[Redacted], Lu T., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal No. 2020004791 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lu T.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020004791 Hearing No. 451201700135X Agency No. DHAJ6170009 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 24, 2020 Final Order concerning an 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 was employed by the Agency as an Information Technology (“IT”) Specialist, GS-9, in the Enterprise Application Section ("EAS") of the Enterprise Systems Branch, Infrastructure and Operations Division, with the Agency’s Health Information Technology Directorate in San Antonio, Texas. On March 3, 2017, Complainant filed a Formal EEO Complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), color (Black), and reprisal for prior protected EEO activity when: her supervisor (“S1”) failed to provide information to Human Resources that would support an accretion of duties to upgrade her position from a GS-2210-09 to a GS-2210-12. 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. 2020004791 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (“ROI”) 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 February 21, 2020, the AJ notified the parties, sua sponte, of an intent to issue a decision without a hearing (summary judgment). The AJ’s notice explained that to avoid a decision by summary judgment, Complainant must provide evidence establishing that a question of material fact exists regarding whether the Agency’s stated explanation for the alleged discriminatory act was in fact pretext for a discriminatory or retaliatory motive. Complainant failed to respond within the allotted time frame. The AJ issued a decision by summary judgment in favor of the Agency on March 16, 2020. The record includes the following undisputed facts: In 2015, Complainant’s position was realigned from the Department of the Army to the Defense Health Agency (“DHA” or “Agency”), where she worked in the Enterprise Systems Branch, which fell within the Infrastructure and Operations Division of the DHA Health Information Technology Directorate. S1 (African American, black, male), a Section Chief, GS-13 within the Enterprise Systems Branch became her first level supervisor. Her second level supervisor (“S2”) (African American, black, male) was the Chief, GS-14, of the Enterprise Systems Branch. S1 and S2 were familiar with Complainant’s prior EEO activity. S1 was listed as a witness for a previous EEO complaint filed by Complainant (“Complaint 1”) and he was the management official responsible for performing the Agency’s obligation to assist Complainant with a desk audit under a negotiated settlement agreement (“NSA”) Complainant entered into with the Agency to resolve Complaint 1. Prior Protected EEO Activity (Complaint 1 and NSA) On or about November 2, 2015, Complainant formally filed Complaint 1, which consisted of five claims of discrimination on the bases of sex, race, and color.2 Complaint 1 alleged that Complainant had been performing the same duties at a lower grade and for less pay as multiple colleagues in GS-11 and GS-12 positions, since 2009 and 2011. While one of these colleagues was also female, none of the colleagues were the same race or color as Complainant. Complaint 1 also alleged that Complainant’s then-supervisor told her she could not qualify for a GS-12 position unless she “went back to school,” yet, in October 2011, a GS-12 position opened, and Management rewrote it to a training GS-11 position with a target of GS-12 so her colleague (white, female) could obtain a GS-12 position without the education requirement. Following an investigation, Complainant requested a hearing before an EEOC AJ. On July 12, 2016, the parties resolved Complaint 1 by entering the NSA, in lieu of proceeding with a hearing. Provision 3(g) of the NSA stated that the Agency agreed to “assist with a desk audit if requested by Complainant.” 2 Agency Case No. DHAHIT150019, docketed as EEOC Hearing No. 451201600149X (July 25, 2016) (complainant voluntarily withdrew her hearing request as consideration for an NSA). 2020004791 3 According to Complainant, the purpose of including the Desk Audit as consideration in the NSA was so that her position could be reclassified based on her assignments over the past 7 years. Based on her calculations, Complainant asserts that her duties and responsibilities were more accurately graded at GS-12. On September 6, 2016, Complainant asked S1 for a desk audit. She drafted a revised position description (“PD”) that factored in the higher-level duties she accrued over the past 7 years, and completed a “Position Review Request,” detailing the level of difficulty and amount of time she spent on each of her assignments. S1 completed the supervisor’s portion of the Request based on his one year as Complainant’s supervisor. Unlike Complainant, who listed software licensing, relatively non-substantive work, as 10% of her overall responsibilities, S1 stated that all of Complainant’s responsibilities consisted of software licensing. Complainant alleges that S1’s response was not consistent with her performance appraisal, and that he systematically removed her higher-level assignments when he became her supervisor. On November 14, 2016, Complainant was provided with a Desk Audit Review Report, which determined that her job tasks did not warrant an upgrade in her position. S1 explained that the Agency’s standard operating procedure (“SOP”) for desk audits limited the duties and responsibilities to those performed by the employee within a year of the request for an