, the Accounts Payable Team consisted of the following members:
Person 1, GS-12 Accountant; Person 2, GS-12 Accountant; Person 3, GS-9 Accountant; Person
4, GS-9 Fiscal Specialist; Person 5, GS-7 Accountant, Person 6; GS-7 Accountant; and Person 7,
GS-9 Fiscal Specialist.

On February 1, 2010, Manager D rotated Complainant from the Accounts Payable Team to the
Financial System Team. In addition to Complainant, the Financial System Team consisted of the
following members: a GS-14 Team Lead; two GS-13 Subject Matter Experts (Person E and
Person E’s husband); and Accountant 1, Accountant 2, Accountant 3, and Accountant 4.

Person E was later promoted to the position of Team Lead, GS-14, and became Complainant’s
first line supervisor (Manager E). Manager E’s husband was moved to another department and
there were no subject matter experts on the team.

On March 10, 2010, Complainant filed an EEO complaint, which was subsequently amended.
The Agency defined Complainant’s complaint as alleging that the Agency subjected him to
discrimination and harassment when:

1. Complainant alleged the Agency discriminated against him on the bases of race
(African-American) and sex (male) when he was not selected for a GS-13 position
during March 2009.
2. Complainant alleged the Agency discriminated against him on the bases of race
(African-American) and sex (male) when he was required to perform similar duties
and assigned similar responsibilities as a higher graded female in violation of Title
VII and the Equal Pay Act.
3. Complainant alleged the Agency discriminated against Complainant on the bases of
his race (African-American), sex (male), and in reprisal for engaging in protected
activity when he received his performance evaluation that was issued on June 24,
2011.
4. Complainant alleged the Agency subjected him to harassment on the bases of race
(African-American) or sex (male) beginning in March 2009 and continuing through
January 2011.
5. Complainant alleged the Agency discriminated against him in reprisal for engaging in
protected activity when he was not selected for the position of Accountant Team Lead
advertised under Vacancy Announcement Number 10-DOECFO-64 and 10-
DOECFO-67.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of his right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ).
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Complainant requested a hearing. The AJ held a hearing on May 13 - 15 and 20, 2014. The AJ
issued a decision on September 25, 2015.

Administrative Judge’s Decision

In his decision, the AJ found claim (1) concerning Complainant’s nonselection in March 2009
was untimely raised with an EEO Counselor and should be dismissed because it was an untimely
raised discrete action. However, the AJ stated that he considered evidence related to this claim
as background evidence in support of Complainant’s overall harassment claim.

Regarding claim (2), the AJ noted Complainant alleged that he performed substantially the same
work as the following GS-13 employees: Employee 1 from the Travel Team; Employee 2 from
the Payroll Team; Employee 3 from the Accounts Receivable Team, Employee 4 from the
Accounts Receivable Team; Employee 5 from the Accounts Receivable Team; Manager E from
the Financial Systems Team; Manager E’s husband from the Accounts Receivable Team; and
Employee 6 from the Cash Management Team.

The AJ noted Complainant claimed that following his rotation to an Accountant position on the
Financial Systems Team in February 2010, Employee 4, a GS-13 Accountant, was assigned to
the same position he previously encumbered on the Accounts Payable Team, and was paid a
higher salary. The AJ noted Complainant also alleged that he performed GS-13 level work
following his reassignment to the Financial Management Systems Team, but was paid less
compensation than other female GS-13 employees.

The AJ determined Complainant did not provide evidence to establish a prima facie case of
discrimination under the EPA. The AJ found there was some overlap between the duties
performed by GS-12 and GS-13 level Accountants; however, the AJ found the majority of duties
Complainant identified as GS-13 level were actually listed in his GS-12 Accountant position
description. Thus, the AJ found Complainant did not prove that the Agency required him to
perform work outside of his GS-12 pay grade without adequate compensation.

The AJ noted that Complainant contended that he functioned as a Team Lead2 on the Accounts
Payable Team and performed many of the same or similar duties as other GS-13 female
accountants working as Team Leads for other divisions within the Agency. However, the AJ
found Complainant failed to provide specific evidence which proved that he performed equal
work requiring the same skill and responsibility as the GS-13 level female team leaders.

The AJ addressed Complainant’s contention that the Agency paid him less compensation than it
paid his replacement, Employee 4, a GS-13 Accountant (Caucasian, female). The AJ determined
Complainant did not produce evidence that he performed substantially equal work with the same
skill, effort, and responsibility as Employee 4. The AJ noted that during the hearing, Employee 4
testified that she served as a subject matter expert on the Accounts Payable Team, was viewed as

2 The term Team Lead is used interchangeably throughout the record with the term Team Leader.
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the next step to a supervisor, and was responsible for the workloads and performances of the
junior GS-12 level accountants assigned to the Accounts Payable Team. The AJ noted that
Employee 4 also testified that on occasion she provided input to the Team Lead regarding
performance appraisals of junior accountants and that she was required to work independently as
the only GS-13 level employee on the team.

The AJ found in contrast, Complainant did not establish that he performed substantially the same
or similar work as Employee 4 when he worked on the Accounts Payable Team. The AJ noted
that when questioned about the subject of providing input regarding the performance of junior
accountants, Complainant responded that he provided input on the performance of a junior
accountant on one occasion when he worked on the Accounts Payable Team. The AJ found this
one-time event did not support Complainant’s assertion that he performed substantially equal
work with the same skill, effort, and responsibility as Employee 4.

In addition, the AJ noted that although Complainant testified that he pulled down and distributed
transactions from Treasury and distributed them to junior accountants and technicians while
working on the Accounts Payable Team, he also testified that the work distribution was pre-
determined and he was not required to exercise independent judgment regarding how the work
should be allocated to other team members. The AJ found this evidence proved that
Complainant did not perform substantially equal work with the same skill, effort, and
responsibility as Employee 4.

The AJ noted that Complainant also alleged that he performed GS-13 level work as an
Accountant while assigned to the Financial Services Team. The AJ noted that Complainant
testified during the hearing that he was partially responsible for completing the “month end
closing” work which was a duty that GS-13 level accountants performed within the EFASC
Department. The AJ noted, however, that Complainant also testified that his supervisor,
Manager E, a GS-13 level female Accountant, was ultimately responsible for supervising the
month end closing reports and that problems associated with the reports were referred to her.
The AJ noted that Complainant also testified that he did not receive proper training when he was
assigned to the Financial Services Team and that he needed Manager E’s assistance. The AJ
found this evidence demonstrated that the Agency did not require Complainant to perform his
GS-12 Accountant job duties with the same degree of autonomy or independence as Manager E.
Thus, the AJ determined Complainant did not demonstrate a prima facie case of discrimination
in violation of the EPA.

