Oliver M.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 15, 2020

2019003112 (E.E.O.C. Sep. 15, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Oliver M.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of Defense (National Geospatial-Intelligence Agency), Agency. Appeal No. 2019003112 Hearing Nos. 560-2016-00369X 560-2015-00122X Agency Nos. NGAW-14-S102 NGAW-14-HD03 NGAW-14-NDT003 DECISION 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 February 28, 2019, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision finding no discrimination. BACKGROUND Complainant began his employment with the Agency in October 2006. From April 2009 through December 2012, he served as a Supervisory Police Officer (Captain), Pay Band 3, and was assigned to the Office of Protective Services West located in St. Louis, Missouri. His first-line supervisor was A1, Deputy Chief, Supervisory Police Officer, Pay Band 4; his second-line 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. 2019003112 2 supervisor was A2, Chief, Supervisory Police Officer, Pay Band 4. When Complainant did not achieve his desired career progression within SI, he transferred to a different career field. Complainant accepted a reassignment as a Human Resources (HR) Specialist, Pay Band 3, effective December 16, 2012. From October 2013 through February 2014, he worked in the Recruitment Branch. His first line supervisor was B1, Supervisory HR Specialist, Pay Band 4. The Recruitment Branch was part of the Human Development’s (HD) Talent Acquisition Directorate, overseen by B2, Complainant’s second-line supervisor. By November 2015, he was working as a Policy Officer, Pay Band 3, with the HD’s Advanced Capabilities Office (HDSAP). His first-level supervisor was S1, Chief, Policy, and his second-line supervisor was S2, Chief, Policy and Compensation. Complainant filed 3 EEO complaints against the Agency, which were dated May 1, 2014; May 17, 2014; and February 26, 2016, respectively. With regard to Agency Complaint No. NGAW-0014-S102, (1st Complaint), Complainant alleged that: 1. He was subjected to disparate treatment and adverse impact discrimination, based on race (African American) and age (49) when: a.) SI withheld equitable pay by failing to use variable control point authority when creating the opening for the Captain’s position and in blocking his upward mobility when they informed him that with the elevation of the sergeant positions to Pay Band 3, other supervisory officers in that Pay Band, such as Captains, would be accorded upward pay adjustments at “variable control points” to reflect their additional responsibilities; b.) On January 10, 2014, he was informed by a security police officer that SI intended to upgrade the Police Captain position to Major, Pay Band 4. He believed since a significantly younger, white male was then a Captain, the Agency proceeded with such actions to facilitate the career progression of the Captain with lesser skills and qualifications than Complainant. 2. On June 21, 2014, he amended his complaint to further allege that he was subjected to disparate treatment and adverse impact discrimination because of his race, age, and in reprisal, and that standing alone, and in conjunction with the discrimination and harassment alleged in his initial complaint and his complaint cited as NGAW-14-HD03, it was harassment that led to a hostile work environment, when, on May 6, 2014, he learned that he had not been selected for the position of Supervisory Police Officer, Major, Pay Band 4; Assignment Opportunity Notice (AON) 20140384. 2019003112 3 3. On December 19, 2014, he amended his complaint to allege that he was subjected to disparate treatment and adverse impact discrimination because of his race, age, and in reprisal, and that standing alone, and in conjunction with the discrimination and harassment alleged in his initial complaint and his complaint cited as NGAW-14-HD03, it was harassment that led to a hostile work environment, when, on December 17, 2014, he learned that he had not been selected for the position of Supervisory Police Officer, Chief of Police, Pay Band 5; AON 20141107. A2, whom he described as a Caucasian, younger, less qualified candidate, was selected. 4. On December 21, 2014, he filed an additional amendment alleging that he was subjected to disparate treatment discrimination and harassed because of his race, age, and reprisal, and that the harassment alone, and in conjunction with all other delineated claims, created a hostile work environment when from July 2013, to September 2014, the Agency discriminated against him by: 1) its assignment of duties and responsibilities to him; 2) its allegedly factually unjustified criticisms and treatment indicative of negligence, inattention, and lack of program results; and 3) its evaluation of his performance of those duties and responsibilities. Incidents supporting this claim include: a.) On November 7, 2014, he received a close-out evaluation for work performed in HD, and on November 13, 2014, he was given a rating of record for FY2014 (Final Closeout Evaluation) for work performed in HR. Complainant believed both of which were factually inaccurate and the result of the disparate application of performance standards. b.) Beginning in February 2014, B2 accused Complainant of failing to communicate with the leaders of the Deaf