Zachary K.,1 Complainant,v.Betsy DeVos, Secretary, Department of Education, Agency.

Equal Employment Opportunity Commission

Jan 17, 2020

2019001162 (E.E.O.C. Jan. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachary K.,1 Complainant, v. Betsy DeVos, Secretary, Department of Education, Agency. Appeal No. 2019001162 Hearing Nos. 570-2016-00737X; 570-2017-00485X Agency Nos. ED-2015-OM-0018; ED-2016-OM-0019 DECISION On November 7, 2018, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s final action concerning his equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Specialist, GS-0301-14, at the Agency’s Office of Management in Washington, D.C. On April 19, 2016, Complainant filed an EEO complaint (Agency No. ED-2015-OM-0018) alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American) and in reprisal for prior protected EEO activity when: 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019001162 2 1. On February 25, 2015, he alleged his supervisor (S1) assigned him to be the lead for the Manager Advantage Upgrade for the Learning and Development Department, an element on S1’s performance plan; 2. On February 25, 2015, he alleged a similarly-situated GS-14 white male colleague (CW1) was not required to perform duties or work outside of his established position description whereas Complainant was; 3. On March 9, 2015, he alleged CW1 was authorized to travel to Headquarters every four to six weeks and he was not afforded the same opportunity; 4. On March 9, 2015, he alleged CW1 was assigned to an office when visiting Headquarters and he was assigned to a cubicle; 5. On March 20, 2015, he alleged his supervisor designated him to be the lead for the Department-wide Competency Assessment Process, an element on his performance plan; 6. On March 23, 2015, he alleged his supervisor regularly assigned more work to him than to his colleague in Utah; 7. On March 25, 2015, he alleged his supervisor gave him the responsibility for leading the opening of the Career Center and not his colleague in Utah; 8. On April 16, 2015, he alleged his supervisor orally admonished him for asking questions about his work and for responding to his questions with “one word” answers via email; 9. As of April 25, 2015, he alleged his supervisor carbon copies him on all emails but not his colleagues; 10. Since May 7, 2015, he alleged his supervisor required him to create project plans and submit weekly status reports of his work, but his colleagues do not have the same requirement; 11. On June 3, 2015, he alleged he was required to have his work validated by a contractor and his colleague does not have the same requirement; 12. On June 12, 2015, upon receipt of the EEO Counselor’s Report, he alleged the statement “he has performance and conduct issues” made by his supervisor was an attempt to slander his name; 13. On July 1, 2015, he alleged his supervisor issued him a Proposal to Suspend; 2019001162 3 14. On August 6, 2015, he alleged he was suspended effective August 10, 2015 through August 11, 2015; and 15. On August 6, 2015, he alleged his rights to “due process” were violated because he was not allowed time to appeal (orally or in writing) his suspension. Complainant filed a second EEO complaint (Agency No. ED 2016-OM-0019) in which he alleged that the Agency subjected him to discrimination on the bases of his race, sex (male), age (42), and in reprisal for prior protected EEO activity when: 16. On or about May 11, 2016, Complainant learned he was not selected for the position of Supervisory Human Resources Specialist (LDD), GS-0201-15, Vacancy Announcement No. OM-2016-0020.2 At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested hearings. The AJ assigned to the matter consolidated the cases and granted the Agency’s January 29, 2018, motion for a decision without a hearing3 and issued a decision without a hearing on September 28, 2018. With regard to Claim (1), S1 assigned Complainant to be the lead for the Manager Advantage Upgrade program. Complainant stated he was not provided any reasons for the actions, he was just directed to lead the effort. Complainant disagreed with this assignment because this was an element that S1 was assigned to perform and he was not receiving GS-15 level compensation for the work. S1 acknowledged that the program was an element of his own performance plan but noted that he was the Supervisory Human Resources Specialist and that his performance plan “reflects the performance plan for the Learning and Development Division (LDD) less the supervisory responsibilities.” S1 added that all LDD staff members have elements on their performance plans that were also in his performance plan to assure that they succeeded as a division. S1 stated that he assigned Complainant the Manager Advantage Upgrade “due to his experience and knowledge with HR applications such as the IdeaEngine.” Complainant denied that he had experience working with electronic HR applications, and rejects S1’s position that S1’s performance plan includes elements of all other employees’ performance plans. 2 The Agency dismissed several additional claims pursuant to 29 C.F.R. § 1614.107(a)(5) as moot. Complainant did not challenge the dismissal of these claims before the AJ or on appeal; therefore, the Commission will not address them herein. 