Petition for Writ of Certiorari — Quentin Borges-Silva, Petitioner v. Michael S. Regan, in His Official Capacity as Administrator, Environmental Protection Agency

No. 23In the

Supreme Court of the United States

QUENTIN BORGES-SILVA,

Petitioner,

v.

MICHAEL S. REGAN, IN HIS OFFICIAL

CAPACITY AS ADMINISTRATOR, UNITES STATES

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the

District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Morris E. Fischer

Counsel of Record

Morris E. Fischer, LLC

1510 Georgia Avenue, Suite 235

Silver Spring, MD 20902

(301) 328-7631

morris@morrisfischerlaw.com

Counsel for Petitioner

March 4, 2024

327970

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

T his case a r ises f rom Petitioner ’s w rong f u l

termination from the Environmental Protection Agency.

This termination was based on the Petitioner’s failure

to complete a Performance Improvement Plan (“PIP”).

There was a separate Administrative litigation before the

Petitioner raised his identical claims concurrently before

Equal Employment Opportunity Commission (EEOC) and

after a four-day hearing, the EEOC ruled in significant

favor of Petitioner, who established by a preponderance

of the evidence that he was subjected to a hostile work

environment during the PIP period and after, until he

was terminated based on his sex and prior EEO activity,

and that he was placed on a Performance Improvement

Plan (“PIP”) in reprisal for his prior EEO activity. In his

Federal Court litigation, the Petitioner raised these claims

and that they were decided in his favor by the EEOC as a

defense to his wrongful termination. However, the District

Court erroneously held they were not precluded from

these findings because “the same issue” was not raised

in the EEOC case.

The question presented is:

Whether offensive collateral estoppel in a concurrent

administrative proceeding is binding in a district court

proceeding arising from the same cause of action.

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner Quentin Borges-Silva, was the plaintiff in

the district court proceedings and appellant in the court

of appeals proceedings.

Respondent Michael S. Regan, Administrator,

United States Environmental Protection Agency, acting

in his official capacity, was the defendant in the district

court proceedings and appellee in the court of appeals

proceedings.

Because the petitioner is not a corporation, a corporate

disclosure statement is not required under Supreme Court

Rule 29.6.

iii

STATEMENT OF RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):

• Borges-Silva v. Regan, No. 23-5030, U.S. Court

of Appeals for the District of Columbia Circuit.

Petition for rehearing en banc denied on December

4, 2023.

• Borges-Silva v. Regan, No. 23-5030, U.S. Court

of Appeals for the District of Columbia Circuit.

Summary affirmance entered on August 10, 2023.

• Borges-Silva v. Nishida, No. 1:21-cv-00474, U.S.

District Court for the District of Columbia.

Judgment entered on January. 13, 2023.

• Borges-Silva v. Regan, No. 570-2020-00896X, U.S.

Equal Employment Opportunity Commission,

New York District. Final Post-hearing bench

decision and order entered October 13, 2022.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICIES . . . . . . . . . . . . . . . . . . . . . . vi

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . vii

PETITION FOR WRIT OF CERTIORARI . . . . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISION INVOLVED . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . 1

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR GRANTING THE PETITION . . . . . . 8

v

Table of Contents

Page

I.

The District Court for the District of Columbia

Circuit’s Decision Is Seriously Mistaken

And Conflicts With Settled Precedent

From This Court And Other Circuits . . . . . . . . . 9

II. The District Court Failed to Identify the

Issue that if the Underlying Performance

Improvement Plan was Discriminatory

then too is the Resulting Termination . . . . . . . . 14

III. The District Court Ignored that Petitioner

w a s S ubje c t e d t o a Ho s t i le Work

Environment during the Performance

Improvement Plan rendering him in

Capable of its Successful Completion . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

vi

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT, FILED

AUGUST 10, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA, FILED

JANUARY 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A P P E N DI X C — O P I N ION O F T H E

U N I T ED S TAT E S OF A M ER ICA ,

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, NEW YORK DISTRICT,

DATED OCTOBER 13, 2022 . . . . . . . . . . . . . . . . . . 27a

A PPENDIX D — LIA BILIT Y HEA RING

BENCH DECI SION & OR DER OF

THE UNITED STATES OF A MERICA

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION NEW YORK DISTRICT,

DATED JUNE 9, 2022 . . . . . . . . . . . . . . . . . . . . . . . 63a

APPENDIX E — DENIAL OF REHEARING OF

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED DECEMBER 4, 2023 . . . . . . . 90a

A P P E N DI X F — R E L E VA N T

CONSTITUTIONAL PROVISION . . . . . . . . . . . . 92a

vii

TABLE OF CITED AUTHORITIES

Page

Cases

Barry v. Haaland,

No. 19-cv- 3380, 2022 WL 4598518

(D.D.C. Sept. 29, 2022) . . . . . . . . . . . . . . . . . . . . . . . . 12

Brady v. Off. of Sergeant at Arms,

520 F.3d 490 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . 12

Clinton v. Granholm,

2021 U.S. Dist. LEXIS 57472, 8 . . . . . . . . . . . . . . . . 17

Faragher v. City of Boca Raton,

524 U.S. 775, 787-88, 118 S. Ct. 2275,

141 L. Ed. 2d 662 (1998) . . . . . . . . . . . . . . . . . . . . . . . 18

George v. Leavitt,

407 F.3d 405 (D.C. Cir. 2005) . . . . . . . . . . . . . . . . 17, 18

Harris v. Forklift Sys,

510 U.S. 17 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

Harris v. Wackenhut Servs., Inc.,

419 Fed. Appx. 1 (D.C. Cir. 2001) . . . . . . . . . . . . . . . 18

In re Brown,

951 F.2d 564 (3d Cir.1991) . . . . . . . . . . . . . . . . . . . . . 13

In re Subpoena Duces Tecum,

439 F.3d 740 (O .C. Cir. 2006) . . . . . . . . . . . . . . . . . . 13

viii

Cited Authorities

Page

Iyoha v. Architect of the Capitol,

927 F.3d 561 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . . 11

Lans v. Llp,

786 F. Supp. 2d 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Migra v. Warren City School Dist. Bd. of Educ.,

465 U.S. 75, 104 S. Ct. 892, 79 L. Ed. 2d 56 (1984) . . 9

Miller v. Hydro Group v. Popovitch,

793 F. Supp 24 (D. Me, 1992) . . . . . . . . . . . . . . . . . . . 13

Montana v. United States,

440 U.S. 147, 153, 99 S. Ct. 970, 59 L. Ed. 2d 210

(1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Singletary v. District of Columbia,

351 F.3d 519, 526, 359 U.S. App. D.C. 1

(D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Williams v. Smithsonian Inst.,

No. 14-cv-1900, 2019 WL 3859155

(D.D.C. Aug. 16, 2019) . . . . . . . . . . . . . . . . . . . . . 15, 17

Wise v. Ferriero,

842 F. Supp. 2d 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Yamaha Corp. of Am. v. United States,

961 F.2d 245 (D.C. Cir. 1992) . . . . . . . . . . . . . . . . 10, 12

ix

Cited Authorities

Page

Statutes

U.S. Const. amend V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

42 U.S.C. § 2000e-3(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Quentin Borges-Silva respectfully requests

the issuance of a writ of certiorari to review the judgment

of the United States Court of Appeals for the District of

Columbia.

OPINIONS BELOW

The District of Columbia Circuit decision is unreported,

but available at 2023 U.S. App. LEXIS 20997 and

reproduced at App.1a-3a. The district court’s decision is

unreported but available at 2023 U.S. Dist. LEXIS 6244,

and reproduced at App.4a-26a.

JURISDICTION

The District of Columbia Circuit issued its summary

affirmance on August 10, 2023, and denied a timely petition

for rehearing on December 4, 2023.

This Court has jurisdiction under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment is

reproduced at App. 92a.

STATEMENT OF THE CASE

A. Factual Background

1. Petitioner was an Environmental Protection

Specialist, GS-13,4 in tshe EPA’s Communication Services

2

Branch (“Branch”), Field and External Affairs Division

(“Division”), Office of Pesticide Programs, Office of

Chemical Safety and Pollution Prevention (“Office”).

His primary responsibility was responding to “webmail

inquiries,” which members of the public submitted via

the Office’s “Contact Us” webpage. Petitioner’s first line

supervisor was Branch Chief Gregory Siedschlag, and

Division Director Jackie Mosby oversaw the Branch. See

Memorandum Opinion, U.S. District Court for the District

of Columbia, (“District Decision”), App. 7a.

2. From time to time, a backlog of webmail inquiries

would accumulate periodically during Petitioner’s 15-year

tenure. Petitioner created a system for addressing that

backlog and created templates and boilerplate responses

for common webmail queries. See Final Post-Hearding

Bench Decision and Order (“EEOC Decision”) App. 33a.

3. Particular to the instance case, a backlog of webmail

inquiries accumulated during the federal government

shutdown from December 2017 until January 2018. Upon

his return began working on the shutdown backlog and

immediately informed the acting supervisor. Shortly after

Mr. Siedschlag started as supervisor, he assigned four

female co-workers to assist with the remaining backlog.

App. 33a.

4. Mr. Siedschlag instructed Petitioner and the

four female co-workers to track the amount of time they

spent on each webmail response. Mr. Siedschlag did not

inform team members about why they were tracking their

time. Mr. Siedschlag used the tracking data to calculate

an average response time for webmails to be met by

Petitioner. App. 34a.

3

5. Some webmail queries are simple and can be

answered using a boilerplate or a custom response in

little time. Some webmails pose complex issues which may

require the assistance of Subject Matter Experts (“SME”)

in formulating an accurate response. SMEs sometimes

were slow to respond. Responding to complex webmails

typically required substantially more time compared to

simple webmails. Shortly after becoming the permanent

supervisor, Mr. Siedschlag began to review drafts of all

webmail responses prepared by Petitioner. After a period

of time, Mr. Siedschlag stopped reviewing responses to

simple emails which had been drafted by Petitioner. On

various occasions, Petitioner has corrected the draft

webmail responses of female colleagues in his unit. Mr.

Siedschlag set numerous deadlines for Petitioner to

reduce the webmail backlog after he became permanent

supervisor in 2019. Petitioner found the deadlines

unrealistic for various reasons and was consistently unable

to meet them. In 2019, webmail increased by about 100%.

Petitioner fairly consistently had technology issues which

slowed down his work. Petitioner also spent time serving

as back-up and covering for colleagues. In Spring of 2019,

Petitioner spent substantial hours preparing documents

for his 4711 and EEO complaints. Throughout the period

at issue, Petitioner also worked on his neonicotinoids and

pollinator responsibilities. Petitioner also worked on other

matters including rulemaking, web edits, press inquiries

and more during the time frame at issue. Overall, there

were weeks in which Petitioner had little time to work on

webmail responses during the time frame at issue. App.

34a-36a.

6. Upon learning that Mr. Siedschlag would become

his permanent supervisor, Petitioner asked Dian Moseby

4

for a transfer. Shortly after Mr. Siedschlag became

permanent, he required Petitioner to attend weekly

meetings with him. The meetings were often followed

by detailed emails from Mr. Siedschlag to Petitioner

reviewing issues and deadlines from the meetings. For

part of the relevant time frame, Mr. Siedschlag reviewed

Petitioner’s draft webmail responses and made edits to

them. Mr. Siedschlag sometimes gave advice to Petitioner

regarding how to respond to a webmail or reduce the

backlog. Petitioner often found the advice to be unhelpful

or inaccurate. Petitioner felt as if he could not succeed in

satisfying the demands Mr. Siedschlag placed on him.

App. 36a-37a.

7. Around April 2019, Petitioner filed a complaint

under Agency Order # 4711, which concerns harassment

complaints. The allegations included disparate treatment

based on sex. Petitioner compiled comprehensive

documents in support of the case. Anne Moseby was

selected as the decision-maker for the complaint. The

Agency’s 4711 Order requires that complainants and

alleged harassers be separated during the pendency of the

4711 investigation. That did not occur in Petitioner’s case.

Before filing the 4711 complaint, Petitioner attempted to

meet with Ms. Moseby to complain about harassment by

Mr. Siedschlag. Ms. Moseby refused to meet with him.

At the conclusion of the 4711 investigation, Ms. Moseby

found that there was no harassment or unfair treatment

of Petitioner by Mr. Siedschlag. App. 37a.

8. Mr. Siedschlag contacted Tess Bermania in LER

in the summer of 2019 about putting Petitioner on a

performance improvement plan (“PIP”). Mr. Siedschlag

issued a detailed PIP to Petitioner in August 2019.

5

The PIP pointed to quality, quantity and timeliness

issues regarding which Petitioner was not performing

satisfactorily. Petitioner demonstrated substantial

knowledge on various substantive topics of concern to

the EPA. Petitioner received a performance appraisal

rating of “Outstanding” in about six of the 10 prior years

preceding the complaint. Ms. Overstreet, who supervised

Complainant for six years, testified that his work was

excellent and that he was an outstanding performer.

Ms. Overstreet also stated that Petitioner was flexible

and professional, and that she received compliments

about Petitioner’s work. Co-worker Ms. Overby testified

that Petitioner was a diligent, reliable and versatile coworker. Ms. Overby testified that Mr. Siedschlag treated

Petitioner more harshly then she and the other female

co-workers. Ms. Overby stated that Mr. Siedschlag was

less willing to work with Petitioner or compromise with

him, and that he scrutinized his work more than hers.

Co-worker Anne Hopkins testified that Mr. Siedschlag

was hostile towards Petitioner and that Mr. Siedschlag

micro-managed Petitioner. Ms. Hopkins testified that

Mr. Siedschlag gave Petitioner a runaround with his edits

and that some of Mr. Siedschlag’s edits were incorrect.

Co-worker Enid Chiu testified that Petitioner is reliable,

professional, hard-working and knowledgeable. Ms. Chiu

testified that Mr. Siedschlag did not criticize her for

missing deadlines regarding the reduction of the backlog.

App. 39a.

9. The hostile work environment adversely impacted

Complainant in various ways. The hostile work environment

adversely impacted Complainant’s marriage. During and

after the hostile work environment, Petitioner interacted

less frequently with Ms. Borges-Silva and treated her

6

rudely. Their physical interactions became less frequent

as well. Petitioner and Ms. Borges-Silva engaged in leisure

activities less frequently during this time. Petitioner

and Ms. Borges-Silva maintained a strong relationship

throughout this time. Petitioner experienced negative

mood changes as a result of the harassment. Petitioner

stopped socializing within his community and instead

watched television during his free time. Petitioner

experienced insomnia due to the harassment. He would

wake-up thinking about events at work, become angry and

then be unable to get back to sleep. Petitioner increased

his consumption of alcohol after the harassment started.

He sometimes would drink late at night to try to get back

to sleep. In addition to the increased alcohol consumption,

Petitioner began eating large quantities of junk food.

Petitioner experienced weight gain over the course of the

hostile work environment. Petitioner had PTSD from prior

bicycle accidents and for years had biked to work after

rush hour for safety purposes. For the approximately sixweek period when he was not permitted by his supervisor

to ride to work after rush hour, Petitioner’s PTSD was

exacerbated from his rush hours rides. Petitioner was

embarrassed in front of his colleagues by some of the

incidents which comprised the hostile work environment.

Petitioner believes his personal reputation suffered as a

result. App. 40a-41a.

B. Procedural History

1. On June 28, 2019, Petitioner filed an Equal

Employment Opportunity (“EEO”) claim. On June 9,

2022, Equal Employment Opportunity Commission

(“EEOC”) Administrative Judge (“AJ”) Robert D. Rose

ruled that Borges-Silva “was subjected to a hostile work

7

environment based on his sex and prior EEO activity, and

placed on a [performance improvement plan] in reprisal for

his prior EEO activity.” AJ Rose dismissed the claim that

Borges-Silva was harassed based on his age. On October

13, 2022, AJ Rose issued his Final Post-Hearing Bench

Decision and Order after a damages hearing was held on

October 7, 2022. App. 28a.

2. On February 24, 2021, Petitioner filed his suit

in the U.S. District Court for the District of Columbia

for wrongful termination, again, claiming that the EPA

unlawfully discriminated against him based on his age

and gender and retaliated against him for complaining

about a hostile work environment. On Jan. 13, 2023, the

District Court stated they were not foreclosed from

deciding whether Petitioner’s termination was retaliatory

because the “same issue” is not raised in in the EEOC

case and District Court Case. App. 10. The district

court thus ignored the EEOC’s precedent, that found

Petitioner was placed on the PIP as a retaliatory act and

instead justified that the Agency terminated Petitioner

for nondiscriminatory reasons and ruled in the Agency’s

favor on summary judgment. App. 4a-26a.

3. On August 10, 2023, the United States Court of

Appeals for the District of Columbia ruled in Summary

Affirmance for the Agency without deciding the June

9, 2022, ruling by the EEOC could be a basis for issue

preclusion because the district court’s summary judgment

decision did not depend on the resolution of issues decided

by the Administrative Judge’s ruling, which concerned

claims distinct from the asserted by Petitioner in the

district court case. App. 1a.

8

4. On December 4, 2023, the United States Court

of Appeals for the District of Columbia ordered that the

petition for rehearing en banc be denied. App. 90a.

REASONS FOR GRANTING THE PETITION

In the annals of workplace disputes, the case at

hand stands as a testament to the challenges faced by

individuals seeking justice in the aftermath of wrongful

termination. On the one hand there is outstanding

victory by Petitioner recognizing the existence of

a hostile work environment rooted in gender-based

discrimination and retaliation for prior engagement

in Equal Employment Opportunity (EEO) activities

before the Equal Employment Opportunity Commission

(EEOC). On the other hand, a District Court ruling that

failed to recognize that it was the very same hostile work

environment and retaliatory placement of Petitioner on

a Performance Improvement Plan (PIP) that resulted in

his unjust termination.

Petitioner

contends that the District Court’s

ruling is fundamentally flawed, as it fails to recognize

the inherent connection between the petitioner’s claims

before the EEOC and the subsequent legal proceedings.

This very Court has recognized the importance

of collateral estoppel which prevents parties from relitigating issues already resolved in a prior suit. This case

underscores the importance of consistent legal decisions

and their impact on subsequent legal challenges and

should require federal district courts to uphold precedents

previously set by this Court.

9

I.