Assuming arguendo that Complainant could prove a prima facie case of discrimination in
violation of the EPA, the AJ found the Agency established one of the four affirmative defenses
established by the Act, i.e., Complainant’s difference in pay relative to the GS-13 level female
accountants was justified under the applicable federal government merit grading system.
Complainant was hired as a GS-12 level Accountant and he possessed a different level of
responsibilities from any GS-13 level Accountant. The AJ found that by providing the relevant
GS-12 and GS-13 Accountant position descriptions, the Agency demonstrated that GS-13 level
Accountants were required to perform different job duties; perform their work with greater
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independence; and had a greater level of responsibility than GS-12 Accountants. The AJ found
Complainant did not provide evidence proving that he was required to perform substantially
equal work that required a comparable level of independence as the GS-13 level female
accountants.

The AJ addressed Complainant’s claim that he was subjected to disparate treatment in violation
of Title VII when multiple GS-13 level Accountants were paid more salary than him for
performing substantially equivalent work. The AJ determined Complainant failed to
demonstrate a prima facie case of discrimination because he failed to show that similarly situated
female Accountants were treated more favorably. The AJ found it undisputed that Complainant
was a GS-12 level Accountant and that the women he compared himself to were all GS-13 level
Accountants. The AJ determined Complainant did not provide other circumstantial evidence
which created an inference that he was paid a lower salary because of his race or sex.

Regarding claim (3), the AJ noted that Complainant alleged he was subjected to discrimination
when Manager E issued him an overall rating of “Meets Expectations” on his performance
evaluation on June 24, 2011. Complainant contends he should have been awarded a higher
rating for his job performance. The AJ found the Agency articulated a legitimate,
nondiscriminatory explanation for the challenged action, i.e., performance issues under Element
3 and Element 5 (communication) on Complainant’s evaluation. The AJ found Complainant did
not produce evidence proving that he was not responsible for the performance related issues
Manager E specifically identified on his performance evaluation and Complainant did not
demonstrate that Manager E treated other similarly situated coworkers more favorably in regards
to their performance ratings. The AJ also found Complainant did not provide circumstantial
evidence proving that Manager E decided to issue him a “Meets Expectations” performance
rating because of his membership in any protected group.

Regarding claim (4), the AJ noted that Complainant was claiming harassment by Manager B,
Manager C, Manager D, and Manager E. Regarding Manager B’s conduct, the AJ noted
Complainant testified that the Agency advertised for an Accountant Team Lead, GS-13, during
March 2009, through internal and external announcements. Complainant testified he attempted
to submit his application for the internal announcement on the final due date, but he was unable
to submit his application because the website was closed. Complainant stated at that point, he
switched over to the external announcement and successfully submitted his application.
Complainant testified he was told his application was received.

The AJ noted Complainant testified he was neither interviewed nor selected for the Accountant
Team Lead position. The AJ noted that although Complainant testified that Human Resources
confirmed receipt of Complainant’s external application, he did not provide evidence which
proved that the office placed his name on the applicable selection certificate for the reviewing
and selecting officials to review. The AJ also found Complainant provided no evidence
demonstrating his qualifications for the position were superior to those candidates that were
placed on the actual selection certificate.
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Thus, the AJ found Complainant had not provided evidence that his nonselection for the
Accountant Team Lead position was the result of unlawful harassment.

The AJ noted Complainant also alleged that Manager B subjected him to harassment by issuing
him a performance rating of “Meets Expectations” for fiscal year 2009. Complainant alleged he
should have received a higher rating of “Exceeds Expectations.” The AJ noted that Person B
explained she only rated one coworker higher than Complainant during the relevant rating period
because the individual; (a) showed initiative; (b) performed complex analytical assignments; (c)
worked independently; and (d) resolved billing and funding issues with program and field
offices. The AJ determined Complainant did not present evidence which proved that his
performance was the same or better than the employee that received a higher rating from
Manager B. The AJ also concluded Complainant did not show his rating of “Meets
Expectations” was because of his membership in any protected group.

The AJ noted Complainant also alleged that Manager B subjected him to aggressive, abusive
conduct between early 2009 and early 2010, which constituted harassment. Specifically, on
October 23, 2009, Complainant stated Manager B became “angry and hostile” with him when he
inquired why he received a rating of “Exceeds Expectations” on his abnormal balance Standard
Operating Procedure (SOP).

The AJ noted that on October 26, 2009, Complainant met with Manager B again to discuss his
performance evaluation. Manager B asked Complainant a question and Complainant responded
he had already sent her an e-mail on the subject. Manager B responded that she was completing
a performance evaluation and she was not going to answer e-mails. Manager B continued to
repeat herself and later stood up and approached Complainant shouting she was not going to read
e-mails while completing a performance evaluation. Complainant left Manager B’s office, but
she followed him screaming loud enough for his coworkers to overhear.

The AJ noted Complainant requested a meeting with Manager C to discuss the shouting incident
involving Manager B. Later, Complainant met with Manager C and Manager B and inquired
what he needed to do to get promoted to the GS-13 level. Complainant asked Manager B what
specific activities he needed to perform and she responded, “Why does everything have to be so
black and white with you [Complainant]?” Manager B left the meeting and Complainant told
Manager C that he and Manager B had “communication problems” and that “something had to
be done.” The AJ noted that Manager C recommended rotating Complainant to another work
area and suggested he write down a list of places where he wanted to be rotated. The AJ noted
Complainant mentioned a couple of offices.

The AJ determined that the two incidents examined in isolation or in concert were neither severe
nor pervasive and do not represent the type of objectively unreasonable conduct that creates an
unreasonable interference in the work environment. Rather, the AJ found this evidence
demonstrated that Complainant and Manager B had a dysfunctional supervisor/subordinate
relationship. The AJ stated that although he found Manager B’s conduct “highly unprofessional
and not befitting a professional manager,” he did not find that it rises to the level of harassment.
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Additionally, the AJ noted Complainant testified that Manager C decided to reassign him before
he engaged in statutorily protected activity. The AJ noted that Manager C initially decided to
rotate Complainant in response to his urging that she do something to address the communication
problems he was experiencing with Manager B. The AJ found this evidence established that the
catalyst for Complainant’s reassignment was the interpersonal conflict he had with Manager B
and his request that something be done about it rather than intentional discrimination. The AJ
noted that during the investigation when the investigator asked Complainant about meeting with
Manager C on October 27, 2009 regarding the yelling incident that occurred on October 26,
2009, Complainant did not reference to race, sex, or any type of unlawful discrimination.
Additionally, the AJ noted that during the hearing, when questioned regarding the October 27,
2009 meeting with Manager C, Complainant did not make an allegation that he was subjected to
discriminatory harassment.

The AJ noted that Complainant alleged he was subjected to harassment when Manager B denied
his requests to attend multiple training courses. The AJ found Manager B offered a legitimate,
nondiscriminatory rational for these actions. With regard to the denial of I-portal training,
Manager B explained that Complainant was not allowed to attend the training because the course
conflicted with a previously scheduled standing meeting that Complainant was required to attend
on Abnormal Balances.

The AJ noted that with regard to the denial of Financial and Cost Analysis and integrated data
warehouse (IDW) training, Complainant was told that there was inadequate funding and that he
was rotating to a new position and would be out of the office too long. The AJ noted that
ultimately Complainant requested to attend the IDW training following his rotation to the
Systems Team to which Manager B agreed. The AJ found Complainant did not present evidence
which rebutted Manager B’s explanation for denying Complainant’s training requests. The AJ
also concluded Complainant did not provide evidence which proved that Manager B denied his
requests because of his membership in any protected group.

