[Redacted], Carmelo L., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2021000328 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carmelo L.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2021000328 Agency No. 19-0072-SRO 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 18, 2020 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant previously worked as Contractor Industrial Labor Specialist, GS-14, at the Agency’s Savanah River Operations in Aiken, South Carolina. On October 22, 2010, Complainant entered into a settlement agreement with the Agency to revolve a prior EEO complaint (identified as Agency No. 10-0107-SRO), as well as Complainant’s appeal with the Merit Systems Protection Board (MSPB) (Docket No. AT-531D- 10-0884-I-1). The settlement agreement provided, in pertinent part, that Complainant would retire from the Agency on or before October 31, 2010, and in consideration, the Agency would restore 240 hours of sick leave to Complainant. The record indicates that Complainant retired on October 31, 2010, and the Agency began processing Complainant’s 240 hours of sick leave in December 2010. 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. 2021000328 2 Specifically, the Agency submitted timecards crediting Complainant with 240 hours of sick leave to DFAS. However, DFAS informed the Agency that Complainant’s timecards revealed that he had less than 240 hours of sick leave and therefore only included 120 hours of sick leave, rather than the 240 hours of sick leave he was promised. Although the Agency corrected Complainant’s timecard for the pay period ending on July 7, 2010, so that Complainant would have the required 240 hours of sick leave, the payroll system pulled Complainant’s annual leave to compensate for insufficient sick leave. Consequently, the payroll system pulled 98.5 hours of Complainant’s sick leave and converted it to annual leave annual. This change resulted in Complainant having a sick leave balance of 141.5 hours. Additionally, the change caused DFAS to issue Complainant a lump sum payment for the additional 98.5 hours of annual leave ($5,232.92). On February 26, 2011, DFAS informed Complainant that he had received an overpayment of $5,232.92 for the 98.5 annual leave hours issued in error, and in October 2011, DFAS issued Complainant an invoice for immediate restitution. Complainant disputed the DFAS’ finding that he had received an overpayment, filed a formal EEO complaint against the Agency (DOE Case No. 10-0107-SRO). The Agency determined that Complainant was entitled, per the terms of the settlement agreement, to receive 240 hours of sick leave. However, Complainant was not entitled to conversion of the sick leave to annual leave. Agency also noted that Complainant received credit for 120 hours of sick leave which increased Complainant’s retirement benefit. Complainant appealed. In EEOC Appeal No. 0120143165 (Feb. 5, 2016), the Commission determined that the Agency breached the terms of the settlement agreement when it failed to issue Complainant 240 hours of sick leave. Consequently, the Commission ordered the Agency, among other actions, to: (1) restore the 240 hours of sick leave, plus interest; (2) rescind or cease any further collection against Complainant to get reimbursement of the debts incurred or claimed as a result of the settlement agreement; (3) refund Complainant $4,366.68 for the erroneous collection of the initial $5,232.92 paid for 98.5 hours of “sick leave” and all monies, benefits, or reimbursements due to Complainant because of the Agency’s failure to comply with the required restoration of 240 hours of sick leave as required by the Agreement; and (4) take necessary steps to clear the damage from Complainant’s credit rating if not already done. On August 17, 2016, the Agency notified Complainant that it was in full compliance with the Commission’s February 5, 2016 order. On January 18, 2017, the Commission issued a petition for clarification of its February 5 2016 order in response to the Agency’s argument that the National Defense Authorization Action of 2010 only permitted that 50% (which it claim is only 70.5 hours) of unused sick leave may be credited towards time in service for annuity service computations. The Commission determined that the settlement agreement made no mention of restoration being used in for the form of time- in-service credits. 2021000328 3 Additionally, the Commission explained that the Agency was required to provide clear, documented, proof of compliance that 240 hours of sick leave have been restored to Complainant and that the Agency communicated this request to the Office of Personnel Management (OPM). However, the Commission noted that “[h]ow the 240 hours of accrued sick leave is treated for retirement purposes by [OPM] is not the responsibility of the Agency.” See Erich B. v. Dep’t of Energy, EEOC Petition No. 0420160041 (Jan. 18, 2017). On May 3, 2017, the Commission’s Compliance Division determined that the Agency had provided adequate documentation to support a determination that it had restored the 240 hours of sick leave and closed the matter because the Agency was in compliance. However, beginning in May 2018, Complainant received correspondence from DFAS informing him that he still owed the $5,323.92 overpayment for the erroneous payment of 98.5 hours of annual leave. Consequently, the instant appeal followed. On June 22, 2019, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him and subjected him to harassment based on race (African American), national origin (Africa - Sierra Leone), color (Black), and reprisal for prior protected EEO activity (prior complaint)2 when: 1. Complainant received a Request for Recovery of Debt Due to the United States Defense Finance and Accounting Service (DFAS) in May 2018, which Complainant contends was due to the actions of the Department of Energy (DOE); 2. Complainant received a letter from DFAS on July 25, 2018 in reference to changes made to his time and attendance by the DOE, Complainant allege these were erroneous changes; 3. On June 15, 2019, Complainant submitted a letter to the Office of Chief Counsel requesting his time and attendance records from 2009 to 2014, and the responsible management official refused to respond to the letter or produce the records. After its investigation into the accepted claims,3 the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal 2 Complainant testified that his second level supervisor (S2) was involved in the investigation of his prior EEO complaint, and Complainant identifies S2 as a responsible management official in the instant complaint. 