[Redacted], Alberto O., 1 Complainant,v.Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency.Download PDFEqual Employment Opportunity CommissionMar 30, 2022Appeal No. 2022000069 (E.E.O.C. Mar. 30, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alberto O.,1 Complainant, v. Merrick B. Garland, Attorney General, Department of Justice (Federal Bureau of Investigation), Agency. Appeal No. 2022000069 Hearing No. 480-2020-00212X Agency No. FBI-2018-00268 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s August 27, 2021 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Special Agent, GS-1811-13, assigned to the Honolulu Division at the Saipan Resident Agency. On August 21, 2018 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him based on his race (Caucasian) and reprisal (prior protected EEO activity) when: (1) on May 31, 2018, his request for the Extended Assignment Incentive (EAI) was denied; (2) on July 13, 2018, he was notified he was being transferred to the Honolulu Field Office; (3) on July 18, 2018, he was informed that he was under investigation by the Office of Professional Responsibility (OPR); (4) effective October 8, 2018, he was constructively discharged; and (5) on February 25, 2019, he was informed that the Agency did not pay his daughter's tuition as required by the contract for the assignment to Saipan. 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. 2022000069 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 AJ assigned to the matter issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to claims (1) and (2), the Assistant Special Agent-in- Charge (ASAC) in the Honolulu Division learned from Complainant’s supervisor (S1) that he had several performance concerns about Complainant. The concerns included Complainant producing subpar case work, being unreliable, incidents of being unaccounted for during the day, and displaying conduct that created concerns for the community’s perception of the Agency. ASAC and S1 later met with Complainant. ASAC informed Complainant that he was concerned Complainant could not be successful working at the Saipan Resident Agency without direct supervision, favoring a transfer to the HFO. ASAC reported his concerns to the Special Agent- in-Charge (SAC) who ultimately denied Complainant’s EAI. Complainant was subsequently transferred to HFO. With respect to claim (3), an OPR investigation of Complainant’s colleague revealed unsettling information regarding Complainant. The Supervisory Special Agent who conducted the investigation relayed the information to the Unit Chief who initiated an OPR investigation of Complainant. Complainant was later informed that he was under investigation by the OPR due to his wife’s business and a concern that he engaged in unprofessional conduct reflecting poorly on the Agency. Complainant’s wife owns a scuba business and the Agency was investigating whether Complainant violated Agency policy requiring that employees seek approval before engaging in outside employment. As to claim (4), with the impending date of transfer to HFO and the Agency’s denial of his request for an additional 30 days before transferring, Complainant felt that the transfer to HFO would be a hardship to his family leaving him no option but to resign. The Agency allowed Complainant the opportunity to submit supporting documentation regarding child custody issues and related issues needing resolution before transferring to HFO. Complainant never submitted the documents and instead submitted his resignation notice. Finally, regarding claim (5), the Agency was under no obligation to provide Complainant tuition reimbursement as it was only available to employees working at SRA. Having received the transfer notice in the summer, Complainant should have known that his benefits for SRA employees starting that Fall would no longer extend to him. Further, upon Complainant’s October 2018 resignation, the Agency was not obligated to reimburse him for tuition. Additionally, since Complainant did not have parental rights for his step-daughter, the Agency asserted that it should not have been providing Complainant tuition assistance. 2022000069 3 The AJ concluded that Complainant failed to show that Agency management’s reasons for its actions were pretextual. In addition, the AJ determined that even if the HFO transfer decision and all related issues made the workplace so intolerable that a reasonable person in Complainant’s place would have resigned, he failed to show that discriminatory animus created the intolerable conditions. Accordingly, the AJ found that Complainant was not subjected to discrimination or a constructive discharge as alleged. The Agency issued a final order fully adopting the AJ’s decision. 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). 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. 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. 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. 2022000069 4 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). 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. 2022000069 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 March 30, 2022 Date Copy with citationCopy as parenthetical citation