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

Equal Employment Opportunity Commission

Sep 12, 2022

Appeal No. 2021003770 (E.E.O.C. Sep. 12, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 James M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021003770 Agency No. 20-00253-01873 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s May 28, 2021 final decision 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative/Technical Specialist, NT-1670-04, at the Agency’s Naval Undersea Warfare Center, Detachment Pacific, at Joint Base Pearl Harbor Hickam in Hawaii. On June 1, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), color (Black), and in reprisal for prior protected EEO activity when, from March 19, 2020 to April 24, 2020, Complainant was required to work on site rather than telework as frequently as similarly situated white co-workers, placing him at higher risk of contracting the COVID-19 virus.2 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. 2 The Agency dismissed reprisal as a basis of discrimination finding that Complainant had not alleged that he engaged in any protected EEO activity. 2021003770 2 Complainant asserted that he was assigned to carry out the duties and responsibilities for handling and transporting equipment to support the Naval fleet. Because of this, Complainant contended he was at the work site while his coworkers were able to work from home. Complainant argued his on-site work constitutes discrimination because he is the only minority in the office and that there is an uneven distribution of work to be performed on-site. However, Complainant conceded he never asked his supervisor (S1) why he had to report to the base more frequently than his co- workers. S1 explained that Complainant was the subject-matter expert (SME) on Submarine Non-Ordnance handling. As a result, he “is required to be onsite for each pier-side handling evolution.” Further, “[p]ier-side handling is the task [Complainant] was specifically hired to perform and he is good at his job.” S1 noted that Complainant did not seek leave or ask to have someone help him. S1 added that the job of Complainant and his coworkers “varies in the amount of oversite [sic] needed thus resulting in different requirements to be onsite. Although they can and have filled in for each other since the start of the pandemic, during the period specified,” Complainant did not seek assistance or suggest to S1 that he thought the on-site workload distribution was inequitable. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that Agency management subjected him to discrimination as alleged. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant, through counsel, disputes that he failed to request a hearing. Complainant submits a copy of an email he sent to the Agency’s EEO Specialist requesting a hearing. Complainant argues that S1’s articulated reason is not legitimate, and that he has proven pretext because S1’s credibility is in dispute. Complainant also challenges the Agency’s dismissal of his allegation of reprisal because Complainant had complained about mistreatment by contractors prior to the instant EEO complaint. ANALYSIS AND FINDINGS We first address Complainant’s contention he should be granted a hearing. EEOC regulations state that a “complainant shall send a copy of the request for a hearing to the agency EEO office.” 29 C.F.R. § 1614.108(h). In addition, failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. See Gallo v. Dep't of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). 2021003770 3 The record reveals that when the Agency issued the report of investigation to Complainant, the Agency also provided an election form by which Complainant could request a hearing. That election form identified the EEO Specialist and a specific email address to which Complainant could submit his request for a hearing. That email address appears designated for the express purpose of receiving EEO hearing requests. The email Complainant furnishes on appeal indicates that he sent his request for a hearing to the EEO Specialist’s direct work email address. In response to the appeal, the EEO Specialist affirmed that she never received a hearing request from Complainant. Furthermore, while Complainant submitted a copy of the election form he signed in February 2021, he has provided no evidence demonstrating that he also sent the request to the Commission’s Los Angeles District Office. Commission records further disclose that a hearing was never docketed for Complainant. Thus, based on the specific circumstances and record presently before us, we cannot find that Complainant properly submitted his request for a hearing. Accordingly, we find that the Agency properly issued its final decision. We further note that, in his formal complaint, Complainant alleged that he “was being retaliated against for making previous complaints of discrimination to the command.” The EEO Counselor’s Report acknowledges that Complainant previously initiated EEO contact in February 2015, May 2016, and February 2018. A fair reading of the record reveals sufficient information to state a claim that Complainant was subjected to reprisal. The Commission finds the exclusion of the basis of reprisal to be harmless error as the record in the present case is adequately developed for the Commission to address Complainant's claim of reprisal discrimination. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n.14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097 (2000); St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 2021003770 4 Assuming arguendo that Complainant established a prima facie case of discrimination and reprisal, the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, S1 explains that the nature of Complainant’s duties required him to be on site, and that Complainant could have asked for assistance or coverage, but never did. Complainant now bears the burden of establishing that the Agency's stated reasons are merely a pretext for discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can do this directly by showing that the Agency's proffered explanation is unworthy of credence. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). At all times, the ultimate burden remains with Complainant to demonstrate by a preponderance of the evidence that the Agency’s reasons were not the real reasons and that the Agency acted based on discriminatory or retaliatory animus. Complainant acknowledges that he never sought assistance or to have his workload redistributed. Further, Complainant offers nothing more than speculation that his race, color, or prior protected EEO activity was the reason for being required to work on site. We are not persuaded by Complainant’s appellate argument that credibility issues preclude a final decision by the Agency since he has not identified what the credibility issues are. As Complainant failed to properly request a hearing, our decision is limited to the evidence in the record. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final 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). 2021003770 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. 2021003770 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 12, 2022 Date