The AJ also noted that Complainant alleged that Manager D subjected him to harassment during
a meeting held on December 2, 2009, to discuss the shouting incident involving Manager B.
Complainant alleged that Manager D made it known that she believed Complainant was causing
the conflict with Manager B and that Complainant attempted to intimidate and provoke Manager
B to the point of frustration. Manager D also told Complainant that she would not allow him to
“bully” individuals within the organization. Complainant alleged that Manager D was so loud
during the meeting that her assistant had to close the door. The AJ determined the one-time
incident involving Manager D does not represent the kind of “objectively unreasonable” conduct
required to trigger a violation of Title VII.

The AJ noted that Complainant also alleged that Manager E subjected him to harassment when
he was rotated to the Financial Systems Team in February 2010. Complainant alleged that
Manager E: bombarded him with 33 e-mail messages on September 1, 2010; 56 additional e-
mail messages on other unspecified dates; took notes regarding his job performance; and told
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him he was not performing at the GS-12 grade level. The AJ noted on one occasion, Manager E
said to Complainant, “How come you are not picking up these processes? I’m tired of you
asking questions. You should know these by now.” Manager E then ran into another office and
slammed the door real loud. Later, Manager E raised her voice telling Complainant, “You have
no idea what you’re doing. You had no idea there was a mistake in the process and you’re trying
to claim that you knew what was going on.”

The AJ noted that Complainant also testified that he engaged in part-time employment as an
instructor at Montgomery College and that Manager E informed him that he needed a new
outside employment form as the class Complainant had taught changed from the prior semester.
Complainant testified that Manager E examined the Montgomery College class schedule online
to investigate what classes he was actually teaching at the college. Two days later,
Complainant’s wife, also an employee at Montgomery College, was approached by the
Department Chair and informed that she had received an e-mail from Manager B asking when
Complainant started teaching the class at Montgomery College. Complainant alleged that
Manager E and Manager B’s actions regarding his outside employment constituted harassment.
However, the AJ found neither Manager E’s nor Manager B’s actions concerning Complainant’s
outside employment constitute the type of severe, objectively unreasonable conduct that creates
an unreasonable interference in the work environment.

With regard to Complainant’s retaliation claim, the AJ noted Complainant did not provide
specific evidence such as deposition transcripts, discovery responses, or sworn affidavits
demonstrating when the responsible management officials became aware of his protected
activity. However, the AJ found the record demonstrates the EEO Office interviewed Manager
D on January 1, 2010, regarding Complainant’s informal complaint. The AJ also noted that
Manager C and Manager B were made aware of Complainant’s informal EEO complaint
somewhere between November 30, 2009, and January 24, 2010, when Complainant was issued a
Notice of Right to File a formal complaint. The AJ found this evidence demonstrated that
Complainant was not subjected to the alleged harassment that occurred between January and
November 2009, in reprisal for engaging in statutorily protected activity.

Regarding claim (5), the AJ noted Complainant alleged that in July 2010 he applied and was not
selected for two GS-13/14 Accountant positions advertised under Vacancy Announcement
Numbers 10-DOECFO064 (VA 064) and 10-DOECFO-067 (VA 067). The AJ noted that the
Agency conducted interviews for VA 064 and 067 utilizing a single interview process. The
interview panel comprised of Manager D, Manager C, Panel Member X (a Senior Systems
Accountant), and Panel Member Y(Director of the Accounting Operations Division). The Panel
Members took notes and scored the interviewees, including Complainant, on a list of
approximately nine questions. During discovery Complainant requested the interview notes of
the panel members, but the Agency only produced the Selecting Official’s notes. The AJ stated
that after being afforded ample opportunity to produce the interview notes prior to the hearing,
the Agency failed to do so because it did not preserve these documents. The AJ stated that on
February 12, 2014, he issued an Order and sanctioned the Agency finding that the information
sought regarding Complainant’s interview performance would have reflected unfavorably upon
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the Agency. The AJ noted that the Selecting Official did not state during the investigation that
her selection decision was based solely upon the candidates’ interviews. The AJ found
Complainant failed to put forth evidence that the Selecting Official based her decision solely
upon the candidates’ interviews. The AJ noted the Agency stated it relied upon documents
contained in the ROI during the deliberative processes used to fill VA 064 and VA067 and
Complainant has not rebutted that assertion. The AJ noted that the candidates’ application
materials, including technical questions that relate to the Accountant position are contained in the
ROI.

The AJ found the Agency articulated a legitimate, nondiscriminatory reason for not selecting
Complainant for the 064 position. The AJ noted the vacancy was for a Team Lead position in
Accounts Receivable. The Selecting Official (Manager D) chose Selectee 1 because he
demonstrated expert knowledge and experience in analyzing data, solving problems by applying
the United States Standard General Ledges (USSGL) and Federal Accounts Receivable
Operations. The Selecting Official also pointed out that Selectee 1 demonstrated the initiative to
solve complex problems independently and possessed strong leadership skills for managing the
federal accounts receivable operations. The Selecting Official explained that Complainant:
failed to demonstrate experience in solving problems with the USSGL; lacked experience in the
federal accounts receivable operations; lacked enthusiasm during the interview; and was unable
to validate some of his claims regarding his experiences during the interview.

The AJ determined Complainant failed to provide evidence which proves that a disparity exists
between his qualifications and the Selectee’s qualifications. The AJ noted that Complainant
testified during the hearing that the Selectee was probably more qualified than him because he
had been working in the Accounts Receivable Department and possessed more of the exact
qualifications for the position. In addition, the AJ noted that the Selecting Official emphasized
specific skills during the selection process and Complainant offered no evidence which proved
that these skills were not related to the position at issue. Moreover, the AJ found Complainant
failed to establish that his nonselection was the result of retaliation for his protected activity.

The AJ also addressed Complainant’s claim that the Selecting Official (Manager E) did not
select him for a second Accountant position under VA 067 in retaliation for his EEO activity.
The AJ noted that the Selecting Official testified that Complainant was not the best qualified
candidate for the position and that Selectee 2, Selectee 3, and Selectee 4 were selected to fill the
vacant positions. The AJ found the record showed that Selectee 3 was hired as a GS-14 and had
worked at the Government Printing Office where she had been performing GS-14 level duties
since July 2009. The AJ noted that Selectee 3 possessed management experience and managed a
staff of six employees. The AJ noted that Selectee 4: was also a GS-14 level Accountant who
had worked as a Certified Public Accountant; had supervisory experience; served as the Acting
Team Leader of the Cash Management Team; and possessed extensive accounting experience.
The AJ recognized that Selectee 2 was a GS-13 level Accountant who possessed extensive
accountant experience and participated in a nine-month Executive Leadership Program. The AJ
determined the Agency articulated a legitimate, nondiscriminatory explanation for
Complainant’s nonselection.
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The AJ noted that Complainant argued that the Agency failed to articulate a legitimate reason for
his nonselection prior to the hearing. Complainant also argued that pretext had been
demonstrated because the Agency was sanctioned for failing to preserve relevant interview notes
and score sheets created during the interview process. The AJ acknowledged the adverse
inference drawn against the Agency for failing to preserve relevant documents aids
Complainant’s efforts to demonstrate pretext. However, the AJ noted that in order to prevail,
Complainant ultimately bears the burden of persuading the trier of fact that the Agency’s
ultimate motivation for the nonselection was discrimination.

