Ezequiel P.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionSep 25, 20180120162664 (E.E.O.C. Sep. 25, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ezequiel P.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120162664 Hearing No. 570-2014-00911X Agency No. 136114202999 DECISION On August 18, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 11, 2016, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order adopting the Equal Employment Opportunity Commission Administrative Judge’s (AJ) decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Custodial Worker (flex-time), Grade 2, Step 3 at the Agency’s Bachelor Housing, Joint Base Anacostia-Bolling, J- 9, Naval District in Washington, D.C. Complainant’s first level supervisor was the Building Manager of Bachelor Housing (S1) until May 29, 2013. His second level supervisor was the Unaccompanied Housing Manager for Joint Base Anacostia Bolling (S2). 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120162664 2 On July 25, 2013, a full-time Custodial Worker position in Bachelor Housing was filled by a female employee who was significantly younger than Complainant (Selectee). S2 was the Selecting Official for this position. Complainant states that he did not apply for the position because he did not learn about it until after it had been filled. Because of employee talk about Selectee’s hiring for this position, S2 held a staff meeting in August 2013, to address their concerns. At the meeting, Complainant said that S2 stated he did not have an obligation to inform employees about job vacancies, but did so voluntarily, and the employees must do their own research regarding employment opportunities. Complainant also learned that S2 had discussed the custodial position at issue with two other employees, but neither applied for or received the job. Complainant contends that S2 should have told him about the job opening because two years prior to filing his complaint, he had informed S2 that he was interested in a full-time position. Complainant also stated that when he was first hired as a Custodial Worker (flextime), his first level supervisor at the time told him that she would inform him if a departing custodial worker’s position opened up since he was already performing the position duties. On November 21, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and age (44) when management officials in Joint Base Anacostia-Bolling, Bachelor Housing, denied Complainant an opportunity to compete for a full-time position as a Custodial Worker, NA-3566-02, filled on July 25, 2013. During the investigation, Complainant asserted that, although he did not think his sex was a factor, he believed he was not told about the vacancy because the two coworkers informed about the job are younger than him. After the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s January 22, 2016 motion for a decision without a hearing and issued a decision without a hearing on July 27, 2016. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The AJ ruled that Complainant had not established a prima facie case of sex or age discrimination. Significantly, the AJ noted that Complainant stated in his affidavit during the investigation that he did not believe his sex was a factor in the hiring decision. With respect to age, the AJ found that S2 had announced the vacancy at issue via email to his subordinates, except the custodial staff, and that the email was sent to several employees who were older than Complainant. The AJ also noted that it was undisputed that S2 shared the vacancy announcement with S1 so that he could provide it to the custodial staff. Finally, even if Complainant had established a prima facie case, the AJ ruled that management presented evidence that it had shared the vacancy announcement with the employees using various methods and that Complainant failed to demonstrate that his age was the reason he was not informed about or considered for the custodial position. Accordingly, the AJ decided that Complainant had not proven that Title VII or the ADEA was violated. 0120162664 3 ANALYSIS AND FINDINGS We must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case. The Commission finds that the AJ properly issued a decision without a hearing. Although Complainant identified sex on his complaint as a basis of discrimination, it is undisputed that he asserted that being male was not a factor in the actions that led to denying Complainant the opportunity to compete for the custodial job. Therefore, the AJ properly found that Complainant’s claim of sex discrimination was meritless. The AJ also properly decided that Complainant failed to establish that his age was a factor. The record indisputably established that S2 had emailed employees about the custodial worker position and that the announcement was posted on the bulletin board to which all employees had access. Testimonial evidence also established that S2 shared the announcement with S1 so that he could provide the information to the custodial employees and that during this time, Complainant’s email account was inactive precluding him from receiving the emails about the job vacancy. However, Complainant did not explain why he did not see the posting on the bulletin board, especially since the Selectee confirmed that the vacancy notice was posted on it. Finally, although Agency policy in the record encourages management to share information about job vacancies, such action is not a required task as Complainant argued. Furthermore, record evidence supports S2’s assertion that he tried to inform the employees about the vacancy. Indeed, Selectee, who had been a Front Desk Clerk at the time of the job announcement, stated that she learned of the position in question through an e-mail from S2. She also said this e-mail was sent to the entire Unaccompanied Housing staff, including Housekeepers, Managers, Maintenance staff, and Front Desk staff, which the record revealed included employees older than Complainant. Additionally, Selectee confirmed that there was a posting on the Human Resources bulletin board, which was accessible to the entire staff. We find that Complainant failed to show that the Agency’s action was motivated by discrimination. 0120162664 4 CONCLUSION We AFFIRM the Agency’s final order finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. 0120162664 5 Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 25, 2018 Date Copy with citationCopy as parenthetical citation