[Redacted], Iona A., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Dec 29, 2021

Appeal No. 2020004175 (E.E.O.C. Dec. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Iona A.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2020004175 Hearing No. 570-2018-00098X Agency No. DLAF-170070 DECISION On July 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 10, 2020, final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order adopting the AJ’s decision finding no discrimination. At the time of events giving rise to this complaint, Complainant was an applicant for the Police Officer, GS-0083-6, position under Vacancy Announcement Number DLADSF-16-1733150MP. On December 17, 2016, Complainant filed an EEO complaint alleging discrimination by the Agency on the basis of her disability (physical) when, on November 16, 2016, Complainant received a letter from the Customer Account Manager stating that Complainant had been granted priority consideration for the Police Officer, GS-0083-6, position, when made available, because she was improperly not considered for Vacancy Announcement Number DLADSF-16- 1733150MP. 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. 2020004175 2 The investigative records reflect the following pertinent matters relating to the subject claim. Complainant applied for the position of Police Officer, GS-0083-6, under Vacancy Announcement Number DLADSF-16-1733150MP (Vacancy). The Vacancy detailed that “[t]his position does not meet the criteria for appointment of Reemployed Annuitant.” Complaint File (CF) at 83. At the time of Complainant’s application, she was listed in the ranking list as a disabled veteran and an annuitant. CF at 272. On June 30, 2016 the Human Resources Specialist (HR Specialist 1) made the determination that Complainant was not eligible for the position. CF at 48. This determination was based on her belief that the position did not allow for reemployed annuitants to be hired. Report of Investigation (ROI) at 109. At the time, HR Specialist 1 was unaware that there was a distinction between a standard retirement annuity and a disability- retirement annuity. Id; ROI at 110. Two other applicants, one of which was disabled, were ultimately chosen for the position. In November 2016, a second Human Resources Specialist (HR Specialist 2) learned that HR Specialist 1 had mistakenly determined that Complainant was not eligible for the position. CF at 50. HR Specialist 2 detailed that when an applicant is erroneously denied consideration, the Agency provides that applicant with priority consideration for future vacancies. CF at 60. On November 16, 2016, Complainant was informed that she would receive priority consideration and that it would be valid until she received the appropriate number of referrals or one year from the date of the letter, whichever occurred first. CF at 61; 108. Since two candidates were selected for the vacancy, Complainant’s priority consideration was valid until she received two referrals or one year from the November 16, 2016, letter. CF at 61. No police officer positions were posted within the one-year mark. 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. On March 11, 2019, the Agency submitted a Motion for a Decision Without a Hearing (Motion). Complainant did not provide a response to the Agency’s Motion. On June 8, 2020, the AJ issued her decision. The AJ found the record to be adequately developed; that both parties had an opportunity to engage in discovery; that Complainant was given ample notice of the Agency’s Motion; that the Agency provided a comprehensive statement of the allegedly undisputed facts; and that Complainant had ample opportunity to respond to said Motion. After consideration of the entire record and viewing the facts in the light most favorable to Complainant, the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. On appeal, Complainant requests a hearing from an AJ but did not provide any further statements or arguments. The Agency merely requests that the Commission affirm its final decision adopting the AJ’s finding of no discrimination. 2020004175 3 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. (Aug. 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. Despite the opportunity to do so, Complainant failed to provide any statements to support her appeal. Based on the record, we find that Complainant has failed to establish that such facts were in dispute to warrant a hearing, or that summary judgment was inappropriate. 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. 2020004175 4 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). 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. 2020004175 5 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 December 29, 2021 Date