The AJ found Complainant failed to satisfy his burden for two reasons. First, he did not provide
specific evidence demonstrating his objective qualifications for the 067 positions were the same
or similar to the selectees’. Second, other than demonstrating a prima facie case of reprisal, the
AJ determined Complainant did not produce circumstantial evidence which proved by a
preponderance of evidence that the Selecting Official did not select him because of his prior
EEO activity.

The Agency subsequently issued a final order on October 14, 2015. The Agency’s final order
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

Complainant on Appeal

On appeal, Complainant clarifies that he is only appealing three issues on appeal: whether he was
subjected to discrimination based on race and sex when he was required to perform similar duties
and assigned similar responsibilities as a higher graded female in violation of Title VII and the
EPA; whether the Agency subjected Complainant to harassment on the bases of his race or sex
beginning March 2009 and continuing through January 20113; and whether the Agency
discriminated against him based on his race, sex, and in reprisal for engaging in protected
activity when he was not selected for the Accountant Team Lead position advertised under
Vacancy Announcement Number 10-DOECGO-67.

With regard to his equal pay claim, Complainant contends that the AJ wrongly relied on the
position descriptions in the record rather than the actual duties he and Employee 4 performed.
Complainant notes the AJ points to the level of input on the performance of junior accountants
and that his distribution of transactions from the Treasury was pre-determined. Complainant
claims the record shows that he acted as an Accounts Payable subject matter expert while he
worked in Accounts Payable. Complainant notes that Employee 4 described her role as a subject
matter expert as being a leader for other accountants, helping them resolve issues by virtue of her
experience, and helping with the whole team’s performance, similar to a mentor. Complainant

3Later in his appeal brief, however, Complainant discusses retaliation as a basis. We find
Complainant, even if alleging retaliatory harassment, failed to show he was subjected to
retaliatory harassment.
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states his role as a subject matter expert was having a wide breadth of knowledge to help
troubleshoot issues for other employees. Complainant contends that his testimony and that of his
coworkers shows that Manager B had a lack of expertise in the subject matter of the position and
that his coworkers went to him as the “go-to person.”

Complainant argues that like Employee 4, he was responsible for work and performance of other
accountants. Complainant notes he had to ensure that reconciliation was completed on a
monthly basis, and it was up to him to make sure things were paid and collected. Complainant
notes the AJ pointed out that Complainant lacked independent judgment for distributing
transactions from the Treasury to other team members. However, Complainant claims there was
no evidence that Employee 4 distributed transactions from the Treasury and decided which
employees received those transactions. Further, Complainant contends that both he and
Employee 4 worked independently. Complainant states he rarely contacted his supervisor during
the performance of his duties and only went to his supervisor for the sort of thing that involved a
“higher-level manager.”

Complainant also challenges the AJ’s determination that the Agency established an affirmative
defense. Complainant states that while his position falls within a “merit system,” the Agency did
not submit evidence to support this defense. Complainant claims that while he was in a GS-12
position, he performed GS-13 duties. He claims that he performed work at a similar level of
independence and responsibility as Employee 4.

With regard to his harassment claim, Complainant contends the AJ failed to consider all the
evidence regarding Manager B’s actions. Specifically, Complainant notes that the AJ did not
include the following 11 incidents in his analysis: (1) Manager B’s requirement that Complainant
submit weekly status reports; (2) Manager B yelling at Complainant in a March 16, 2009
meeting; (3) Manager B’s abrasive emails from March 2009 through January 2010; (4) Manager
B yelling at Complainant during his annual review until he left her office in June 2009; (5)
Manager B yelling at Complainant for seeking information on how to be promoted to a GS-13;
(6) Manager B removing Complainant’s duties from him and telling others not to ask
Complainant for help on October 30, 2009; (7) Manager B threatening Complainant with
insubordination for requesting written instructions; (8) Manager B yelling at Complainant for
folding his arms at a meeting in January 2010; (9) Manager B accused Complainant of “stealing
time” and would ask other employees to keep track of Complainant’s whereabouts; (10)
Manager B’s final January 30, 2010 performance review of Complainant included negative
comments; and (11) Manager B allowed Complainant to work only five hours of overtime per
pay period and accused him of “stealing overtime” by trying to get out reconciliations more
quickly for other teams while others outside of his race were allowed 10-15 hours of overtime.

Additionally, Complainant notes that on October 27, 2009, he went to Manager C to complain
that Manager B was harassing him and that he felt threatened. Complainant argues that this
should have put Manager C on notice that Manager B’s actions were hostile. Thus, Complainant
argues that all actions taken against him by Manager B since October 27, 2009, were taken in
reprisal for opposing harassment.
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Complainant argues that when mentioning Manager C’s involvement in Complainant’s rotation,
the AJ did not mention that Complainant requested an alternative to rotation, but Manager C
never responded. Complainant argues the Agency cannot claim the decision to rotate him as
corrective action when it did nothing to correct Manager B’s harassment. Complainant claims
the AJ ignored that on November 20, 2009, Manager C demanded to be included on
Complainant’s weekly status reports to Manager B.

Complainant claims the AJ only addressed one incident regarding Manager D in isolation from
all other incidents and ignored the racially charged overtones of Manager D’s actions.
Complainant states that in a December 2, 2009 meeting to address Manager B’s threat to write
Complainant up for insubordination, Manager D blamed Complainant for the October 26, 2009
incident where Manager B followed Complainant out of her office and screamed at him.
Complainant states at this same meeting, Manager D brought up rotating Complainant.
Complainant states that Manager D felt that he was intimidating her at this meeting by being
“nonresponsive,” “looking at her,” and exhibiting some sort of “lower-key bullying.”
Complainant argues that Manager D engaged in conduct designed to intimidate him so he would
passively accept his treatment.

Complainant claims the AJ only addressed one action by Manager E in relation to Complainant’s
outside employment. Complainant states the AJ described how Manager E bombarded
Complainant with emails, berated him for not knowing things and slammed the door loudly, and
yelled at him a second time; however, he claims the AJ provided no holding on these actions.
Complainant states the AJ ignored: that either Manager D or Manager E instructed Manager C to
put all her instructions in writing for Complainant, but no other employees; that Manager E often
blamed Complainant for her own mistakes and mistakes of others; and Manager E’s refusal to
assist Complainant in acclimating himself. Complainant claims that Manager E’s conduct
towards him demonstrates a nexus between his membership in protected groups because he was
the only African-American male in Financial Systems and Manager E treated other employees
better, especially Accountant 1 (female, Caucasian). Complainant alleges the Agency’s conduct
as a whole was severe and pervasive.

