[Redacted], Adah P., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2021003387 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adah P.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2021003387 Hearing Nos. 570-2017-00369X 570-2018-00364X Agency Nos. DOL-16-11-046 DOL-17-11-059 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 26, 2021, final order concerning her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 worked as a Veterans Correspondence Specialist at the Agency’s Veterans Employment and Training Service in Washington D.C. On January 29, 2015, Complainant filed an EEO complaint (EEOC No. 570-2017-00369X, Agency No. DOL-16-11-064) alleging that the Agency subjected her to discrimination and harassment on the bases of race (African American), sex (female), color (Black), disability (health and vision), and age (58), and in reprisal for prior protected EEO activity, when: 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. 2021003387 2 1. in October 2014, Complainant received a rating of “Effective” on her fiscal year 2014 performance evaluation; 2. on February 8, 2015, Complainant was reassigned; 3. on August 12, 2015, Complainant received a letter/notice of a five-day suspension; 4. on October 8, 2015, Complainant received a performance rating of Minimally Satisfactory; and 5. since October 2015, and continuing to the present, Complainant’s current position has been improperly classified in that: (a) her position description does not reflect that she performs Freedom of Information Act duties fulltime; and (b) her position description does not capture the level at which she performs her duties and functions. The Agency initially dismissed the complaint and Complainant appealed the dismissal. The Commission reversed the Agency’s dismissal and remanded the complaint for processing. Kellye C. v. Dep’t of Labor, EEOC Appeal No. 0120152224 (Oct. 25, 2015). On February 28, 2017, Complainant filed another EEO complaint (EEOC No. 570-2018- 00364X, Agency No. DOL-17-11-059) alleging discrimination and harassment based on her age, color, disability, race, and sex, and in reprisal for prior protected EEO activity, when: 6. in or around November 2016, Complainant received an “Effective” on her fiscal year 2016 performance appraisal, and management failed to respond to her comments to the appraisal; and 7. on or around January 23, 2017, Complainant was denied administrative leave and the ability to telework. After its investigations into the complaints, the Agency provided Complainant with copies of the reports of investigation and notices of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested hearings. During the hearing process, the AJ joined the two cases for processing. On April 1, 2020, the Agency filed a Motion for Partial Summary Judgment and Motion to Dismiss, requesting summary judgment for claims 1, 2, 4, 6, and 7 and seeking dismissal of claim 5 because it was identical to a claim in another complaint. Complainant opposed the Agency’s motion. 2021003387 3 On June 19, 2020, the AJ issued an Order and granted the Agency’s motion for six of the seven claims.2 The remaining claim regarding Complainant’s suspension (claim 3) was set for hearing, which was held on July 27, 2020. On September 30, 2020, the AJ issued a post-hearing decision. For claims 1, 4, and 6, the AJ found that the Agency provided explanations for Complainant’s performance evaluations, and that Complainant did not show that the assessments of her performance were pretexts for discriminatory animus or connected to her protected characteristics. The AJ determined that the reorganization (claim 2) was to realign the reporting structures of certain managers and employees, and while Complainant disagreed with the reassignment, she failed to present any evidence that the decision was fueled by any impermissible motive by Agency officials. The AJ noted that the Agency suspended Complainant (claim 3) for failure to follow supervisory instructions; inappropriate and inaccurate reporting to security; and inappropriate conduct in the office. The Agency explained that it issued Complainant’s suspension because she reported the typewriter she used as stolen, even though she knew, or should have known, based on multiple warnings that the Agency would be removing the typewriter from her workstation. After the removal of the typewriter, Complainant filed a stolen property claim with security and retrieved the typewriter. Complainant also stated that she was in a Nazi concentration camp and made a comment about the management officials’ mental health. The AJ then found that Complainant did not establish that the Agency’s reasons were pretexts for discrimination. For example, while Complainant alleged that the property swap was voluntary and there was no reason for the Agency to compel her to relinquish the typewriter, the Agency volunteered to participate and donate its surplus property, including Complainant’s government-furnished typewriter. In addition, Complainant presented evidence of an investigation finding that the Deputy Assistant Secretary fostered a hostile work environment. However, the AJ found that Complainant was unable to link the investigation into the Deputy Assistant Secretary’s behavior to her specific suspension. The AJ concluded that the testimonial evidence and record evidence did not support a finding that Complainant demonstrated by a preponderance of the evidence that the Agency’s explanation for her suspension was pretext, or that she was subjected to harassment when she was suspended. For claim 7, the AJ found that Complainant did not have an approved telework agreement in place; she did not appear to be telework ready; and that entering into an agreement to telework the day before it was to become effective was not doable, so Complainant was authorized to take annual leave on January 19, 2017. The AJ then determined that Complainant failed to produce any evidence that this explanation was pretext, or otherwise motivated by her protected characteristics. 2 Claim 5 is included in a separate complaint and will be addressed in EEOC Appeal No. 2021001028. 2021003387 4 The AJ also found that, when viewed collectively or individually, none of the actions alleged rose to the level of creating a hostile work environment, or that the Agency’s actions were based on discriminatory animus. The AJ concluded that Complainant did not prove by a preponderance of the evidence that she was discriminated against, or subjected to a hostile work environment, as alleged. The Agency issued a final order adopting the AJ’s decision and the instant appeal followed. While the Commission granted Complainant’s request for an extension to file her appeal brief, she did not submit a brief. The Agency opposed Complainant’s appeal. 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). 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 she 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 did not provide any arguments on appeal and she failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor for claims 1, 2, 4, 6, or 7. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ’s conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Chap. 9, at § VI.B. 2021003387 5 Upon careful review of the AJ’s decision and the evidence of record, as well as the Agency’s arguments on appeal, we conclude that substantial evidence of record supports the AJ’s post- hearing determination that Complainant has not proven discrimination by the Agency as alleged with respect to claim 3. We further 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 with respect to the other issues. Accordingly, we AFFIRM the Agency’s final action adopting the AJ’s decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2021003387 6 Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 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 April 20, 2022 Date