Lloyd B.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 14, 2020

2019002599 (E.E.O.C. Jan. 14, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lloyd B.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 2019002599 Hearing No. 480201800364X Agency No. 170006002572 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s February 27, 2019 Final Order concerning an 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. At the time of events giving rise to this complaint, Complainant was a Retired Supervisory Security Specialist, GS-13, having worked for the Agency’s Department of the Navy, Naval Satellite Operations Center ("NAVSOC") facility in Point Mugu, California. On June 27, 2017, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race/national origin (Hispanic), sex (male), age (61), and reprisal (for engaging in prior protected EEO activity) when, on May 9, 2017, the Executive Director confirmed in a conversation with Complainant that Complainant was not going to be hired as a reemployed annuitant, and that command was going forward with filling the open position vacated when he retired. 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. 2019002599 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (“EEOC” or “Commission”) Administrative Judge (“AJ”). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. Over Complainant’s objection, the AJ issued a decision by summary judgment in favor of the Agency on February 12, 2019. The record includes (but is not limited to) the following undisputed facts: The responding management officials (“RMOs”) were the Senior Executive, Director, Personnel Development and Allocation, United States Fleet Forces Command (“RMO-1” male, white, 60, EEO activity not specified), who was responsible for approving requests to rehire retired annuitants, and the Recruitment Program Manager, GS-15 (“RMO-2,” female, black, 56, no prior EEO activity) who made recommendations on approving such requests. In August 2016, Complainant initiated the process for his retirement effective January 3, 2017. Complainant’s first and second level supervisors (“S1” and “S2”), expressed interest in retaining him by rehiring him as a one year retired annuitant. On October 13, 2016, S2 submitted an Approval Request for Reemployed Annuitant (“the Request”), providing ample justification for the rehire, including, but not limited to, Complainant’s subject matter expertise in multiple areas, his historical knowledge, having worked at NAVSOC since 1990, and that his rehire “would save the command approximately $25K in civilian personnel funds.” Among the enclosures accompanying the Request were Complainant’s Position Description, and a “Request for Personnel Action Request (“SF-52”) signed by Complainant.2 On the SF-52, under “reason for retirement,” Complainant stated, “I have given my country over 39 years of service, now I would like the return as reemployed annuitant for an additional year, to save the command money and to pay off my son’s college debt.” Complainant retired on January 3, 2017, still awaiting a decision. When RMO-1 issued the denial on February 14, 2017, citing Complainant’s personal reasons offered in the SF-52, management personnel in Complainant’s former command tried to convince RMO-1 to reconsider based on the justifications listed in the Request, but without success. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. The Commission's regulations allow an AJ to grant summary judgment when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). An issue of fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the non- moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). 2 Complainant argues that the SF-52 should not be considered due to a date discrepancy, which he believes was doctored to make it appear the Command lacked funding to rehire him. However, RMO-1 and RMO-2 do not base their decision on funding, but rather, the personal reasons provided on the SF-52 by Complainant, which he does not deny writing. 2019002599 3 A fact is “material” if it has the potential to affect the outcome of the case. In rendering this appellate decision we must scrutinize the AJ’s legal and factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. § 1614.405(a)(stating that a “decision on an appeal from an Agency’s final action shall be based on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015)(providing that an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). In order to successfully oppose a decision by summary judgment, a complainant must identify, with specificity, facts in dispute either within the record or by producing further supporting evidence, and must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary to produce evidence to support a finding that the agency was motivated by discriminatory animus. Here, however, Complainant has failed to establish such a dispute. Both RMOs provided legitimate nondiscriminatory explanations for denying the Request, that Complainant failed to demonstrate were pretext for an underlying discriminatory motive. RMO-1 testified that he relied on guidance from HR and legal personnel, and evaluated the Request based on two considerations provided in the DoD Instruction (1) that the applicant does not apply for the position of reemployed annuitant for personal gain, and (2) that there is a need to fill a specialized position that is difficult to fill otherwise. RMO-1 determined, based on the SF- 52, that the request was for personal gain. He also relied on RMO-2’s finding that the position was not designated hard to fill, and that “there were no duties within the position description that made this a unique position with specialized skills.” RMO-2 also noted that there was no recruitment done for the position to certify it was hard to fill or a severe shortage of candidates.” While Complainant (and his supervisors) may believe RMO-1 and RMO-2 should have given more weight to the justification provided in the Request, rather than the accompanying SF-52 and Position Description, RMO-1 and RMO-2 still acted within the scope of their authority as deciding officials. Therefore, Complainant has not shown the explanation to be pretext for discrimination. Complainant has not offered any evidence, such as similarly situated comparators, to support his bald statements that RMO-1 and RMO-2 were motivated by discriminatory intent. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2019002599 4 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. 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. 2019002599 5 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 January 14, 2020 Date