Finally, Complainant claims the AJ erred by holding that the Agency articulated a legitimate
reason for hiring Selectee 2, Selectee 3, and Selectee 4 and ignored evidence that there was a
nexus between Complainant’s nonselection and his race, sex, and prior EEO activity.
Complainant noted the AJ sanctioned the Agency for failing to preserve and produce evidence
related to Complainant’s nonselection claim. Complainant noted that in his Order, the AJ kept
the nature of the inference vague, finding “that the information sought related to Complainant’s
nonselection would have reflected unfavorably upon the Agency.” Complainant noted in his
decision, the AJ altered his previous Order regarding the adverse inference to involving only
notes related to his interview performance. Complainant notes the AJ stated that while the
adverse inference aids Complainant, he must do more to demonstrate pretext because, regardless
of the nature of the interview, the Agency articulated a legitimate, nondiscriminatory reason
based on the applicants’ objective qualifications, as demonstrated in their applications.
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Complainant argues it is absurd to believe that the interview notes would be adverse without
allowing it to call into question the Agency’s reliance on the applicants’ application materials,
and states it is equally absurd to imply that the Agency rendered its decision entirely on reasons
other than the interviews.

Complainant contends that he was objectively more qualified than Selectee 3. Complainant
argues the Agency cannot rely on the interview performance because it did not provide
information related to it and is thus constrained by adverse inferences. Complainant notes the
ROI does not include Selectee 3’s application for VA 067. Complainant claims that Selectee 3
also had a subpar performance after she began working in the position. Further, Complainant
argues that the adverse inference would demonstrate that absent the disparate qualifications, the
evidence would reflect that the Selecting Official decided not to select Complainant because of
his prior EEO activity. Complainant states that according to the certification list, he was more
qualified than others, particularly Selectee 3.

Agency Response to Complainant’s Appeal

The Agency notes Complainant argues that he received less pay than Employee 4 when she was
assigned to the Accounts Payable Team after he left. The Agency responds that while many of
the duties Employee 4 performed upon transferring to the Accounts Payable Team were similar
to the duties all GS-0510 series Accountants are expected to perform, the effort and
responsibility differed between the two.

The Agency states the difference between the grade levels of GS-12 and GS-13 is the level of
responsibility expected from the employee, the degree of autonomy expected from the employee,
and the degree to which supervisory oversight is sought. The Agency states the position
description (PD) of GS-13 level accountants include many of the same major duties and
responsibilities as the PD of GS-12 level accountants, such as IPACS, foreign payments,
accounts receivables, suspense account clearing, property accounting, investment accounting,
and obligation processing. However, the Agency stated in addition to all the duties carried out
by the GS-12 Accountant, the GS-13 Accountant is also expected to assume greater
responsibility and autonomy when performing those duties. The Agency noted that Employee 4
was officially designated as a Subject Matter Expert, while Complainant only, apparently,
considered himself a Subject Matter Expert.

The Agency notes at the hearing Complainant testified he performed at the GS-13 level and
noted certain tasks that he performed that are common to both GS-12 and GS-13 Accountants,
but was unable to provide evidence to demonstrate a higher level of responsibility or
independence in the performance of those tasks, other than his own opinion. For example, the
Agency noted that Complainant claimed he assigned tasks to other team members or junior
Accountants when he distributed end of month closing transactions for reconciliation. However,
the Agency stated he admitted that the assignment of these tasks was directed by his supervisor,
and not something he independently determined on his own.
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The Agency noted that Employee 4 was responsible for mentoring and controlling the workloads
of junior employees in her organization.

The Agency notes Complainant also claimed he filled in for his supervisor when she was absent
from work. However, when pressed, he admitted that he attended meetings for his supervisor in
her absence, but was there to gather information and report back, not to substitute judgment for
that of the supervisor and make decisions. The Agency states Complainant was given no
delegation of authority to officially act in the place of his supervisor. The Agency notes
Complainant had no authority to grant leave or to assign work. In contrast, Employee 4 was the
leader of the other Accountants and Technicians, providing training, assistance, and guidance to
junior Accountants. The Agency explains that if the Accountants and Technicians could not
resolve a particular issue, it was Employee 4’s responsibility to step in and help them resolve it.

The Agency notes that Employee 4 was also expected to provide input to the performance
evaluations of team members, and did so when asked by the Team Leader, two to three times in
the year she rotated into Accounts Payable. The Agency notes that the one-time Complainant
provided input on somebody’s performance evaluation, it was for a summer intern.

The Agency argues that Complainant cannot show he was performing his duties at a higher level
than the GS-12 level or beyond the scope of his work classifications. The Agency notes that
once Complainant left EFASC, his duties were taken over by available personnel remaining on
the team, none of which was a GS-13 Accountant. The Agency notes that Employee 4 rotated
into the Accounts Payable team in November 2010, several months after Complainant
transferred out of the position.

Regarding his Title VII claim, the Agency states that Complainant has failed to introduce
evidence that an employee outside of his protected class with the same professional background,
skills, education level, and experience was treated more favorably or paid a higher salary on the
basis of sex or race. The Agency notes that Complainant’s Comparative, Employee 4, had thirty
years in the federal government, all at the Agency, and worked her way up to a GS-13
Accountant from a GS-03 Clerk Typist. Complainant started his federal employment at the
Agency in 2007, and was hired as a GS-12, full performance level.

The Agency states it provided evidence of many similarly situated employees in EFASC who
were graded the same as Complainant. The Agency also notes that employees of the same
protected class as Complainant were graded at the GS-13 level. Thus, the Agency argues that
Complainant failed to carry his burden of demonstrating that a similarly situated employee not of
his protected class was treated more favorably than him.

The Agency notes Complainant argues that the AJ did not examine the record as a whole
regarding his hostile work environment claim, but divided the evidence by supervisor or in
“clusters” so as to ignore the pervasiveness of the conduct. The Agency notes that a series of
unpleasant exchanges with management does not become a hostile work environment by volume
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alone. The Agency states Complainant must prove that the actions were based on discriminatory
animus.

The Agency states that the most controversial figure was Manager B. The Agency states
Complainant and Manager B clashed from the beginning of her supervision in Accounts Payable.
Complainant felt she did not know what she was doing and believed he knew more than her.
The Agency notes that all the employees in Accounts Payable who testified, described their
problems with Manager B. The Agency notes that Person 1 (White, female) described Manager
B as unprofessional in the way she spoke to Person 1 and her coworkers, including “Raising her
voice, hand gestures, slamming papers down, hitting tables.” The Agency notes Person 1 also
complained of receiving a low performance evaluation from Manager B that Person 1 believed
was not justified.

The Agency notes that Complainant refers to e-mails from Manager B as “abrasive” and
“aggressive” and containing “short, curt answers.” The Agency notes Complainant also
describes interactions with Manager B where a disagreement occurred during his performance
review and she raised her voice to him, and after directing him to assist a coworker she refused
to put that request in writing and warned Complainant about the concept of insubordination. The
Agency states that while Complainant characterizes these interactions as “threatening” and
“hostile” a reasonable person would characterize Manager B’s reactions as normal under the
circumstances where an employee is challenging the competence and authority of his supervisor.