audit. S1 informed Complainant that they could meet with the interviewer for an interview to discuss her position further, and they met with a classifier on December 13, 2016. On December 13, 2016, S1 notified Complainant that the classifier they met with denied the desk audit because: “(1) the amount of changes on the revised PD were too great to fall within the desk audit criteria, (2) [S1] is unacquainted with the additional duties mentioned because he was not the supervisor during that the timeframe mentioned, and (3) desk audits are for current duties performed over the past year on a routine basis.” Complainant declined the option to have another classifier review the matter, believing S1’s actions breached the NSA. EEO Activity Arising from NSA Provision 3(g) Desk Audit On January 4, 2017, Complainant formally notified the Agency that it was in breach of Provision 3(g) the NSA, explaining that S1 failed to meet his obligation to “assist with a desk audit,” when he did not provide the classifier with information about Complainant’s accrued duties, over the past 7 years, which would have supported an upgrade of her position. On January 4, 2017, Complainant also initiated the instant complaint as a separate cause of action. On March 7, 2017, the Agency issued a Final Decision, finding that it was not in breach of Provision 3(g). Complainant appealed to the Commission, which, affirmed the Agency’s finding on May 19, 2017. See Lu T. v. Dep’t of Def. (DHS), EEOC Appeal No. 0120171400 (May 19, 2017). Citing S1’s actions on December 13, 2016, the Commission determined that the Agency met its obligation to assist Complainant with a desk audit, in accordance with Provision 3(g). Id. It further determined that nothing in the NSA obligated the Agency to reclassify Complainant’s position or change her grade level as a result of the desk audit. Id. 2020004791 4 On March 21, 2017, the Agency accepted the allegation in the instant complaint for investigation. After reviewing the ROI, the AJ determined that Complainant’s proffered evidence amounted to speculation which was insufficient to establish a prima facie case for discrimination or retaliation. The AJ further determined that even if Complainant could establish a prima facie case, the Agency articulated a legitimate nondiscriminatory reason for its actions. Namely, the evidence supported that S1’s actions were consistent with the Agency’s standard operating procedure (“SOP”) of limiting the scope of desk audits to only those job duties and tasks that were assigned within a year of the desk audit request. As previously stated, Complainant did not offer any evidence to indicate that a question of material fact existed as to whether the application of SOP during her desk audit was pretext for discrimination. The Agency issued its Final Order adopting the AJ’s summary judgment finding that Complainant failed to prove discrimination as alleged. Alternately, the Agency asserts that the instant complaint should have been dismissed as an improper collateral attack on both Paragraph 3(g) of the NSA and the Agency’s desk audit process. 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). Based on a de novo review, we conclude that the matter before us was already properly addressed in Lu T., as a breach of settlement claim. EEOC Appeal No. 0120171400. S1’s alleged discriminatory actions in the instant complaint are indistinguishable from the actions S1 took that Complainant claimed breached the NSA. In Lu T., the Commission summed up Complainant’s breach claim as follows: Complainant alleged that [S1] did not provide all of the information available to him at the time of the desk audit [and] intentionally provided descriptions of her duties that would not allow the classifier to determine that Complainant was performing the duties of a GS-12. Complainant stated that as a result of the Agency action, she was not given a fair opportunity for her job to be upgraded [stating], ‘this is the Agency impeding the desk audit and almost virtually insuring Complainant's bid for an upgrade would fail.’ 2020004791 5 The record and our analysis in Lu T. support that the issue of whether S1 accurately described Complainant’s job duties or provided sufficient information during the desk audit is a question of compliance with Provision 3(g) of the July 12, 2016 NSA, not a new claim of discrimination. Complainant already took the appropriate course of action by formally notifying the Agency that it was in breach of the NSA on January 4, 2017. Significantly, throughout the record for the instant complaint, and in her appellate brief, Complainant refers to S1’s alleged discriminatory action as a “breach” of Provision 3(g) and frames much of her argument in terms of the NSA. However, we note, for the sake of argument, as the AJ analyzed the matter as a separate claim, that even assuming S1’s alleged discriminatory actions were not taken in the performance of a settlement agreement, the complaint cannot overcome a decision by summary judgment. In order 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. In the instant case, Complainant failed to establish such a dispute, as the record is devoid of evidence connecting S1’s actions to a discriminatory or retaliatory motive, and evidence to indicate that the Agency’s proffered legitimate nondiscriminatory explanation was pretextual. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s 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). 2020004791 6 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. 2020004791 7 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 27, 2021 Date