The District Court for the District of Columbia

Circuit’s Decision Is Seriously Mistaken And

Conflicts With Settled Precedent From This Court

And Other Circuits

Collateral Estoppel, often referred to as issue

preclusion, is a cornerstone in the administration of

justice. This doctrine serves a crucial role in promoting

judicial economy, finality, and the efficient resolution of

legal disputes. Issue preclusion operates on the principle

that once a court has definitively determined an issue

of fact or law, that determination should be binding in

subsequent proceedings. In other words, if a specific issue

was actually litigated and decided in a prior case, and that

decision was essential to the judgment, the parties should

not be allowed to relitigate that same issue in a later case.

This principle not only conserves judicial resources but

also ensures consistency and integrity in our legal system.

A fundamental precept of common law adjudication,

embodied in the related doctrines of collateral estoppel and

res judicata, is that a “right, question or fact distinctly put

in issue and directly determined by a court of competent

jurisdiction . . . cannot be disputed in a subsequent suit

between the same parties or their privies. . . .” Montana

v. United States, 440 U.S. 147 (1979) (internal citations

omitted).

1. Issue preclusion refers to the effect of a judgment

in foreclosing relitigation of a matter that has been

litigated and decided Migra v. Warren City School Dist.

Bd. of Educ., 465 U.S. 75, 77 n.1, 104 S. Ct. 892, 79 L. Ed.

2d 56 (1984). “Once an issue is actually and necessarily

determined by a court of competent jurisdiction, that

determination is conclusive in subsequent suits [even if it

10

is] based on a different cause of action involving a party to

the prior litigation.” Montana v. United States, 440 U.S.

147, 153, 99 S. Ct. 970, 59 L. Ed. 2d 210 (1979).

2. There are three elements required to establish

a preclusive effect of a prior determination of an issue:

First (1), the same issue now being raised must have

been contested by the parties and submitted for judicial

determination in the prior case. Second (2), the issue must

have been actually and necessarily decided by a court

of competent jurisdiction in that prior case. . . . Third

(3), preclusion in the second case must not work a basic

unfairness to the party bound by the first determination.

Yamaha Corp. of America v. United States, 295 U.S. App.

D.C. 158, 961 F.2d 245, 254 (D.C. Cir. 1992) (citations and

footnote omitted).

3. First, it is the very same issue raised in the EEOC

case that was raised before the District Court. At base, the

issue was whether the Performance Enhancement Plan

(PIP) was valid. If the PIP was invalid (as it was found in

the EEOC case) then the subsequent termination based

on a failed PIP would be inherently wrong. The EEOC

found the PIP to be invalid because it was a retaliatory

action based on prior protected EEO activity; meaning

there should have never been a PIP in the first place.

Borges-Silva v. Regan, No. 570-2020-00896X, U.S. Equal

Employment Opportunity Commission.

4. The EEOC AJ found the claims at issue to be:

“Complainant alleges he was subjected to hostile work

environment harassment (nonsexual) and discriminated

against based on Sex (Male), Age (DOB: May 1965) and

Retaliation (Previously filed complaint(s) using the Agency

11

4711 process for allegations of workplace harassment)

when: In December 2018 and again since March 20, 2019

and continuing, his Supervisor, Mr. Gregory Siedschlag,

Branch Manager, Office of Chemical Safety and Pollution

Prevention/Office of Pesticide Program/Field and External

Affairs Division (FEAD)/ Communication Services

Branch, criticized, shamed and ridiculed him while being

scornful of his experience, bullying and berating him.

That Complainant alleges he was discriminated against

based on Retaliation (Instant Complaint and previously

filed complaint(s) using the agency 4711 process) when: On

September 27, 2019, Mr. Siedschlag placed Complainant

on a Performance Improvement Plan (PIP).” Id.

5. The Distr ict Cour t found the issues to be

discrimination and retaliation and focused primarily

on (1) Defendant’s Legitimate Nondiscriminatory and

Nonretaliatory Justifications and (2) Borges-Silva’s

Evidence of Pretext. Borges-Silva v. Regan, No. 23-5030

6. The district court explained Title VII of the Civil

Rights Act of 1964 (“Title VII”) prohibits an employer

from retaliating against an employee “because he has

opposed any practice made an unlawful employment

practice by [Title VII]” or “made a charge, testified,

assisted, or participated in any manner in an investigation,

proceeding, or hearing under [Title VII].” 42 U.S.C. §

2000e-3(a).

• The employee must first make out a prima facie case

of retaliation or discrimination under Title VII. See

Iyoha v. Architect of the Capitol, 927 F.3d 561, 566

(D.C. Cir. 2019).

12

• When the employer properly presents a legitimate

nondiscriminatory and nonretaliatory reason for

the challenged action, the district court “need

not—and should not—decide whether the plaintiff

actually made out a prima facie case.” Brady v.

Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008). Because Defendant asserted legitimate

nondiscriminatory and nonretaliatory reasons for

the challenged actions, the Brady shortcut applies.

See Barry v. Haaland, No. 19-cv- 3380, 2022 WL

4598518, at *6 (D.D.C. Sept. 29, 2022), appeal filed,

No. 22-5268.

7. The EEOC AJ finding Petitioner established a

prima facie case of harassment the EEOC AJ also found

Petitioner had demonstrated that the Agency’s rationales

for taking the challenged actions are pretextual and

that sex was a motivator behind those actions. Thus,

[Petitioner] has established a hostile work environment

based on sex and the Agency violated Title VII when it

subjected Petitioner to retaliatory harassment based on

his protected EEO activities.

8. The District Court summarily ruled: “This Court

is not foreclosed from deciding whether Borges-Silva’s

termination was retaliatory because the “same issue” is

not raised in Borges-Silva’s EEOC case and this case.

Yamaha Corp. of Am., 961 F.2d at 254. By Borges-Silva’s

own omission, the issue in the EEOC case is: “[w]as the PIP

valid?” Pl.’s Opp’n at 30. However, the issues here are (1)

whether Defendant articulated legitimate nonretaliatory

and nondiscriminatory reasons for removing BorgesSilva and (2) whether Borges-Silva rebutted Defendant’s

articulated reasons with evidence of pretext. See Def.’s

13

Reply at 15–16. Given that the AJ did not address these

questions in his liability ruling, “[a]n assessment of the

remaining elements of issue preclusion is, therefore, not

necessary.” Lans, 786 F. Supp. 2d at 312.

9. The appellant court ruled: First, assuming without

deciding that the June 9, 2022, ruling by an Equal

Employment Opportunity Commission Administrative

Judge could be a basis for issue preclusion, the district

court’s summary judgment decision did not depend on

resolution of issues decided by the Administrative Judge’s

ruling, which concerned claims distinct from those

asserted by appellant in this case. See In re Subpoena

Duces Tecum, 439 F.3d 740, 743 (O .C. Cir. 2006).

10. But it is overwhelmingly clear the issues were the

same in both cases. The analysis in the district court case

took a fundamentally different route which prejudiced

Petitioner and ignored the findings of fact and law set out

by the EEOC. The Respondent’s case rests on the fact

that Petitioner was terminated due to his performance

during his PIP. Yet the entire argument is moot because

the EEOC found the PIP itself was pretext because it was

retaliatory to a protected activity.

11. Second, the EEOC is a competent court of

jurisdiction. It has its own appeals process and if the

Federal employee is dissatisfied with the EEOC process,

only the Federal Employee has the right to bring that case

in Federal Court. The Agency does not have that right.

A judgment is final enough if litigation of a particular

issue has reached a stage that a Court sees no really good

reason for litigating it again. Miller v. Hydro Group v.

Popovitch, 793 F. Supp 24, 28, (D. Me, 1992); In re Brown,

951 F.2d 564, 569-70 (3d Cir.1991).

14

12. Third, there was no prejudice to Respondent

on this issue. The Respondent fully litigated that issue

in the EEOC Administrative Court. The Respondent

took the Petitioner’s deposition in that case. There was

a cross-examination of the Respondent at the hearing

that lasted at least half a day. The Respondent appeared

for depositions of the Agency witnesses and even asked

questions of them. Even in the EEOC hearing, the Agency

raised no issue with the Administrative Judge’s fairness or

some other issue that would have precluded from serving

as an effective or fair fact-finder.

13.Thus, it is evidently clear that it was the same

issue raised that had been contested by the parties

and submitted for judicial determination in the prior

case; the issue was actually and necessarily decided by

a court of competent jurisdiction in that prior case and

the preclusion in the district case did not work a basic

unfairness to the party bound by the first determination.

Therefore, issue preclusion establishes the PIP in and of

itself was pretext and renders the district court’s ruling

fundamentally flawed.

II. The District Court Failed to Identify the Issue

that if the Underlying Performance Improvement

Plan was Discriminatory then too is the Resulting

Termination

Plaintiff brought this case in Federal Court alleging

he was wrongfully terminated, based on gender and age

discrimination and that he was retaliated against for his

protected activity. The Respondent has alleged that the

Petitioner’s termination was justified because he failed

an Opportunity to Demonstrate Acceptable Performance,

a/k/a, Performance Improvement Plan (PIP).

15

1. The decision on the proposed removal was pursuant

to Title 5, United States Code, Chapter 43, and the

implementing regulations at Part 432 of Title 5, Code of

Federal Regulations (CFR). As such, this was a dismissal

not for disciplinary reasons, but for performance and

the Petitioner allegedly was given notice of his poor

performance, was placed on a PIP because of it, then

was dismissed because he allegedly failed the PIP. Per

the regulation cited, the manner in which Respondent

provides that notice to the Petitioner is through the PIP

and the reasonable opportunity to demonstrate acceptable

performance is through that PIP.

2. Before the District Court gets to the Petitioner’s

alleged poor performance during the PIP, the court

has to determine whether the PIP was valid in the first

place because pursuant to the regulations and code upon

which Respondent relied, there could not have been a

termination without the PIP. In the alternative, the

District Court should determine whether the PIP was

pretext for Petitioner’s termination.

3. The District Court stated “First, Borges-Silva

argues that “[t]here has been no objective documentation

demonstrating [a legitimate basis for termination].”

Pl.’s Opp’n at 34. However, record evidence consistently

demonstrates that Defendant “notified [Borges-Silva] that

his work was failing to meet expectations and provided

him with performance evaluations, both formal and

informal, during his employment.” Williams, 2019 WL

3859155, at *13; see supra n.6.” Again, the issue here

wasn’t that Petitioner did not perform to the level of his

PIP. However, the termination itself was invalid because

it relied on an illegitimate PIP.

16

4. The cour t’s analysis relies on Petitioner ’s

performance while he was on the PIP but does not take

into account that Petitioner was placed on the PIP as a

retaliatory act for protected EEO activity.

5. Thus, there could be no other finding that placing

Petitioner on the PIP was the very pretext that the District

Court failed to recognize in ruling for Respondent.

III. The District Court Ignored that Petitioner was

Subjected to a Hostile Work Environment during

the Performance Improvement Plan rendering him

in Capable of its Successful Completion.

The District Court concluded that the Respondent

had presented a legitimate nondiscriminatory and

nonretaliatory reason for Petitioner’s termination;

Petitioner’s poor work performance and that the District

Court concluded that the Petitioner had not provided

sufficient evidence by which a reasonable jury could find

the Respondent’s stated reasons for his termination were

pretext for discrimination or retaliation.

1. The evidence of the Petitioner’s mistreatment

based on his gender and his EEO activity is overwhelming.

The Respondent rests his case on Petitioner’s inability

to process 25 emails per day. However, Petitioner was

subject to a hostile work environment throughout his PIP,

making it impossible to adequately perform any work.

When the workplace is permeated with ‘discriminatory

intimidation, ridicule, and insult,’ that is ‘sufficiently

severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment,’

Title VII is violated.” Harris v. Forklift Sys, 510 U.S. 17,

21 (1993) (internal citations omitted).

17

2. In determining whether an actionable hostile

work environment claim exists, This Court will look

to “all the circumstances,” including “the frequency of

the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee’s work performance.” Id., at 23.

3. Again, the District Court ignores the underlying

issue. That Petitioner was subjected to a hostile work

environment as demonstrated by the abundant evidence in

the record and the evidence the EEOC used to find a hostile

work environment. Instead, the District Court presumes

Respondent met his burden to only “raise a genuine issue of

fact as to whether the employer intentionally discriminated

[or retaliated against the employee.” Although the PIP

required Borges-Silva to prepare at least twenty-five

webmail responses per workday, see Pl.’s PIP at 6, BorgesSilva completed an average of 13.6, see PIP Results at

5. “[Borges-Silva’s] subpar performance [is] evidence

that [Defendant] had a legitimate [nondiscriminatory

and] nonretaliatory explanation for terminating [him].”

Williams v. Smithsonian Inst., No. 14-cv-1900, 2019 WL

3859155, at *7 (D.D.C. Aug. 16, 2019) (citing George v.

Leavitt, 407 F.3d 405, 412 (D.C. Cir. 2005)). Therefore,

a factfinder “could believe the evidence and reasonably

conclude that [Defendant] was motivated by the nondiscriminatory [and nonretaliatory] reasons described

[therein].” Clinton v. Granholm, 2021 U.S. Dist. LEXIS

57472, 8, at *8.

4. Title VII makes it unlawful for an employer “to

discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of

18

employment, because of such individual’s race, color,

religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a),

or “because he has made a charge . . . or participated

in any manner in an investigation” of employment

discrimination. 42 U.S.C. § 2000e-3(a). The Supreme Court

has held that these provisions make it unlawful for an

employer to “requir[e] people to work in a discriminatorily

hostile or abusive environment.” Harris v. Forklift Sys.,

Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295

(1993). A hostile work environment can amount to either

discrimination or retaliation under Title VII. See, e.g.,

Harris v. Wackenhut Servs., Inc., 419 Fed. Appx. 1, 1

(D.C. Cir. 2001) (discrimination); Singletary v. District of

Columbia, 351 F.3d 519, 526, 359 U.S. App. D.C. 1 (D.C.

Cir. 2003) (retaliation). Wise v. Ferriero 842 F. Supp. 2d

120, 125.

5. “To determine whether a hostile work environment

exists, the court looks to the totality of the circumstances,

including the frequency of the discriminatory conduct,

its severity, its offensiveness, and whether it interferes

with an employee’s work performance.” Id. at 1201 (citing

Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118

S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). “The Supreme Court

has made it clear that ‘conduct must be extreme to amount

to a change in the terms and conditions of employment.’”

George v. Leavitt, 407 F.3d 405, 416, 366 U.S. App. D.C.

11 (D.C. Cir. 2005) (quoting Faragher, 524 U.S. at 788).

6. The Court’s reasoning fails to take into account that

the very pervasive and hostile acts that placed Petitioner

on the PIP were active throughout the PIP rendering

Petitioner incapable of “satisfactory” performance and

thus fails to take into the totality of the circumstances

19

and that the PIP amounted to a change in the terms and

conditions of employment

7. In short, the decisions below contravene the

requirements of due process, depart from this Court’s

and other courts’ decisions, and threaten to upend the

standard of collateral estoppel. Further review is plainly

warranted.

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

Morris E. Fischer

Counsel of Record

Morris E. Fischer, LLC

1510 Georgia Avenue, Suite 235

Silver Spring, MD 20902

(301) 328-7631

morris@morrisfischerlaw.com

March 4, 2024

Counsel for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — ORDER OF THE UNITED

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT, FILED

AUGUST 10, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION OF

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA, FILED

JANUARY 13, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . 4a

A P P E N DI X C — O P I N ION O F T H E

U N I T ED S TAT E S OF A M ER ICA ,

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, NEW YORK DISTRICT,

DATED OCTOBER 13, 2022 . . . . . . . . . . . . . . . . . . 27a

A PPENDIX D — LIA BILIT Y HEA RING

BENCH DECI SION & OR DER OF

THE UNITED STATES OF A MERICA

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION NEW YORK DISTRICT,

DATED JUNE 9, 2022 . . . . . . . . . . . . . . . . . . . . . . . 63a

APPENDIX E — DENIAL OF REHEARING OF

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU MBI A

CIRCUIT, FILED DECEMBER 4, 2023 . . . . . . . 90a

A P P E N DI X F — R E L E VA N T

CONSTITUTIONAL PROVISION . . . . . . . . . . . . 92a

1a

A THE UNITED

APPENDIX A —Appendix

ORDER OF

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT, FILED

AUGUST 10, 2023

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5030

QUENTIN BORGES-SILVA,

Appellant,

v.

MICHAEL S. REGAN, IN HIS OFFICIAL

CAPACITY AS ADMINISTRATOR, UNITED

STATES ENVIRONMENTAL PROTECTION

AGENCY,

Appellee.

August 10, 2023, Filed

BEFORE: Henderson, Walker, and Garcia, Circuit

Judges.

ORDER

Upon consideration of the motion for summary

affirmance, the opposition thereto, and the reply, it is

2a

Appendix A

ORDERED that the motion for summary affirmance

be granted. The merits of the parties’ positions are so

clear as to warrant summary action. See Taxpayers

Watchdog, Inc. v. Stanley, 819 F.2d 294, 297, 260 U.S.

App. D.C. 334 (D.C. Cir. 1987) (per curiam). Appellant

has forfeited any arguments regarding the district court’s

August 8, 2022, minute order denying his motion for a

stay. See Totten v. Bombardier Corp., 380 F.3d 488, 497,

363 U.S. App. D.C. 180 (D.C. Cir. 2004). In addition, the

district court correctly granted summary judgment to the

Administrator of the Environmental Protection Agency

(the “EPA”).

First, assuming without deciding that the June 9,

2022, ruling by an Equal Employment Opportunity

Commission Administrative Judge could be a basis for

issue preclusion, the district court’s summary judgment

decision did not depend on resolution of issues decided by

the Administrative Judge’s ruling, which concerned claims

distinct from those asserted by appellant in this case.

See In re Subpoena Duces Tecum, 439 F.3d 740, 743, 370

U.S. App. D.C. 113 (D.C. Cir. 2006). Second, the district

court correctly concluded that the EPA had presented

a legitimate nondiscriminatory and nonretaliatory

reason for appellant’s termination: appellant’s poor work

performance. See Brady v. Off. of Sergeant at Arms, 520

F.3d 490, 494, 380 U.S. App. D.C. 283 (D.C. Cir. 2008);

see also Allen v. Johnson, 795 F.3d 34, 39, 417 U.S. App.

D.C. 297 (D.C. Cir. 2015) (applying Brady to a retaliation

claim); Gilbert v. Napolitano, 670 F.3d 258, 261-62, 399

U.S. App. D.C. 293 (D.C. Cir. 2012) (applying Brady to an

Age Discrimination in Employment Act claim). Third, the

3a

Appendix A

district court correctly concluded that appellant had not

provided sufficient evidence by which a reasonable jury

could find the EPA’s stated reasons for his termination

were pretext for discrimination or retaliation. See

Hairston v. Vance-Cooks, 773 F.3d 266, 272, 413 U.S. App.

