[Redacted], Collin R., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2020004989 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Collin R.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2020004989 Hearing No. 570-2018-00585X Agency Nos. DOI-OS-17-0320; DOI-OS-17-0460 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 6, 2020, final action 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Compliance Specialist in Washington, D.C. On May 27, 2017, Complainant filed formal complaints, as amended, alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity when: 1. With one exception, since 2010, he has had to challenge his annual performance ratings because his supervisors refuse to include his major accomplishments; 2. On February 8, 2017, the Agency denied his request for reconsideration regarding his FY2016 performance rating, which resulted in a performance rating that did not accurately reflect his performance; 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. 2020004989 2 3. Since February 2017, his supervisor has repeatedly assigned him an excessive number of tasks and duties that are unachievable; 4. Since February 2017, management has unsuccessfully addressed his concerns of harassment and unfair treatment from his supervisor; 5. In April 2017, he received his FY2017 Employee Performance Appraisal Plan (EPAP), which he alleges is inconsistent with the Agency’s policy manual 430DM370; 6. On May 10, 2017, he received an EEO summary of management testimony provided during the informal EEO Counseling period that he believes contains false and misleading information; 7. On June 9, 2017, he received notification that his position description had been modified, changing his title to IT Security Specialist from CSAM Manager; 8. On June 15, 2017, immediately after he raised concerns regarding harassment, his supervisor conducted a mid-year performance review without having measurable and quantifiable metrics for success established in the FY2017 standards; 9. On June 20, 2017, he received a “Letter of Counseling” and was placed in an “Absent Without Leave” status for 25 minutes; 10. He was subjected to verbal and written communications by his supervisor that he deemed aggressive, including being placed on an informal personnel improvement plan, bombarded with excessive emails, and set up to miss scheduled appointments; 11. On July 18 and 20, 2017, he received hostile, intimidating, and offensive emails from management trying to coerce him into participating in a “Administrative Management Inquiry” and Fact-Finding Investigation; 12. On or about August 8, 2017, his computer was removed from the network without any explanation; 13. On July 27, 2017, his request for annual leave was denied; 14. On September 6, 2017, management treated him in a disparate manner regarding his time and attendance while he was preparing to secure his family in response to Hurricane Irma's impending land fall; 15. On or about September 6, 2017, his request for a new supervisor was denied; 2020004989 3 16. On September 18, 2017, he deemed management's administrative investigation as retaliatory for his numerous complaints to EEO, the Office of Inspector General (OIG), and others; 17. On November 9, 2017, he received his FY2018 EPAP, which changed significantly from his fiscal year 2017 EPAP and set him up for failure; and 18. On November 16, 2017, he received a “Fully Successful” performance rating for FY2017, which did not accurately reflect his performance. 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 Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ specifically noted, with regard to claims 1 and 18, that Complainant’s performance ratings were all, either, “Superior,” “Exceptional,” or “Fully Successful” since 2010. The AJ observed that Complainant’s supervisor rated him favorably, even though Complainant did not perform all the elements associated with his performance standards. With respect to claim 2, the AJ found that the Deputy denied Complainant’s reconsideration request because he did not believe the request effectively described Complainant’s performance or accomplishments that would have supported a higher-level rating. In addressing claims 5 and 17, the AJ found that the EPAP was issued consistent with Agency policy and that Complainant was given multiple opportunities to review and discuss it before it went into effect. With regard to claim 9, the AJ observed that Complainant was issued he Letter of Counseling and the absence without leave (AWOL) charge after several attempts were made to schedule and conduct Complainant’s mid- year performance review, to which Complainant repeatedly refused to participate. Additionally, as for claim 12, the AJ concluded that Complainant’s computer was disabled because it was infected with malware, and that an OIG investigation did not substantiate Complainant’s allegations. With respect to claim 13, the AJ determined that Complainant’s request to take annual leave on July 27, 2017, was denied because he was scheduled and required to attend a management review on that day. The AJ noted that Complainant’s request for a new supervisor, claim 15, was denied after management conducted an administrative management inquiry and fact-finding investigation, which did not substantiate Complainant’s allegations. The AJ also determined that Complainant did not establish that the Agency was motivated by discriminatory and retaliatory animus, and therefore he failed to establish that any of his claims amounted to a hostile work environment. Thereafter, the Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2020004989 4 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 fact-finder 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. 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. 2020004989 5 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. 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. 2020004989 6 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 2, 2022 Date