The Agency also notes Complainant argues that not being approved for four training courses
through 2009 and 2010 is evidence of a hostile work environment and retaliation. The Agency
notes that during that same period, Complainant was approved to attend four other training
courses before and after he had engaged in EEO activity.

The Agency states Complainant has not put forth any evidence of discriminatory animus when
his training requests were denied that would overcome the legitimate, nondiscriminatory reasons
for the denials, such as lack of funding, workload management, and personnel shortages.

The Agency notes Complainant argues that the actions taken by upper level management to
rotate him from the Accounts Payable team to another team within the Financial Management
Center were done to harass him. The Agency states the evidence shows that Manager D and
Manager C attempted to manage the personality conflict between Complainant and Manager B,
by separating the two. The Agency notes Complainant was first offered a rotation to the Payroll
section. When he complained that the assignment was undesirable, Manager D, offered a
rotation to the Financial Systems team. The Agency notes Manager B retired shortly after that
time. The Agency notes that recognizing that both individuals contributed to the poor
relationship, Manager D used the situation as an opportunity to address Complainant’s desire to
broaden his career experience with the Finance and Accounting Service Center by offering a
rotation to a different section of the Center, requiring a different skill set than Complainant had
been using. The Agency notes rotations were a regular occurrence in the Financial Office.

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The Agency notes that after Complainant joined the Financial Systems team in February 2010,
he had difficulty with his new supervisor, Manager E. Complainant stated Manager E sent large
volumes of e-mail messages to him in a short period of time on several occasions, did not give
guidance when he asked for it, spoke to him in a harsh manner, criticized his work performance,
and did not give him the performance rating he deserved. The Agency notes Complainant cites a
particular testing period at the end of September 2010, when he received voluminous e-mails
from Manager E and describes them as harassing. The Agency states those e-mails were back
and forth exchanges about work assignments, reports, or systems testing that were occurring
contemporaneously with the emails. The Agency states nothing in the e-mails could objectively
be viewed as abusive toward Complainant. The Agency also notes the reasons for not giving
Complainant an “Exceeds Expectations” rating on his performance evaluation were documented
and discussed throughout the rating period as issues occurred.

Regarding the nonselection for VA 067, the Agency notes that all three selectees made lateral
transfers into the Team Leader position. The Agency states that Complainant was not similarly
situated to any of the three selectees. The Agency notes Complainant claims that because his
score on the hiring certificate was higher than the other candidates he was the most qualified of
the group. The Agency clarifies this was not the case as the score merely determines if the
applicant is eligible for consideration.

The Agency notes the Selecting Official was aware of Complainant’s EEO complaint and had
been interviewed as one of the responsible management officials in April 2010. However, the
Agency states that Complainant failed to put forth any additional evidence that the Selecting
Official did not select Complainant due to his EEO activity or that there was any nexus between
the earlier EEO activity and the alleged retaliatory action.

The Agency notes Selectee 2 had extensive accounting experience and had participated in a nine-
month Executive Leadership Program. Selectee 3 had management experience and was
managing a staff of six employees at the time she transferred to the Agency to fill the position of
Team Lead. Selectee 4 was a Certified Public Accountant, had supervisory experience, was
serving as the Acting Team Leader of the Cash Management Team, and had extensive
accounting experience as outlined on his application. Conversely, the Selecting Official stated
Complainant did not demonstrate experience in solving problems with the U.S. Standard General
Ledger, did not have experience in federal accounts receivable operations, lacked enthusiasm
during the interview, and was unable to validate some of his claims of experience in his
application with specific examples when asked during the interview. The Agency also notes that
Panel Member X stated that Complainant had difficulty during the interview answering technical
questions and providing specific examples of his experience during follow-up questions
regarding Complainant’s claimed experience on his application.

The Agency notes Complainant argues it cannot rely on the interview performance because of
the sanction resulting from the Agency’s failure to produce all of the panel members’ notes in
discovery. However, the Agency states two of the panel members testified at the hearing.
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The Agency claims it was up to the AJ to determine their credibility on the matter and decide
based on the record if the Agency had a legitimate, nondiscriminatory reason for selecting others
over Complainant. The Agency find the AJ did not err in finding Complainant failed to establish
pretext.

ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if
supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation
omitted). A finding regarding whether or not discriminatory intent existed is a factual finding.
See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are
subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a
witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015).

At the outset, we note that Complainant on appeal does not challenge the AJ’s dismissal of claim
(1) as a discrete action. Complainant also does not challenge the finding of no discrimination
with regard to claim (3) and the nonselection for VA 064 described in claim (5). Thus, we will
not address those issues in this decision. Complainant also notes that regarding his equal pay
claim, he is only appealing that claim with respect to the duties he performed on the Accounts
Payable Team until his February 1, 2010 transfer.

After a careful review of the record, the Commission determines that the AJ's findings of fact are
supported by substantial evidence in the record and that the AJ's decision properly summarized
the relevant facts and referenced the appropriate regulations, policies, and laws. We find the
record in the present case fully developed. We discern no basis to disturb the AJ's decision.

Equal Pay

The United States Supreme Court articulated the requirements for establishing a prima facie case
of discrimination under the EPA in Corning Glass Works v. Brennan. 417 U.S. 188 (1974). To
establish a prima facie case of a violation under the EPA, a complainant must show that she or he
received less pay than an individual of the opposite sex for equal work, requiring equal skill,
effort, and responsibility, under similar working conditions within the same establishment.
Sheppard v. EEOC, EEOC Appeal No. 01A02919 (September 12, 2000), req. for reconsideration
denied, EEOC Request No. 05A10076 (August 12, 2003).

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Once a complainant has met this burden, an employer may avoid liability only by showing that
the difference in pay is justified under one of the four affirmative defenses set forth in the EPA:
(1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or
quality of production of work (also referred to as an incentive or piecework system); or, (4) a
differential based on any factor other than sex. Id. We note that the EPA is limited to certain
sex-based differentials in wages. The EPA does not prohibit discrimination in other aspects of
employment, even those that have compensation-related consequences, such as hiring, firing,
promotion, transfer, or other issues. Wiley v. Department of the Treasury, EEOC Appeal No.
01972118 (June 27, 2001) (citing Schnellbaecher v. Basking Clothing Co., 887 F.2d 124, 130
(7th Cir. 1989) (a claim of discriminatory promotions is beyond the scope of the EPA but
actionable under Title VII)).

The requirement of “equal work” does not mean that the jobs must be identical, but only that
they must be “substantially equal.” Laffey v. Northwest Airlines, 567 F.2d 429, 449 (D.C. Cir.
1976). The terms skill, effort, and responsibility, “constitute separate tests, each of which must
be met in order for the equal pay standard to apply.” 29 C.F.R. § 1620.14(a). The factors of
skill, effort, and responsibility used to measure the equality of jobs are not precisely definable.
Id. Skill includes such things as “experience, training, education, and ability.” 29 C.F.R. §
1620.15(a). Effort addresses the amount of “physical or mental exertion needed for the
performance of a job.” 29 C.F.R. § 1620.16(a). Responsibility concerns “the degree of
accountability required in the performance of the job, with emphasis on the importance of the job
obligation.” 29 C.F.R. § 1620.17(a).