3 The record indicates that Complainant’s complaint included an additional claim which the Agency dismissed on procedural grounds. Because Complainant does not dispute the dismissal of this claim, we need not further discuss it in our decision below. 2021000328 4 Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant requested a final decision. On September 18, 2020, the Agency issued the instant final decision, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination. The instant appeal followed. ANALYSIS AND FINDINGS Disparate Treatment A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Our review of the record reflects that the Agency articulated legitimate non-discriminatory reasons for its actions. Claim 1: Request for Recovery of Debt Complainant testified that he received a letter from DFAS informing him that he received a $5,323.92 overpayment. Complainant noted that the letter was signed by a Civilian Pay Tech and an unknown employee at OPM. Complainant explained that he contacted the Chief Counsel and Staff Attorney in writing regarding the letter. 2021000328 5 Complainant specifically stated that he believed that he received the letter due to retaliatory animus by S2 because Complainant had previously identified S2 as a responsible management official in his prior EEO complaint. However, the Chief Counsel testified that her office did not cause or request that Complainant be issued a request for recovery in 2018. The Chief Counsel explained that the 2018 request was issued by another federal agency, and consequently, her office was not involved in the decision to issue the letter. Similarly, the Attorney-Advisor (in the Office of Chief Counsel) who was assigned to defend Complainant’s breach of settlement claim, explained that the Agency had previously initiated a request for recovery of debt, but timely canceled this request in 2014. Consequently, the Attorney-Advisor emphasized that the Agency made no action to initiate the 2018 request for recovery of debt issued by DFAS. Nevertheless, the Attorney-Advisor clarified that she issued a letter in August 2018 to DFAS and OPM demanding that the Agencies stop all garnishment activities. The record reflects that on August 2, 2018, the Agency submitted a letter to OPM and DFAS with the subject, “Demand to Cancel All Garnishments as in Violation of a Court Order and Issue Refund of All Garnished Monies to [Complainant].” The letter noted that the Agency issued this request in response to a May 30, 2018 letter Complainant received requesting recovery of debt to the United States. The August 2, 2018 letter stated, in pertinent part, the following: Any indebtedness that [Complainant] may have owed DOE has been waived. We demand that all garnishment activity be stopped, and all funds garnished be returned to [Complainant] immediately as this action is in violation of the attached court order. DOE did not institute this recent garnishment, nor did DOE submit a Request for Recovery. DOE was unaware that nay collection activities has been received by OPM. . . . DOE is not attempting to collect on any debt alleged to be owed, nor did DOE initiate the current debt collection. Garnishment of [Complainant’s] pension for 98.5 hours lump sum annual pay period ending 11/06/10 is in direct violation of an U.S. Equal Employment Opportunity Commission (EEOC) Order, dated February 5, 2016 [emphasis in original]. Additionally, the record contains a July 25, 2018 letter from DFAS to Complainant explaining that it would contact OPM to have Complainant’s debt cancelled. The letter further noted that any deductions taken from Complainant’s annuity would be returned. The letter also indicated that a DFAS “debt clean-up projected in the second quarter of 2018” initiated the DFAS’ discovery of Complainant’s alleged debt which was forwarded to OPM for collection on May 5, 2018. 2021000328 6 Claim 2: July 25, 2018 Letter on Time and Attendance Changes Complainant testified that someone signed the letter at issue on behalf of the DFAS Civpay Supervisor. However, Complainant asserted that he believed S2 was responsible for making changes to his time and attendance records. The Attorney-Advisor denied that the Agency altered Complainant’s time and attendance records after his retirement. The Attorney-Advisor explained that once an employee retires, all personnel records including time and attendance records are sent to OPM. Consequently, DOE does not have any controls over any actions instituted by DFAS or OPM. Claim 3: Request for Time and Attendance Records Complainant testified that he submitted the instant request because he wanted to see what changes were made to his time and attendance after he retired on October 31, 2010. Complainant acknowledged that he received some information, however, he asserted that the documentation provided was insufficient because it omitted his name and other identifying information. The Chief Counsel acknowledged that her office was responsible for processing Privacy Act requests. However, the Chief Counsel clarified that the Agency does not hold time and attendance records and informed Complainant that he would need to contact DFAS to obtain those documents. However, the Chief Counsel noted that her office provided Complainant other requested documents that were available at her office. The Chief Counsel further explained that she provided Complainant instructions on how to file an appeal if he was dissatisfied with her office’s response to his Privacy Act request. The Attorney-Advisor’s testimony collaborated statements made by the Chief Counsel in that the Attorney-Advisor asserted that the time and attendance records Complainant requested were not in the Agency’s possession. After careful consideration of the record, we conclude that neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons for the disputed actions were a pretext for unlawful discrimination based on Complainant’s race, national origin, color, and in reprisal for prior protected EEO activity. Moreover, Complainant’s additional claim of discriminatory harassment as evidenced by the events in claims 1 - 3 is precluded based on our findings above that Complainant failed to establish that any of the actions taken by the Agency were motivated by his race, national origin, color, and in reprisal for prior protected EEO activity. See Oakley v. U.S. Postal Service, EEOC Appeal No. 019982923 (Sept. 21, 2000). CONCLUSION We AFFIRM the Agency’s final decision because the preponderance of the evidence of record does not establish that discrimination occurred. 2021000328 7 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). 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). 2021000328 8 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 March 28, 2022 Date