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

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2020004878 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lowell H.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020004878 Hearing No. 490-2015-00184X Agency No. DON-14-62980-03267 DECISION On September 2, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 26, 2020, 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 At the time of events giving rise to this complaint, Complainant worked as a Human Resource Assistant, GS-0203-06, at the Agency’s Navy Personnel Command, Placement Support Section, Shore Placement Unit facility in Millington, Tennessee. On September 12, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when: 1. On or about July 2012, the Director, Civilian Human Resources, (DCHR) told Complainant that the results of his desk audit/classification review did not warrant 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. 2020004878 2 an upgrade, and that the GS-7 Position Description (PD) for Placement Coordinators would be rewritten to reflect the results of the classification review; 2. On or about December 12, 2012, DCHR gave Complainant a position description that did not accurately describe his duties and responsibilities; 3. On September 23, 2013, Complainant’s supervisor (S) gave Complainant a position description that lacked details; 4. On October 11, 2013, S issued Complainant a written counseling for conducting personal matters during working hours; and 5. On July 31, 2014, S verbally counseled Complainant regarding a visit to HR. The Agency initially dismissed the complaint and Complainant appealed to this Commission. In a decision dated April 21, 2015, we reversed the dismissal and remanded the matters to the Agency for an investigation. See Complainant v Dept of the Navy, Appeal No. 0120150457. 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). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s/Complainant’s November 17, 2017, motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on July 22, 2020. Specifically, the AJ found that Agency officials articulated legitimate nondiscriminatory reasons for their actions and that Complainant failed to show that such articulated reasons were pretextual. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal from Complainant followed. ANALYSIS AND FINDING 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. 2020004878 3 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. Where, as here, complainant does not have direct evidence of discrimination, a claim alleging disparate treatment is examined under the three-part test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this analysis, a complainant initially must 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 St Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas 411 U.S. at 802. Next, in response, the agency must articulate a legitimate, nondiscriminatory reason for the challenged actions. See Burdine, 450 U.S. at 253-54; McDonnell Douglas, 411 U.S. at 802. Finally, it is complainant's burden to demonstrate by a preponderance of the evidence that the agency's action was based on prohibited considerations of discrimination, that is, its articulated reason for its action was not its true reason but a sham or pretext for discrimination. See Hicks, 509 U.S. at 511; Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804. This established order of analysis need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-14 (1983). For purposes of analysis we will assume, but do not find, that complainant established his prima facie case of discrimination. We next find that management officials articulated legitimate non-discriminatory reasons for their actions. With regard to claim 1, the determination that Complainant’s position did not warrant an upgrade, DCHR first averred that at the time of the action, she was not aware of Complainant’s prior EEO participation as a witness in a co-worker’s EEO complaint and that the co-worker’s complaint “was settled before anything further occurred. [Complainant] was not identified in any of the materials that I was provided.” DCHR further averred that Complainant: [R]equested a desk audit through his chain-of-command and [a management official (MO)] requested that we conduct the desk audit. In July 2012, I appointed [the Head of the HR Services Branch (HHRSB)] to gather the information. Approximately the end of July 2012/first of August 2012 [HHRSB] gave me a folder of information and handwritten documents. We sat down and discussed the information he had gathered during the audit. 2020004878 4 There were numerous discrepancies in [his] scoring of the factors. For example, he recommended Factor 2 as a 2-2 with 275 points. Factor 2 would have to be a 2- 3 to be 275 points. When I pointed out the errors and discrepancies in the "assessment," [HHRSB] could not explain them. It became apparent that [he] was determined to give [Complainant] an accretion of duties based on the desire of his previous supervisor. In order to ensure an unbiased review, I requested another HR Specialist review all the materials and assess the classification factors. The results of our new review were utilized as the final assessment in a memorandum provided to [MO]. Additionally, [HHRSB] no longer works in Human Resources as a result of several instances of him providing inaccurate/bad advice to managers and employees regarding HR matters. . . . We did not have a copy of the classification summary statement which indicates the points assigned during classification of a position. The PD was sent in May 2012 to [Stennis Space Center, Human Resources Service Center] for review as they had classification authority to review our PD's. Stennis concurred with the classification of [Complainant’s] PD. HHRSB similarly averred that “Stennis has Classification Authority for the organization; therefore, the package went to them and they made the final decision. The position came back as a GS-06.” With regard to claim 2, Complainant receiving a position description that that did not accurately describe his duties and responsibilities, DCHR averred that: All of the information provided by [Complainant] was forwarded to [the Defense Civilian Personnel Advisory Service] for both of the appeals he requested through the Human Resources Office. In addition, my office completed all other portions required for a classification appeal. [Complainant] actually failed to provide and/or complete portions of the appeal package which we completed on his behalf so his package would not again be returned without review. With regard to claim 3, S giving Complainant a position description that lacked details, S denied that the position description lacked details and further denied having any role in developing the position description. With regard to claim 4, the written counseling, S averred that Complainant: [C]ontinued to challenge his PD when he was informed by HR Sep 2013 his PD and the others were re-written and re-classified within all policies/guidelines and the matter was closed. [Complainant] was not at his desk performing his duties and was continually going down to HR trying to get his PD changed. As his supervisor I was not aware he was conducting personal business during working hours. 2020004878 5 It is inappropriate for him to be away from his desk for 20-30 minutes a time and not conducting work. He had been told that the issue was over and he no longer needed to go to HR to challenge his PD.. With regard to claim 5, the verbal counseling, S averred that DCHR “informed me that [Complainant] had been down to HR 3 times in week. I told him that he needed to let me know when he was leaving his desk to conduct personal business and informed him that the counseling in 2013 was still in effect.” The Agency having articulated legitimate nondiscriminatory reasons for its actions, the burden shifts back to Complainant to establish, by a preponderance of the evidence, that the Agency’s reasons were not its true reasons, but were pretexts for discrimination. See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. Complainant disagrees that his position did not deserve an upgrade and maintains that management failed to follow appropriate policies in various ways but significantly, he has not shown that the Agency’s actions were based on reprisal for him being named as a witness in a coworker’s EEO complaint. We note in this regard that Complainant completely fails to address the fact that the final grade determination was made by the Stennis Space Center, Human Resources Service Center and Complainant does not maintain that employees at that facility knew about him being named as a potential witness in that earlier complaint. Even assuming that Complainant’s position description lacked detail and did not accurately reflect his duties and responsibilities, or that he was entitled to spend time at HR to get his position description changed, he has not established a nexus between the Agency’s actions and his protected activity. Complainant may believe that such a nexus exists but without more, his belief is insufficient to establish, by a preponderance of the evidence, that retaliation occurred. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not shown that reprisal occurred and we AFFIRM the final order. 2020004878 6 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. 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). 2020004878 7 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. 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 21, 2021 Date