[Redacted], Lawrence R., 1 Complainant,v.William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency.

Equal Employment Opportunity Commission

Dec 17, 2020

Appeal No. 2020000489 (E.E.O.C. Dec. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lawrence R.,1 Complainant, v. William P. Barr, Attorney General, Department of Justice (Federal Bureau of Prisons), Agency. Appeal No. 2020000489 Agency No. FBI-2018-00002 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 July 31, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Probationary Investigative Specialist, GS-1801-09, at the Agency’s San Francisco Field Office in San Francisco, California. On November 4, 2017, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian) and sex (male) when: (1) on November 22, 2016, he received a rating of “Unacceptable” on his 2017 Performance Appraisal Report; and (2) on November 28, 2016, he was removed from his position with the Agency. 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. 2020000489 2 Complainant entered duty on January 10, 2016, and was terminated from the Agency on November 28, 2016, while still within his probationary period. Complainant asserted that his performance was better than successful and that he had never been counseled about any performance-related issues. Complainant testified that, on July 16, 2016, he was invited to a mimosa brunch with his colleagues during off-duty hours. Complainant identified five other co-workers who attended. The gathering relocated to several different locations. At some point during this get-together, a white co-worker (CW1) said something to Complainant and may have tried to grab his cell phone. Complainant responded to CW1, “No Nigga.” According to Complainant, another co-worker (CW2) heard the remark and put his hands up, smiled, and said “whoa.” Complainant insisted his comment was not meant to be racist. Complainant asserted that the gathering continued as normal and, after about 10 or 15 minutes, CW2 and another co-worker (CW3) paid their bill and left amicably. CW2 and CW3 are African-American. The remaining coworkers left 30 minutes later. Complainant also described an assignment on July 18, 2016. Complainant and his team were following a target on foot and while driving. Complainant had eyes on the target, who was driving on an expressway. Complainant “handed off” the target to CW3. After CW3 confirmed having spotted the driver, Complainant dropped back. However, CW3 followed the wrong vehicle off the expressway. Complainant noted that their Team Leader seemed irritated, but the team eventually reacquired the subject. Complainant later noticed that CW3 and the Team Leader were talking for what seemed to be an hour. Complainant later sent CW3 a text that said “don’t let today get you down. These things happen.” CW3 did not reply. On July 20, 2016, Complainant noticed that CW3 and Team Leader met in Complainant’s supervisor’s (S1) office. Shortly thereafter, Team Leader said that Complainant needed to talk to S1 about an incident that occurred over the weekend. In that meeting, Team Leader and S1 asked Complainant if he had ever said the N-word. After Complainant denied saying the N-word, S1 and Team Leader asked Complainant to describe the weekend’s events. Complainant explained to S1 and Team Leader that he may have used the word, “nigga” on more than one occasion throughout the day, but at no time with racial intent. Complainant said he was admonished for not being able to remember how many times he uttered the word over a span of seven hours. Complainant argued that his upbringing in Miami meant that people use the word on a daily basis without racial intent, and that the word is frequently used in pop culture. Complainant was then transferred to another team. Complainant later received his annual review on November 22, 2016. In his affidavit, Complainant objected that all other members of his team received their reviews by the end of September. In the review, Complainant received an overall “Unacceptable.” Complainant argues that the review was biased, “with several false statements regarding racial comments injected into its contents.” On November 28, 2016, S1 informed Complainant that he was being terminated. Complainant claimed that CW3 was using Complainant’s comments as an opportunity to scapegoat Complainant and distract from her having lost the target on the expressway on July 19, 2016. 