and Hard of Hearing (DHH) community and being inattentive to the DHH program for recruitment and employment. c.) Between January 13, 2014 and May 2014, B2 instructed Complainant to assist in the processing of a Schedule A applicant who had evaded the prescribed application procedure, threatened Office of Personnel Management (OPM) intervention, and sought a selection preference. d.) From June 2013, to October 2014, he was required to prepare and present repetitive Power Point presentations and briefings on the same Schedule A and targeted disability topics including the rules, procedures, and resources available for implementing programs for the hiring of disabled persons, engaging managers with hiring authority, and tracking the lack of progress. e.) Beginning in February 2014, Agency managers imposed on him, as the Schedule A Program Manager, implementation responsibility for which he lacked authority; that was the responsibility of senior management to whom Complainant was required to repeatedly brief. 2019003112 4 f.) On September 4, 2014, TL, the Special Programs Branch Team Lead, directed Complainant to prepare a briefing for B2, and other senior managers stating his plan to inform the work force to hire Schedule A and Disabled Veterans, even though Complainant recently had done so. Though he insisted that this briefing and other similar briefings were Complainant’s responsibility, TL, through his unnecessary “edits,” inserted into them erroneous information that Complainant had to correct. TL announced that he did not understand why “we have to keep making all of these corrections” and that he was not going to keep doing Complainant’s work for him. g.) On September 19, 2014, B2 ordered Complainant to again draft a document addressing HD’s compliance with the targeted disability hiring requirements. h.) In September 2014, Complainant was ordered to travel to Springfield, Virginia on September 29, 2014, to present the same information he had prepared and presented multiple times before. B1.2, who was now Complainant’s first level supervisor, stated that in Virginia, Complainant would address senior managers, B2 and TL. B1.2 and TL described this briefing as critical to mission effectiveness. i.) By email, Complainant requested that he be excused from the September 29, 2014, briefing in Virginia because of ongoing violence and anarchy in Ferguson, Missouri, where his elderly mother lived. j.) On or about September 21, 2014, B1.2, with TL’s concurrence, falsely accused Complainant of evading travel obligations, and adversely impacting mission effectiveness. Complainant was warned that failure to travel to Virginia would affect his performance evaluation. 5. On February 12, 2015, he again requested an amendment of his complaint to allege that: a.) he was harassed and subjected to a hostile work environment by the Agency based on his race, age, and reprisal (participation and opposition), when in August 2014, he was told that the positions of Inspector General Administrative Investigator, Pay Band Ill (AON 2014622), for which he was referred on June 20, 2014, and Inspector General Administrative Investigator, Pay Band IV (AON 2014623), for which you were referred on June 17, 2014, were cancelled.2 2 According to the Agency, this claim was not accepted for investigation because Complainant sought EEO counseling in an untimely manner (furthermore, there is some indication the claim was withdrawn). The claim was considered as part of his overall harassment claim, however. Complainant has not challenged the dismissal of the discrete incident on appeal and therefore we shall not address the discrete incident, but will consider it as part of the harassment claim. 2019003112 5 b.) His subsequent application for the position of Inspector General Administrative Investigator, Pay Band III (AON 20150136), was also referred, and on January 16, 2015, he was notified, via PeopleSoft, that he had not been selected. He contends that his nonselection was discriminatory, and a continuation of the harassment and subjection to a hostile work environment and was related to the previous complaints he filed which involved B2 and A3, the Director, Office of Protective Services.3 6. On February 23, 2015, he again amended his complaint to include the allegation that on February 17, 2015, he was discriminated against by the Agency on the bases of his race, age, and in reprisal, and that standing alone, and in conjunction with the discrimination and harassment alleged in this complaint, as amended, and in his complaint cited as NGAW-14-HD03, was harassed causing a hostile work environment, when he was advised that he had not been selected for an interview and thus had not been selected for the position of Supervisory Police Officer, Deputy Chief of Police, SIPW, Pay Band 5, pursuant to AON 20150238. Regarding Agency Complaint Number NGAW-14-HD03, (2nd Complaint), Complainant alleged that: 7. He was discriminated against based on reprisal (opposition of discriminatory practices) and subjected to a hostile working environment when: a.) From October 2013 through February 2014, he was harassed when he opposed SI’s discriminatory use of focused outreach without proper analysis and illegal application. b.) On November 4, 2013, A3 stated that he had no expertise in recruiting women during a meeting with the SI and HD management