U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eva M.,1 Complainant, v. Alejandro N. Mayorkas, Secretary, U.S. Department of Homeland Security (Federal Emergency Management Agency (FEMA)), Agency. Appeal No. 2020003549 Hearing No. 570-2019-00976X Agency No. HS-FEMA-02336-2018 DECISION On May 26, 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 May 7, 2020 final order concerning her 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Rights Advisor (ERA) (Reservist), GS-0260-12, for the Agency’s Office of Equal Rights facility in Washington, D.C. On September 20, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female) and in reprisal for prior protected EEO activity when: 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. 2020003549 2 1. From May 10, 2018 through June 16, 2018, Complainant was not selected for three disaster deployment assignments by the Cadre Coordinator; and 2. On August 1, 2018, Complainant learned she was not selected for the position of Team Lead by the Cadre Coordinator. Issue 1 - Denied Three Deployment Opportunities Complainant explained that although she is stationed in Washington, D.C, she resides in Ohio. When not deployed, she reports to the Cadre Coordinator, GS-0340-14, Office of Equal Rights (female) (S1), who is her immediate supervisor. Her second-level supervisor is the Chief (S2) (male). Since she is a reservist, she is an “[Agency] employee who is on call” and only gets paid when she is deployed. Report of Investigation, ROI, p. 100. When Complainant is deployed, she reports to the manager in charge of the disaster to which she was assigned. The record shows that Complainant has participated in more than 20 disasters as a qualified ERA. During the period May 20, 2018 to May 26, 2018, Complainant was at a training. Consequently, she was not utilized for the three specific deployments at issue which occurred between May 10, 2018, and June 16, 2018. The record shows that Complainant was also deployed from July 16, 2018 to September 26, 2018 and again from November 10, 2018 to February 21, 2019. Complainant identified three male comparators who were deployed to disasters instead of her. Reservists are deployed by a selection process that follows a specific algorithm based on the needs specified by the disaster through the Deployment Tracking System (DTS) portal. ROI, pp. 491-492. S1 stated that Comparator 1 was assigned to a Florida disaster which requested a Spanish-speaking individual. Complainant does not speak Spanish and Comparator 1 was the only Spanish-speaking reservist available. Comparator 1 was deployed from June 5, 2018 to July 6, 2018. S1 further affirmed that Comparator 2 was at the Personnel Mobilization Center in South Carolina from May 30, 2018 to June 8, 2018, for training; however, this was not an actual deployment. Comparator 2 then went to the New Hampshire area due to his name being specifically requested by the Federal Coordinating Officer at the disaster because he was familiar with the culture and location as he was from that area. Finally, Comparator 3 was deployed to New Hampshire on March 12, 2018 and has been in Texas since June 19, 2018. Comparator 3 moved in June 2018, to Texas, because officials in Texas believed he was on loan to New Hampshire and because he had the skill set to work with the impacted Asian community. S1 stated that specific requests for the deployment are entered into the DTS by either Human Resources, the Chief of Staff, or the Federal Coordinating Officer at the disaster. DTS’ algorithm then sends the request to her, with a pre-identified individual in the request. S1 stressed that if Complainant was not in the algorithm for meeting a specific requirement/skill, she was not going to show for a deployment and that, since this is intermittent work, there is no guaranteed deployment. 2020003549 3 Issue 2 - Denied Promotional Opportunity to Serve as the Team Lead position Complainant claimed that, because of her being physically located away from Headquarters, she is at a disadvantage when it comes to hearing about promotional opportunities since she has little to no contact with the office until deployed. On August 1, 2018, Complainant learned that another woman had been appointed to the position of Team Lead. The selection had been approved on March 5, 2018. ROI, p. 343. Complainant contended that she was denied the promotional opportunity in favor of a less qualified ERA because she did not know of the promotional opportunity because the Agency failed to post a vacancy announcement for the position of Team Lead. Although the duties of the Team Lead are greater, the grade is the same as Complainant’s grade. It was undisputed that Complainant never applied or requested to become a Team Lead and she had not completed the requisite steps or training. By comparison, the appointed individual had requested promotion and gone through an extensive training process. The selectee had “been in the [queue]” for the position since before the time that S1 onboarded. To obtain the Team Lead appointment, the selectee had to be approved by the Qualifications Review Board and receive management approval. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant's objections, issued a summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. ANALYSIS AND FINDINGS 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). 2020003549 4 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. Here, however, Complainant has failed to establish such a dispute. The record shows that Complainant had been deployed many times, but she lacked the specific skills that were requested for the three deployments at issue. Regarding the Team Lead position, Complainant had not made a request or completed the necessary training through the Agency’s process for placement as a Team Lead. The selectee for the Team Lead position at issue was of the same sex as Complainant. Further, the selectee had requested the position through the Agency’s process, completed the required training process, and then was approved by management following review by the Qualification Review Board. 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, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. 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). 2020003549 5 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. 2020003549 6 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 September 21, 2021 Date
