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

Equal Employment Opportunity Commission

Apr 20, 2022

Appeal No. 2020004168 (E.E.O.C. Apr. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnathon M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020004168 Hearing No. 570-2019-00002X Agency No. DON-17-67854-47862 DECISION On July 14, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Administrative Judge’s (AJ) May 29, 2020 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant was an applicant for the position of Foreign Affairs Specialist, NH-0130-02, located at the Agency’s facility in Stafford, Virginia. On December 21, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American) and age (63) when: 1. on August 28, 2017, Complainant received an email, which he perceived to be dismissive in tone, from the Human Resources Specialist (Recruitment/ Classification) with regards to his rescinding acceptance of position of Foreign Affairs Specialist, NH-0130-02; 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. 2020004168 2 2. on July 25, 2017, the Human Resources Specialist emailed Complainant with reporting instructions to report to Human Resource Office, in Quantico, Virginia, for in-processing on September 18, 2017, without providing Complainant’s request of Supervisor point of contact information or address to ensure seamless and fully supported relocation; 3. on July 21, 2017, Complainant requested the Human Resources Specialist provide point of contacts with Marine Corps Systems Command, i.e. telephone numbers, addresses, names, etc. Complainant was advised by the Human Resources Specialist, “I will have to ask to release this information.” Complainant never received the requested information for his transition, other than building address; and 4. on June 15, 2017, Complainant received an email from the Agency’s Civilian Human Resources Office stating a misclassification error (of Veteran’s status) occurred in Complainant’s “non-consideration” as a Foreign Affairs Specialist resulting in lost salary and annual leave. 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 September 10, 2019, the first AJ (AJ1) assigned to the matter issued a Notice of Proposed Summary Judgment informing the parties that she had determined the case may be appropriate for summary judgment in favor of the Agency. Complainant and the Agency filed responses. On or about April 20, 2020, Complainant filed an amendment request to add reprisal to his complaint. Complainant detailed 26 events he asserted was related. On May 29, 2020, the second AJ (AJ2) assigned to the matter issued a Decision and Order Entering Judgment. Regarding Complainant’s amendment request, AJ2 determined that that the issues he raised were not like or related to the claims before her. Accordingly, AJ2 denied the amendment request. Regarding the merits of the complaint, AJ2 determined that Complainant failed to establish a prima facie case of discrimination based on his protected classes. Even if he had, AJ2 found that Complainant failed to demonstrate that the Agency’s actions were motivated by discriminatory animus. AJ2 concluded that Complainant failed to provide evidence that demonstrated the email responses were biased or discriminatory. Accordingly, AJ2 issued summary judgment in favor of the Agency. In this matter, the Agency did not issue a final decision following AJ2’s summary judgment decision. When an AJ has issued a decision under 29 C.F.R. § 1614.109(b), (g) or (i), the Agency shall take final action on the complaint by issuing a final order within 40 days of the receipt of the hearing file and the AJ's decision. 29 C.F.R. § 1614.110(a). EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order within 40 days of receipt of the AJ's decision in accordance with 29 C.F.R. § 1614.110, the decision of the AJ shall become the final action of the Agency. 2020004168 3 Therefore, in the instant matter, as the Agency has not issued a final action, AJ2’s May 29, 2020 decision became the Agency's final action by operation of law. Ela O. v Nat'l Sec. Agency, EEOC Appeal No. 0720130021 (Oct. 30, 2015) (AJ's finding of discrimination became agency's final decision by operation of law where agency failed to take action during the 40-day period). The instant appeal followed. On appeal, Complainant reiterates his prior arguments. Complainant also states that he was retaliated against but does not address AJ2’s denial of his amendment request to add reprisal as a basis. In its response,2 the Agency asserts that there are no genuine issues of material fact and that the AJ’s decision was properly adjudicated. The Agency requests that the Commission affirm AJ2’s decision. Regarding AJ2’s decision without a hearing, 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). As a preliminary matter, we do not find AJ2’s decision denying Complainant’s amendment request to add reprisal as a new basis to be in error. Moreover, we note that absent a compelling reason, a complainant may not add a new basis on appeal. See Valdez v. U.S. Postal Serv., EEOC Appeal No. 01A00196 (May 11, 2000) (citing Wodjak v. Dep't of the Treasury, EEOC Appeal No. 01952240 (Mar. 27, 1997)); see also Jeanie P. v. U.S. Postal Serv., EEOC Appeal No. 2019004085 (Jan. 16, 2020). Accordingly, we will not address Complainant’s appellate discussion of reprisal as a basis. For Complainant to successfully oppose a decision by summary judgment, he 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. 2 The Agency asserts that Complainant’s appeal is untimely and should be dismissed. The Agency references an August 13, 2020, statement that was submitted by Complainant’s attorney in support of his appeal. The Commission notes that Complainant’s appeal was timely submitted on July 14, 2020, and the August 13, 2020, statement was merely a statement in support of his appeal. 2020004168 4 On appeal, Complainant submitted an appellate brief generally reiterating his prior arguments, while attempting to add additional arguments regarding reprisal. However, Complainant failed to offer anything that would demonstrate that summary judgment was inappropriate, or that a hearing was warranted. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Upon careful review of AJ2’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that AJ2 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 AJ2’s decision finding no discrimination. 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. 2020004168 5 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. 2020004168 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 April 20, 2022 Date