[Redacted], Ashely H., 1 Complainant,v.Samantha Power, Administrator, Agency for International Development, Agency.

Equal Employment Opportunity Commission

Feb 14, 2022

Appeal No. 2020003503 (E.E.O.C. Feb. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Simon V.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020004151 Hearing No. 430-2020-0082X Agency No. Case 2019-04 DECISION On July 11, 2020, 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 June 10, 2020, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a WG-10 Surface Maintenance Mechanic, dual-status technician, at the Agency’s North Carolina National Guard, Combined Support Maintenance Shop facility in Raleigh, North Carolina. On June 16, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against and/or subjected him to a hostile work environment on the bases of disability (mental and physical) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: on February 18, 2019, through March 2019, Complainant’s supervisor refused to 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. 2020004151 2 sign a time-sensitive document, (Supervisor’s Statement) SF-3112B, to process his medical retirement.2 On February 4, 2020, the AJ assigned to the case issued a Notice of Intent to Issue Default Judgment. The AJ noted that during an Initial Conference on February 3, 2020, the Agency had informed the AJ that it had not conducted an investigation and did not have a complaint file to provide. On June 4, 2020, the AJ issued a Final Order finding that the Agency failed to explain its failure to issue a Notice of Acceptance within thirty days of receiving the formal complaint; failed to adequately explain its failure to initiate an investigation within 90 days of the Notice of Acceptance; failed to explain its failure to respond to three EEOC orders to produce a complaint file; and failed to adequately explain its failure to complete its investigation within 180 days of the formal complaint. The AJ found that the Agency discriminated against Complainant on the basis of reprisal for failure to timely process Complainant’s application for disability retirement. The AJ ordered the Agency to: (1) pay Complainant non-pecuniary damages in the amount of $7,500; (2) take corrective, curative, or preventative action to ensure that similar violations of the law will not recur; (3) provide anti-retaliation training for management; and (4) post a notice that the Agency was found to have discriminated against an employee at the National Guard Joint Force Headquarters. The Agency subsequently issued a final order adopting the AJ’s finding, orders, and award of damages. This appeal followed. On December 21, 2020, the Agency submitted a Notice of Agency Compliance. Therein, the Agency reported that it had complied with the AJ’s order regarding non-pecuniary damages, providing training, and posting a notice that it had been found guilty of discrimination. CONTENTIONS ON APPEAL On appeal, Complainant requests an investigation and a new hearing. Complainant contends that the Agency is in non-compliance with the AJ’s final order, arguing that the Agency did not provide the $7,500.00 payment. Complainant alleges that the Agency’s representative released Complainant’s confidential health record to EEO personnel with the intent to damage Complainant’s reputation. Complainant reiterates concerns regarding the impartiality of the Agency’s investigation and his supervisor’s failure to submit the form required to process Complainant’s retirement. Regarding the order to post a notice, Complainant contests the signatory authority of the individual signing the document. 2 The assigned AJ determined that Complainant could not request to reopen his previous informal EEO complaint, finding that Complainant abandoned the hostile work claim in 2018 when he failed to file a formal complaint 15 days after he received the Notice of Right to File. 2020004151 3 In response, the Agency contends that Complainant fails to make specific argument regarding the Agency’s final order or the AJ’s decision. The Agency argues that Complainant failed to establish that the AJ’s decision was not supported by the evidence or was incorrect as a matter of law. According to the Agency, Complainant continues to seek damages for events that are not part of the accepted issue. The Agency concludes that the Commission should affirm the AJ’s decision and its final order. ANALYSIS AND FINDINGS 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. (Aug. 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). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ’s, and Agency’s, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See id. at Chapter 9, § VI.A. (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”). We determine whether the AJ appropriately issued the decision without a hearing. The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 2020004151 4 An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that the AJ properly determined that the Agency failed to adhere to Commission regulations and determined that the Agency discriminated against Complainant. To successfully oppose a decision without a hearing, Complainant must identify material facts of record that are in dispute or present further material evidence establishing facts in dispute. Here, Complainant has not introduced new material evidence or identified disputed material facts in the record. Rather, Complainant’s argument centers on four issues: (1) the Agency’s non-compliance with the AJ’s final order; (2) deficiencies in the Agency’s investigation; (3) the delay in signing his retirement documents; and (4) whether the Agency’s failure to timely conduct an investigation is ongoing systemic discrimination. Although Complainant requested a new investigation and hearing, the AJ’s decision and the Agency’s final action found that the Agency failed to initiate an investigation or explain the reason for that failure. As a result, Complainant prevailed on his discrimination complaint and there is no dispute regarding the investigation or the delay in signing Complainant’s retirement documents. Therefore, we do not find that a new investigation or hearing are warranted in this instance. Regarding Complainant’s contention that the Agency is not in compliance the requirement to pay him $7,500.00, we find that the Agency has fully complied with the AJ’s order. Specifically, in its December 21, 2020 Notice of Agency Compliance, the Agency reported that Complainant was provided a payment of non-pecuniary damages in the amount of $7,500.00 on August 26, 2020; training was provided to appropriate personnel; and a notice was posted from September 25, 2020 through November 9, 2020. Overall, we can find that Complainant failed to show that the AJ's decision was improper or that the AJ failed to comply with the AJ’s orders. CONCLUSION We AFFIRM the Agency's final order fully implementing the AJ's decision and award of damages. 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. 2020004151 5 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. 2020004151 6 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 December 14, 2021 Date