3 In her decision, the AJ notes that Complainant filed a “Summary Judgment notice” on the same day the Agency moved for a decision without a hearing. Beyond this document, Complainant appears to not have responded to the Agency’s motion. 2019001162 4 Complainant stated that S1 “did not assign the Manager Advantage project to me until several months after the beginning of the year. If what [S1] were stating were true, he would have placed Manager Advantage on my performance plan in the beginning of the year.” As to Claim (2), Complainant claimed that CW1 was not required to perform duties or work outside his position description while he was. S1 denied that CW1 was similarly situated. The record reflects that CW1 was a Human Resources Specialist. As such, S1 explained that CW1’s position had different position descriptions and duties, complexities, and scope. S1 further denied that Complainant or CW1 was assigned duties outside their position descriptions. S1 stated that work assignments were based on employee knowledge, skills and abilities and that all employees work within their position descriptions. S1 further explained that CW1’s duty station is in Utah, a decision made before S1 assumed supervision of CW1. On occasion, the Agency had a business need for CW1 to travel to Agency headquarters Washington, D.C. and the Agency is required to pay for his travel expenses. S1 added that his subordinates are all afforded the opportunity to travel when business needs arise. Complainant has not volunteered for any of these opportunities. Regarding Claims (3) and (4), when CW1 does visit Headquarters, S1 explained that CW1 uses whatever workspace is available at the time. According to S1, “in the OHR space plan, LDD has only one office assigned to the division for employee use and it is assigned to the director (GS- 15).” [C]omplainant is not assigned to an office based on the lack of available office space and work schedule.” S1 added that the Agency utilizes shared hoteling practices and that Complainant teleworks five days each two-week pay period. In rebuttal, Complainant argues that there is office space next to S1’s office that has been available for several months. Further, there are other GS-14 employees who are afforded office spaces. However, Complainant does not identify these employees. S1 said he assigned Complainant the Competency Assessment Process, as alleged in Claim (5), due to Complainant’s experience and knowledge with past competency assessments. S1 also denied assigning Complainant more work than CW1 (Claim (6)) but noted that he occasionally asks Complainant to act in his stead while S1 is on leave, in part because Complainant is physically present in headquarters while CW1 is in Utah. S1 suggested that such requests were opportunities to gain exposure to director-level interactions and if Complainant preferred, he could ask other employees to be acting supervisor in the future. In response, Complainant asserted that S1’s decision to designate him acting supervisor because CW1 was not physically present in Headquarters amounts to disparate treatment. As to Claim (7), S1 explained that the Secretary’s office requested a department-wide career development center be created for all employees. Due to the scope of the project and the target audience, S1 assigned Complainant the task of opening the Career Center because he needed a GS-14 in Headquarters to lead the task, and the project fell within Complainant’s position description. 2019001162 5 Complainant responded that the criteria that the Career Center assignment be given to an employee in Headquarters “shows further disparate treatment for employees located in Washington, D.C.” Although Claim (8) refers to an oral admonishment, S1 memorialized in writing the oral admonishment, and Complainant does not dispute the factual assertions within that memorandum. Therein, S1 explained that Complainant was engaging in unprofessional behavior and utilizing confrontational language in his email communications with S1. Accordingly, S1 directed Complainant to cease such behavior. In response, Complainant denied ever being insubordinate or utilizing inappropriate or rude behavior. As to Claim (9), S1 stated that he carbon copies Complainant when Complainant’s involvement is necessary. Complainant clarified that he meant S1 carbon copies himself on emails to Complainant but did not do so with respect to other employees. In Claim (10), S1 averred that he required all his subordinates, except the GS-6 room scheduler, to submit regular reports. Complainant argued that S1’s response was contradictory because S1 first stated that his subordinates all have reporting requirements “with varying levels of frequency” then later says that his subordinates report “on a regular basis.” S1 said that the event alleged in Claim (11) was a one-time issue in which he asked Complainant a direct question and did not receive a direct response. Therefore, he sought, and received, clarification from the contractor. Complainant insisted S1’s interaction with the contractor was improper. S1 said that he made the statement at issue in Claim (12) in response to a question by the EEO counselor as to whether