[Redacted], Lemuel M., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Nov 22, 2021

Appeal No. 2020004031 (E.E.O.C. Nov. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lemuel M.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2020004031 Hearing No. 410-202-00057X Agency No. DOI-BSEE-19-0281 DECISION On June 5, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from an Administrative Judge’s 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant is a former employee of the Agency. At the time of events giving rise to this complaint, Complainant worked as the Director for National Training, GS-15, at the Agency’s Bureau of Safety and Environmental Enforcement (BSEE) Office of Offshore Regulatory Programs (OORP) in Sterling, Virginia. On April 16, 2019, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination: 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. 2020004031 2 1. On the bases of sex (gay male), disability, race (White), and reprisal for prior protected EEO activity when, on March 9, 2019, Complainant became aware of a DOI Office of Inspector General (OIG) report which indicated that OORP participated in prohibited personnel practices which he believes led to his non-selection for the position of Deputy Chief, OORP sometime in 2011. 2. On the bases of sex (gay male), disability, race/color (White), and reprisal for prior protected EEO activity when, on April 29, 2019, Complainant became aware that the BSEE Freedom of Information Office could neither confirm nor deny that records existed in response to his March 8, 2019 FOIA request. The Agency accepted these claims and conducted an investigation into the matter. Claim 1 The investigation showed that Complainant worked as the Director for National Training at BSEE from September 2011 to June 2012. In the Spring of 2012, Complainant applied for the position of Deputy Chief of OORP (Deputy OORP position). He made the certification list and was interviewed, but ultimately, someone else was selected for the position. Complainant stated that the Selectee was a personal friend of Complainant’s then-supervisor, who was also the Selecting Official for the Deputy OORP position. Sometime later, Complainant asked the Agency’s Office of the Inspector General (OIG) to investigate the Selecting Official and the Selectee’s hiring of thirteen persons with whom they had previous relationships. Complainant indicated the OIG report found that the Selecting Official and the Selectee altered contract documents to allows individuals to begin BSEE employment as contractors and then the two men hired their friends into Federal jobs. Complainant further stated that OIG provided a summary of this report on their website (although not the entire document), and then he also received information from other persons that BSEE had removed the Selecting Official. Complainant identified himself as a gay, white male with disabilities (PTSD, major depressive disorder, and several physical disabilities, including lumbar fusion) and who had previously engaged in EEO activity at BSEE, including filing prior EEO complaints against the Selecting Official and the Selectee. He believed the actions of the Selecting Official were motivated by race, contending the Selecting Official was a “known racist” who had an affinity for African Americans. He believed the Selecting Official was motivated by sexual orientation because he failed to take action when Complainant reported a slur had been directed at him when he was on business travel to BSEE’s Gulf of Mexico region. Complainant also states the Selecting Official was aware of his disabilities because he denied Complainant’s request for disability retirement. However, under oath, the Selecting Official denied knowing about Complainant’s disabilities. He states Complainant never requested a disability accommodation when he worked at BSEE. 2020004031 3 Complainant indicated that the Selecting Official was aware of Complainant’s prior EEO activity because the Selecting Official was named in other EEO actions brought by the Complainant, as well as a related action brought before the Merit Systems Protection Board. He also testified that in May 2012, he participated in an investigative interview with the Internal Investigation Review Unit at BSEE when they were investigating claims of hostile work environment claims and other issues. He testified that during that interview, he stated the Selecting Official was creating a hostile work environment, and then a few days later, the Selecting Official made comments that suggested he was aware Complainant had made those statements. Complainant stated he only realized the improper reasons for his non-selection upon seeing the OIG summary in 2019. The Selectee identified himself at a Caucasian male who had previously participated in EEO activity as a witness. He stated he was aware of Complainant’s prior EEO activity. The Selectee stated he was an acquaintance of the Selecting Official, having worked with him and played on softball teams with him in the 1980s and 1990s. He stated he had been to the Selecting Official’s house “maybe twice” but they had not “socialized as friends would.” (ROI, p. 121). Claim 2 The investigation showed that Complainant submitted a Freedom of Information Act (FOIA) request to the BSEE FOIA office on March 8, 2019 requesting “[a]ll investigations and OIG reports concerning [the Selecting Official] and [the Selectee] of BSEE.” (ROI, p. 190). On April 29, 2019, Complainant received a response stating the FOIA office “can neither confirm nor deny that responsive records exist. Such information is, accordingly, exempt from public disclosure pursuant to FOIA exemptions (b)(6) 5 U.S.C. § 552(b)(6) and (b)(7)(C) 5 U.S.C. § 552(b)(7)(c). Mr. Tony Irish, Attorney-Advisor, Office of the Solicitor, Department of the Interior, Washington, D.C. was consulted.” (ROI, p. 192). The FOIA specialist who handled Complainant’s request stated that the standard response when information about specific individuals who are named in investigations is requested is to state the information can neither be confirmed nor denied. She stated she contacted the Office of the Solicitor to confirm this course of action and they agreed. She stated she processed Complainant’s FOIA request according to procedure for DOI and DOJ FOIA regulations. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After holding an initial conference, the AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and issued a decision without a hearing on May 29, 2020 granting summary judgment in favor of the Agency. The instant appeal by Complainant followed. 