[Redacted], Malcom N., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 31, 2022

Appeal No. 2020005477 (E.E.O.C. Mar. 31, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Malcom N.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020005477 Hearing No. 530-2016-00218X Agency No. ARPICATI5APR01517 DECISION 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 September 20, 2020,2 final action 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 worked as an Information Technology (IT) Specialist at the Agency’s Research Development and Engineering Center in Picatinny Arsenal, New Jersey. 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. 2 EEOC regulations state that an Administrative Judge’s (AJ’s) decision becomes an Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. 1614.110(i). Here, the AJ issued her decision on August 11, 2020, but the Agency did not issue a final order until February 18, 2021. Therefore, the AJ’s decision became the Agency’s final action on September 20, 2020, and Complainant timely filed his appeal on September 28, 2020. 2020005477 2 On June 30, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment on the bases of race (Asian), national origin (Indian), religion (Hindu), color (Brown), and age (44) when: a. from August 2014 through April 2015, Complainant’s coworkers, [CW1] and [CW2], made multiple comments regarding Complainant’s age; b. in September 2014, while introducing Complainant to a Learning Objectives and Readiness Assessment (LORA) team, [CW1] mentioned to the team that Complainant came from a small company with “insignificant” experience; c. from September 2014 to April 2015, Complainant was given the major portion of the work related to Systems, Applications and Products (SAP) systems; d. in September 2014, [CW2] changed Complainant’s LORA numbers without informing him; e. in October 2014, [CW2] asked Complainant to work on enabling the “HTTPS” in one of the SAP systems but told leadership that Complainant was working on the “WEBUI” issues, which was a pending assignment with [CW2]. When the issue escalated, [CW2] assigned the work to Complainant and forwarded the wrong information in an email chain to leadership; f. during the December 2014/January 2015 timeframe, [CW2] intentionally misguided Complainant with the technical details, thus setting him up for failure for the Live Cache migration work; g. in January 2015, [CW2] and another contractor went to Complainant’s desk and yelled, cursed, and humiliated Complainant in front of the Computer Sciences Corporation (CSC) Basis team while checking for a Live Cache migration work status; h. in February 2015, [CW2] asked Complainant to leave a product demonstration meeting at the CSC office in front of a group of contractors; i. on February 23, 2015, Complainant was threatened with the possibility of termination if he did not sign his mid-point evaluation; j. during the second week of March 2015, Complainant’s request for time to study for the “CompTia Security+” exam was denied by another coworker [CW3]; and 2020005477 3 k. on April 24, 2015, the Agency terminated Complainant from his position as an IT Specialist during his probationary period.3 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On August 23, 2017, an initial AJ (AJ-1) partially granted Complainant’s Motion to Compel. Among other things, AJ-1 directed Complainant to schedule an in-person review of the computer files and secure copies of any responsive documents by September 11, 2017. On or about April 1, 2020, Complainant’s case was reassigned to a new AJ (AJ-2), who scheduled a status call for April 8, 2020. On April 14, 2020, the Agency submitted a motion for a decision without a hearing. Complainant opposed the Agency’s motion and argued that the Agency changed most of their statements. Subsequently, AJ-2 issued a decision by summary judgment in favor of the Agency. In claim (a), Complainant alleged that CW1 and CW2 made comments, such as “you are experienced”, “you are senior”, “you are old enough”, and “you have 18+ years of experience”. However, AJ-2 found that there was no evidence, other than Complainant’s assertions, that these statements were made or that they were made in a manner that revealed age bias or animus. Further, there was no evidence in the record that Complainant complained of these comments to any management official. With regard to the remaining claims, AJ-2 found that the incidents involved work-related differences and perceived slights that Complainant had with his coworkers and supervisors. Assuming, for the sake of argument only, that these actions occurred as alleged, Complainant produced no supportive evidence of a connection between these events and any of his protected bases. Similarly, as for claim (k), AJ-2 found no causal nexus between Complainant’s termination’s and his age, race, religion, national origin, or color. As such, Complainant failed to establish a prima facie case of discrimination on any basis. As to his hostile work environment claim, AJ-2 determined that the non-discrete acts did not show a sufficiently severe or pervasive pattern to alter the conditions of a reasonable person’s work environment. Furthermore, nothing from the incidents themselves could be construed as related to, or would not have occurred but for, Complainant’s protected classes. 3 On February 15, 2017, the Administrative Judge issued an order to clarify the issues and partially grant Complainant’s request to amend his complaint. She finalized the claims to those listed here. We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the dismissal of some of his claims; as such, we will not address them in the instant decision. 