Complainant had performance issues, and he “answered the question in the affirmative based on the fact there were documented performance and conduct issues.” Complainant insisted that S1 was slandering him professionally. With respect to Claims (13) through (15), S1 explained that he proposed Complainant’s suspension because Complainant repeatedly failed to deliver timely and complete projects. According to S1, Complainant was required to deliver weekly and aggregate usage reports related to the Career Center, but each report had substantive errors requiring correction. The proposal provided Complainant with seven days to appeal. Complainant exercised that right and appealed to the Chief Human Capital Officer (CHCO), Complainant’s second-line supervisor. CHCO concurred with the decision to suspend Complainant but took into consideration Complainant’s appeal and reduced the suspension to two days. CHCO explained that she believed Complainant did submit reports in a timely manner, but the reports were not accurate and were not useful. Further, CHCO was not persuaded that Complainant was not allowed to ask S1 clarifying questions or that S1 changed the requirements to create the appearance of noncompliance. In response, Complainant argued that CHCO’s acknowledgment that his work was timely belies any rationale for suspending him. 2019001162 6 Further, Complainant contended that his supervisors ignored the principle of progressive discipline in suspending him and postponed a meeting in which he could have orally contested his suspension. Thus, Complainant believes his due process rights were violated. Regarding Claim (16), the Deputy Chief Human Capital Officer (DCHCO), CHCO, and the Principal Deputy Assistant Secretary (PDAS) formed the interview panel for the position at issue. The interview panel interviewed Complainant and the Selectee for the position. At the time, the Selectee was serving in a GS-15 Human Resources position at another Federal agency. DCHCO explained that the Selectee highlighted experience she gained as a trainer and supervisor and outlined a detailed plan on how she would assess the staff’s current state and position the staff for future success. Conversely, Complainant believed the staff was prepared for success, and simply needed to be incentivized. Complainant argued that the selection was biased because the Selectee had previously worked with CHCO and DCHCO at another Federal agency. Complainant further asserted that the Selectee was not a black male who “are not historically or traditionally selected for career management positions at the GS-15 level.” In her decision, the AJ found that Agency management officials articulated legitimate, nondiscriminatory reasons for each of its actions for which Complainant failed to show were pretextual. As to Complainant’s allegation of non-selection, the AJ found that the Agency’s explanation for hiring the Selectee was legitimate and non-discriminatory, and that Complainant’s qualifications were not clearly superior to the Selectee’s. The AJ found Complainant’s arguments to be “unsupported and misplaced contentions and speculation.” As a result, the AJ found that Complainant was not subjected to prohibited discrimination. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination or reprisal as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant contends the AJ ignored several issues of fact. First, Complainant argues that his position title does not match his position description. Complainant maintains that his suspension was not in compliance with the procedures as set forth in the Agency’s table of penalties. Complainant then argues that the interview panel for his non-selection was composed of three people, not two people as the AJ found. Complainant maintains that the record contains evidence to dispute S1’s assertion that he did not work any employee outside their position descriptions or that S1 properly assigned work to his subordinates. As to his non-selection, Complainant contends that the Selectee’s qualifications do not demonstrate she was clearly superior to him. Accordingly, Complainant requests that the Commission reverse the final action. 2019001162 7 ANALYSIS AND FINDINGS The Commission’s regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. Here, we find that the AJ properly granted summary judgment as the record was adequately developed and Complainant did not demonstrate a dispute of material fact that required a hearing. Disparate Treatment To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Servs., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). In this matter, as more fully recited above, Agency management articulated legitimate, nondiscriminatory reasons for its actions. For example, S1 explained that he gave Complainant several assignments because of Complainant’s prior experience and presence at headquarters. Further, S1 orally admonished Complainant due to disrespectful language and behavior and suspended Complainant because of inaccurate work. With respect to the suspension, S1 proposed the suspension because Complainant was the only employee assigned to the Career Center project and he failed to timely and accurately deliver the assigned weekly and aggregate usage reports as instructed. S1 noted that this discipline was consistent with the Agency’s Table of Penalties. Ultimately, CHCO determined that a two-day suspension was warranted as the reports were submitted timely, but they were inaccurate and not useful. 