2020000489 3 In response, S1 asserted that Complainant began causing problems on Team Leader’s team shortly after he began work. S1 said “[i]t was communicated to me that [Complainant] consistently questioned authority and instruction and demonstrated poor judgment.” S1 described an event where the team was specifically instructed to maintain a covert profile in a neighborhood, but Complainant failed to do so. When approached by law enforcement, Complainant failed to adhere to protocol and told law enforcement what he was doing in the neighborhood. S1 said Complainant consistently failed to take responsibility for his actions. Team Leader testified that, although “most new employees seem excited and appreciative upon arrival to a team, . . . [Complainant] seemed ‘intense.’” To Team Leader, Complainant appeared to have a good working relationship, but “needed to find a balance in his performance, as he was somewhat aggressive.” Team Leader said Complainant seemed irritated by his guidance. Team Leader said that CW3 approached him to discuss the events of July 16, 2016 and said that Complainant “used the ‘N word’ that ended in ‘er’ instead of ‘a’ in front of everyone, and that it was offensive to her and she was so upset by it that she left shortly thereafter.” Team Leader reported the conversation to S1. S1 confirmed that Team Leader relayed CW3’s complaint. CW3 also said that she received Complainant’s text message after losing the target and felt that Complainant was trying to highlight her mistake. When Complainant told S1 that he believed CW3 was trying to make him a scapegoat, S1 believed it to be another example of Complainant failing to take responsibility for his actions. S1 also said that Complainant changed his story several times, first saying he did not use the “N word,” then used it jokingly, then said he was so drunk he did not remember saying it, then said the group was drunk and was not accurately recalling the events. Team Leader corroborated the substance of this meeting. Team Leader, S1, and other supervisors jointly agreed to transfer Complainant to another team in an attempt to bring back cohesiveness to Team Leader’s team, and to provide Complainant with an opportunity to succeed in a new setting. S1 believed that Complainant’s “lack of judgment and decision-making skills, his emotional immaturity, and inappropriate behavior impacted the team and our mission, causing a divide within the team.” S1 acknowledged that Complainant’s performance was “Successful” in most categories but insisted that Complainant was counseled multiple times on how to improve his performance. Complainant’s “Unacceptable” performance review resulted from receiving an “Unacceptable” rating in Critical Element No. 4, which assessed the employee’s ability to relate with others and provide professional services. Complainant also received a “Minimally Successful” rating in Critical Element No. 5, which assessed the employee’s ability to maintain high professional standards. The performance review references the July 16, 2016 comments and Complainant’s responses when confronted about the comments. 2020000489 4 As Complainant was a probationary employee, S1 was required to evaluate Complainant’s suitability for continued employment. The Agency provided evidence of its policy as relevant to probationary employees. The policy directs that such employees may be terminated during the probationary period if the Agency determined that the employee was deficient in any one of six suitability standards: Conscientiousness, Cooperativeness, Emotional Maturity, Initiative, Integrity and Honesty, or Judgment. S1 concluded Complainant was not suitable and requested that he be removed from employment. 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 EEOC Administrative Judge (AJ). In accordance with Complainant’s request, 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 as alleged. The instant appeal followed. 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”). 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). We shall assume arguendo that Complainant established a prima facie case of discrimination on the alleged bases. In this case, S1 explained that Complainant admitted uttering the n-word at the July 16, 2016 event, could not recall how many times he uttered the word, and when confronted about it expressed no remorse. In addition, Complainant demonstrated an inability to follow protocol and instructions from his team leaders on several occasions. 2020000489 5 According to S1, these incidents justified an “Unacceptable” performance rating. As Complainant was a probationary employee, S1 had the responsibility of determining whether he met the six suitability standards. S1 determined he did not meet the standards for Cooperativeness and Emotional Maturity, either of which standing alone warranted dismissal. 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 the Agency acted on the basis of discriminatory animus. Complainant’s primary argument is that he did not use the term in a racist manner. Indeed, Complainant concedes that the term was controversial at the time he uttered it and remains controversial today. Furthermore, Complainant’s reaction to the Agency’s inquiry, along with his conduct during his employment with the Agency, indicated he did not possess the emotional maturity or cooperativeness necessary to form good working relationships. Thus, the Commission finds that Complainant has not established that he was subjected to discrimination as alleged. 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 decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2020000489 6 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2020000489 7 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 December 17, 2020 Date