D.C. 248 (D.C. Cir. 2014). Appellant has not introduced

evidence demonstrating “that all of the relevant aspects

of his employment situation were nearly identical to those”

of the comparators he proffered in the district court.

See Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290,

301 (D.C. Cir. 2015) (internal punctuation omitted). Nor

has appellant introduced evidence demonstrating that

the EPA failed to follow established procedures when it

permitted his direct supervisor to initiate work related

contact with appellant after he filed an administrative

complaint alleging workplace harassment. See Allen,

795 F.3d at 40. Finally, appellant has not shown that the

temporal proximity between his protected activity and

his termination from the EPA supports a reasonable

inference in this case that the agency’s stated reasons for

his termination were pretext for retaliation.

Pursuant to D.C. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or petition

for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir.

Rule 41.

Per Curiam

4a

Appendix B

APPENDIX B — MEMORANDUM

OPINION OF

THE UNITED STATES DISTRICT COURT FOR

THE DISTRICT OF COLUMBIA,

FILED JANUARY 13, 2023

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 21-cv-474-ZMF

QUENTIN BORGES-SILVA,

Plaintiff,

v.

JANE NISHIDA, FORMER ACTING

ADMINISTRATOR OF THE U.S.

ENVIRONMENTAL PROTECTION AGENCY,

Defendant.

January 13, 2023, Decided

January 13, 2023, Filed

MEMORANDUM OPINION

On February 16, 2020, the U.S. Environmental

Protection Agency (“EPA”) terminated Plaintiff Quentin

Borges-Silva (“Borges-Silva”) for unacceptable service.

Borges-Silva sued the EPA Administrator (“Defendant”)

for wrongful termination, 1 claiming that the EPA

1. When Plaintiff filed this suit, Jane Nishida served as the

Acting Administrator of the EPA. Now, Administrator Michael

5a

Appendix B

unlawfully discriminated against him based on his age and

gender and retaliated against him for complaining about

a hostile work environment. Pending before the Court is

Defendant’s Motion for Summary Judgment, which the

Court will GRANT.

I.

BACKGROUND2

A.

Factual Background3

S. Regan is the proper defendant in this case. See 42 U.S.C. §

2000e-16(c).

2. Although each exhibit and submission from the parties

in support of and in opposition to the pending motions has been

reviewed, only those exhibits necessary to provide context for the

resolution of the pending motions are cited herein.

3. Plaintiff admitted thirty-eight out of forty-three of the

statements in Defendant’s Statement of Undisputed Facts. See

Pl.’s Resp. Def.’s Statement of Material Facts (“Pl.’s Resp.”), ECF

No. 22-1. These admitted statements largely form the factual

background. Embedded in Plaintiff’s Opposition to Defendant’s

Motion for Summary Judgment, Plaintiff included a twenty-fourpage “Statement of Counter-Facts,” listing 161 largely redundant

statements that regularly mix argument and fact. See Pl.’s Opp’n

to Def.’s Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 22. Most of

the statements are immaterial, as they do not bear on whether:

(1) Defendant had a legitimate non-pretextual reason to terminate

Plaintiff; or (2) Plaintiff can rebut this reason with evidence of

pretext. “[L]iberally mix[ing] facts with argument . . . does nothing

to assist the court in isolating the material facts, distinguishing

disputed from undisputed facts, and identifying the pertinent

parts of the record.” Robertson v. Am. Airlines, Inc., 239 F. Supp.

2d 5, 9 (D.D.C. 2002) (citing Burke v. Gould, 286 F.3d 513, 518-19,

351 U.S. App. D.C. 1 (D.C. Cir. 2002)).

6a

Appendix B

1.

EPA Employment and Prior Protected

Activity

Borges-Silva, a man born in 1965, see Def.’s Mem. P. &

A. Supp. Mot. Summ. J. (“Def.’s Mem.”) 6, ECF No. 14-1,

was an Environmental Protection Specialist, GS-13,4 in

the EPA’s Communication Services Branch (“Branch”),

Field and External Affairs Division (“Division”), Office

of Pesticide Programs, Office of Chemical Safety and

Pollution Prevention (“Office”), see Def.’s Statement of

Material Facts (“Def.’s Material Facts”) ¶ 1, ECF No. 14-2.

His primary responsibility was responding to “webmail

inquiries,” which members of the public submitted via

the Office’s “Contact Us” webpage. See id. ¶ 5-6. At all

times relevant to the instant suit, Branch Chief Gregory

Moreover, Plaintiff failed to comply with Local Civil Rule

7(h)(1) and the Court’s Standing Order, which required him to

“furnish precise citations to the portions of the record on which

[he] rel[ies].” Standing Order in Civil Cases (“Standing Order”)

¶ 13, ECF No. 10; see LCvR 7(h)(1). Plaintiff’s Statement of

Counter-Facts does not include proper citations to the record and

instead relies on the original pagination of the documents. See

Standing Order ¶ 13(b). As such, the Court will decline Plaintiff’s

invitation to sift through hundreds of pages of depositions and

affidavits to determine what may, or may not, be a genuine issue

of material disputed fact. See Burke v. Gould, 286 F.3d 513, 517-18,

351 U.S. App. D.C. 1 (D.C. Cir. 2002); see also Lawrence v. Lew,

156 F. Supp. 3d 149, 154-55 (D.D.C. 2016) (detailed discussion of

Local Civil Rule 7(h) and litigants’ obligation to comply).

4. The EPA largely pays employees on the General Schedule

(“GS”) pay scale, which has fifteen levels. See Salary Table 2023GS, OPM.GOV, https://www.opm.gov/policy-data-oversight/payleave/salaries-wages/salary-tables/pdf/2023/GS.pdf.

7a

Appendix B

Siedschlag (male, born 1978) served as Borges-Silva’s

first-line supervisor, and Division Director Jackie Mosby

(female, born 1960) oversaw the Branch. See Def.’s

Material Facts ¶¶ 2-3; Def.’s Mem. at 8.

On June 28, 2019, Borges-Silva filed an Equal

Employment Opportunity (“EEO”) claim. See Pl.’s Opp’n,

Ex. 5, Compl. Discrimination in Federal Government

(“Pl.’s Compl.”) 1, ECF No. 22-3. On June 9, 2022,

Equal Employment Opportunity Commission (“EEOC”)

Administrative Judge (“AJ”) Robert D. Rose ruled that

Borges-Silva “was subjected to a hostile work environment

based on his sex and prior EEO activity, and placed on a

[performance improvement plan] in reprisal for his prior

EEO activity.” Pl.’s Mot. Issue Preclusion & Stay, Ex.

1, Liability Hearing Bench Decision & Order (“EEOC

Liability Ruling”) 18, ECF No. 16-1. AJ Rose dismissed

the claim that Borges-Silva was harassed based on his

age. See id. at 3.

2.

Webmail Backlog Develops

During the 2019 federal government shutdown,

which lasted from December 31, 2018, to January 29,

2019, the Office developed a backlog of approximately

300 unanswered webmail inquiries. See Def.’s Mot.

Summ. J. (“Def.’s Mot.”), Ex. 2, Dep. Quentin BorgesSilva (“Pl.’s 2021 Dep.”) 6, ECF No. 14-6. On March 19,

2019—Siedschlag’s second day as permanent Branch

Chief—Siedschlag discovered this backlog. See Decl.

Gregory B. Siedschlag (“Siedschlag Decl.”) ¶ 6, ECF

No. 14-3. The next day, Siedschlag expressed concerns

8a

Appendix B

about the backlog to Borges-Silva. See Def.’s Material

Facts ¶ 12. That same day, Siedschlag tasked three

other employees—Enid Chiu (female, born 1988, GS-12

Environmental Protection Specialist), Marilyn St. Fleur

(female, born 1985, GS-13 Environmental Protection

Specialist), and Isabella Bennett (female, born 1993, GS11 Environmental Protection Specialist)—with assisting

Borges-Silva with the backlog. See Siedschlag Decl. ¶ 7;

Def.’s Mot., Ex. 14, Table of Branch Employees 2, ECF

No. 14-18. By March 29, 2019, the four employees reduced

the backlog to forty-one webmail inquiries. See Def.’s

Material Facts ¶ 18; Pl.’s Resp. at 2. Siedschlag requested

that each employee track their time. See Siedschlag Decl.

¶ 8. Chiu completed seventy-five webmail responses in 400

minutes, for a rate of 5.3 minutes per response. See Def.’s

Mot., Ex. 13, Table of Time Comparators 2, ECF No. 1417. Bennett completed seventy webmail responses in 706

minutes, for a rate of 10.1 minutes per response. See id.

St. Fleur completed seventy-two webmail responses in 725

minutes, for a rate of 10.1 minutes per response. See id.

Borges-Silva did not provide usable data. See Siedschlag

Decl. ¶ 8 n.3.

Over the next six months, the webmail backlog regrew.

See Siedschlag Decl. ¶ 8. On May 22, 2019, the backlog

totaled 134 unanswered inquiries. See Def.’s Mot., Ex.

4, Pl.’s Performance Notes 4, ECF No. 14-8. On July

5, 2019, the backlog totaled 234 unanswered inquiries.

See Def.’s Mot., Ex. 3, Emails from Siedschlag to Pl.

(“Siedschlag Emails”) 3, ECF No. 14-7. By August 30,

2019, the backlog reached approximately 510 unanswered

inquiries. See id. at 2. Throughout that time, Siedschlag

repeatedly instructed Borges-Silva to address the

9a

Appendix B

backlog. See Siedschlag Decl. ¶ 9. For example, on July 5,

2019, Siedschlag tasked Borges-Silva with eliminating the

backlog of 234 inquiries by August 30, 2019. See Siedschlag

Emails at 3. And on September 4, 2019, Siedschlag asked

Borges-Silva to eliminate the backlog of 510 inquiries by

November 13, 2019. See id. at 2. Siedschlag later adjusted

this deadline to November 27, 2019, to provide BorgesSilva with official time to work on his EEO affidavit. See

Def.’s Mot., Ex. 1, Dep. Quentin Borges-Silva (“Pl.’s 2022

Dep.”) 25, ECF No. 14-5.

3.

Defendant Places Borges-Silva on a

Performance Improvement Plan

On September 27, 2019, Siedschlag informed BorgesSilva of his intention to place him on a performance

improvement plan (“PIP”) for unacceptable performance.

See Siedschlag Decl. ¶ 10. On October 23, 2019, Siedschlag

formally placed Borges-Silva on a PIP. See Def.’s Mot.,

Ex. 6, Performance Improvement Plan (“Pl.’s PIP”), ECF

No. 14-10. The PIP period lasted from October 28, 2019

to November 27, 2019. See id. at 2. The PIP required

Borges-Silva to prepare an average of at least twenty-five

webmail responses per workday. See id. at 6. Siedschlag

met with Borges-Silva weekly throughout the PIP period

to provide feedback and guidance. See Pl.’s 2022 Dep. at

25. Siedschlag instructed Borges-Silva to prioritize simple

inquiries that could be completed in twenty minutes or

less. See id. at 25-26, 28-29.

During the PIP period, Borges-Silva sent a total

of 244 webmail responses at an average of 13.6 per

10a

Appendix B

day. See Def.’s Mot., Ex. 7, Notification of Performance

Improvement Plan Results (“PIP Results”) 5, ECF No.

14-11. Of these, Borges-Silva copied his responses from

form response language 109 times verbatim and sixtyfour times partially. See id. at 6. As of December 2, 2019,

the Office had a backlog of approximately 700 webmail

inquiries, some of which dated back to July 2019. See Pl.’s

2022 Dep. at 38; Siedschlag Decl. ¶ 15.

4.

Defendant Terminates Borges-Silva

On January 17, 2020, Siedschlag proposed removing

Borges-Silva for unacceptable service. See Def.’s Mot.,

Ex. 8, Notice of Proposed Removal for Unacceptable

Performance (“Removal Notice”) 2, ECF No. 14-12. Mosby

served as the deciding official for the proposed removal.

See id. at 7. On February 14, 2020, Mosby issued her

decision to implement the proposed removal. See Def.’s

Mot., Ex. 9, Decision on Notice of Proposed Removal

(“Removal Decision”) 2, ECF No. 14-13. On February 16,

2020, Defendant terminated Borges-Silva. See Def.’s Mot.,

Ex. 10, Notification of Personnel Action 2, ECF No. 14-14.

B. Procedural History

On February 24, 2021, Borges-Silva filed this suit. See

Compl., ECF No. 1. On June 21, 2021, Defendant filed his

Answer. See Answer, ECF No. 7. On July 20, 2021, the

parties consented to proceed before a U.S. Magistrate

Judge for all purposes, and the matter was referred to

the undersigned. See Joint Notice Consent Assign. Mag.

Judge., ECF No. 9; Min. Order (July 22, 2021).

11a

Appendix B

Following discovery, Defendant moved for summary

judgment. See Def.’s Mot. On July 27, 2022, Borges-Silva

moved for issue preclusion based on the AJ’s liability ruling

and to stay the summary judgment briefing. See Pl.’s Mot.

Issue Preclusion & Stay, ECF No. 16. On August 8, 2022,

this Court denied Borges-Silva’s motion and ordered him

to raise any issue preclusion arguments in his opposition

to Defendant’s motion for summary judgment. See Min.

Order (Aug. 8, 2022). On August 25, 2022, Borges-Silva

filed his opposition. See Pl.’s Opp’n. On October 18, 2022,

Defendant filed his reply. See Def.’s Reply Supp. Mot.

Summ. J. (“Def.’s Reply”), ECF No. 25.

II. LEGAL STANDARD

To succeed on a motion for summary judgment,

the moving party must show that “there is no genuine

dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A

fact is material if it “might affect the outcome of the suit

under the governing law,” and a dispute is genuine “if

the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Steele v. Schafer,

535 F.3d 689, 692, 383 U.S. App. D.C. 74 (D.C. Cir. 2008)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The moving

party bears the initial burden of demonstrating that there

is no genuine dispute of material fact. See Celotex Corp.

v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed.

2d 265 (1986). If the moving party meets this burden, the

nonmoving party must identify “specific facts showing

that there is a genuine issue for trial.” Id. at 324 (quoting

12a

Appendix B

Fed. R. Civ. P. 56(e)). In evaluating motions for summary

judgment, the Court must review all evidence in the

light most favorable to the nonmoving party and draw all

inferences in the nonmoving party’s favor. See Tolan v.

Cotton, 572 U.S. 650, 656-57, 134 S. Ct. 1861, 188 L. Ed.

2d 895 (2014) (per curiam). In doing so, the Court must

not assess credibility or weigh the evidence. See Barnett

v. PA Consulting Grp., Inc., 715 F.3d 354, 358, 404 U.S.

App. D.C. 439 (D.C. Cir. 2013). However, the nonmoving

party “may not merely point to unsupported self-serving

allegations, but must substantiate his allegations with

sufficient probative evidence[.]” Reed v. City of St. Charles,

Mo., 561 F.3d 788, 790 (8th Cir. 2009) (quoting Bass v. SBC

Communs., Inc., 418 F.3d 870, 872-73 (8th Cir. 2005)). A

genuine issue for trial must be supported by affidavits,

declarations, or other competent evidence. See Fed. R.

Civ. P. 56(c). If the nonmoving party’s evidence is “merely

colorable” or “not significantly probative,” summary

judgment may be granted. Liberty Lobby, 477 U.S. at

249-50.

III. DISCUSSION

A.

Issue Preclusion

Under “the doctrine of issue preclusion[,] . . . ‘once a

court has decided an issue of fact or law necessary to its

judgment, that decision may preclude relitigation of the

issue in a suit on a different cause of action involving a

party to the first case.’” Yamaha Corp. of Am. v. United

States, 961 F.2d 245, 254, 295 U.S. App. D.C. 158 (D.C.

Cir. 1992) (quoting Allen v. McCurry, 449 U.S. 90, 94, 101

13a

Appendix B

S. Ct. 411, 66 L. Ed. 2d 308 (1980)). A prior holding has a

preclusive effect when (1) “the same issue now being raised

[was previously] contested by the parties and submitted

for judicial determination in the prior case[,]” (2) “the

issue [was] actually and necessarily determined by a

court of competent jurisdiction in that prior case[,]” and

(3) “preclusion in the second case [would] not work a basic

unfairness to the party bound by the first determination.”

Id. “[T]he moving party bears the burden of proving

all the elements of issue preclusion.” Lans v. Adduci

Mastriani & Schaumberg L.L.P., 786 F. Supp. 2d 240, 303

(D.D.C. 2011) (citing Athridge v. Aetna Cas. and Sur. Co.,

351 F.3d 1166, 1171, 359 U.S. App. D.C. 22 (D.C. Cir. 2003)).

This Court is not foreclosed from deciding whether

Borges-Silva’s termination was retaliatory because the

“same issue” is not raised in Borges-Silva’s EEOC case

and this case. Yamaha Corp. of Am., 961 F.2d at 254.

By Borges-Silva’s own omission, the issue in the EEOC

case is: “[w]as the PIP valid?” Pl.’s Opp’n at 30. However,

the issues here are (1) whether Defendant articulated

legitimate nonretaliatory and nondiscriminatory reasons

for removing Borges-Silva and (2) whether Borges-Silva

rebutted Defendant’s articulated reasons with evidence

of pretext. See Def.’s Reply at 15-16. Given that the AJ did

not address these questions in his liability ruling, “[a]n

assessment of the remaining elements of issue preclusion

is, therefore, not necessary.” Lans, 786 F. Supp. 2d at

312. Accordingly, the Court will proceed to consider the

remaining issues in this case.

14a

Appendix B

B. Discrimination and Retaliation

Title VII of the Civil Rights Act of 1964 (“Title

VII”) prohibits an employer from retaliating against an

employee “because he has opposed any practice made an

unlawful employment practice by [Title VII]” or “made a

charge, testified, assisted, or participated in any manner

in an investigation, proceeding, or hearing under [Title

VII].” 42 U.S.C. § 2000e-3(a). If a plaintiff cannot present

direct evidence of discrimination or retaliation, the court

assesses his claims under the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03,

93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Under that framework, the employee must first make

out a prima facie case of retaliation or discrimination

under Title VII. See Iyoha v. Architect of the Capitol,

927 F.3d 561, 566, 441 U.S. App. D.C. 475 (D.C. Cir. 2019).

To establish a prima facie case of discrimination, the

plaintiff must show that “(1) he is a member of a protected

class; (2) he suffered an adverse employment action; and

(3) the unfavorable action gives rise to an inference of

discrimination.” Royall v. Nat’l Ass’n of Letter Carriers,

AFL-CIO, 548 F.3d 137, 144, 383 U.S. App. D.C. 331

(D.C. Cir. 2008) (cleaned up). To establish a prima facie

case of retaliation, the plaintiff must show that (1) “he

engaged in statutorily protected activity;” (2) “he suffered

a materially adverse action by his employer;” and (3) “a

causal link connects the two.” Iyoha, 927 F.3d at 574.