Upon review, we find that substantial evidence supports the AJ’s finding that Complainant and
Employee 4 did not perform substantially equal work. Employee 4 testified that she served as a
subject matter expert on the Accounts Payable team; and was responsible for the workloads and
performances of the junior GS-12 level accountants assigned to the Accounts Payable team.
Employee 4 also testified that on occasion she provided input to the Team Lead regarding
performance appraisals of junior accountants and that she was required to work independently as
she was the only GS-13 level employee of the team. At the hearing, Complainant testified that
he only provided input on the performance of a junior accountant who was an intern on one
occasion while working on the Accounts Payable team. Complainant also testified that he did
not independently decide who received transactions as this was already predetermined. Thus, we
find Complainant did not establish a prima facie case Equal Pay Act violation.

We also find Complainant failed to establish a prima facie case regarding his Title VII equal pay
claim. The record reveals that Complainant was a GS-12 Accountant and he compares himself
to Employee 4, a GS-13 Accountant. Substantial evidence supports the AJ’s finding that
Complainant did not provide other circumstantial evidence which creates an inference that he
was paid a lower salary because of his race or sex.

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Harassment

To establish a claim of discriminatory hostile environment harassment, complainant must show
that: (1) she belongs to a statutorily protected class; (2) she 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 be a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682
F.2d 897 (11th Cir. 1982).

In short, to prove his harassment claim, Complainant must establish that he was subjected to
conduct that was either so severe or so pervasive that a “reasonable person” in Complainant's
position would have found the conduct to be hostile or abusive. Complainant must also prove
that the conduct was taken because of a protected base - because of his race, sex, age, or prior
EEO activity. Only if Complainant establishes both of those elements, hostility and motive, will
the question of Agency liability present itself.

Upon review, we find the AJ’s conclusion that Complainant failed to establish a discriminatory
hostile work environment based on any of his protected bases is supported by substantial
evidence. With regard to Complainant’s claim that the AJ did not specifically discuss incidents
(1) – (8) committed by Manager B as identified by Complainant in his appeal brief, we note that
the AJ did include these incidents in his findings of fact and we clarify that those eight incidents
were considered in our issuance of this decision.

Additionally, Complainant identifies three other incidents of discrimination which he stated the
AJ never addressed: Manager B accused Complainant of “stealing time” and would ask other
employees to track his whereabouts; Complainant’s January 30, 2010 performance review
contained negative comments by Manager B; and Manager B allowed Complainant only five
hours of overtime per pay period and accused him of “stealing overtime” by trying to get out
reconciliations more quickly for other teams.

On appeal, Complainant claims that since December 2009, Manager B accused him of “stealing
time” and would verify whether Complainant was in the office with other employees. During the
hearing, Complainant described one weekend when he came into work and Manager B accused
him of stealing time because she had not seen him working during that time. As a result,
Manager B spoke with another employee who confirmed that Complainant was working that
weekend and then Manager B accepted that Complainant worked during that time. Complainant
did not claim that he was denied overtime for the date in question.

When asked if Manager B ever accused Complainant of lying about time, Complainant stated
that she would ask him why he needed to work overtime and did not understand the time
differences for month-end closing and reconciliation and how tedious that work is. Person 5
testified that employees would have to stay late to reconcile their report with Treasury.
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Person 5 stated that Manager B was concerned with Complainant doing all the work on the first
day for his own benefit. Person 1 (White, female) testified that Manager B also questioned her
time and overtime. Person 2 stated she witnessed an overtime reduction in which overtime was
taken away from employees and they had to take hours in lieu of overtime. She explained that
employees were reduced to either 10 to 15 hours per pay period and Complainant could only take
five hours. Person 2 stated this happened in 2010; however, she did not indicate how often this
happened. Additionally, we note Complainant does not identify any specific days on which he
was denied overtime or hours in lieu of overtime. The record reveals that Manager B closely
monitored the overtime worked by Complainant and others outside of his protected classes.
Even assuming that Manager B reduced Complainant’s overtime hours from December 2009 to
January 30, 2010, we find that Complainant has not established that the Agency’s actions were
sufficiently severe or pervasive to constitute harassment based on his protected status.

Complainant states that his January 30, 2010 Performance Review included a number of negative
comments such as: “He does not work well with other individuals [sic] the CFO organization”
and, “At times he does not understand the personal value of subordinates and peers which
hinders the accomplishment of AP team goals.” The record, however, contains a copy of the
January 30, 2010 Performance Review which despite Complainant’s contention to the contrary,
stated that “He does work well with other individuals in the CFO organization.” However, the
review noted under Teamwork that while “[Complainant] is extremely knowledgeable in the
many facets of his job, he needs to establish effective working relationships with coworkers. At
times he does not understand the personal value of subordinates and peers which hinders the
accomplishment of AP team goals.” Complainant has not shown that Manager B’s comment that
he needs to establish effective working relationships with coworkers was based on
discriminatory animus.

The record supports the AJ’s finding that there was a “dysfunctional” relationship between
Complainant and Manager B. However, the record reveals that all the employees in Accounts
Payable who testified described problems with Manager B. Specifically, Manager B was
described by Complainant’s coworkers (two White females, and two Black females) as:
unprofessional in the way she spoke to her coworkers; raised her voice, slammed papers down,
hitting tables; “high strung;” a micromanager; confrontational with some of her employees; and
not pleasant. We note that while some of the witnesses testifying at the hearing stated that
Complainant was treated the worst by Manager B, we note none of those witnesses stated that
they witnessed any comments based on any of Complainant’s protected bases. Moreover, we
note that Person 1 testified that she thought Manager B mistreated Complainant and Person 1
because Manager B felt threatened that they were the most senior employees. Upon review, we
find Complainant has produced no evidence to establish that Manager B's actions were based on
discriminatory animus.

With regard to Complainant’s claim of retaliatory harassment by Manager B, we find
Complainant did not establish a nexus between his prior EEO activity and Manager B’s actions.
The record supports the AJ’s finding that there is no proof the complaints made to upper
management about Complainant’s difficulty with Manager B on October 27, 2009, had to do
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with protesting discrimination. The record supports the AJ’s conclusion that Manager B was not
made aware of Complainant’s informal EEO complaint until at the earliest November 30, 2009.
Thus, we find the AJ properly concluded that Complainant could not demonstrate that Manager
B harassed him between January and November 2009, for engaging in protected activity.
Moreover, we find Complainant failed to establish that any of the other actions taken by
Manager B after November 30, 2009, were taken in reprisal for his protected activity.