2019001162 8 As to his non-selection, the selecting official and panelists stated that Complainant’s experience and qualifications were relevant to the position, but that he was not the best qualified candidate. More specifically, DCHCO stated that the Selectee performed better during her interview by highlighting her training experience and spoke to her leadership capabilities, including how she would use the experienced gained as a trainer as well as a supervisor to develop the staff to meet the vision articulated for the Learning and Development Division. Further, the Selectee specifically spoke to her experience in curriculum development and how leading others in this area would help transition the staff from overseeing contractors to actually performing these duties in- house. The Selectee outlined a detailed plan of how she would go about assessing the staffs current state and competencies and prepare them for success in the future. By contrast, DCHCO affirmed that Complainant did not speak to extensive training or curriculum development experience. DCHCO noted that Complainant’s response to how he would assess the staff and prepare them for the future was that he believed that the staff already had the capability and that all management needed to do was to incentivize them into action. CHCO confirmed that during his interview, Complainant did not speak to any specific ideas on developing the staffing and expanding the programs of the office while the Selectee spoke about tactics she had used in past positions to reshape unmotivated organizations and about specific training curriculums she had developed and delivered. Ultimately, the interview panel concurred that the Selectee was the best qualified candidate and DCHCO selected her for the position. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). With respect to his non-selection claim, one way Complainant can establish pretext is by showing that his qualifications are observably superior to those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply one method and is not the only way Complainant may establish pretext as to his non-selection claim. S1 explained that CW1 has a different position title with different duties. Complainant has pointed to no evidence that would tend to rebut S1’s explanation. Moreover, Complainant’s allegation regarding office space is unavailing. While Complainant contends that an office has been vacant, he does not show that the office was allocated to his department. Rather, S1 explained that the department was allocated one office, which he himself occupied. As to discipline issued to Complainant, while he disputed that his demeanor or language was offensive, he did not dispute the language as used in the oral admonishment. Moreover, Complainant did not dispute that he submitted inaccurate work. CHCO’s decision to suspend Complainant for two days instead of five shows that consideration was given to Complainant’s argument that his work was timely, but that the work remained inaccurate. Further, Complainant exercised his opportunity to contest the proposed suspension. Accordingly, Complainant did not show that he was disciplined due to any discriminatory or retaliatory motive. 2019001162 9 Regarding his non-selection, the Commission finds that Complainant failed to show that his qualifications for the position at issue were plainly superior to those of the selectee. In this case, the Selectee had attributes that justified her selection, and the selection official affirmed that she believed the Selectee was better equipped to meet the Agency's needs. In the absence of evidence of unlawful discrimination, the Commission will not second guess the Agency's assessment of the candidates' qualifications. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 259. The Commission finds no persuasive evidence that Complainant's protected classes were a factor in any of the actions at issue. At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency's reasons were not the real reasons and that discriminatory or retaliatory animus was a factor in its actions. Complainant failed to carry this burden. As a result, the Commission finds that Complainant has not established that he was subjected to discrimination or reprisal as alleged. Furthermore, to the extent that Complainant claims that the alleged incidents constitute a hostile work environment, the Commission notes that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), a claim of hostile work environment must inevitably fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by Agency management were motivated by discriminatory or retaliatory animus on any of the alleged bases. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final action. 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. 2019001162 10 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. 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. 2019001162 11 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 17, 2020 Date