officials. c.) On January 30, 2014, B2 publicly disparaged his qualifications when he was under pressure to facilitate SI’s objectives, threatened with discipline, and falsely accused of insubordination and unprofessional behavior in front of a senior HD manager. With respect to Agency Complaint Number NGAW-16-HDT002 (3rd Complaint), Complainant alleged that: 8. He was discriminated against, harassed and subjected to a hostile work environment, by the Agency based on race, age, and in reprisal when, on or about December 11, 2015, he received notification from the Recruitment Center that he was not to be interviewed or selected for the position of Supervisory Police Officer (Deputy Chief), Pay Band 5, AON 20160044. With respect to Claim 1(a), Complainant alleged that, during his tenure in the Captain position, he had repeatedly been told that there was a lack of funding for implementing variable control points (VCPs) that were supposed to have been established within the Pay Band 3 grade for Lieutenants, 3 The Agency noted that Complainant did not allege a specific basis regarding this claim. 2019003112 6 and Captains. According to the record, VCPs were a method to ensure that individuals within a certain pay band would receive a higher percentage rate increase based on their rank.4 Sergeants were upgraded to Pay Band 3 in March 2011, and received a 6% raise, but there were no salary increases for Lieutenants and Captains. According to the record, well into 2012, Complainant had still been asking about the status of the VCP implementation for Lieutenants and Captains. Complainant believed that the Agency’s actions were meant to discriminate against him because of his opposition to discrimination within the workforce and were the initial steps in the reconfiguration of the supervisory workforce structure in SI to replace older personnel with younger people. Subsequently, the Agency implemented VCPs for Lieutenants and Captains, but after Complainant had transferred. According to the Agency, there was nothing in the record indicating that management delayed the implementation of the VCPs by commission or omission of any act. The Agency further noted the lack of any evidence of a discriminatory motivation against Complainant. The Agency argued that VCPs would result in all the ranks receiving a raise in pay, and that Complainant was not the only Captain within the SI police. There were four such positions, and even if his concern that the VCPs were not appropriately implemented was true, he failed to show how he was treated differently from any other Captain. Regarding Claim 1(b), on January 14, 2014, 13 months after he transferred from SI to HR, Complainant learned from A1 that SI intended to upgrade the police Captain position, which he formerly held, to Major, Pay Band 4. A1 stated that A3 believed the duties of the police Captain justified the upgrading. Complainant maintained that once he had vacated the Captain’s billet he had previously occupied, it had been filled by C1, a younger white male. In addition to believing that he was more qualified that C1, Complainant argued that he had been told that there was no money to upgrade the position. Complainant believed that A1, A2, A3, and others were responsible for reconfiguring the supervisory structure, and they, along with members of the selection panel that identified C1 for promotion, discriminated against him. The Agency maintained that Complainant’s claim that the upgrade of the Captain’s position to Major was done to facilitate the career of C1 was without merit. The Agency noted that one Captain’s position at each of the Agency’s two primary locations was elevated to the rank of Major. Both selectees were then current occupants of one of the two Captain’s billets at each location, unlike Complainant who was in HR at the time, and both were over forty years of age. C2, the selectee for the campus in Springfield, Virginia, was Black, and as noted C1, the selectee for the St. Louis facility, was Caucasian. The Agency noted that A3 and other officials would have to have known that Complainant intended to, or was departing his position, so that the recruitment of C1 could proceed. According to the Agency, A3 had no prior knowledge that Complainant was leaving. A3 maintained that previous attempts to upgrade the position had failed until March 2014. 4 For example, although a Sergeant, a Lieutenant, and a Captain might all be in the same pay band, VCPs would allow the higher-ranking individuals to receive larger pay increases. 2019003112 7 Regarding Claim 2, the Agency noted that the upgraded Major position was open to all qualified employees, including Complainant, and that A3 could have limited recruitment to the current police force, which would have excluded Complainant. The Agency noted that there was no evidence that in reviewing the resumes for the vacancy the panel members favored a candidate based on race or age, or any other impermissible personnel consideration. The Agency also noted that that each panel member attested to C1’s knowledge and answers to the interview questions, and that it exceeded Complainant’s interview. Regarding Claim 3, according to the Agency, the panel rated Complainant as one of the best qualified candidates and he was ultimately interviewed. Ultimately, A2 was selected. All panel members testified