Regarding Manager C’s decision to rotate Complainant, Complainant contends that this action
constituted retaliation as it was made on October 27, 2009, the same day that he informed
Manager C that Manager B was harassing him. Complainant also claims the AJ failed to address
that on November 20, 2009, Manager C demanded that he be included on Complainant’s weekly
status reports to Manager B and began to question Complainant’s performance. Complainant
claims the AJ ignored this evidence which he states is proof that Manager C harassed him in
response to his claim of harassment. However, we note that there is no evidence the complaints
made to upper management about Complainant’s difficulty with Manager B on October 27,
2009, constituted opposition to discrimination. Thus, both the October 27, 2009 and November
20, 2009 incidents occurred prior to Complainant’s protected EEO activity.

On November 19, 2009, Manager B told Complainant he was being rotated out of Accounts
Payable. On December 2, 2009, Complainant met with Manager B who requested that he teach
Person 3 how to prepare the efficiency metric. Complainant requested that Manager B send him
an e-mail with instructions. Manager B angrily responded, “I don’t have to send you anything.”
Complainant told her that she was making him uncomfortable and Manager B left and then
returned with the Contracts Team Lead demanding that Complainant teach Person 3.
Complainant repeated the request for an e-mail and Manager B threatened to write him up for
insubordination.

On December 2, 2009, Complainant met with Person D regarding the incident involving
Manager B. Manager D asked Complainant why he had problems getting along with Manager B
and told him she, “would not allow him to bully individuals within the organization.” Person
D’s voice was getting loud and her assistant closed the office door. During the meeting,
Manager D discussed rotating Complainant to another team. Despite Complainant’s unsupported
assertions, we find no evidence that Manager D’s actions during the December 2, 2009 meeting,
were based on stereotypes about African-American men. Other than this one incident,
Complainant does not allege that Manager D subjected him to any other alleged acts of
harassment.

Complainant claimed that he was subjected to harassment by Manager E after joining the
Financial Systems team in February 2010. Complainant contended that Manager E sent him
large volumes of e-mail messages to him in a short period of time on several occasions, did not
provide him instruction or guidance when he asked for it, spoke to him in a harsh manner,
criticized his work and performance, and did not give him the performance rating he deserved.
A review of the record reveals that on September 30, 2010, Manager E sent Complainant an e-
mail stating he was holding everything up and that same day sent him 47 email messages.
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She also went to Complainant’s office, raised her voice loudly, and stated she was tired of
Complainant asking questions and that he should be catching on to the work that is given to him.
Additionally, on November 2, 2010, Manager E sent Complainant 56 emails. A review of the
record reveals that the e-mails sent by Manager E were about work assignments, reports, or
system testing that were occurring contemporaneous with the emails. Substantial evidence
supports the AJ’s conclusion that there is nothing in the e-mails that could be viewed as
objectively hostile towards Complainant.

On September 30, 2010, Manager E also made two notes stating that Complainant was gone on
September 30 from 6:50 to 7:20 without telling Manager E he was leaving, without closing or
locking his door. On September 30, 2010, Manager E gave Complainant a rating of “Meets
Expectations.” Manager E noted in the appraisal that Complainant did not keep all interested
parties updated and he did not present information logically. She also critiqued that Complainant
did not follow written procedures and that he consistently asked for clarification on things that
should already be clear. Further, the Agency contended that the reasons for Complainant’s
“Meets Expectations” rating were documented and discussed throughout the rating period as
issues occurred. We find substantial evidence supports the AJ’s determination that the Agency’s
actions concerning Complainant’s outside employment were not objectively unreasonable.

Upon review, we find that Complainant failed to prove by a preponderance of evidence that he
was subjected to harassment. The record reveals that most of the issues involved concerned
disputes caused by the strained relationship between Complainant and his managers. We find
the Agency presented legitimate, nondiscriminatory reasons for a number of its actions.
Complainant failed to show that the Agency’s actions were a pretext for prohibited
discrimination or retaliation. Although some of the incidents in the complaint did occur, we find
that none were shown by a preponderance of the evidence to be motivated by discrimination or
retaliation.

Nonselection

Complainant claimed that the Agency subjected him to discrimination in reprisal for engaging in
protected EEO activity when he was not selected for the position of Accountant Team Lead
advertised under VA 10-DOECFO-07 (VA 067). The Agency articulated a legitimate,
nondiscriminatory reason for not selecting Complainant. The Selecting Official stated
Complainant was not the best qualified candidate for the position and the three Selectees were
more qualified than Complainant. The record reveals Selectee 2, GS-13, had extensive
accounting experience and had participated in a nine-month Executive Leadership Program.
Selectee 3, GS-14, had management experience and was managing a staff of six employees at the
time she transferred to the Agency to fill the position of Team Lead. Selectee 4, GS-14, was a
Certified Public Accountant, had supervisory experience, was serving as the Acting Team Leader
of the Cash Management Team, and had extensive accounting experience as outlined on his
application. The Selecting Official noted that Complainant was a GS-12 at the time of the
selection.

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Further, the Selecting Official also stated Complainant did not demonstrate experience in solving
problems with the U.S. Standard General Ledger, did not have experience in federal accounts
receivable operations, lacked enthusiasm during the interview and was unable to validate some
of his claims of experience in his application with specific examples when asked during the
interview. Panel Member X also stated that Complainant had difficulty during the interview
answering technical questions and providing specific examples of his experience during follow-
up questions regarding Complainant’s claimed experience on his application. We note that on
appeal Complainant does not dispute the Agency’s contention that he lacked enthusiasm during
the interview or that he had difficulty during the interview answering technical questions.

While we recognize the AJ issued an adverse inference for failing to preserve relevant interview
notes and score sheets, the sanction issued included a finding that the information sought
regarding Complainant’s interview performance would have reflected unfavorably upon the
Agency. The AJ’s sanction did not preclude the Agency from presenting any additional
information regarding the interview process. The AJ permitted two panel members to testify
during the hearing regarding the selection process, including the interview. Upon review, we
find substantial evidence supports the AJ’s finding that Complainant failed to establish, even
considering the adverse inference, that his objective qualifications for the VA 067 positions were
the same or similar to the selectees.4 Complainant also failed to establish by a preponderance of
evidence that the Agency’s failure to select him was because of his prior EEO activity.

At the hearing, the AJ defined Complainant’s nonselection for VA 067 as alleging discrimination
in reprisal for engaging in protected EEO activity. There is no indication that Complainant
challenged the definition of this claim at the hearing. On appeal, Complainant claims that the
nonselection for VA 067 was also based on his race and sex. Upon review, we find Complainant
failed to show that his nonselection was based on his race or sex. Moreover, we note that one of
the selectees was the same race as Complainant and another selectee was the same sex as
Complainant.

CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

4 At the hearing, Complainant testified that he was not more qualified than Selectee 4; however,
he claimed he was more qualified than Selectee 3.
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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. 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.

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COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION-EQUAL PAY ACT (Y0408)
You are authorized under section 16(b) of the Fair Labor Standards Act (29 U.S.C. § 216(b)) to
file a civil action in a court of competent jurisdiction within two years or, if the violation is
willful, three years of the date of the alleged violation of the Equal Pay Act regardless of
whether you have pursued any administrative complaint processing. The filing of the 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

March 14, 2018
Date