Next, the burden shifts to the employer to articulate a

legitimate nondiscriminatory and nonretaliatory reason

for its action. See McGrath v. Clinton, 666 F.3d 1377,

1383, 399 U.S. App. D.C. 110 (D.C. Cir. 2012). In doing

15a

Appendix B

so, “the employer must ‘articulate specific reasons for

that applicant’s qualifications such as seniority, length

of service in the same position, personal characteristics,

general education, technical training, experience in

comparable work or any combination of such criteria.’”

Figueroa v. Pompeo, 923 F.3d 1078, 1089, 440 U.S. App.

D.C. 434 (D.C. Cir. 2019) (quoting Steger v. Gen. Elec.

Co., 318 F.3d 1066, 1076 (11th Cir. 2003)) (cleaned up). If

the employer makes this showing, “the burden-shifting

framework disappears.” Carter v. George Washington

Univ., 387 F.3d 872, 878, 363 U.S. App. D.C. 287 (D.C. Cir.

2004). The “central inquiry” then becomes “whether the

plaintiff produced sufficient evidence for a reasonable jury

to find that the employer’s asserted nondiscriminatory

[and nonretaliatory] reason was not the actual reason

and that the employer intentionally discriminated [or

retaliated] against the plaintiff on a prohibited basis.”

Iyoha, 927 F.3d at 566 (quoting Adeyemi v. District of

Columbia, 525 F.3d 1222, 1226, 381 U.S. App. D.C. 128

(D.C. Cir. 2008)). In other words, the employee must

demonstrate “pretext.” Jones v. Bernanke, 557 F.3d 670,

679, 384 U.S. App. D.C. 443 (D.C. Cir. 2009).

When the employer properly presents a legitimate

nondiscriminatory and nonretaliatory reason for the

challenged action, the district court “need not—and

should not—decide whether the plaintiff actually made

out a prima facie case.” Brady v. Off. of Sergeant at Arms,

520 F.3d 490, 494, 380 U.S. App. D.C. 283 (D.C. Cir. 2008).

Because Defendant asserted legitimate nondiscriminatory

and nonretaliatory reasons for the challenged actions, the

Brady shortcut applies. See Barry v. Haaland, No. 19-cv3380, 2022 U.S. Dist. LEXIS 177748, 2022 WL 4598518,

16a

Appendix B

at *6 (D.D.C. Sept. 29, 2022), appeal filed, No. 22-5268.

Thus, the Court will proceed to step two. 5 See id.

1.

Defendant’s Legitimate Nondiscriminatory

and Nonretaliatory Justifications

Four factors are “paramount in the analysis” of

whether an employer has met its burden: (1) the employer

5. At step one, Borges-Silva primarily relies on temporal

evidence to establish causation. See Pl.’s Opp’n at 33-34. He argues

that the proximity between his June 2019 EEO complaint and

February 2020 termination establishes but-for causation. See id.

Although “mere temporal proximity may establish causation,”

Keys v. Donovan, 37 F. Supp. 3d 368, 372 (D.D.C. 2014), to do so,

“the temporal proximity must be very close,” Clark Cnty. Sch.

Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed.

2d 509 (2001) (cleaned up). Indeed, numerous courts have found

that three and four-month periods between plaintiffs’ protected

activity and adverse employment actions were insufficient to

establish causation based on temporal proximity. See id. at 273-74

(collecting cases).

Defendant terminated Borges-Silva eight months after

Borges-Silva filed his EEO complaint. See Def.’s Material Facts

¶¶ 20, 40. The eight-month gap between the protected EEO

activity and the challenged employment action “is too attenuated

to establish causation based on temporal proximity alone.” Clinton

v. Granholm, No. 18-cv-991, 2021 U.S. Dist. LEXIS 57472, 2021

WL 1166737, at *10 (D.D.C. Mar. 26, 2021); see also Kline v.

Springer, No. 07-0451, 2009 U.S. Dist. LEXIS 150163, 2009 WL

10701432, at *2 (D.D.C. June 29, 2009) (“No reasonable juror could

find retaliation from these facts [where] there was a time lapse

of from five to six months . . . .”). Therefore, Borges-Silva likely

failed to establish causation. See Clinton, 2021 U.S. Dist. LEXIS

57472, 2021 WL 1166737, at *10.

17a

Appendix B

must produce admissible evidence; (2) “the factfinder,

if it believe[s] the evidence, must reasonably be able

to find that the employer’s action was motivated by a

nondiscriminatory [and nonretaliatory] reason;” (3) the

employer’s justification must be “facially credible in light

of the proffered evidence;” and (4) the employer must

provide a “clear and reasonably specific explanation” for

its action. Figueroa, 923 F.3d at 1087-88 (cleaned up).

Defendant provided legitimate nondiscriminatory and

nonretaliatory reasons for terminating Borges-Silva.

First, Defendant “has supported its justifications

with evidence that the Court may consider at summary

judgment, including deposition testimony [and] supporting

emails[.]” Arnoldi v. Bd. of Trs., 557 F. Supp. 3d 105,

115 (D.D.C. 2021) (cleaned up). Specifically, Defendant

provided sworn statements from Siedschlag and Mosby;

Borges- Silva’s deposition testimony; comparator

information; communications between Siedschlag and

Borges-Silva about performance metrics; documents

related to Borges-Silva’s PIP; and documents related to

Borges-Silva’s removal.6 Borges-Silva does not challenge

the admissibility of this evidence. See generally Pl.’s

Opp’n; Pl.’s Resp.

6. See Siedschlag Decl.; Pl.’s 2021 Dep.; Pl.’s 2022 Dep.;

Siedschlag Emails; Pl.’s Performance Notes; Pl.’s Compl.; Pl.’s

PIP; PIP Results; Removal Notice; Removal Decision; Notification

of Personnel Action; Def.’s Mot., Ex. 11, Siedschlag’s EEO Aff.,

ECF No. 14-15; Def.’s Mot., Ex. 12, Mosby’s EEO Aff., ECF No.

14-16; Table of Branch Employees; Table of Time Comparators.

18a

Appendix B

Second, Defendant need only “raise a genuine issue of

fact as to whether the employer intentionally discriminated

[or retaliated] against the employee” to satisfy its step

two burden. Figueroa, 923 F.3d at 1087 (cleaned up).

Defendant did so: evidence of poor work performance

and “failure to follow supervisory instructions [are]

legitimate reason[s] for . . . termination.” Arnoldi, 557 F.

Supp. 3d at 115. Between March 20, 2019, and September

19, 2019, Siedschlag expressed concerns to Borges-Silva

on at least twelve occasions about his lackluster progress

in eliminating the webmail backlog. See Def.’s Material

Facts ¶ 12; Siedschlag Decl. ¶ 9. On September 27, 2019,

Siedschlag notified Borges-Silva of his intention to place

him on a PIP for unacceptable performance, having

determined that Borges-Silva’s “output was too low relative

to both [his] expectations and to keep up with incoming

webmail inquiries.” Siedschlag Decl. ¶ 10. Although the

PIP required Borges-Silva to prepare at least twenty-five

webmail responses per workday, see Pl.’s PIP at 6, BorgesSilva completed an average of 13.6, see PIP Results at

5. “[Borges-Silva’s] subpar performance [is] evidence

that [Defendant] had a legitimate [nondiscriminatory

and] nonretaliatory explanation for terminating [him].”

Williams v. Smithsonian Inst., No. 14-cv-1900, 2019 U.S.

Dist. LEXIS 138869, 2019 WL 3859155, at *7 (D.D.C. Aug.

16, 2019) (citing George v. Leavitt, 407 F.3d 405, 412, 366

U.S. App. D.C. 11 (D.C. Cir. 2005)). Therefore, a factfinder

“could believe the evidence and reasonably conclude that

[Defendant] was motivated by the nondiscriminatory [and

nonretaliatory] reasons described [therein].” Clinton, 2021

U.S. Dist. LEXIS 57472, 2021 WL 1166737, at *8.

19a

Appendix B

Third, “the substantial evidence of [Borges-Silva’s]

substandard performance during his tenure . . . renders

[Defendant’s nonretaliatory and] nondiscriminatory

explanation for separating him facially credible.”

Williams, 2019 U.S. Dist. LEXIS 138869, 2019 WL

3859155, at *8. Siedschlag placed Borges-Silva on a PIP,

which Mosby deemed to be reasonable. See Removal

Decision at 3. After Borges-Silva failed to meet the PIP’s

requirements, Mosby determined that Borges-Silva’s

“incidents of unacceptable performance . . . [were] fully

supported by the evidence.” See id. at 3. As a result, Mosby

implemented the proposed removal of Borges-Silva. See

id. “Defendant’s explanation is therefore legitimate.”

Albert v. Perdue, No. 17-cv-1572, 2019 U.S. Dist. LEXIS

160618, 2019 WL 4575526, at *4 (D.D.C. Sept. 20, 2019)

(citing Figueroa, 923 F.3d at 1088).

Fourth, Defendant’s “explanations were sufficiently

clear and specific to allow [Borges-Silva] ample opportunity

to bring forward evidence to ‘disprove . . . [D]efendant’s

reasons.’” Clinton, 2021 U.S. Dist. LEXIS 57472, 2021

WL 1166737, at *9 (quoting Figueroa, 923 F.3d at 1088).

Siedschlag tasked Borges-Silva—the Office’s only

employee primarily focused on responding to webmail

inquiries—with reducing a significant webmail backlog.

See Siedschlag Decl. ¶ 4; Def.’s Material Facts ¶ 5-7.

Borges-Silva does not contest that he failed to eliminate

the backlog throughout 2019. See Pl.’s Opp’n at 34-35.

“[Defendant’s] consistent claim—one directly supported

by the record—that it decided to discharge [BorgesSilva] because of his unsatisfactory job performance

gave [Borges-Silva] a clear opportunity to challenge the

20a

Appendix B

asserted justification as merely a pretext for unlawful

. . . discrimination [and retaliation.]” Williams, 2019 U.S.

Dist. LEXIS 138869, 2019 WL 3859155, at *8.

2.

Borges-Silva’s Evidence of Pretext

“The burden now shifts to [Borges-Silva] to provide

sufficient evidence by which a reasonable jury could find

[Defendant’s] stated reason was pretext for discrimination

[and] retaliation.” Albert, 2019 U.S. Dist. LEXIS 160618,

2019 WL 4575526, at *5 (citing Brady, 520 F.3d at 494).

To establish pretext, a plaintiff may show that the

defendant provided a “false” explanation for its employment

decision. Lathram v. Snow, 336 F.3d 1085, 1089, 357 U.S.

App. D.C. 413 (D.C. Cir. 2003). “It is not enough for the

plaintiff to show that a reason given for a job action is not

just, or fair, or sensible.” Hogan v. Hayden, 406 F. Supp.

3d 32, 46 (D.D.C. 2019) (quoting Pignato v. Am. Trans

Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994)). Alternatively,

an “employer’s failure to follow established procedures or

criteria” may also provide evidence of pretext allowing

an employee to survive summary judgment. Wang v.

Wash. Metro. Area Transit Auth., 206 F. Supp. 3d 46, 68

(D.D.C. 2016) (quoting Brady, 520 F.3d at 495 n.3). Finally,

a plaintiff may provide evidence of “variant treatment of

similarly situated employees, discriminatory statements

by decision[-]makers, [or] irregularities in the stated

reasons for the adverse employment decision.” Bennett v.

Solis, 729 F. Supp. 2d 54, 60 (D.D.C. 2010) (citing Brady,

520 F.3d at 495 n.3).

21a

Appendix B

First, Borges-Silva argues that “[t]here has been

no objective documentation demonstrating [a legitimate

basis for termination].” Pl.’s Opp’n at 34. However, record

evidence consistently demonstrates that Defendant

“notified [Borges-Silva] that his work was failing to

meet expectations and provided him with performance

evaluations, both formal and informal, during his

employment.” Williams, 2019 U.S. Dist. LEXIS 138869,

2019 WL 3859155, at *13; see supra n.6. Notably, Siedschlag

expressed concerns about the webmail backlog as early

as his second day as Branch Chief. See Def.’s Material

Facts ¶ 12. And he continued to raise these concerns

to Borges-Silva from March to November 2019. See id.

¶¶ 27, 30; Siedschlag Decl. ¶ 9. The concerns were based

on objective metrics, including that lower-level employees

cleared webmail inquiries significantly faster and that

Borges-Silva could not clear the minimal threshold set

in his PIP. See Removal Decision at 3; Siedschlag Decl.

¶ 8. Moreover, the deciding official, Mosby, independently

vetted Siedschlag’s recommendation before terminating

Borges-Silva. See Removal Decision at 2-3. BorgesSilva does not “challenge[] these objectively measurable

standards of his job performance.” Williams, 2019 U.S.

Dist. LEXIS 138869, 2019 WL 3859155, at *12. Based

on this evidence, Borges-Silva had ample notice that the

webmail backlog was a cause for Defendant’s concern. See

2019 U.S. Dist. LEXIS 138869, [WL] at *13. “Because

[Defendant’s] stated belief about the underlying facts is

reasonable in light of the evidence, a jury cannot conclude

that [Defendant] is lying about the reasons for [BorgesSilva’s] separation.” 2019 U.S. Dist. LEXIS 138869, [WL]

at *9 (cleaned up).

22a

Appendix B

Second, Borges-Silva contends that Defendant

disregarded established procedures by failing to transfer

him to a different supervisor after he alleged harassment

by Siedschlag, and by failing to give him adequate time

to complete his complaint. See Pl.’s Opp’n at 34-35. In

support, Borges-Silva cites a 1,577-page exhibit but

provides no pin cite to the referenced policy. See id. This

alone disqualifies this argument. See Lawrence, 156 F.

Supp. 3d at 154. Nonetheless, Defendant—who provided

the exact authority, see Def.’s Reply at 27 (citing Pl.’s

Compl. at 1541-57)—”compl[ied] with established agency

criteria or procedures in conjunction with [Borges-Silva’s]

separation.” Williams, 2019 U.S. Dist. LEXIS 138869,

2019 WL 3859155, at *9 (citing Wang, 206 F. Supp. 3d at

68). Although Defendant’s policy states that “corrective

action . . . may include . . . reassignment of the alleged

harasser[,]” it by no means makes this remedial measure

mandatory on the agency. Pl.’s Compl. at 1550. And

“failure to follow [Defendant’s] own policies” where the

“policy confer[red] substantial discretion on the decision

maker . . . and [Borges-Silva] offered no evidence showing

that [Defendant] applied the policy differently to [BorgesSilva] than it did to other employees” does not demonstrate

pretext. Chambers v. Fla. Dep’t of Transp., 620 Fed. App’x

872, 879 (11th Cir. 2015).

Third, Borges-Silva asserts that colleagues of different

ages and genders were not subject to the same scrutiny

as him. See Pl.’s Opp’n at 37. “A plaintiff can establish

pretext masking a discriminatory [or retaliatory] motive

by presenting ‘evidence suggesting that the employer

treated other employees of a different [group] . . . more

23a

Appendix B

favorably in the same factual circumstances.’” Burley v.

Nat’l Passenger Rail Corp., 801 F.3d 290, 301, 419 U.S.

App. D.C. 313 (D.C. Cir. 2015) (quoting Brady, 520 F.3d at

495). “But to serve as a comparator, the other employee

must be ‘similarly situated’ to the plaintiff.” Clinton,

2021 U.S. Dist. LEXIS 57472, 2021 WL 1166737, at *11

(quoting Burley, 801 F.3d at 301). “Whether a comparator

is similarly situated is typically a question for the fact

finder, unless, of course, the plaintiff has no evidence from

which a reasonable fact finder could conclude that the

plaintiff met his burden on this issue.” Johnson v. Advoc.

Health & Hosps. Corp., 892 F.3d 887, 895 (7th Cir. 2018).

Borges-Silva’s proffered comparators—the three

individuals assigned to assist with the 2019 federal

government shutdown backlog—were not comparable. See

Table of Branch Employees at 2; see also Emami v. Bolden,

241 F. Supp. 3d 673, 689-90 (E.D. Va. 2017) (“[A] showing

of similarity to comparators ‘would include evidence that

the employees dealt with the same supervisor, [were]

subject to the same standards and . . . engaged in the

same conduct without such differentiating or mitigating

circumstances that would distinguish their conduct or

the employer’s treatment of them for it.’”) (cleaned up)

(quoting Haywood v. Locke, 387 Fed. App’x 355, 359 (4th

Cir. 2010)). The individuals who assisted Borges-Silva

only worked on reducing the webmail backlog for nine

days, while simultaneously completing their other fulltime responsibilities. See Siedschlag Decl. ¶¶ 7-8. Yet

Borges-Silva’s primary responsibility throughout 2019

was to respond to webmail inquiries. See id. at ¶ 8. As

such, “a reasonable jury could not find that [the proffered

24a

Appendix B

comparators] and [Borges-Silva were] comparable ‘in all

material respects’” where the comparators “performed

many of the same duties as [Borges-Silva,]” but not

“all.” Day v. Carnahan, No. 19-cv-5551, 2021 U.S. Dist.

LEXIS 175381, 2021 WL 4192069, at *4 (N.D. Ill. 2021).

The differences between the proffered comparators and

Borges-Silva are underscored by the fact that the other

three Environmental Protection Specialists cleared

webmail inquiries at a far faster rate than Borges-Silva.

Compare Table of Comparators at 2, with PIP Results

at 5. Comparators are “not similarly situated” where

they “performed at a higher level than [the plaintiff].”

Chambers, 620 Fed. App’x at 879. Furthermore, the

proffered comparators “had [not] been placed on a

PIP” and had “no[t] required the level of assistance

that [Siedschlag] described [Borges-Silva] as needing.”

Chambers, 620 Fed. App’x at 879. Because BorgesSilva “fail[ed] to produce evidence that the proposed

comparators were actually similarly situated to him, an

inference of falsity or discrimination [or retaliation] is

not reasonable, and summary judgment is appropriate.”

