[Redacted], Eusebio S., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 8, 2022

Appeal No. 2020005349 (E.E.O.C. Mar. 8, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eusebio S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020005349 Hearing Nos. 480-2016-00400X 480-2016-00786X Agency No. 15-62473-00437 15-62473-01584 DECISION On August 17, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 17, 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Remedial Project Manager, GS-0819-12, at the Agency’s Naval Facilities Engineering Command, Environmental Restoration Branch (Desert Integrated Product Team) (Desert IPT) in San Diego, California. On December 9, 2014, and April 13, 2015, Complainant filed two formal complaints alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (black), disability, and reprisal for prior protected EEO activity under Title VII of the Civil 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. 2020005349 2 Rights Act of 1964 and Section 501 of the Rehabilitation Act of 1973. Following Complainant’s requests to amend his complaint, the Agency accepted the following claims for investigation: a. Since July 2013, Complainant’s supervisors did not assign him any work congruent with the duties and responsibilities of a GS-12 Environmental Engineer; b. [First-line supervisor] intentionally set him up for failure by continuing to “not assign work” thereby intentionally impeding Complainant’s career development by not allowing him to execute [remedial management projects], establish relationships with customers or colleagues or be given equal opportunity to work on teams executing complex projects; c. On March 2, 2015, Complainant was told by his supervisor that he was not eligible to participate in telework because he had missed the online training, while others who also missed the training were permitted to telework; d. Complainant was told he would have to transfer to another team if he wished to have acquisition work or telework; e. Complainant feels as if he is being singled out because he has to “formally meet” with his supervisor(s) each time he receives a work assignment, whereas none of his peers are required to meet with their first and second-line supervisors to receive their work assignments; f. On January 15, 2015, Complainant was assigned less desirable work than his peers on the Desert IPT by [First-line supervisor], [Second-line supervisor], and the [Acting Deputy Director], because he is the only person supervised by [First-line supervisor] that has been denied acquisition work since approximately March 2013; g. On an unspecified date, [First-line supervisor and the Acting Deputy Director] removed two potential work assignments from Complainant’s project workload, which resulted in him having one single in-house work assignment; h. [The Acting Deputy Director] directed Complainant to report to [First-line supervisor] every Friday for a weekly evaluation of his only work assignment, making him the only person supervised by [First-line supervisor] who had to have weekly evaluations; i. Complainant did not receive any work assignments from January 31, 2015, to February 17, 2015; j. [First-line supervisor] told Complainant’s peers to watch him and required them to monitor him throughout the day; 2020005349 3 k. [First-line supervisor] told Complainant that other team members do not want to work with him, which has led Complainant to believe that [First-line supervisor] through his treatment of Complainant and his discussions about Complainant’s performance with his peers on the Desert IPT, has caused his peers to ostracize and make negative comments about Complainant; l. On March 3, 2015, [the Acting Deputy Director] sent Complainant a meeting request to discuss “workplace expectations,” bypassing his first-line supervisor; m. On March 12, 2015, [First-line supervisor] sent Complainant harassing email messages stating that he was documenting Complainant’s Absent Without Leave following Complainant’s email and voicemail message to [First-line supervisor] stating that he was leaving work to seek medical attention because he felt ill; n. On March 12, 2015, [First-line supervisor] told Complainant that overtime will only be approved for those employees on acquisition work, thereby depriving Complainant the same opportunity to work overtime, develop project management skills for competitive advancement or on-the-job training and experience afforded to his peers; o. On April 7, 2015, [First-line supervisor] coerced Complainant into leaving the Desert IPT; p. On April 28, 2015, Complainant states that [named omitted] attempted to graze his leg and force him out of the path of his car, as he walked from Building 131 to Building 130, which was an attempt to intimidate Complainant due to [name omitted] affiliation with management on the Desert IPT and his knowledge of Complainant’s prior EEO activity; q. On December 9, 2014, an unidentified male verbally attacked threatened Complainant while Complainant was in route to Building 127; r. On May 1, 2015, Complainant was reassigned to Naval Base San Diego (32nd Street) after having submitted a claim of continuing harassment resulting in a hostile work environment on April 28, 2015; s. On July 6, 2015, Complainant was assigned to a new work area that is not commensurate with the work areas of his peers; t. On August 27, 2015, Complainant by [First-line supervisor’s] body language, facial expression, and sarcasm when during their conversation, he asked [First-line supervisor] if he had done anything wrong, and [First-line supervisor] responded loudly stating, “You will see very soon.” And, “I will see you in court;” and 2020005349 4 u. On September 2, 2015, Complainant received a Notice of Proposed Removal dated September 1, 2015, as Complainant was being interviewed by the assigned DOD EEO investigator. At the conclusion of the investigation, 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). Complainant requested a hearing. On October 23, 2018, the Agency filed a motion, seeking a decision without a hearing in favor of the Agency. Complainant timely opposed the Agency’s motion on the grounds that there were too many genuine issues of material fact in dispute to preclude the issuance of a decision without hearing. In so arguing, Complainant maintained that the Agency’s articulated reasons were pretext for discrimination and that the alleged incidents of harassment were sufficiently severe or pervasive enough to constitute a hostile work environment. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s October 23, 2018,2 motion for a decision without a hearing and issued a decision without a hearing on March 30, 2020. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The Agency subsequently issued a final order on July 17, 2020. This appeal followed Through his attorney, Complainant vehemently maintains, in relevant part, that the AJ should not have issued a decision without a hearing because there are genuine issues of material fact in dispute. Complainant maintains that First-line supervisor made numerous inconsistent statements which require a hearing to assess credibility. Complainant emphasizes that the harassment began as early as 2009, when he first engaged in EEO activity and has continued since then. He also contends that the Agency subjected him to a criminal investigation by the Naval Criminal Investigative Service (NCIS) as pretext to discriminate, harass, and retaliate against him. Complainant claims that the NCIS investigator found evidence of bias against Complainant. The Agency opposes Complainant’s appeal and requests, in relevant part, that the Commission affirm its final order. 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). 2 The AJ held the matter in abeyance until the Merit Systems Protection Board (MSPB) issued a decision concerning Complainant’s removal. On September 29, 2017, the MSPB AJ issued an Initial Decision upholding several of the charges against Complainant but mitigated the Agency’s removal action to a demotion from GS-12 to GS-09. Notably, the MSPB AJ rejected Complainant’s affirmative defenses of discrimination based on race and reprisal. We note that Complainant ultimately did not request review of the MSPB initial decision in any forum, including the EEOC. 2020005349 5 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, 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. 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). 2020005349 6 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. 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. 2020005349 7 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 8, 2022 Date