2020004031 4 ANALYSIS AND FINDINGS Timeliness of Complainant’s Appeal The Agency has contended that Complainant’s appeal was premature and not timely because the Agency has yet to issue a final decision in the matter. We disagree. EEOC’s regulations state that when an AJ has issued a decision, the involved 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. Therefore, in the instant matter, as the Agency has still not issued a final action, the AJ's 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). While here Complainant filed his appeal prior to the expiration of the 40-day period, once that period had expired and the Agency still had not issued a final order, Complainant’s appeal was perfected. AJ’s Decision by Summary Judgment The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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. If a case can only be resolved by weighing conflicting evidence, issuing a decision without holding a hearing is not appropriate. An AJ may issue a decision without a hearing only after determining that the record has been adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003). We carefully reviewed the record and find that it is adequately developed. 2020004031 5 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. Here, Complainant has failed to point with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute. For the reasons discussed below, we find that, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in his favor. Claim 1 Complainant has alleged in Claim 1 that the Selecting Official engaged in prohibited personnel practices which led to Complainant’s non-selection for the Deputy OORP position. A claim of disparate treatment, such as this one, is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case 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). To establish a prima facie case of disparate treatment on the bases of race and sex, Complainant must show that: (1) he is a member of a protected class, (2) he was subjected to an adverse employment action concerning a term, condition, or privilege of employment, and (3) he was treated differently than similarly situated employees outside his protected class, or there is some other evidentiary link between membership in the protected class and the adverse employment action. McCreary v. Dep't of Def., EEOC Appeal No. 0120070257 (April 14, 2008), Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998), Trejo v. Soc. Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009). To establish a prima facie case of disability discrimination under a disparate treatment theory, the complainant must demonstrate that: (1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g); (2) he is a qualified individual with a disability pursuant to 29 C.F.R. § 1630.2(m); and (3) be was subjected to an adverse personnel action under circumstances giving rise to an inference of disability discrimination. Carney v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01986113 (August 3, 2000) (citing Prewitt v. U.S. Postal Serv., 662 F.2d 292 (5th Cir. 1981)). Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) 2020004031 6 a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep't of Cmty. 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). However, in the instant case, even assuming all of Complainant’s allegations to be true, he is unable to prove his prima facie case for race discrimination. The record establishes that the Selectee is of the same race as the Complainant. Under these circumstances, and without other evidence of race discrimination, he simply is unable to establish a link between his race and his not being selected. Regarding Complainant’s remaining alleged bases - sex/sexual orientation, disability, and prior EEO activity, we note that, throughout the record, Complainant repeatedly contends that the Selecting Official hired the Selectee due to their personal relationship and that the Selecting Official regularly engaged in improper hiring of this sort. Indeed, Complainant’s current complaint is premised on an OIG investigation that purportedly found that the Selecting Official and the Selectee engaged in improperly hiring their friends. The Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. Anderson v. Dep’t. of Air Force, EEOC Appeal No. 0120120121 (April 18, 2013); see also Garrett W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (October 30, 2018) (“Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination.”); Sierra-Barber v. Dep't of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) (allegations of nepotism and favoritism do not violate EEO statutes). Although Complainant has alleged discriminatory animus, he has failed to establish a nexus between his sex/sexual orientation, disability, and/or prior EEO activity and his non-selection for the position at issue. Therefore, Claim 1 fails. Claim 2 In Claim 2, Complainant alleged discrimination when became aware that the BSEE Freedom of Information Office could neither confirm nor deny that responsive records existed in response FOIA request. This claim was dismissed for failure to state a claim. Under 29 CF.R. § 1614.107(a)(1) an agency shall dismiss a complaint that fails to state a claim. This Commission has generally held that complaints involving other administrative proceedings, and related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994); Heard v. Dep't of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009). 2020004031 7 Additionally, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (Jul. 30, 1998). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding. See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994). Here, Complainant’s only allegation in Claim 2 involves the processing of a FOIA request. The Commission has long held that it does not have jurisdiction over the processing of FOIA requests. Instead, persons having a dispute regarding such requests should bring any appeals about the processing of his or her FOIA requests under the appropriate FOIA regulations. Gaines v. Dep't of the Navy, EEOC Request No. 05970386 (Jun. 13, 1997). See also Kasi J v. Dep’t of Justice, EEOC Request No. 2021002280 (Jun. 3, 2021); Nicki B v. Dep’t of Veterans Affairs, EEOC Request No. 2020001389 (Sep. 9, 2020); Cortez v. Dep’t of Homeland Security, EEOC Request No. 0120160744 (Mar. 18, 2016); Raether v. Dep’t of the Navy, EEOC Request No. 01A42191 (Jul. 15, 2004). Therefore, the dismissal of Claim 2 was proper. 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). 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 2020004031 8 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. 2020004031 9 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 November 22, 2021 Date