Walker v. McCarthy, 170 F. Supp. 3d 94, 108 (D.D.C. 2016)

(cleaned up).

Fourth, “there can be no reasonable inference of []

discrimination where an individual just happens to be a

member of a protected class—actionable discrimination

only occurs when any employer acts because of the

plaintiff’s status as a member of a protected class.”

Washington v. Chao, 577 F. Supp. 2d 27, 42 (D.D.C. 2008)

(cleaned up) (emphasis added). As such, “[c]ourts in our

District have repeatedly held that a decision-maker’s

25a

Appendix B

inclusion in the same protected class as the terminated

plaintiff cuts against any inference of discrimination.”

Ranowsky v. Nat’l R.R. Passenger Corp., 244 F. Supp. 3d

138, 144 (D.D.C. 2017). Here, Borges-Silva and Siedschlag

are both men, and Borges-Silva and Mosby are close in

age. See Def.’s Mem. at 8; see also Perry v. Shinseki,

783 F. Supp. 2d 125, 138 (D.D.C. 2011) (decision-maker’s

membership in the same protected class as the plaintiff

“weighs further against an inference of discrimination”)

(citing Kelly v. Mills, 677 F. Supp. 2d 206, 223 (D.D.C.

2010)). Thus, Borges-Silva’s claim that Defendant had a

discriminatory or retaliatory animus when terminating

him is unavailing.

Finally, the Court is not a “super-personnel department

that reexamines an entity’s business decisions.” Jackson v.

Gonzales, 496 F.3d 703, 707, 378 U.S. App. D.C. 112 (D.C.

Cir. 2007) (cleaned up). “[F]or the most part, [BorgesSilva] concedes the facts underlying Defendant’s proffered

reasons[,]” and his “contentions boil down to justifications

of [his] conduct.” Arnoldi, 557 F. Supp. 3d at 115; see

Pl.’s Opp’n at 34-37. Even so, “[t]he Court’s task is not

to decide whether [Defendant] made the right calls, only

whether [his] stated reasons were not the actual reasons.

And [Borges-Silva’s contentions] do not undermine

[Defendant’s] stated reasons.” Arnoldi, 557 F. Supp. 3d

at 118 (cleaned up). Accordingly, summary judgment is

appropriate. See Clinton, 2021 U.S. Dist. LEXIS 57472,

2021 WL 1166737, at *9-11.

26a

Appendix B

IV. CONCLUSION

For the foregoing reasons, the Court will GRANT

Defendant’s Motion for Summary Judgment in an

accompanying order. As such, judgment is entered as a

matter of law in favor of Defendant.

Date: January 13, 2023

/s/ Zia M. Faruqui

Zia M. Faruqui

United States Magistrate Judge

27a

Appendix COF THE UNITED

APPENDIX C — OPINION

STATES OF AMERICA, EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION, NEW YORK

DISTRICT, DATED OCTOBER 13, 2022

UNITED STATES OF AMERICA

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

NEW YORK DISTRICT

33 Whitehall Street, New York, NY 10004-2112

IN THE MATTER OF:

QUENTIN BORGES-SILVA,

Complainant,

v.

MICHAEL S. REGAN, ADMINISTRATOR

ENVIRONMENTAL PROTECTION AGENCY,

Agency.

DATE: October 13, 2022

EEOC Hearing No.: 570-2020-00896X

Agency No.: 2019-0057-HQ

FINAL POST-HEARING

BENCH DECISION & ORDER

28a

Appendix C

I.

Introduction

Quentin Borges-Silva (“Complainant”) alleges that the

Environmental Protection Agency (“the Agency” or

“EPA”), discriminated against him when it subjected him

to a hostile work environment based on his sex, age and

in reprisal for his protected EEO activity. Complainant

also asserts that the Agency placed him on a Performance

Improvement Plan (“PIP”) in reprisal for his EEO activity.

The claims were the subject of a liability hearing on May

18, 19, 23 and 26, 2022. A damages hearing was held on

October 7, 2022.

As set forth below, the evidence shows that the Agency

subjected Complainant to a hostile work environment

based on his sex and his prior EEO activity, and placed

him on a PIP in reprisal for his EEO activity. The age

claim is not supported by a preponderance of the evidence

and thus is dismissed.

II. Jurisdiction

Jurisdiction to decide this matter is predicated on Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.

§2000e et seq., (“Title VII”), the Civil Rights Act of 1991,

the Equal Employment Opportunity Act of 1972, 42 U.S.C.

§2000e-16. Applicable rules and regulations promulgated

by the Equal Employment Opportunity Commission

(“EEOC” or the “Commission”) appear at 29 C.F.R. §1614,

et seq. (1999).

29a

Appendix C

III. Procedural History

1.

Complainant initiated contact with an EEO counselor

on March 3, 29, 2019. ROI, p. 8.1

2.

On June 28, 2019, Complainant filed a formal

complaint, which he amended on September 18, 2019,

and October 3, 2019. ROI, p. 59.

3.

On September 1, 2020, the Commission issued an

Acknowledgement Order.

4.

The case was transferred to EEOC Administrative

Judge Rose on November 14, 2020.

5.

After discovery, the Agency filed a summary judgment

motion which was granted in part and denied in part

in a decision issued on November 5, 2021.

6.

After unsuccessful attempts to settle the matter, a

virtual hearing using the Microsoft Teams application

was held by EEOC Administrative Judge Robert D.

Rose on May 18, 19, 23 and 25, 2022.

7.

A virtual damages hearing using the Microsoft Teams

application was held by EEOC Administrative Judge

Robert D. Rose on October 7, 2022

1. “ROI” refers to the Report of Investigation.

30a

Appendix C

IV. Claims at Issue

Complainant alleges he was subjected to hostile work

environment harassment (nonsexual) and discriminated

against based on Sex (Male), Age (DOB: May 1965)2 and

Retaliation (Previously filed complaint(s) using the Agency

4711 process for allegations of workplace harassment)

when:

2. In December 2018 and again since March 20,

2019 and continuing, his Supervisor, Mr. Gregory

Siedschlag, Branch Manager, Office of Chemical

Safety and Pollution Prevention/Office of Pesticide

Program / Field and External A ffairs Division

(FEAD)/ Communication Services Branch, criticized,

shamed and ridiculed him while being scornful of his

experience, bullying and berating him by:

a. Stating he do not have enough work to do for an

employee of his grade;

b. Monitoring and micromanaging his work;

c. Trying to control what he did in his personal life

away from the office;

d. Setting him up for failure;

e. Interfering with his ability to successfully do

your job;

2. Complainant withdrew disability as a basis in his response

to the Agency’s summary judgment motion.

31a

Appendix C

f. Giving him unrealistic deadlines and expectations

of completing assignments;

g. Instructing him to be responsive to a massive

number of backlogged inquiries (webmail) in an

impossibly short period of time;

h. Threatening him with disciplinary actions for

failure to follow instructions;

i. Accusing him of lying and not informing his Team

Lead about a large backlog of webmail;

j. Deterring him from working on EEO matters;

k. Reassigning another female employee’s work

to him.

Complainant alleges he was discriminated against based

on Retaliation (Instant Complaint and previously filed

complaint(s) using the agency 4711 process) when:

6. On September 27, 2019, Mr. Siedschlag placed

Complainant on a Performance Improvement Plan (PIP).

V. Findings of Fact

1.

Complainant had been with the EPA for about 16

years when the events at issue occurred. He remained

in Communication Services for his entire tenure. He

was the only male in the unit at all relevant times.

Complainant’s Liability Hearing testimony (“Comp.”).

32a

Appendix C

2.

Anne Overstreet supervised Complainant from about

2012 through mid-2018. Comp., Anne Overstreet

Liability Hearing testimony (“Overstreet.”).

3.

Gregory Siedschlag was temporarily detailed to

supervise Complainant’s unit from March to July,

2018. Comp., Gregory Siedschlag Liability Hearing

testimony (“Siedschlag”).

4.

Katyhi Han and Robert Cornonage were temporarily

detailed to supervise Complainant’s unit after Mr.

Siedschlag. Comp., Siedschlag.

5.

Mr. Siedschlag then took over that supervisory position

permanently in March 2019. Comp., Siedschlag.

6.

Complainant’s responsibilities included responding

to webmail and communications with pollinators

in connection with pesticide exposures. Comp.,

Siedschlag.

7.

As of the time of the filing of the complaint,

Complainant had been responding to webmail for

about 15-16 years. Comp.

8.

There were backlogs of webmail responses at various

times while Complainant was working on answering

webmail.

9.

There was a backlog around 2013 when Ms. Overstreet

was supervising Complainant. Comp., Overstreet.

33a

Appendix C

10. Complainant created a system for addressing that

backlog with Ms. Overstreet’s approval, which led

over time to the elimination of the backlog. Comp.,

Overstreet.

11. Complainant has created templates or boilerplate

responses for common webmail queries which

have been used by Complainant and others when

responding to webmail. Comp., others

12. The federal government shut down from December

2017 until January 2018. A webmail backlog emerged

from that period. Comp.

13. Complainant began working on the shutdown backlog

and immediately informed the acting supervisor,

Kaythi Han, about it. Comp.

14. Shortly after Mr. Siedschlag started as supervisor,

he assigned four female co-workers to assist with the

remaining backlog. Comp., Siedschlag.

15. This was the only time that Mr. Siedschlag put a team

in place to assist with any webmail backlog during the

relevant time period for this complaint. Siedschlag.

16. Mr. Siedschlag instructed Complainant and the four

female co-workers to track the amount of time they

spent on each webmail response. Siedschlag, Enid

Chiu Liability Hearing testimony (“Chiu”).

34a

Appendix C

17. Mr. Siedschlag did not inform team members about

why they were tracking their time. Siedschlag; Chiu.

18. Mr. Siedschlag used the tracking data to calculate

an average response time for webmails to be met by

Complainant. Siedschlag.

19. Mr. Siedschlag also relied on his experience with

webmail in the Superfund unit in assessing how long

it should take to respond to webmail. Siedschlag.

20. Some webmail queries are simple and can be answered

using a boilerplate or a custom response in little time.

Comp.

21. Some webmails pose complex issues which may

require the assistance of Subject Matter Experts

(“SME”) in formulating an accurate response. SMEs

sometimes were slow to respond. Responding to

complex webmails typically required substantially

more time compared to simple webmails. Comp.

22. Shortly after becoming the permanent supervisor,

Mr. Siedschlag began to review drafts of all webmail

responses prepared by Complainant. Comp.,

Siedschlag.

23. After a period of time, Mr. Siedschlag stopped

reviewing responses to simple emails which had been

drafted by Complainant. Comp.

35a

Appendix C

24. On various occasions, Complainant has corrected the

draft webmail responses of female colleagues in his

unit. Comp.

25. M r. Siedsch lag set nu merous dea d l i nes for

Complainant to reduce the webmail backlog after

he became permanent supervisor in 2019. Comp.,

Siedschlag.

26. Complainant found the deadlines unrealistic for

various reasons and was consistently unable to meet

them. Comp.

27. In 2019, webmail increased by about 100%. Comp.,

Siedschlag.

28. Complainant fairly consistently had technology issues

which slowed down his work. Comp.

29. Complainant spent time serving as back-up and

covering for colleagues. Comp.

30. In Spring of 2019, Complainant spent substantial

hours preparing documents for his 4711 and EEO

complaints. Comp.

31. Throughout the period at issue, Complainant

also worked on his neonicotinoids and pollinator

responsibilities. Comp.

32. Complainant also worked on other matters including

rulemaking, web edits, press inquiries and more

36a

Appendix C

during the time frame at issue. Comp., Complainant’s

Exhibit 7. 3

33. Overall, there were weeks in which Complainant had

little time to work on webmail responses during the

time frame at issue. Comp., Complainant’s Exhibit

7.

34. Upon learning that Mr. Siedschlag would become

his permanent supervisor, Complainant asked Dian

Moseby for a transfer. Comp.

35. Shortly after Mr. Siedschlag became permanent, he

required Complainant to attend weekly meetings with

him. Comp., Siedschlag.

36. The meetings often were followed by detailed emails

from Mr. Siedschlag to Complainant reviewing issues

and deadlines from the meetings. Comp.; Various e.g.,

Agency Exhibit 2.

37. For part of the relevant time frame, Mr. Siedschlag

reviewed Complainant’s draft webmail responses and

made edits to them. Comp., Siedschlag.

38. Mr. Siedschlag sometimes gave advice to Complainant

regarding how to respond to a webmail or reduce the

backlog. Complainant often found the advice to be

unhelpful or inaccurate. Comp., Siedschlag.

3. The Agency objected to Complainant’s exhibits 13 and 24 at

the hearing. Those exhibits are admitted because they are relevant

and non-repetitive. Parts of them are similar to the self-kept notes

of Mr. Siedschlag, which were previously admitted.

37a

Appendix C

39. Complainant felt as if he could not succeed in satisfying

the demands Mr. Siedschlag placed on him. Comp.

40. In around April 2019, Complainant filed a complaint

under Agency Order # 4711, which concerns

harassment complaints. The allegations included

disparate treatment based on sex.

41. Complainant compiled comprehensive documents in

support of the case. Comp.

42. Anne Moseby was selected as the decision-maker

for the complaint. Anne Moseby Liability Hearing

testimony (“Moseby”); Tessa Bermania Liability

Hearing testimony (“Bermania”).

43. The Agency’s 4711 Order requires that complainants

and alleged harassers be separated during the

pendency of the 4711 investigation. That did not occur

in Complainant’s case. Comp., ROI, p. 1541

44. Before filing the 4711 complaint, Complainant

attempted to meet with Ms. Moseby to complain about

harassment by Mr. Siedschlag. Ms. Moseby refused

to meet with him. Comp.

45. At the conclusion of the 4711 investigation, Ms.

Moseby found that there was no harassment or unfair

treatment of Complainant by Mr. Siedschlag. Comp.,

Moseby, ROI, Ex.

46. Mr. Siedschlag contacted Tess Bermania in LER in

the summer of 2019 about putting Complainant on a

38a

Appendix C

performance improvement plan (“PIP”). Siedschlag,

Bermaina.

47. Mr. Siedschlag issued a detailed PIP to Complainant

in August 2019. ROI, p. 698

48. The PIP pointed to quality, quantity and timeliness

issues regarding which Complainant was not

performing satisfactorily. Siedschlag; ROI, p. 698.

49. Complainant demonstrated substantial knowledge

on various substantive topics of concern to the EPA.

Various witnesses; various exhibits.

50. Complainant received a performance appraisal rating

of “Outstanding” in about six of the 10 prior years

preceding the complaint. Comp.

51. Ms. Overstreet, who supervised Complainant for six

years, testified that his work was excellent and that

he was an outstanding performer. Overstreet.

52. Ms. Overstreet also stated that Complainant was

f lexible and professional, and that she received

compliments about Complainant’s work. Overstreet.

53. Co-worker Ms. Overby testified that Complainant was

a diligent, reliable and versatile co-worker. Overby.

54. Ms. Overby testified that Mr. Siedschlag treated

Complainant more harshly then she and the other

female co-workers. Overby.

39a

Appendix C

55. Ms. Overby stated that Mr. Siedschlag was less willing

to work with Complainant or compromise with him,

and that he scrutinized his work more than hers.

Overby.

56. Co-worker Anne Hopkins testified that Mr. Siedschlag

was hostile towards Complainant and that Mr.

Siedschlag micro-managed Complainant. Anne

Hopkins Investigation testimony (“Hopkins”), ROI,

p. 1202.

57. Ms. Hopkins testified that Mr. Siedschlag gave

Complainant a runaround with his edits and that some

of Mr. Siedschlag’s edits were incorrect. Hopkins.

58. Co-worker Enid Chiu testified that Complainant

i s rel i able , profe s sion a l, ha rd-work i ng a nd

knowledgeable. Chiu.

59. Ms. Chiu testified that Mr. Siedschlag did not criticize

her for missing deadlines regarding the reduction of

the backlog. Chiu.

60. The hostile work environment adversely impacted

Complainant in various ways. Complainant Damages

Hearing Testimony (Comp-Dam); Emiko BorgesSilva Damages Hearing Testimony (E. Borges-Silva).

61. The hostile work environment adversely impacted

Complainant’s marriage. Comp-Dam; E. BorgesSilva.

40a

Appendix C

62. During and after the hostile work environment,

Complainant interacted less frequently with Ms.

Borges-Silva and treated her rudely. Their physical

interactions became less frequent as well. CompDam.

63. Complainant and Ms. Borges-Silva engaged in leisure

activities less frequently during this time. CompDam; E. Borges-Silva.

64. Complainant and Ms. Borges-Silva maintained a

strong relationship throughout this time. Comp-Dam.

65. Complainant experienced negative mood changes as

a result of the harassment. Comp-Dam; E. BorgesSilva.

66. Complainant stopped socializing within his community

and instead watched television during his free time.

Comp-Dam.

67. Complainant experienced insomnia due to the

harassment. He would wake-up thinking about events

at work, become angry and then be unable to get back

to sleep. Comp-Dam.

68. Complainant increased his consumption of alcohol

after the harassment started. He sometimes would

drink late at night to try to get back to sleep. In

addition to the increased alcohol consumption,

Complainant began eating large quantities of junk

food. Comp-Dam.

41a

Appendix C

69. Complainant experienced weight gain over the course

of the hostile work environment period. Comp-Dam.

70. Complainant had PTSD from prior bicycle accidents

and for years had biked to work after rush hour for

safety purposes. For the approximately six-week

period when he was not permitted by his supervisor

to ride to work after rush hour, Complainant’s PTSD

was exacerbated from his rush hours rides. CompDam.

71. Complainant was embarrassed in front of his

colleagues by some of the incidents which comprised

the hostile work environment. Complainant believes

his personal reputation suffered as a result. CompDam.

VI. Applicable Legal Standards

A.

Hostile Work Environment Law

To establish a prima facie case of hostile work environment

harassment, a complainant must show that: (1) s/he

belongs to a statutorily protected class; (2) s/he 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 the 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

42a

Appendix C

to the employer. Johnson, et al v. Department of the Navy,

EEOC Appeal No. 0120073487, et al. (November 14, 2007).

The harassment standard applies to all protected classes.

The incidents comprising the hostile work environment

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); see also Oncale v.

Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

The Commission has repeatedly found that claims of a

few isolated incidents of alleged harassment usually are

not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No.

