[Redacted], Harold R., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

May 20, 2021

Appeal No. 2020002365 (E.E.O.C. May. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harold R.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020002365 Hearing No. 531-2019-00406X Agency No. DHANCR 18-0034 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s December 13, 2019, 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. 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 a Social Worker, GS- 0185-12, at the Agency’s Walter Reed National Military Medical Center (WRNMMC), Child Adolescent Psychiatry Service, facility in Bethesda, Maryland. Complainant initiated contact with an EEO Counselor on March 16, 2018. On June 2, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) 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. 2020002365 2 A. On May 29, 2018, Complainant became aware that Acting Service Chief, GS-0185-13 (hereafter Coworker One) was selected as the new Chief of Adolescent Psychiatry Service (Service Chief); B. On or about May 14, 2018, Complainant became aware of a GS-13 Social Worker position that closed on USA Jobs on May 13, 2018. Complainant did not apply for the position because he was not made aware as job vacancies are usually announced via email and at staff meetings in the service; C. On January 29, 2018, Complainant met with his supervisor, Staff Psychologist, GS-0180- 13, (hereafter Supervisor) and became aware he received an unsatisfactory midterm performance review and was forwarded a written copy on February 2, 2018; D. On or about August 9, 2017, Complainant became aware his coworkers were promoted, although there was no email notification on the selection process. Coworker One was promoted to Acting Chief of Child Adolescent and Deputy Service Chief, GS-0185-12 (hereafter Coworker Two) was promoted to Acting Deputy Chief Adolescent in Psychiatry Service; and E. On August 8, 2018, Complainant was subjected to a hostile work environment and harassment when he received a written counseling from Supervisor. Thereafter, the Agency dismissed Claims A-D. 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. Complainant challenged the Agency’s dismissal of Claims A-D before the AJ and both parties submitted briefs on the matter. The Agency stated Claims A and D were dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1). Claim B was dismissed for failure to state a claim pursuant to 29 C.F.R. §1614.107(a)(1) and pursuant to 29 C.F.R. §1614.107(a)(2) for raising a matter that had not been brought to the attention of an EEO Counselor. Claim C was dismissed pursuant to 29 C.F.R. §1614.105(a)(1) for failing to contact an EEO Counselor within 45 days of the discriminatory event or within 45 days of the effective date of the personnel action, and because Complainant did not show the 45-day contact period should be extended pursuant to 29 C.F.R. §1614.105(a)(2). Additionally, the Agency argued Claim D was properly dismissed as Complainant failed to make timely EEO Counselor contact under 29 C.F.R. §1614.105(a)(1). The AJ assigned to the case denied Complainant’s “Motion to Deny the Agency’s Dismissal of Claims”, upholding the Agency’s arguments for dismissal of Claims A-D. Additionally, the AJ informed both parties of his intent to issue summary judgment with regard to the remaining claim, Claim E. Both parties were instructed to submit briefs as to whether Claim E was a claim of harassment that warranted a hearing. Over Complainant’s objection, the AJ issued a decision without a hearing on September 30, 2019, in favor of the Agency and finding no discrimination or harassment as alleged. The Agency subsequently issued a final order adopting the AJ’s decision. Complainant filed the instant appeal. 2020002365 3 ANALYSIS AND FINDINGS We find the AJ (and Agency) properly dismissed Claims A and B for failure to state a claim because the jobs were posted on USA Jobs and Complainant failed to apply for the positions. Regarding Claim C, we find it was properly dismissed for untimely EEO Counselor contact as Complainant received his negative performance review on January 29, 2018 and failed to make contact within the 45-day timeframe (March 16, 2018 contact date is one day beyond the 45-day time limit). Complainant’s own motion stated on February 2, 2018, he was provided “documentation to support a claim.” The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. By Complainant’s own admission, he had a reasonable suspicion of discrimination when he was given the performance review on January 29, 2018. Regarding Claim D, we find that this claim was also properly dismissed for untimely EEO Counselor contact. Since we are affirming the dismissal of Claims A-D for the reasons stated, we need not address the additional grounds cited for dismissal. With regard to Claim E, 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. 2020002365 4 CONCLUSION Accordingly, we AFFIRM the Agency’s final order fully implementing 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). 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). 2020002365 5 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 May 20, 2021 Date