[Redacted], Irvin C., 1 Complainant,v.Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021001999 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irvin C.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture (Rural Development), Agency. Appeal No. 2021001999 Hearing No. 480-2019-00928X Agency No. RD-2018-00552 DECISION On February 5, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 4, 2021 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. BACKGROUND During the period at issue, Complainant worked as a Housing Technician at the Agency’s Hawaii State Office in Hilo, Hawaii. On June 1, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency unlawfully retaliated against him for his prior protected EEO activity when: 1. on March 9, 2018, management issued him a Letter of Warning; and 2. on March 8, 2018, he was reassigned from the Single-Family Housing (“SFH”) team to the Multi-Family Housing (“MFH”). 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. 2021001999 2 After an investigation, the Agency provided Complainant with a copy of the investigative file, and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter, the Agency submitted a Motion for Summary Judgment. Complainant responded to the Motion. On December 29, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The instant 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). 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 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. A claim of disparate treatment is examined under the three-party analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she must first establish a prima facie of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). 2021001999 3 The record developed during the investigation established that, even assuming Complainant established a prima facie case, the responsible management officials articulated legitimate, non- retaliatory reasons for the disputed actions. Sometime in February 2018, as a result of the pending retirement of an MFH Technician, Complainant was assigned the task of scanning a backlog of MFH documents to the Electronic Case File system (“ECF”). Complainant’s supervisor indicated that, to prepare for the scanning of the backlog documents, he had instructed the MFH Technician and Complainant to attend an MFH ECF training offered to Agency personnel nationwide. To limit the number of phone numbers with access to the training, the supervisor reserved a conference room for MFH technician and Complainant to use for training. On February 14, 2018, the Lead MFH Specialist forwarded Complainant the MFH ECF training invitation. However, Complainant declined the invitation. Specifically, Complainant informed the supervisor that he had declined the invitation because of an “ongoing EEO situation against [Lead MFH Specialist].” Complainant also informed the supervisor that he did not want to work with the Lead MFH Specialist or the MFH Technician because they had made complaints about him. Despite these concerns and after consulting with the Human Resources (HR) Specialist, the supervisor instructed Complainant to attend the training because the training related to his essential duties. On February 20, 2018, instead of going to the reserved conference room, Complainant attended the training by calling into the MFH ECF line from his desk while the MFH Technician attended the training from the conference room. On February 28, 2018, the supervisor emailed Complainant regarding the task of assisting the MFH section by scanning and uploading MFH documents to ECF. Complainant responded to the supervisor that he did not intend to work with MFH. On March 1, 2018, Complainant emailed an Agency official in St. Louis, Missouri for guidance identifying his “miserable” work relationship with the MFH section and the additional assignment of MFH duties. The Agency official forwarded Complainant’s email to the HR Specialist in Hawaii. Complainant expressed his concerns in working with the HR Specialist because of a perceived relationship with the Senior HR Specialist. While the HR Specialist asserted there was no such personal relationship, she informed Complainant of his right to file a grievance regarding any management decisions he did not believe was proper. However, Complainant did not file any grievance. Complainant’s supervisor stated that on March 8, 2018, he met with Complainant, Senior HR Specialist, and Business Program Director to discuss Complainant’s refusal to work with MFH. The next day, March 9, 2018, the supervisor issued Complainant a Letter of Warning (“LOW”) for failure to follow instructions and inappropriate behavior. 2021001999 4 The record contains a copy of the March 9, 2018, in which the supervisor placed Complainant on notice that the LOW cites five incidents of failure to follow instructions on February 15 and 28, 2018, and March 1, 2, and 7, 2018. He also noted that on February 14, 2018, he noted that Complainant emailed him an email stated that “you feel retaliated against once again being asked to work with MFH who has caused me much displeasure and resentment for their cowardly actions” The supervisor determined that Complainant’s email was inappropriate and “contains terms that should not be used in the workplace.” Further, the supervisor stated, “effective immediately, you will take over the task of scanning/uploading all MFH and ECF files. I will work with MFH Technician and Lead MFH Specialist to create a training plan to ensure you understand the task that I am assigning you. Additionally, you must work on all assignments that I assign to you and complete them prior to the due date.” Complainant also claimed that on March 8, 2018, he was reassigned from the SFH team to the MFH. The supervisor asserted, however, that Complainant was not reassigned to the MFH. Specifically, he explained that Complainant was asked to perform paperwork duties for MFH and, “I identified that [Complainant] is underutilized employee in Single Family Housing. It is in the best interest of the Agency to properly utilize all available resources. With [MFH Technician] retiring, [Complainant] was the only available technician to help in meeting our deadline.” After careful review of the record, we conclude that the AJ properly determined that Complainant failed to prove, by a preponderance of the evidence, that the reasons articulated by Complainant for the actions at issue were really a pretext designed to mask unlawful retaliatory animus. CONCLUSION We AFFIRM the Agency’s final order, implementing the AJ’s decision without a hearing, finding no violation of Title VII. 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. 2021001999 5 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). 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. 2021001999 6 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 June 7, 2021 Date