that Complainant did not score as well during the interview phase as A2. The panel members further stated that Complainant’s race, age, and prior EEO activity was not discussed, considered, or played any role, but noted there were clear distinctions between Complainant’s interview and A2. According to one panel member, Complainant, overall, had a good interview, but he was not able to articulate the same level of depth and breadth of command level law enforcement experience at the GS-15 level. A2 articulated specific and unique skills along with his experience. According to the Agency, A2 “[h]ad the benefit of command experience gained from occupying the very position for which he competed through this recruitment[.]” Out of the five candidates selected for interview, Complainant was scored as being tied for third. Regarding Claim 4, Complainant maintained that he was subjected to discrimination and harassment from July 2013 through September 2014, while working in HR and under the supervision of B2. He alleged that by assigning him certain duties and responsibilities, followed by unjustified criticisms and treatment indicative of management’s belief that he was negligent and inattentive in the performance of those duties, B2 and other supervisory personnel discriminated against him. He further alleged that their misconceptions adversely impacted his performance evaluation. With respect to Claim 4(a) the Agency maintained that a review of the performance evaluation reveals no indications of bias, and that Complainant’s disagreement with the assessment because it was not as good as he believed he was entitled, did not mean discrimination or harassment played a role. With respect to Claims 4(b) - (e) and (g), the Agency maintained that the assignment of duties related to management tasking Complainant to be the Schedule A Program Manager. According to Complainant, he was not given the authority necessary to be effective. The Agency countered that the work was both within his job description and was done by other recruitment team members. The Agency stated that Complainant’s contention that he lacked authority was without merit as the evidence showed that other members of the recruitment team served as project or program managers and that the role of program manager did not specifically encompass implementing plans or processes, but rather to present recommended courses of action for senior managers. Authorizing Complainant’s recommendations, according to the Agency, was the responsibility of senior management to whom Complainant was required to repeatedly brief. 2019003112 8 The Agency stated that Complainant faulted management for continual interference with his program management by mandating extra effort, and that he confused management's efforts to direct his focus with harassment. With respect to Claim 4(f), the Agency maintained that Complainant did not raise TL’s conflicting guidance and edits of his work product to his supervisors. Regarding 4(g), the Agency noted that the specific hiring guidelines Complainant worked with applied to Persons with Targeted Disabilities (PWTDs) and not Schedule A. Complainant was asked to review and prepare a response to the variation in the policies with the support of Legal and HD Policy to ensure application of the correct hiring practice, which was the reason B2 asked him to again draft a document addressing HD’s compliance with PWTD hiring. Regarding claims 4 (h) - (j), Complainant noted that, contrary to his objections, he was ordered in 2014, to travel to the Springfield, Virginia campus to personally present a briefing. Complainant thought the trip was unnecessary. The Agency maintained that Complainant’s belief that management did not need him to travel, was evidence of a disagreement but not of severe or pervasive conduct designed to alter the conditions of his employment or to create a hostile working environment. All program managers from the HD Talent Management were asked to prepare and deliver program overviews; and this, according to the Agency, was the third time Complainant had cancelled planned trips and it was negatively impacting the team. The Agency maintained that because travel was a necessary function, management requested Complainant apply flexibility in his personal affairs to travel and accomplish the mission and to meet his performance objectives. Regarding Claim 5 (a), Complainant maintained that he was harassed when he was told that the Inspector General Administrative Investigator positions for which he had been referred was cancelled. He also maintained, regarding Claim 5(b), that his nonselection was both discriminatory and a continuation of harassment related to his previous complaints against A3 and B2. The Agency argued that the only evidence Complainant offered in support of this claim was his conjecture that, the IG, who was a prior director in SI, must have known of his protected activities, and, second, held him in such disdain that he would now, as the Agency’s Inspector General, override and unduly influence the recruitment action for two vital and vacant positions within his office. The Agency further noted that there was no evidence that the IG was hostile to Complainant, did not approve of his EEO activities, or was otherwise incensed by Complainant’s repeated applications for various vacancies as to want to discourage panels from fairly considering his application. Moreover, the Agency argued that Complainant failed to articulate how his nonselection by a panel outside of SI or HD was the result of a protected basis; made no proffer of how a panel comprised of no one linked to A3, B2, SI or HD was connected to his nonselection, or how it constituted harassment by A3 or B2. According to a selection panel member, Complainant was qualified, but not interviewed because under the criteria used to evaluate the applicants, he did not reach the overall score of 8, which was the cut-off for those candidates who were interviewed. 