05960030 (July 12, 1996); Banks v. Health and Human

Services, EEOC Request No. 05940481 (February 16,

1995).

In determining whether an objectively hostile or abusive

work environment existed, the trier of fact should

consider whether a reasonable person in the complainant’s

circumstances would have found the alleged behavior to

be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a

complainant may assert a Title VII cause of action if the

discriminatory conduct was so severe or pervasive that it

created a work environment abusive to employees because

of their protected status. Rideout v. Department of the

Army, EEOC Appeal No. 01933866 (November 22, 1995)

(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22

(1993)), request for reconsideration denied, EEOC Request

No. 05970995 (May 20, 1999). Also, the trier of fact must

43a

Appendix C

consider the totality of the circumstances, including the

following: the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether

it unreasonably interferes with an employee’s work

performance. Harris, 510 U.S. at 23.

B. Retaliation Law

To establish a prima facie case of reprisal for participating

in protected activity, a complainant typically must show

that: (1) s/he engaged in protected activity; (2) the alleged

discriminating official was aware of the protected activity;

(3) s/he was affected adversely by an action of the agency

contemporaneously with or after the protected activity;

and (4) there is a causal connection between the protected

activity and the agency action. Walker v. Dept. of Health

and Human Services, EEOC Appeal No. 01983215

(Jan. 14, 2000). For an action to be adverse, it must be

reasonably likely to deter individuals from engaging in

protected activity. Bennett v. Dep’t of the Army, EEOC

App. No. 0120130117 (Feb. 27, 2013). The causal connection

may be shown by evidence that the adverse action followed

the protected activity within such a period of time and in

such a manner that a reprisal motive is inferred. Lucas

v. Dept. of the Navy, EEOC Appeal No. 02-00242-004

(Aug. 10, 2006). The Commission generally has held that

a nexus may be established if events occurred within one

year of each other. Patton v. Dept. of the Navy, EEOC

Request No. 05950124 (June 27, 1996); Mallis v. United

States Postal Service, EEOC Appeal No. 01A55908 (Oct. 3,

2006); but see Latham v. Postmaster General, Appeal No.

44a

Appendix C

0120102749 (December 23, 2010) (finding that a nine-month

interval was insufficient to establish causal connection);

King v. Department of the Air Force, EEOC Appeal No.

01A62609 (July 26, 2006) (finding that six-month interval

of time did not support causal connection); Knight v.

Postmaster General, EEOC No. 01A54821 (2006) (finding

that a six-month interval did not support an inference of

retaliation).

The Commission has a policy of considering retaliation

claims with a broad view of coverage. Carroll v. Dep’t of

the Army, EEOC Request No. 05970939 (April 4, 2000).

Under Commission policy, claimed retaliatory actions

which can be challenged are not restricted to those which

affect a term or condition of employment. Rather, a

complainant is protected from any discrimination that is

reasonably likely to deter protected activity. See EEOC

Compliance Manual Section 8, “Retaliation,” No. 915.003

(May 20, 1998), at 8-15; see also Carroll, supra.

Furthermore, the Commission has found that any

action by an agency manager that interferes with an

employee’s rights or has the effect of intimidating or

chilling the exercise of those rights under the EEO

statutes constitutes a per se violation. Binseel v. Dep’t

of the Army, EEOC Request No. 05970584 (October 8,

1998) (complainant told that filing an EEO suit was the

wrong way to go about getting a promotion); Marr v. Dep’t

of the Air Force, EEOC Appeal No. 01941344 (June 27,

1996); Whidbee v. Dep’t of the Navy, EEOC Appeal No.

0120040193 (March 31, 2005); Thornton-Brown v. United

States Postal Service, EEOC Appeal No. 0120101790

45a

Appendix C

(September 2, 2010). However, petty slights and trivial

annoyances are not actionable, as they are not likely to

deter protected activity. Meeker v. United States Postal

Service, EEOC Appeal No. 01A12137 (Aug. 23, 2002).

If a complainant establishes a pr ima facie case,

the burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions. Texas

Department of Community Affairs v. Burdine, 450 U.S.

248, 253 (1981). To ultimately prevail, a complainant

must prove, by a preponderance of the evidence, that the

agency’s explanation is pre-textual. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097

(2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

519 (1993).

VII.

Analysis

The following findings are made after a thorough

review and evaluation of the entire record, including

the observation of testifying witnesses at the hearing.

Credibility determinations are based upon the demeanor of

the witnesses observed at the hearing and, where possible,

corroborated by the evidence of record. Willis v. Dep’t of

Treasury, EEOC No. 05900589 (July 1990). As discussed

below, the evidence shows that the Agency did not violate

any EEO laws when it terminated Complainant and did

not subject Complainant to a hostile work environment.

46a

Appendix C

A.

S ex-Ba s e d (non- s ex ua l) Ho stile Work

Environment Claim

1.

Prima Facie Case Analysis

Complainant meets element one of a prima facie case for

a hostile work environment, as he is a male who alleges

differential treatment based on sex. He asserts he was

subjected to conduct that constituted harassment. The

conduct included having his work closely-monitored and

reviewed, and being subjected to micro-managing by

his supervisor, Mr. Siedschlag. Complainant had 15-16

years of experience and acquired EPA knowledge when

Mr. Siedschlag became his supervisor, but Complainant

was treated almost like a new employee regarding the

level of his supervision. Complainant’s draft webmail

responses were subjected to nit-picky review by Mr.

Siedschlag, who mostly proposed only minor edits to

the drafts. Complainant often was able to refute Mr.

Siedschlag’s concerns about his drafts. Mr. Siedschlag

often told Complainant that he did not have enough work

for an employee of his grade, and that he needed to take on

more. Being subjected to this conduct slowed Complainant

down and interfered with his ability to do job efficiently

and effectively. Based on this conduct by the Agency,

Complainant has established element two of a prima face

case of harassment.

The testimony of Complainant and co-workers established

that female co-workers were not treated like Complainant.

The testimonies of Ms. Overstreet, Ms. Overby, Ms.

Chiu and Ms. Hopkins (via affidavit) were particularly

47a

Appendix C

credible as they had no stake in the matter. Further, the

co-workers amongst them took the bold step of essentially

testifying against their supervisor.4 The consistency of the

supporting testimony also bolsters the credibility of it. It

is sufficient to establish differential treatment based on

sex and thus Complainant has established element three

of a prima facie case.

Regarding element four, when considered as a whole, the

alleged harassing conduct unreasonably interfered with

Complainant’s work environment and his ability to do his

work in a timely and efficient manner. Thus, element four

of a prima face case has been established as well.

Finally, as to element five, there is a basis for imputing

liability to the Agency as the harasser is a supervisor and

the Agency took insufficient action in response to the oftrepeated complaints of harassment by Complainant. An

employer is subject to vicarious liability for harassment

when it is “created by a supervisor with immediate

(or successively higher) authority over the employee.”

Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118

S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton,

524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998).

While the Commission has found that “[s]imple teasing,

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the

4. Ms. Hopkins averred that Mr. Siedschlag stopped responding

to her greetings and acknowledging her after she became a witness

in support of Complainant’s case. ROI, 1204.

48a

Appendix C

‘terms and conditions of employment’” Kozak v. United

States Postal Serv., EEOC Request No. 01A63021 (Aug.

23, 2006), and that the discrimination statutes do not

shield a complainant from a myriad of petty slights and

annoyances. Rizzo v U.S. Postal Service, EEOC Appeal

No. 01A53970 (Aug. 29, 2005), the conduct here amounts

to more than petty, isolated incidents. For the alleged

harassing conduct to be considered pervasive, it must be

sufficiently continuous and not merely episodic. Faragher

v. City of Boca Raton, 524 U.S. 775, 786 (1998). From

the vantage point of the totality of the circumstances,

the record shows that the harassment at issue pervaded

Complainant’s work environment on a regular basis

throughout the time he was supervised by Mr. Siedschlag.

Thus, Complainant can establish that the harassment at

issue was pervasive.

Based on the foregoing, Complainant has established a

prima facie case of harassment.

2.

Agency Defenses and Complainant’s

Rebuttals

The Agency denies that some of the alleged conduct

occurred and asserts that there were legitimate,

non-discriminatory reasons for alleged actions which

undisputedly occurred. First, the Agency aims to portray

Complainant as an employee who became disgruntled

after the arrival of a new supervisor. The Agency in

essence asserts that Complainant was stubborn and would

not adjust to the ways of a new supervisor, which gave rise

to personality and work-style conflicts. Mr. Siedschlag was

49a

Appendix C

simply a supervisor supervising an employee, by reviewing

his work, providing advice and otherwise trying to assist

Complainant.

As a long-term veteran of the EPA with substantial

knowledge of the Agency’s operations, Complainant

admittedly was upset by the significant change in

supervisory style that came with Mr. Siedschlag’s arrival.

Complainant’s prior work experience and performance

levels appeared to matter little to Mr. Siedschlag. Rather

suddenly, Complainant was subjected to micro-level

review of some of his simplest assignments (e.g., responses

to simple webmail queries) and otherwise micro-managed

on all levels. Complainant did not see the same happening

to his female colleagues. He found fault with some of the

suggested edits and changes to his work posed by Mr.

Siedschlag, who had lesser knowledge on some EPArelated substantive matters. Complainant made efforts

to work with Mr. Siedschlag and meet his deadlines,

even though he felt like he was being set up to fail. This

treatment left Complainant disgruntled and discouraged,

and led him to consider seeking another job.

The Agency also points to alleged performance deficiencies

of Complainant as justification for its actions. Most

emphasized is Complainant’s handling of the webmail

backlogs and the quality and timeliness of his webmail

responses. These points were the subject of substantial

testimony at the hearing. For the post-shutdown

backlog, Mr. Siedschlag’s response was to assign other

team members to assist with it. For all other back

logs, the burden was shouldered by Complainant alone

50a

Appendix C

with Mr. Siedschlag closely monitoring through the

setting of deadlines, weekly meetings, and reporting

requirements for Complainant. The evidence shows that

Complainant repeatedly did not meet those deadlines.

While Complainant might not necessarily have been set up

to fail as he alleges, a full-scope review of Complainant’s

responsibilities and their impact on his ability to meet

webmail deadlines reveals that Complainant had

justification for missing the deadlines. Despite the

Agency’s insistence that Complainant had minimal other

responsibilities, the record shows that Complainant had

various other responsibilities including handling the

neonicotinoids issue on his own in addition to involvement

in rule-making, responding to press inquiries, providing

back up coverage for colleagues, and more. Further,

Complainant’s productivity sometimes suffered due to

technology problems, which on a few occasions led to the

re-imaging of Complainant’s computer. Complainant also

had to spend time working on his 4711 and EEO complaints

during the time frame at issue. Finally, the record shows

that webmail volume was up by about 100% in 2019, the

year at issue. Thus, there were numerous factors taking

Complainant away from responding to webmail at the time

he was being given the successive and tight deadlines to

respond to webmail backlogs.

The Agency also asserts that the quality of Complainant’s

webmail responses was sometimes lacking. The Agency

points to some purported examples of this in the PIP

that was issued to Complainant in August 2019. This

issue also was the subject of extensive testimony at

the hearing. The criticisms of Complainant’s responses

51a

Appendix C

rarely concerned the substance of them. Instead, they

often concerned minor issues in tone, word-selection and

approach. Complainant hotly contested the examples put

forth by the Agency. Whether Complainant was correct

or not, what is clear is that Mr. Siedschlag was nit-picking

the responses over minor issues which would have little

impact on the overall response. The issues pointed out

were not significant in that they never required significant

overhauls in language or approach. This was just another

example of micro-managing of questionable utility that

slowed Complainant’s pace of work.

Finally, the Agency asserts that none of the alleged actions

were motivated by Complainant’s sex. It argues that the

female employees did not present the same performance

issues as Complainant and thus any difference in

supervision as to Complainant was justified by his unique

performance problems. The Agency points out that female

co-workers were brought in to assist with the backlog at

one point, and that Mr. Siedschlag reviewed the work

of female employees at some level as well. Moreover,

Complainant does not allege that Mr. Siedschlag or

anyone else made any offensive statements based on his

sex. The Agency also points out that Complainant, a

male, is alleging that another male harassed him based

on Complainant being a male.

Overarchingly, these arguments are overcome by the

credible, consistent testimony of the female employees,

which emphasi zed the di fferentia l treatment of

Complainant, while also being very complimentary of

Complainant’s professionality, knowledge and work habits.

52a

Appendix C

The overall evidence makes clear that no females were

supervised in the same manner as Complainant. The lack

of any offensive statements based on sex does not undercut

this evidence. And any inference based on the harassment

being male on male is overcome by this evidence.

Finally, the Agency asserts it took appropriate action in

response to Complainant’s complaints of harassment when

it conducted an investigation pursuant to Complainant’s

4711 complaint. The deciding official, Ms. Moseby, found

that all of the allegations were unsubstantiated. However,

it is worthy of note that Complainant had asserted that

Ms. Moseby had refused to meet with Complainant about

his harassment allegations upon his request before he

filed the 4711 complaint. This calls into question whether

Ms. Moseby was the appropriate decision-maker for

this complaint. Also, the Agency failed to abide by that

portion of the 4711 Order requiring the separation of the

complainant and alleged harasser during the pendency of

the investigation. That simply did not happen here, and no

explanation was offered. Instead, Complainant continued

to work in the environment described above while the

investigation was pending.

Based on the foregoing, Complainant has demonstrated

that the Agency’s rationales for taking the challenged

actions are pretextual and that sex was a motivator behind

those actions. Thus, Complainant has established a hostile

work environment based on sex. 5

5. Regarding the age harassment claim, Complainant put forth

minimal evidence related to it. The record evidence is insufficient to

establish that age was a motivating factor for the Agency’s conduct.

Thus, the age claim must be dismissed.

53a

Appendix C

B. Hostile Work Environment Claim Based on

Retaliation

1.

Prima Facie Case Analysis

The standard for retaliatory harassment contains a

few different elements compared to the standard for a

harassment claim based on sex. First, Complainant must

show that he engaged in protected activity, which he has,

at least in the form of the 4711 and EEO complaints.

Second, there is no question that Mr. Siedschlag was aware

of these complaints, if only because Complainant told Mr.

Siedschalg of the complaints himself. Retaliatory intent

may be inferred based on the close proximity in time

between the EEO activity and the harassing conduct, plus

the Agency took it to the next level by putting Complainant

on a PIP after he engaged in EEO activity.

As per EEOC guidance, “[t]he threshold for establishing

retaliatory harassment is different than for discriminatory

hostile work environment. Retaliatory harassing conduct

can be challenged under the Burlington Northern

standard even if it is not severe or pervasive enough

to alter the terms and conditions of employment. If

the conduct would be sufficiently material to deter

protected activity in the given context, even if it were

insufficiently severe or pervasive to create a hostile work

environment, there would be actionable retaliation.”

EEOC, Enforcement Guidance on Retaliation and Related

Issues, No. 915.004 (Aug. 25, 2016). In other words, in the

retaliatory harassment context, the softer adverse action

standard for retaliation operates to override the more

54a

Appendix C

stringent requirement of the hostile work environment

standard. Instead the retaliation-based requirement

that the adverse action (here, harassment) must be

“reasonably likely to deter a person from engaging in

protected activity” applies. Here, the actions taken

against Complainant went beyond the petty slights and

trivial annoyances which the Commission has deemed

unactionable. See Davis v. U.S.P.S. Appeal No. 01991852

(December 12, 2021) (Finding no retaliation where

Complainant was given verbal announcement regarding

a change in reporting time and others were given written

notice). Instead, the harassment was of such a nature that

it would be reasonably likely to deter an individual from

engaging in EEO activity.

Based on the foregoing, the Agency violated Title VII

when it subjected Complainant to retaliatory harassment

based on his protected EEO activities.

C.

Damages

1.

General Compensator y Damages

Standards

Compensatory damages may be awarded for the past

pecuniary losses, future pecuniary losses, and nonpecuniary losses which are directly or proximately caused

by the agency’s discriminatory conduct. Compensatory

and Punitive Damages Available Under Section 102 of the

Civil Rights Act of 1991, EEOC Notice No. 915.002 (July

14, 1992), at 8. Pecuniary losses are out-of-pocket expenses

that are incurred as a result of the employer’s unlawful

55a

Appendix C

action, including job-hunting expenses, moving expenses,

medical expenses, psychiatric expenses, physical therapy

expenses, and other quantifiable out-of-pocket expenses.

Id. Past pecuniary losses are the pecuniary losses that

are incurred before the resolution of a complaint through

a finding of discrimination, an offer of full relief, or a

voluntary settlement. Id. at 8-9.

The particulars of what relief may be awarded, and what

proof is necessary to obtain that relief, are set forth

in detail in EEOC Notice No. 915.002. Briefly stated,

the complainant must submit evidence to show that the

agency’s discriminatory conduct directly or proximately

caused the losses for which damages are sought. Id. at 1112, 14; Rivera v. Department of the Navy, EEOC Appeal

No. 01934157 (July 22, 1994). The amount awarded should

reflect the extent to which the agency’s discriminatory

action directly or proximately caused harm to the

complainant and the extent to which other factors may

have played a part. EEOC Notice No. 915.002 at 11-12. The

amount of non-pecuniary damages should also reflect the

nature and severity of the harm to the complainant, and

the duration or expected duration of the harm. Id. at 14.

2.

Non-Pecuniary Damages Standards

The Agency is responsible for damages that are directly

or approximately caused by the alleged discriminatory

conduct. See Damiano v. United Stated Postal Service,

EEOC Doc No. 05980311 (Feb. 26, 1999); Roundtree v.

Department of Agriculture, EEOC Appeal No. 01941906

(July 7, 1995); Taylor v. Department of the Navy, EEOC

56a

Appendix C

Appeal No. 01940376 (July 22, 1994). Nevertheless, “there

are no definitive rules governing the dollar amounts to

be awarded under emotional pain and suffering. Aponte

v. Department of Homeland Security, EEOC Appeal

No. 0120063532 (2008). However, the amount of nonpecuniary damages should also reflect the nature and

severity of the harm to the complainant, and the duration

or expected duration of the harm. EEOC Notice No.

915.002 at 14.

In Carle v. Department of the Navy, the Commission

explained that “objective evidence” of non-pecuniary

damages could include a statement by Complainant

explaining how he or she was affected by the discrimination.