2020005477 4 AJ-2 concluded that Complainant did not establish a material question of fact as to whether the Agency subjected him to unlawful disparate treatment or a hostile work environment based on any of the bases alleged, and as such, she granted the Agency’s Motion for Summary Judgment. The instant appeal followed.4 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). 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 he 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. As an initial matter, Complainant argues that AJ-2’s decision was incorrect because she did not “study” the record or look at AJ-1’s order granting his Motion to Compel. Complainant asserts that AJ-2 never, orally or in writing, requested new submissions for a Motion for Summary Judgment and responses. Further, contends Complainant, AJ-2 never responded to his objection to the Agency’s filing of a new Motion for Summary Judgment until she issued her decision. Complainant further alleges that the Agency communicated with AJ-2 without keeping him informed. However, we find that Complainant’s allegations, that AJ-2 did not “study” the record and the Agency engaged in ex parte communications with AJ-2, are unsubstantiated. We also find that, in her decision, AJ-2 denied Complainant’s outstanding objections and stated that the “parties were permitted to resubmit their motions for and against a decision without a hearing.” AJ Decision at 1. 4 Complainant filed three briefs in support of his appeal. The Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). As such, we will not consider the arguments in the two briefs filed beyond the deadline. 2020005477 5 Regarding AJ-1’s order granting Complainant’s Motion to Compel, the Agency responded that it complied with the order and made every effort to provide Complainant with the opportunity to access the requested computer files. The Agency provided email evidence showing its exhaustive attempts to schedule Complainant’s visit. Complainant initially informed the Agency that he was available on September 7, 2017, but after the arrangements were made, Complainant responded that he “just realized that [he had] other scheduled work” and requested to come the following day. While the Agency rescheduled Complainant’s visit for the next day, Complainant replied that he decided not to come. As for Complainant assertion, that he did not visit because he did not receive confirmation that he would be provided copies of his emails in a “.PST” format, the Agency argues that the AJ-1’s order makes no mention of this requirement, which Complainant unilaterally imposed on the Agency. Agency Appeal Brief, Exhibit A-24-6. The Agency provided evidence showing that it timely complied with the remainder of AJ-1’s order, and to the extent that it did not comply with the order related to Complainant’s visit to obtain additional documentation, the Agency repeatedly offered Complainant the opportunity, but he ultimately declined. We further note that Complainant does not specify how the Agency allegedly failed to comply with AJ-1’s order. As such, we find that any non-compliance with AJ- 1’s order lies with Complainant. Complainant argues that AJ-2 erred in stating that the material facts were either undisputed, or if disputed, viewed in the light most favorable to Complainant. On appeal, Complainant disputes seven facts, but we find that these facts are either not material or the evidence does not establish a genuine dispute. For example, we find Complainant’s assertion that AJ-2 incorrectly identified the name of CW2’s contracting employer is immaterial to Complainant’s claims of discrimination and harassment. In another instance, Complainant disputes the Agency’s statement in his termination letter that he was counseled several times “for refusing to complete an assigned task, for questioning why [he] had been given specific tasks, and for not being a cooperative team player.” Complainant Appeal Brief at 9. However, we find that evidence in the record shows that Complainant’s initial first-line supervisor counseled Complainant on January 22, 2014, for speaking negatively about his coworkers and cautioned him against continuing this behavior. ROI at 70. In addition, CW3 reported that Complainant stated that he would not work on a task unless the work was split among others on the team, and when CW3 responded that others were available to assist, Complainant “refused”. Similarly, when CW2 assigned Complainant a task, Complainant responded that he wanted CW2 to “take the lead” while Complainant supported him. ROI at 171, 179. We find that Complainant only offers his disagreement and does not cite to any evidence to show a genuine dispute of material facts. Mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Security, EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), request for reconsideration denied, EEOC Request No. 05A10914 (Oct. 1, 2001). 2020005477 6 In addition, Complainant argues broadly that AJ-2’s findings are “not true.” However, even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his favor. Upon careful review of AJ2’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that AJ-2 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 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). 2020005477 7 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. 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 31, 2022 Date