2019003112 9 Regarding Claim 6, the Agency maintained that Complainant applied for the Deputy Chief position and his resume was forwarded by HD for consideration. Each panel member scored the resumes, and as a group, decided on a cut-off score for interviews. Because Complainant’s score did not meet the cut-off, he was not interviewed. He was in a three-way tie for fourth place. C3, a white male, was ultimately selected for the position. Regarding Claims 7(a) - (c), Complainant believed that was subjected to harassment because he opposed SI’s alleged discriminatory use of focused outreach. He opposed the outreach because he believed it was conducted without proper analysis and was illegal in application. Complainant requested that he no longer participate in SI’s recruitment strategy. He stated that, “I refused to accept and or actively participate in any recruitment activity that involved the singular recruitment and hiring of one gender, race, or ethnic background over the other.” The Agency maintained that “focusing recruitment efforts on a group of under-represented individuals such as women or minorities, to increase applicant pools, was an accepted technique,” and that regardless of whether Complainant believed the practice to be illegal, or not, it was not harassment for management to direct him to perform the duties of his position. As for Claim 7(b), the Agency noted that A3’s claim that he was not commenting specifically about Complainant but about the entire HD when he stated there was no expertise in recruiting women during a meeting between SI and HD management officials. The Agency stated, however, that even if the statement was solely about Complainant, the comment was not based on discriminatory animus but was work-related. Also, the Agency stated that Complainant did not detail in his complaint the specific comments of B2 that he found to be offensive, with respect to Claim 7(c), but it argued that any statements she may have made regarding an employee being potentially subject to discipline for not performing their assigned duties was not unlawful harassment. With regard to Claim 8, Complainant alleged he was discriminated against and harassed by the Agency when he received notification that he would not to be interviewed, and thus eliminated for any further consideration for selection, for the position of Deputy Chief of Police, a supervisory Pay Band 5 position. The cutoff score was 7, and Complainant received a 6. Each of the panel members testified to fully and fairly evaluating the resumes against the stated criteria in the position announcement, and each stated that they were not unduly influenced, or that a specific candidate was favored or advanced as the desired selectee. According to the Agency, the interviews included only those candidates rated as the best qualified among the applicants referred and that there was no mention, let alone consideration, of prohibited factors such as race, age, or prior EEO activity. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing but subsequently withdrew his request. 2019003112 10 Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination or harassment as alleged. Complainant filed the instant appeal. On May 6, 2019, Complainant’s attorney sought, and was granted an extension of time to file a brief in support of this appeal. The Office of Federal Operations (OFO) extended the date to May 18, 2019, a Saturday. The next business day was Monday, May 20, 2019. On May 16, 2019, however, Complainant’s attorney wrote the Commission seeking an additional four days, i.e., until May 22, 2019, to file his brief. In its response dated, May 17, 2019, OFO denied the request for a second extension, stating that “[i]n our letter to you dated May 7, 2019, you were advised that no further extensions of time would be granted. Therefore, your request is denied.” On May 21, 2019, Complainant filed his brief by fax to OFO. According to the Agency, Complainant did not serve it with a copy until May 22, 2019. The Agency, in response to Complainant’s appeal, asks that Complainant’s statement not be considered because it was filed in an untimely manner and that its final decision be affirmed. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). At the outset, we note that Complainant’s brief was untimely filed, but even if it was timely filed it would not change the ultimate outcome. Disparate Impact To establish a prima facie case of disparate impact, Complainant must show that an Agency practice or policy, while neutral on its face, disproportionately impacted members of his protected classes. This is demonstrated through the presentation of statistical evidence that establishes a statistical disparity that is linked to the challenged practice or policy. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (class agent must present “statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion”). Like the Agency, we find that Complainant failed to establish a prima facie case of disparate impact with respect to Claims 1(a), 1(b), 2, and 3 (or any other claim). Complainant did not identify how he was subjected to disparate impact, and, more importantly, he failed to identify a specific neutral Agency policy or practice that resulted in a disparate impact on the members of his race, those over 40, or those who engaged in protected EEO activity. 2019003112 11 As the Agency noted, Complainant had been previously selected under the same policy and practices to the supervisory rank of Captain, and “[t]he fact that he was not subsequently selected for other supervisory positions is neither proof that other over forty applicants, Black applicants, or applicants having exercised EEO associated activities were precluded from selection, or were dissuaded from applying because the policy adversely impacted their chances of selection.” In fact, the record indicated that the selectees for all four of the SI positions were over 40 years in age and several had prior EEO activity. Disparate Treatment To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). To meet his ultimate burden of proving that the Agency’s actions are discriminatory, Complainant needs to demonstrate such “weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.” Evelyn S. v. Dep’t of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017). Assuming, arguendo, Complainant established a prima facie case of discrimination based on his race, age, or prior EEO activity, we find that the Agency articulated, legitimate, nondiscriminatory reasons for its selection decisions in Claims 2, 3, 5(b), 6, and 8 as were set forth in detail above. We find that Complainant has not provided any persuasive evidence of pretext here. Employers have broad discretion to set policies and carry out personnel decisions and should not be second- guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). We find no such motivation here.5 5 One way that Complainant could show pretext is by demonstrating that his qualifications were so observably superior to those of the five selectees’ that no reasonable person, in the exercise of impartial judgment, could have chosen them over him. Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004); see also, Ash v. Tyson Foods, Inc., 126 S. Ct. 1195, 1197-1198 (2006). We find no such evidence exists in this record. 2019003112 12 We also find no persuasive evidence of discrimination or pretext with respect to Claims 1(a) and (b). Complainant’s speculation that the upgrade of the Captain position to Major or the implementation of VCPs was brought about to discriminate against him is not supported by the record. According to A3, he was not aware of Complainant’s intent to transfer from SI to HR. Moreover, given that Complainant was given the opportunity to compete for the upgraded Major position, and that he would, presumably, have received the VCPs had he not transferred, we are not persuaded that discrimination played a role here. Harassment To establish a claim of harassment a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994) (Enforcement Guidance). Regarding Complainant’s hostile work environment claim, we find at the outset that under the standards set forth in Harris that Complainant’s claim of a hostile work environment must fail with respect to claims 1(a), 1(b), 2, 3, 5(b), 6 and 8. See Enforcement Guidance. A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of these actions were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). With respect to claims 4 (a) - (j), 5(a), 7 (a), (b), and (c), we find that Complainant did not establish that he was subjected to a hostile work environment. While the record clearly indicates that Complainant and various supervisors had a contentious working relationship, we do not find that these work-related matters were motivated by discriminatory animus nor were they “sufficiently severe or pervasive to alter the conditions of [Complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75 (1998). The Commission recognizes that ordinary managerial and supervisory duties include assuring compliance with agency policy and procedures, monitoring subordinates, scheduling the workload, scrutinizing and evaluating performance, providing job-related advice and counsel, taking action in the face of performance shortcomings, and otherwise managing the workplace. Erika H. v. Dep’t of Transportation, EEOC Appeal No. 0120151781 (Jun. 16, 2017). 2019003112 13 Employees will not always agree with supervisory communications and actions, but absent discriminatory motives, these disagreements do not violate EEO law. Moreover, we find no persuasive evidence that the vacancy announcements at issue in Claim 5(a) were cancelled for discriminatory reasons. Finally, we find that Complainant has failed to show by a preponderance of the evidence that any of the incidents at issue were motivated by discrimination. CONCLUSION We AFFIRM the Agency’s final decision finding no discrimination. 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). 2019003112 14 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 15, 2020 Date