EEOC Appeal No. 01922369 (Jan. 5, 1993). Objective

evidence may include statements from the complainant

concerning the emotional pain or suffering, inconvenience,

mental anguish, loss of enjoyment of life, injury to

professional standing, injury to character or reputation,

injury to credit standing, loss of health, and any other

non-pecuniary losses that are incurred as a result of the

discriminatory conduct. Sinnott v. Dep’t of Defense, EEOC

Appeal No. 01952872 (Sept. 19, 1996). Statements from

others, including family members, friends, and health

care providers could address the outward manifestations

or physical consequences of emotional distress, including

sleeplessness, anxiety, stress, depression, marital strain,

humiliation, emotional distress, loss of self-esteem,

excessive fatigue or a nervous breakdown. Id. Objective

evidence also may include documents indicating a

complainant’s actual out-of-pocket expenses related to

medical treatment, counseling and so forth, related to the

injury allegedly caused by discrimination. Id.

57a

Appendix C

Evidence from a healthcare provider or other expert is not

a mandatory prerequisite for recovery of compensatory

damages for emotional harm. Lawrence v. U.S. Postal

Serv., EEOC Appeal No. 01952288 (Apr. 18, 1996). The

more inherently degrading or humiliating the agency’s

actions are the more reasonable it is to infer that a person

would suffer humiliation or distress from that action. Id.

Consequently, somewhat more conclusory evidence of

emotional distress will be acceptable to support an award

for emotional damages. Id.

The Commission notes that, because there is no precise

formula by which to calculate non-pecuniary damages,

an AJ is afforded broad discretion in determining such

damages awards. However, non-pecuniary compensatory

damages are designed to remedy the harm caused by

the discriminatory event rather than punish the Agency

for the discriminatory action. Further, compensatory

damages should not be motivated by passion or prejudice

or be “monstrously excessive” standing alone, but they

should be consistent with the amounts awarded in similar

cases. See Ward-Jenkins v. Dep’t of the Interior, EEOC

Appeal No. 01961483 (Mar. 4, 1999) (citing Cygnar v. City

of Chicago, 865 F.2d 847, 848 (7th Cir. 1989)).

Thus, while precise rules are not appropriate to determine

each award of compensatory damages in the same way,

it is clear that the Agency is responsible for damages

that are directly or proximately caused by the alleged

discriminatory conduct. See Damiano v. U.S. Postal Serv.,

EEOC Request No. 05980311 (Feb. 26, 1999); Rountree

v. Dep’t of Agriculture, EEOC Appeal No. 01941906 (July

58a

Appendix C

7, 1995); Taylor v. Dep’t of the Navy, EEOC Appeal No.

01940376 (July 22, 1994). And, if a complainant is in a

fragile physical, emotional or financial state, any additional

harm which is proximately caused by the agency’s adverse

action, even if a less fragile person would not be so harmed,

the agency is liable for. Wallis v USPS, EEOC Appeal

No. 01950510 (Nov. 13, 1995). Finally, courts have given

“due regard” “to Congress’s view that plaintiffs should be

able to recover compensatory damages under Title VII so

that plaintiffs would be appropriately compensated and to

provide for more effective deterrence of unlawful behavior

on the part of employers.” Nyman v. F.D.I.C., 967 F. Supp.

1562, 1584 n.7 (D.D.C. 1997).

3.

Monetary Relief Award

a.

Compensatory Damages

Here, Complainant seeks a non-pecuniary damages

award. Complainant relies on his own testimony and that

of his spouse to support his claim. Complainant provided

credible testimony that the Agency’s harassment of him

was the proximate cause for the various kinds of harm

he suffered. The record provides clear linkages between

the harassment by the Agency and harm suffered by

Complainant. For example, Complainant testified about

various emotional and physical harms he suffered only

after the harassment commenced. These were conditions

and harms that he was not suffering from before the

harassment began. Notably, the record is void of any

other significant stressors in Complainant’s life during

the relevant time period. Thus, the record clearly shows

59a

Appendix C

that the Agency’s conduct was the predicate for the various

harm suffered by Complainant.

Various factors must be considered in determining the

appropriate amount of non-pecuniary damages. Regarding

the nature and duration of the harm, Complainant testified

that he suffered in various ways over the entire period of

the hostile work environment and beyond. The physical

effects of the harm included insomnia, weight gain and

the temporary exacerbation of Complainant’s PTSD.

Complainant also suffered mental and emotional harm.

His mood was adversely affected. During his testimony,

he expressed anger, frustration and humiliation, all due

to the harassment. Complainant also turned to alcohol

during this period, increasing his consumption of it and

using it to try to help him get back to sleep during periods

of insomnia related to the hostile work environment.

Complainant clearly suffered a significant diminishment

in the enjoyment of life. He and his wife testified about

the various adverse changes in their interactions after the

harassment began. Complainant admittedly treated his

spouse rudely during this time period. Complainant’s social

life was significantly impacted as he essentially withdrew

from socializing within his community, which was a

regular activity before the harassment. Complainant also

expressed concern about how his personal reputation may

have suffered as a result of the harassment. Complainant

testified that he was embarrassed by his treatment and

made to look bad or like a poor performer within the

purview of other employees. He credibly testified that

there were no other stressors present at the time which

might have caused or contributed to his pain and suffering.

60a

Appendix C

Based on the foregoing, a non-pecuniary compensatory

damages award of $45,000 for emotional harm is

warranted. A comparison to cases similar in most

respects shows that such an award fairly compensates

Complainant and is not “monstrously excessive.” Butler

v Department of Homeland Security , EEOC Appeal No.

0720090010 (May 27, 2010)(Commission awarded $45,000

because discrimination reactivated complainant’s PTSD

symptoms, with complainant experiencing “anger, fear,

depression, anxiety, hopelessness, poor concentration,

physiological reactivity, nightmares and sleeplessness,

and hives.”); McNeese-Ards v. Department of Veterans

Affairs, EEOC Appeal No. 0720090027 (April 15, 2010)

(Commission awarded $45,000.00 to complainant upon

showing that she had experienced depression, loss of sleep,

severe emotional distress, and anxiety as a result of the

retaliatory conduct of the agency); Hem v. Department

of Agriculture, EEOC Appeal No. 0720060012 (March

10, 2008) (Commission awarded $50,000.00 where

complainant established that he suffered emotional

distress, depression, and anxiety as a result of the agency’s

discriminatory conduct); Bowden v. Department of

Veterans Affairs, EEOC Appeal No. 01A00360 (June 22,

2000) (Commission awarded $45,000.00 where the agency

subjected complainant to harassment which resulted

in exacerbation of depression, injury to professional

standing, character, reputation, and credit rating,

humiliation, physical manifestations, loss of self-esteem,

and marital and family problems); Turner v. Department

of Interior, EEOC Appeal No. 01956390 (April 27, 1998)

($40,000.00 in non-pecuniary damages awarded where

the agency subjected complainant to sexual harassment

61a

Appendix C

and retaliation, which resulted in depression, anger,

anxiety, frustration, sleeplessness, crying spells, loss of

self-esteem and strained relationships).

This award is based on the actual harm experienced which

was the result of the Agency’s actions, and takes into

account the nature, duration, and severity of the harm

suffered. See, e.g., Utt v. U.S. Postal Serv., EEOC Appeal

No. 0720070001 (Mar. 26, 2009).

Any other relief sought by Complainant, except for

attorneys’ fees and costs, has been considered and is

denied.

IX. Conclusions of Law

For the reasons set forth here, as well as record evidence

and arguments not specifically addressed in this Decision,

Complainant has established by a preponderance of

the evidence that he was subjected to a hostile work

environment based on his sex and prior EEO activity,

and placed on a PIP in reprisal for his prior EEO activity.

Because of that, he is entitled to damages related to harm

and suffering as a result of the harassment.

X. Order

Judgment is entered for Complainant on all claims as to

liability, except the harassment claim based on age which

is dismissed.

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Appendix C

Within 30 calendar days of the date that this decision

becomes final, the Agency shall pay

Complainant $45,000 as non-pecuniary compensatory

damages.

It is so Ordered:

For the Commission:

/s/

Robert D. Rose

Administrative Judge

U.S. Equal Employment Opportunity Commission

New York District Office

33 Whitehall Street, 5th Floor

New York, New York 10004-2112

929.506.5339

r.rose-efilebox@eeoc.gov

63a

Appendix DHEARING BENCH

APPENDIX D — LIABILITY

DECISION & ORDER OF THE UNITED

STATES OF AMERICA EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION NEW YORK

DISTRICT, DATED JUNE 9, 2022

UNITED STATES OF AMERICA

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION NEW YORK DISTRICT

33 Whitehall Street, New York, NY 10004-2112

EEOC Hearing No.: 570-2020-00896X

Agency No.: 2019-0057-HQ

In the matter of:

QUENTIN BORGES-SILVA,

Complainant,

v.

MICHAEL S. REGAN, ADMINISTRATOR

ENVIRONMENTAL PROTECTION AGENCY,

Agency.

DATE: June 9, 2022

LIABILITY HEARING BENCH

DECISION & ORDER

64a

Appendix D

I.

Introduction

Quentin Borges-Silva (“Complainant”) alleges that

the Environmental Protection Agency (“the Agency” or

“EPA”), discriminated against him when it subjected him

to a hostile work environment based on his sex, age and

in reprisal for his protected EEO activity. Complainant

also asserts that the Agency placed him on a Performance

Improvement Plan (“PIP”) in reprisal for his EEO activity.

The claims were the subject of a liability hearing on May

18, 19, 23 and 26, 2022.

As set forth below, the evidence shows that the Agency

subjected Complainant to a hostile work environment

based on his sex and his prior EEO activity, and placed

him on a PIP in reprisal for his EEO activity. The age

claim is not supported by a preponderance of the evidence

and thus is dismissed.

II. Jurisdiction

Jurisdiction to decide this matter is predicated on

Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. §2000e et seq., (“Title VII”), the Civil Rights Act

of 1991, the Equal Employment Opportunity Act of 1972,

42 U.S.C. §2000e-16. Applicable rules and regulations

promulgated by the Equal Employment Opportunity

Commission (“EEOC” or the “Commission”) appear at

29 C.F.R. §1614, et seq. (1999).

65a

Appendix D

III. Procedural History

1.

Complainant initiated contact with an EEO counselor

on March 3, 29, 2019. ROI, p. 8.1

2.

On June 28, 2019, Complainant filed a formal

complaint, which he amended on September 18, 2019,

and October 3, 2019. ROI, p. 59.

3.

On September 1, 2020, the Commission issued an

Acknowledgement Order.

4.

The case was transferred to EEOC Administrative

Judge Rose on November 14, 2020.

5.

After discovery, the Agency filed a summary judgment

motion which was granted in part and denied in part

in a decision issued on November 5, 2021.

6.

After unsuccessful attempts to settle the matter, a

virtual hearing using the Microsoft Teams application

was held by EEOC Administrative Judge Robert D.

Rose on May 18, 19, 23 and 25, 2022.

IV. Claims at Issue

Complainant alleges he was subjected to hostile work

environment harassment (nonsexual) and discriminated

against based on Sex (Male), Age (DOB: May 1965)2 and

1. “ROI” refers to the Report of Investigation.

2. Complainant withdrew disability as a basis in his response

to the Agency’s summary judgment motion.

66a

Appendix D

Retaliation (Previously filed complaint(s) using the Agency

4711 process for allegations of workplace harassment)

when:

2. In December 2018 and again since March 20,

2019 and continuing, his Supervisor, Mr. Gregory

Siedschlag, Branch Manager, Office of Chemical

Safety and Pollution Prevention/Office of Pesticide

Prog ram / Field and External A ffairs Division

(FEAD)/Communication Services Branch, criticized,

shamed and ridiculed him while being scornful of his

experience, bullying and berating him by:

a.

Stating he do not have enough work to do for an

employee of his grade;

b.

Monitoring and micromanaging his work;

c.

Trying to control what he did in his personal life

away from the office;

d.

Setting him up for failure;

e.

Interfering with his ability to successfully do your

job;

f.

Giving him unrealistic deadlines and expectations

of completing assignments;

g.

Instructing him to be responsive to a massive

number of backlogged inquiries (webmail) in an

impossibly short period of time;

67a

Appendix D

h.

Threatening him with disciplinary actions for

failure to follow instructions;

i.

Accusing him of lying and not informing his Team

Lead about a large backlog of webmail;

j.

Deterring him from working on EEO matters;

k.

Reassigning another female employee’s work to

him.

Complainant alleges he was discriminated against

based on Retaliation (Instant Complaint and previously

filed complaint(s) using the agency 4711 process) when:

6. On September 27, 2019, Mr. Siedschlag placed

Complainant on a Performance Improvement Plan

(PIP).

V. Findings of Fact

1.

Complainant had been with the EPA for about

16 years when the events at issue occurred. He

remained in Communication Services for his

entire tenure. He was the only male in the unit

at all relevant times. Complainant’s Liability

Hearing testimony (“Comp.”).

2.

A nne Overstreet super vised Complainant

from about 2012 through mid-2018. Comp.,

Anne Overstreet Liability Hearing testimony

(“Overstreet.”).

68a

Appendix D

3.

Gregory Siedschlag was temporarily detailed

to supervise Complainant’s unit from March to

July, 2018. Comp., Gregory Siedschlag Liability

Hearing testimony (“Siedschlag”).

4.

Katyhi Han and Rober t Cornonage were

temporarily detailed to supervise Complainant’s

unit after Mr. Siedschlag. Comp., Siedschlag.

5.

Mr. Siedschlag then took over that supervisory

position permanently in March 2019. Comp.,

Siedschlag.

6.

Compl a i n a nt ’s r e sp on sibi l it ie s i nclude d

responding to webmail and communications

with pollinators in connection with pesticide

exposures. Comp., Siedschlag.

7.

As of the time of the filing of the complaint,

Complainant had been responding to webmail

for about 15-16 years. Comp.

8.

There were backlogs of webmail responses at

various times while Complainant was working

on answering webmail.

9.

There was a backlog around 2013 when Ms.

Overstreet was supervising Complainant. Comp.,

Overstreet.

10. Complainant created a system for addressing that

backlog with Ms. Overstreet’s approval, which

69a

Appendix D

led over time to the elimination of the backlog.

Comp., Overstreet.

11. Complainant has created templates or boilerplate

responses for common webmail queries which

have been used by Complainant and others when

responding to webmail. Comp., others

12. The federal gover nment shut dow n from

December 2017 until January 2018. A webmail

backlog emerged from that period. Comp.

13. Complainant began working on the shutdown

backlog and immediately informed the acting

supervisor, Kaythi Han, about it. Comp.

14. Shortly after Mr. Siedschlag started as supervisor,

he assigned four female co-workers to assist with

the remaining backlog. Comp., Siedschlag.

15. This was the only time that Mr. Siedschlag

put a team in place to assist with any webmail

backlog during the relevant time period for this

complaint. Siedschlag.

16. Mr. Siedschlag instructed Complainant and the

four female co-workers to track the amount of time

they spent on each webmail response. Siedschlag,

Enid Chiu Liability Hearing testimony (“Chiu”).

17. Mr. Siedschlag did not inform team members

about why they were tracking their time.

Siedschlag; Chiu.

70a

Appendix D

18. Mr. Siedschlag used the tracking data to calculate

an average response time for webmails to be met

by Complainant. Siedschlag.

19. Mr. Siedschlag also relied on his experience

with webmail in the Superfund unit in assessing

how long it should take to respond to webmail.

Siedschlag.

20. Some webmail queries are simple and can

be answered using a boilerplate or a custom

response in little time. Comp.

21. Some webmails pose complex issues which

may require the assistance of Subject Matter

Experts (“SME”) in formulating an accurate

response. SMEs sometimes were slow to respond.

Responding to complex webmails typically

required substantially more time compared to

simple webmails. Comp.

22. Shortly after becoming the permanent supervisor,

Mr. Siedschlag began to review drafts of all

webmail responses prepared by Complainant.

Comp., Siedschlag.

23. After a period of time, Mr. Siedschlag stopped

reviewing responses to simple emails which had

been drafted by Complainant. Comp.

24. On various occasions, Complainant has corrected

the draft webmail responses of female colleagues

in his unit. Comp.

71a

Appendix D

25. Mr. Siedschlag set numerous deadlines for

Complainant to reduce the webmail backlog after

he became permanent supervisor in 2019. Comp.,

Siedschlag.

26. Complainant found the deadlines unrealistic for

various reasons and was consistently unable to

meet them. Comp.

27. In 2019, webmail increased by about 100%.

Comp., Siedschlag.

28. Complainant fairly consistently had technology

issues which slowed down his work. Comp.

29. Complainant spent time serving as back-up and

covering for colleagues. Comp.

30. In Spring of 2019, Complainant spent substantial

hours preparing documents for his 4711 and EEO

complaints. Comp.

31. Throughout the period at issue, Complainant

also worked on his neonicotinoids and pollinator

responsibilities. Comp.

32. Complainant also worked on other matters

including rulemaking, web edits, press inquiries

and more during the time frame at issue. Comp.,

Complainant’s Exhibit 7. 3

3. The Agency objected to Complainant’s exhibits 13 and 24 at

the hearing. Those exhibits are admitted because they are relevant

72a

Appendix D

33. Overall, there were weeks in which Complainant

had little time to work on webmail responses

du r i ng t he t i me f ra me at issue. Co mp.,

Complainant’s Exhibit 7.

34. Upon learning that Mr. Siedschlag would become

his permanent supervisor, Complainant asked

Dian Moseby for a transfer. Comp.

35. Shortly after Mr. Siedschlag became permanent,

he required Complainant to attend weekly

meetings with him. Comp., Siedschlag.

36. The meetings often were followed by detailed

emails from Mr. Siedschlag to Complainant

reviewing issues and deadlines from the meetings.

Comp.; Various e.g., Agency Exhibit 2.

37. For part of the relevant time frame, Mr. Siedschlag

reviewed Complainant’s draft webmail responses

and made edits to them. Comp., Siedschlag.

38. Mr. Siedschlag sometimes gave advice to

Complainant regarding how to respond to a

webmail or reduce the backlog. Complainant often

found the advice to be unhelpful or inaccurate.

Comp., Siedschlag.

and non-repetitive. Parts of them are similar to the self-kept notes

of Mr. Siedschlag, which were previously admitted.

73a

Appendix D

39. Complainant felt as if he could not succeed in

satisfying the demands Mr. Siedschlag placed

on him. Comp.

40. In around April 2019, Complainant filed a

complaint under Agency Order # 4711, which

concerns harassment complaints. The allegations

included disparate treatment based on sex.

41. Complainant compiled comprehensive documents

in support of the case. Comp.

