[Redacted], Adam F., 1 Complainant,v.Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration, Agency.

Equal Employment Opportunity Commission

Feb 9, 2021

Appeal No. 2020001073 (E.E.O.C. Feb. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Adam F.,1 Complainant, v. Steve Jurczyk, Acting Administrator, National Aeronautics and Space Administration, Agency. Appeal No. 2020001073 Agency No. NCN-18-AFRC-00062 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 September 24, 2019, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. 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 VACATES the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Program Integration Lead/External Partnerships, Space Technology Mission Directorate at the Agency’s Headquarters facility in Washington, D.C. On September 19, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination. In his formal complaint, Complainant stated that after his non-selection for AF17S0001, he saw a “clear pattern of the Center rejecting diversity, a continuing violation involving the same responsible officials.” Complainant enclosed a narrative with his formal complaint in which he stated that he has “been subjected to a pattern of illegal discrimination based on his national origin (India), color (dark skinned), religion (Hindu), race (Asian), and age (63) 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. 2020001073 2 when from 2009 to the present I have been subjected to continuous violations of non-selection for Senior Executive Positions at the [Agency’s] Armstrong Flight Research Center (AFRC), formerly Dryden Flight Research Center (DFRC).” Complainant noted that in January 2008, he had been assigned to be Acting Deputy Associate Center Director for Operations, an SES level position, and in January 2009, Person A had him reassigned from the leadership position to a lesser position of Acting Director of Research and Engineering. Thereafter, Complainant stated he was not selected for the following positions: DF09S0032 Director for Research and Engineering (SES position) in July 2009; Center Chief Engineer (ST/SL position); DF12S0001 SOFIA Program Manager (SES position) in 2012; DF14S0002 Director for Mission Support (SES position) in 2013; and AF17S0001 Director for Programs (SES position) in 2017. Complainant stated after the last non- selection he realized there was a pattern of discrimination in the selection process for SES positions at the AFRC. Specifically, Complainant stated the selection panels never contained diversity (all White panels except the last panel), the selectees were all White, and Person A who orchestrated his move to a lesser position created additional requirements not included in the job announcement to prevent him from being selected. The Agency issued a Notice of Acceptance dated October 10, 2018, accepting Complainant’s claim that the Agency discriminated against him on the bases of race (Asian), color (brown), national origin (India), religion (Hindu), and age (over 40) when: Complainant was notified that he was not selected for the position of Director of Programs, ES-0801-00, under Vacancy Announcement No. AF17S0001. The Agency noted that if Complainant believed his claim was not correctly identified, he should notify the Agency in writing within seven calendar days of his receipt of the Agency’s letter specifying why the claim is not correctly identified. In a letter dated October 16, 2018, Complainant disagreed with the claim as delineated in the Agency’s Notice of Acceptance. Specifically, he noted the delineated claim “does not address the continuous violation of the non-selections for multiple Senior Executive positions at the [Agency’s’ Armstrong Flight Research Center] and the pattern of discrimination practiced by [Person A] through use of unwritten requirements for non-selections.” Complainant requested the entire pattern of continuous discrimination be considered as part of the accepted claim. In response, the Agency noted that “denial of a promotion is a discrete event, not constituting a continuous violation, unless there are certain factors in common, for example, the same position is involved, the same selecting officials and selection criteria are used, etc.” The Agency stated that Complainant’s complaint was not considered a continuous violation of non-selections. However, the Agency noted that “this letter and your submission will be made part of the record and you can address it during the investigation.” Complainant’s complaint was sent for investigation. During the investigation Complainant was asked what made him think the other vacancies raised in his complaint were related and caused him to think there was discrimination in all the non-selections. 2020001073 3 In response, Complainant stated the same management officials (Person A and Person B) at the AFRC continued to disregard the Agency memo dated August 2003, on Standards for Selection into the SES. Complainant stated of the five positions he identified, four were SES and one was ST/SL and all were senior leadership positions and involved the same selecting officials (Person A and Person B). At the conclusion of the investigation on the accepted non-selection for AF17S0001 Director for Programs, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On March 22, 2019, Complainant elected to receive a final decision. On September 24, 2019, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant states that the Agency ignored most of his allegations and only investigated one of his allegations. Complainant notes he informed the Agency on October 16, 2018, that they failed to address all of his claims. He states on November 1, 2018, he was contacted by the contract investigator. He states that on November 6, 2018, he received the Agency response to his October 16, 2018 letter. Complainant avers that he informed both the investigator and the Agency that the same management officials (Person A and Person B) moved him out of key positions to make it easier to later promote only White males to SES positions. Complainant requests the Agency be forced to investigate his claim that he was subjected to a pattern of discrimination from 2009, when Person A (and later Person B when he became Center Director) strategically moved him out of SES and other senior positions, created additional requirements for him to progress, and ignored higher-level Agency requirements in making selections for SES-level positions. Additionally, Complainant notes the Agency failed to comply with the requirement to issue a final decision 60 days after his election on March 22, 2019, and he requests the Agency be sanctioned for the delay. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). First, we will address Complainant’s request for a sanction. EEO Regulations provide that an agency shall issue the final decision within 60 days of receiving notification that a complainant has requested an immediate decision from the agency, or within 60 days of the end of the 30-day period for the complainant to request a hearing or an immediate final decision where the 2020001073 4 complainant has not requested either a hearing or a decision. 29 C.F.R. § 1614.110(b). With respect to Complainant’s request that the Commission sanction the Agency because of the length of time that it took to issue a final decision in this case, we decline. While we will not impose a sanction in the present case since the delay in issuance of the Agency decision did not prejudice Complainant or result in an unconscionable delay in justice, we do find the Agency’s failure to abide by the regulations reflects negatively on the Agency’s support for the integrity of the EEO process. Beatrice B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019001641 (September 17, 2020) (The Commission declined to issue a sanction where following a supplemental investigation, the Agency delayed in issuing a final decision for over eight months). As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely issuance of its final agency decisions. Upon review, we find the Agency failed to properly define Complainant’s complaint when it only considered Complainant’s non-selection in 2017. A review of Complainant’s formal complaint reveals that Complainant alleged that the Agency engaged in a pattern or practice of discrimination on the bases of race (Asian), color (brown), national origin (India), religion (Hindu), and age (over 40) involving the identified non-selections from 2009-2017. Thus, we remand Complainant’s complaint for further processing. CONCLUSION Accordingly, the Agency’s final decision is VACATED and the complaint as defined in this decision is REMANDED for further processing in accordance with the Order herein. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2020001073 5 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2020001073 6 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). 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint. 2020001073 7 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 February 9, 2021 Date