[Redacted], Macy B., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2021002075 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Macy B.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021002075 Hearing No. 440-2018-00214X Agency No. EPA-2017-0012-R05 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s January 14, 2021 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., 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 employed by the Agency as a Physical Scientist (Environmental), GS-13, Step 8, at the Agency’s Region 5, Land & Chemicals Division, Resource Conservation and Recovery Act (RCRA) Branch in Chicago, Illinois. On November 28, 2016, Complainant filed an EEO complaint alleging discrimination by the Agency on the bases of race (African American), national origin (Haitian), sex (female), color (light brown), age (over 40), and in reprisal for prior EEO activity (prior EEO activity) when: 1. On September 12, 2016, Complainant was denied travel and training to Resource Conservation and Recovery Act (RCRA); 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. 2021002075 2 2. On October 6, 2016, Complainant learned she was denied the opportunity to participate in RCRA Mining Training/Demonstration; 3. On October 6, 2016, Complainant learned that she was not assigned as the RCRA Mining Workgroup Co-Chair/Lead with the Office of Regional Counsel; 4. On October 7, 2016, Complainant was denied overtime opportunities by her first and second supervisors; 5. On October 7, 2016, Complainant was notified that she was not selected for Vacancy Announcement CI-R5-MP-2016-0012, Equal Employment Opportunity Manager; 6. On October 20, 2016, Complainant learned that Project Officer excluded her from emails relevant to her job regarding Ohio State Coordinator matters; 7. On October 21, 2016, Complainant learned that she was not referred for an interview for the position she applied for, Environmental Protection Specialist, GS-0028-13/13, Environmental Justice; Job Announcement No. CI-R5-DE-2016-0036, and that the position was later canceled due to Complainant applying; and 8. On October 26, 2016, Complainant learned that her first and second supervisors denied her a workgroup assignment. 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. The Agency submitted a motion for a decision without a hearing. Complainant submitted a response. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant did not submit a brief in support of her appeal. 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 2021002075 3 an administrative judge’s determination to issue a decision without a hearing, and the decision itself, will both be reviewed de novo). 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. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find for Complainant. In her decision, the AJ noted that in regard to claim 1, Complainant asserted that she submitted requests for RCRA McCoy training in 2014, 2015, and 2016. However, Complainant’s first and second supervisors (S1 and S2) did not receive Complainant’s RCRA McCoy training before September 12, 2016, and Complainant did not provide any documents which verified her request. S1 stated she decided which trainings would be appropriate for each employee. Complainant received RCRA training between 2012-2017 including, but not limited to, the second RCRA McCoy training which was held on October 3-5, 2016, and the third training was on January 24- 25, 2017. Regarding claims 2 and 3, Complainant learned that she was not designated to participate in RCRA Mining Training/Demonstration workshop and therefore, was not assigned as the workshop’s Co-Chair/Lead. S1 explained that Complainant was not considered as a potential candidate for the Biennial Reporting System (BRS) Mining Training because she had an excessive workload. S1 also noted that Complainant was not considered for the training because she was limited in her spreadsheet manipulation skills, and she had difficulty working cooperatively with her co-workers in a team setting. Moreover, S1 stated that employees did not have to apply or request to take part in the workshop. Employees only had to demonstrate an interest and be present for the workgroup meeting. The AJ stated that relating to claim 4, Complainant claimed she was denied overtime opportunities since July 21, 2015. Complainant also claimed that on or about October 7, 2016, S1 and S2 denied her request to work overtime for 30 minutes. S2 explained that he had no authority to approve an employee’s request unless S1 had authorized the overtime request first. S1 did not approve Complainant’s overtime request on October 7, 2016. The Agency’s policy requires overtime to first be approved by the employee’s first-line supervisor. S1 placed Complainant on notice that overtime had to be requested in advance. Regarding claim 5, Complainant learned that she was not selected for the Equal Employment Opportunity Manager position. The Acting Deputy Regional Administrator was the selecting official for the EEO Manager. There were 39 applicants for the subject position. Complainant and 24 other candidates made the “best qualified” certificate list, and 8 applicants were referred to interviews based on their resume rankings. 2021002075 4 The selecting official identified six qualifications for the Resume Review Panel, identified as follows: supervisory experience, demonstrated experience in getting things done, creativity, teambuilding, strong communication and strong writing skills. She implemented a Resume Review Panel which included the Supervisory Equal Opportunity Specialist and the Deputy Director Resources Management Division. Thereafter, the panelists referred eight candidates for the subject position. The Director of Civil Rights and Assistant Regional Administration in Region 10 served on the interview panel with the selecting official. Following the interviews, the Acting Director Resources Management Division, Region 5, gave a work scenario exercise to each finalist and she assisted the selecting official with reference checks. Moreover, the selecting official chose the selectee (African American, Black/Brown, female, over 40) for the EEO Manager position. Furthermore, the selecting official stated that the finalists who were selected for the interviews for the subject position all had significant EEO training and experience. Regarding claim 6, Complainant learned that the Project Officer excluded her from e-mails relevant to her job as an Ohio State Coordinator. The Chief, State and Tribal Programs explained while she was the Project Officer’s supervisor, she had no recollection of Complainant reporting that the Project Officer excluded her from relevant emails. In April 2016, S1 requested the Chief to check with the Project Officer to ensure that she copied Complainant on emails. Thereafter, the Chief discussed the matter with the Project Officer who agreed to copy Complainant on email related to her duties, and the Chief began emailing Complainant directly. Regarding claim 7, Complainant learned that she was not referred for an interview for the Environmental Protection Specialist position. Complainant and 55 other applicants for the subject position were deemed best qualified on the certification list. However, the Agency cancelled the subject position, and no one was selected. Specifically, Agency management officials determined that the vacancy had to be cancelled due to major errors in the handling of the vacancy announcement and the issuing of the referral certificate. The AJ noted that on October 26, 2016, Complainant learned that S1 and S2 denied her a work group assignment with the RCRA Subpart AA, BB, and CC target using the TRI Clean Air Act. Complainant identified four co-workers who were assigned to the TRI Clean Air work group. S2 asserted that he did not deny Complainant the ability to serve on a work group. The AJ determined that based upon a careful review of the entire record, including arguments and evidence not specifically addressed herein, this matter is appropriate for summary disposition. The record reflects that there exists no genuine issue of material fact or issues of credibility. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. 2021002075 5 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). 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). 2021002075 6 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 March 2, 2022 Date