42. Anne Moseby was selected as the decisionmaker for the complaint. Anne Moseby Liability

Hearing testimony (“Moseby”); Tessa Bermania

Liability Hearing testimony (“Bermania”).

43. T he A gency ’s 4711 O rder requ i res t hat

complainants and alleged harassers be separated

during the pendency of the 4711 investigation.

That did not occur in Complainant’s case. Comp.,

ROI, p. 1541

44. Before filing the 4711 complaint, Complainant

attempted to meet with Ms. Moseby to complain

about harassment by Mr. Siedschlag. Ms. Moseby

refused to meet with him. Comp.

45. At the conclusion of the 4711 investigation, Ms.

Moseby found that there was no harassment

or unfair treatment of Complainant by Mr.

Siedschlag. Comp., Moseby, ROI, Ex.

74a

Appendix D

46. Mr. Siedschlag contacted Tess Bermania in LER

in the summer of 2019 about putting Complainant

on a performance improvement plan (“PIP”).

Siedschlag, Bermaina.

47. M r. Siedschlag issued a deta i led PIP to

Complainant in August 2019. ROI, p. 698

48. The PIP pointed to quality, quantity and

timeliness issues regarding which Complainant

was not performing satisfactorily. Siedschlag;

ROI, p. 698.

49. Complainant demonstrated substantial knowledge

on various substantive topics of concern to the

EPA. Various witnesses; various exhibits.

50. Complainant received a performance appraisal

rating of “Outstanding” in about six of the 10

prior years preceding the complaint. Comp.

51. Ms. Overstreet, who supervised Complainant for

six years, testified that his work was excellent and

that he was an outstanding performer. Overstreet.

52. Ms. Overstreet also stated that Complainant

was f lexible and professional, and that she

received compliments about Complainant’s work.

Overstreet.

53. Co-worker Ms. Overby testified that Complainant

was a diligent, reliable and versatile co-worker.

Overby.

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Appendix D

54. Ms. Overby testified that Mr. Siedschlag treated

Complainant more harshly then she and the other

female co-workers. Overby.

55. Ms. Overby stated that Mr. Siedschlag was less

willing to work with Complainant or compromise

with him, and that he scrutinized his work more

than hers. Overby.

56. Co-worker Anne Hopkins testified that Mr.

Siedschlag was hostile towards Complainant

and that M r. Siedschlag m icro -managed

Complainant. Anne Hopkins Investigation

testimony (“Hopkins”), ROI, p. 1202.

57. Ms. Hopkins testified that Mr. Siedschlag gave

Complainant a runaround with his edits and that

some of Mr. Siedschlag’s edits were incorrect.

Hopkins.

58. Co-worker Enid Chiu testified that Complainant

is reliable, professional, hard-working and

knowledgeable. Chiu.

59. Ms. Chiu testified that Mr. Siedschlag did not

criticize her for missing deadlines regarding the

reduction of the backlog. Chiu.

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Appendix D

VI. Applicable Legal Standards

A.

Hostile Work Environment Law

To establish a prima facie case of hostile work environment

harassment, a complainant must show that: (1) s/he

belongs to a statutorily protected class; (2) s/he 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 the 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. Johnson, et al v. Department of the Navy,

EEOC Appeal No. 0120073487, et al. (November 14, 2007).

The harassment standard applies to all protected classes.

The incidents comprising the hostile work environment

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); see also Oncale v.

Sundowner Offshore Services, Inc., 23 U.S. 75 (1998).

The Commission has repeatedly found that claims of a

few isolated incidents of alleged harassment usually are

not sufficient to state a harassment claim. See Phillips

v. Department of Veterans Affairs, EEOC Request No.

05960030 (July 12, 1996); Banks v. Health and Human

Services, EEOC Request No. 05940481 (February 16,

1995).

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In determining whether an objectively hostile or

abusive work environment existed, the trier of fact should

consider whether a reasonable person in the complainant’s

circumstances would have found the alleged behavior to

be hostile or abusive. Even if harassing conduct produces

no tangible effects, such as psychological injury, a

complainant may assert a Title VII cause of action if the

discriminatory conduct was so severe or pervasive that it

created a work environment abusive to employees because

of their protected status. Rideout v. Department of the

Army, EEOC Appeal No. 01933866 (November 22, 1995)

(citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22

(1993)), request for reconsideration denied, EEOC Request

No. 05970995 (May 20, 1999). Also, the trier of fact must

consider the totality of the circumstances, including the

following: the frequency of the discriminatory conduct;

its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether

it unreasonably interferes with an employee’s work

performance. Harris, 510 U.S. at 23.

B. Retaliation Law

To establish a prima facie case of reprisal for

participating in protected activity, a complainant typically

must show that: (1) s/he engaged in protected activity;

(2) the alleged discriminating official was aware of the

protected activity; (3) s/he was affected adversely by an

action of the agency contemporaneously with or after the

protected activity; and (4) there is a causal connection

between the protected activity and the agency action.

Walker v. Dept. of Health and Human Services, EEOC

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Appeal No. 01983215 (Jan. 14, 2000). For an action to be

adverse, it must be reasonably likely to deter individuals

from engaging in protected activity. Bennett v. Dep’t of

the Army, EEOC App. No. 0120130117 (Feb. 27, 2013).

The causal connection may be shown by evidence that

the adverse action followed the protected activity within

such a period of time and in such a manner that a reprisal

motive is inferred. Lucas v. Dept. of the Navy, EEOC

Appeal No. 02-00242-004 (Aug. 10, 2006). The Commission

generally has held that a nexus may be established if events

occurred within one year of each other. Patton v. Dept. of

the Navy, EEOC Request No. 05950124 (June 27, 1996);

Mallis v. United States Postal Service, EEOC Appeal No.

01A55908 (Oct. 3, 2006); but see Latham v. Postmaster

General, Appeal No. 0120102749 (December 23, 2010)

(finding that a nine-month interval was insufficient to

establish causal connection); King v. Department of the

Air Force, EEOC Appeal No. 01A62609 (July 26, 2006)

(finding that six-month interval of time did not support

causal connection); Knight v. Postmaster General, EEOC

No. 01A54821 (2006) (finding that a six-month interval did

not support an inference of retaliation).

The Commission has a policy of considering retaliation

claims with a broad view of coverage. Carroll v. Dep’t of the

Army, EEOC Request No. 05970939 (April 4, 2000). Under

Commission policy, claimed retaliatory actions which can

be challenged are not restricted to those which affect a

term or condition of employment. Rather, a complainant

is protected from any discrimination that is reasonably

likely to deter protected activity. See EEOC Compliance

Manual Section 8, “Retaliation,” No. 915.003 (May 20,

1998), at 8-15; see also Carroll, supra.

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Furthermore, the Commission has found that any

action by an agency manager that interferes with an

employee’s rights or has the effect of intimidating or

chilling the exercise of those rights under the EEO

statutes constitutes a per se violation. Binseel v. Dep’t

of the Army, EEOC Request No. 05970584 (October 8,

1998) (complainant told that filing an EEO suit was the

wrong way to go about getting a promotion); Marr v. Dep’t

of the Air Force, EEOC Appeal No. 01941344 (June 27,

1996); Whidbee v. Dep’t of the Navy, EEOC Appeal No.

0120040193 (March 31, 2005); Thornton-Brown v. United

States Postal Service, EEOC Appeal No. 0120101790

(September 2, 2010). However, petty slights and trivial

annoyances are not actionable, as they are not likely to

deter protected activity. Meeker v. United States Postal

Service, EEOC Appeal No. 01A12137 (Aug. 23, 2002).

If a complainant establishes a prima facie case,

the burden then shifts to the agency to articulate a

legitimate, nondiscriminatory reason for its actions.

Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 253 (1981). To ultimately prevail, a complainant

must prove, by a preponderance of the evidence, that the

agency’s explanation is pre-textual. Reeves v. Sanderson

Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097

(2000); St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

519 (1993).

VII.

Analysis

The following findings are made after a thorough

review and evaluation of the entire record, including

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Appendix D

the observation of testifying witnesses at the hearing.

Credibility determinations are based upon the demeanor of

the witnesses observed at the hearing and, where possible,

corroborated by the evidence of record. Willis v. Dep’t of

Treasury, EEOC No. 05900589 (July 1990). As discussed

below, the evidence shows that the Agency did not violate

any EEO laws when it terminated Complainant and did

not subject Complainant to a hostile work environment.

A.

S ex-Ba s e d (non- s ex ua l) Ho stile Work

Environment Claim

1.

Prima Facie Case Analysis

Complainant meets element one of a prima facie

case for a hostile work environment, as he is a male who

alleges differential treatment based on sex. He asserts

he was subjected to conduct that constituted harassment.

The conduct included having his work closely-monitored

and reviewed, and being subjected to micro-managing

by his supervisor, Mr. Siedschlag. Complainant had 15-16

years of experience and acquired EPA knowledge when

Mr. Siedschlag became his supervisor, but Complainant

was treated almost like a new employee regarding the

level of his supervision. Complainant’s draft webmail

responses were subjected to nit-picky review by Mr.

Siedschlag, who mostly proposed only minor edits to

the drafts. Complainant often was able to refute Mr.

Siedschlag’s concerns about his drafts. Mr. Siedschlag

often told Complainant that he did not have enough work

for an employee of his grade, and that he needed to take on

more. Being subjected to this conduct slowed Complainant

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Appendix D

down and interfered with his ability to do job efficiently

and effectively. Based on this conduct by the Agency,

Complainant has established element two of a prima face

case of harassment.

The testimony of Complainant and co-workers

established that female co-workers were not treated like

Complainant. The testimonies of Ms. Overstreet, Ms.

Overby, Ms. Chiu and Ms. Hopkins (via affidavit) were

particularly credible as they had no stake in the matter.

Further, the co-workers amongst them took the bold step

of essentially testifying against their supervisor.4 The

consistency of the supporting testimony also bolsters the

credibility of it. It is sufficient to establish differential

treatment based on sex and thus Complainant has

established element three of a prima facie case.

Regarding element four, when considered as a whole,

the alleged harassing conduct unreasonably interfered

with Complainant’s work environment and his ability to do

his work in a timely and efficient manner. Thus, element

four of a prima face case has been established as well.

Finally, as to element five, there is a basis for imputing

liability to the Agency as the harasser is a supervisor and

the Agency took insufficient action in response to the oftrepeated complaints of harassment by Complainant. An

employer is subject to vicarious liability for harassment

4. Ms. Hopkins averred that Mr. Siedschlag stopped

responding to her greetings and acknowledging her after she

became a witness in support of Complainant’s case. ROI, 1204.

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Appendix D

when it is “created by a supervisor with immediate

(or successively higher) authority over the employee.”

Burlington Industries, Inc., v. Ellerth, 524 U.S. 742, 118

S.Ct. 2257, 2270 (1998); Faragher v. City of Boca Raton,

524 U.S. 775, 118 S.Ct. 2275, 2292-93 (1998).

While the Commission has found that “[s]imple

teasing, offhand comments, and isolated incidents (unless

extremely serious) will not amount to discriminatory

changes in the ‘terms and conditions of employment’”

Kozak v. United States Postal Serv., EEOC Request No.

01A63021 (Aug. 23, 2006), and that the discrimination

statutes do not shield a complainant from a myriad of

petty slights and annoyances. Rizzo v U.S. Postal Service,

EEOC Appeal No. 01A53970 (Aug. 29, 2005), the conduct

here amounts to more than petty, isolated incidents.

For the alleged harassing conduct to be considered

pervasive, it must be sufficiently continuous and not

merely episodic. Faragher v. City of Boca Raton, 524 U.S.

775, 786 (1998). From the vantage point of the totality of

the circumstances, the record shows that the harassment

at issue pervaded Complainant’s work environment on a

regular basis throughout the time he was supervised by

Mr. Siedschlag. Thus, Complainant can establish that the

harassment at issue was pervasive.

Based on the foregoing, Complainant has established

a prima facie case of harassment.

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Appendix D

2.

Agency Defenses and Complainant’s

Rebuttals

The Agency denies that some of the alleged conduct

occurred and asserts that there were legitimate,

non-discriminatory reasons for alleged actions which

undisputedly occurred. First, the Agency aims to portray

Complainant as an employee who became disgruntled

after the arrival of a new supervisor. The Agency in

essence asserts that Complainant was stubborn and would

not adjust to the ways of a new supervisor, which gave rise

to personality and work-style conflicts. Mr. Siedschlag was

simply a supervisor supervising an employee, by reviewing

his work, providing advice and otherwise trying to assist

Complainant.

As a long-term veteran of the EPA with substantial

knowledge of the Agency’s operations, Complainant

admittedly was upset by the significant change in

supervisory style that came with Mr. Siedschlag’s arrival.

Complainant’s prior work experience and performance

levels appeared to matter little to Mr. Siedschlag. Rather

suddenly, Complainant was subjected to micro-level

review of some of his simplest assignments (e.g., responses

to simple webmail queries) and otherwise micro-managed

on all levels. Complainant did not see the same happening

to his female colleagues. He found fault with some of the

suggested edits and changes to his work posed by Mr.

Siedschlag, who had lesser knowledge on some EPArelated substantive matters. Complainant made efforts

to work with Mr. Siedschlag and meet his deadlines,

even though he felt like he was being set up to fail. This

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Appendix D

treatment left Complainant disgruntled and discouraged,

and led him to consider seeking another job.

The Agency also points to alleged performance

deficiencies of Complainant as justification for its

actions. Most emphasized is Complainant’s handling of

the webmail backlogs and the quality and timeliness of

his webmail responses. These points were the subject

of substantial testimony at the hearing. For the postshutdown backlog, Mr. Siedschlag’s response was to

assign other team members to assist with it. For all other

back logs, the burden was shouldered by Complainant

alone with Mr. Siedschlag closely monitoring through

the setting of deadlines, weekly meetings, and reporting

requirements for Complainant. The evidence shows that

Complainant repeatedly did not meet those deadlines.

While Complainant might not necessarily have been set up

to fail as he alleges, a full-scope review of Complainant’s

responsibilities and their impact on his ability to meet

webmail deadlines reveals that Complainant had

justification for missing the deadlines. Despite the

Agency’s insistence that Complainant had minimal other

responsibilities, the record shows that Complainant had

various other responsibilities including handling the

neonicotinoids issue on his own in addition to involvement

in rule-making, responding to press inquiries, providing

back up coverage for colleagues, and more. Further,

Complainant’s productivity sometimes suffered due to

technology problems, which on a few occasions led to the

re-imaging of Complainant’s computer. Complainant also

had to spend time working on his 4711 and EEO complaints

during the time frame at issue. Finally, the record shows

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Appendix D

that webmail volume was up by about 100% in 2019, the

year at issue. Thus, there were numerous factors taking

Complainant away from responding to webmail at the time

he was being given the successive and tight deadlines to

respond to webmail backlogs.

The A gency also asser ts that the quality of

Complainant’s webmail responses was sometimes lacking.

The Agency points to some purported examples of this in

the PIP that was issued to Complainant in August 2019.

This issue also was the subject of extensive testimony at

the hearing. The criticisms of Complainant’s responses

rarely concerned the substance of them. Instead, they

often concerned minor issues in tone, word-selection and

approach. Complainant hotly contested the examples put

forth by the Agency. Whether Complainant was correct

or not, what is clear is that Mr. Siedschlag was nit-picking

the responses over minor issues which would have little

impact on the overall response. The issues pointed out

were not significant in that they never required significant

overhauls in language or approach. This was just another

example of micro-managing of questionable utility that

slowed Complainant’s pace of work.

Finally, the Agency asserts that none of the alleged

actions were motivated by Complainant’s sex. It

argues that the female employees did not present the

same performance issues as Complainant and thus any

difference in supervision as to Complainant was justified

by his unique performance problems. The Agency points

out that female co-workers were brought in to assist with

the backlog at one point, and that Mr. Siedschlag reviewed

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Appendix D

the work of female employees at some level as well.

Moreover, Complainant does not allege that Mr. Siedschlag

or anyone else made any offensive statements based on

his sex. The Agency also points out that Complainant, a

male, is alleging that another male harassed him based

on Complainant being a male.

Overarchingly, these arguments are overcome

by the credible, consistent testimony of the female

employees, which emphasized the differential treatment

of Complainant, while also being very complimentary of

Complainant’s professionality, knowledge and work habits.

The overall evidence makes clear that no females were

supervised in the same manner as Complainant. The lack

of any offensive statements based on sex does not undercut

this evidence. And any inference based on the harassment

being male on male is overcome by this evidence.

Finally, the Agency asserts it took appropriate action in

response to Complainant’s complaints of harassment when

it conducted an investigation pursuant to Complainant’s

4711 complaint. The deciding official, Ms. Moseby, found

that all of the allegations were unsubstantiated. However,

it is worthy of note that Complainant had asserted that

Ms. Moseby had refused to meet with Complainant about

his harassment allegations upon his request before he

filed the 4711 complaint. This calls into question whether

Ms. Moseby was the appropriate decision-maker for

this complaint. Also, the Agency failed to abide by that

portion of the 4711 Order requiring the separation of the

complainant and alleged harasser during the pendency of

the investigation. That simply did not happen here, and no

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Appendix D

explanation was offered. Instead, Complainant continued

to work in the environment described above while the

investigation was pending.

Based on the foregoing, Complainant has demonstrated

that the Agency’s rationales for taking the challenged

actions are pretextual and that sex was a motivator behind

those actions. Thus, Complainant has established a hostile

work environment based on sex. 5

B. Hostile Work Environment Claim Based on

Retaliation

1.

Prima Facie Case Analysis

The standard for retaliatory harassment contains

a few different elements compared to the standard for

a harassment claim based on sex. First, Complainant

must show that he engaged in protected activity, which he

has, at least in the form of the 4711 and EEO complaints.

Second, there is no question that Mr. Siedschlag was aware

of these complaints, if only because Complainant told Mr.

Siedschalg of the complaints himself. Retaliatory intent

may be inferred based on the close proximity in time

between the EEO activity and the harassing conduct, plus

the Agency took it to the next level by putting Complainant

on a PIP after he engaged in EEO activity.

5. Regarding the age harassment claim, Complainant put

forth minimal evidence related to it. The record evidence is

insufficient to establish that age was a motivating factor for the

Agency’s conduct. Thus, the age claim must be dismissed.

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Appendix D

A s per EEOC g uidance, “[t]he threshold for

establishing retaliatory harassment is different than for

discriminatory hostile work environment. Retaliatory

harassing conduct can be challenged under the Burlington

Northern st

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