[Redacted], Maximo S., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Aug 5, 2021

Appeal No. 2020001089 (E.E.O.C. Aug. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo S.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020001089 Hearing No. 420-2018-00015X Agency No. 17-68322-00588 DECISION On November 22, 2019, 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 October 12, 2019 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 Personnel Psychologist, GS-0180-12, at the Agency’s Naval Education & Training Professional Development Center in Pensacola, Florida. On February 3, 2017, Complainant filed an EEO complaint alleging that the Agency unlawfully retaliated against him for prior protected EEO activity when Complainant was suspended for three days, from December 6 to 8, 2016. 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 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. 2020001089 2 Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. After both parties submitted motions for a decision without a hearing, the AJ assigned to the case issued a decision by summary judgment in favor of the Agency on September 10, 2019. 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 followed. ANALYSIS AND FINDINGS 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. 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. James v. U.S. Postal Serv., EEOC Appeal No. 01A13543 (Feb. 28, 2002). See also, Anderson, 477 U.S. at 247. We have also recognized that not every factual dispute qualifies as a genuine issue that will prevent summary judgment. Adah P. v. Dep't of Veterans Aff., EEOC Appeal No. 0120140100 (Mar. 31, 2016); Complainant v. Dep't of Justice, EEOC Appeal No. 0120120271 (Aug. 21, 2014). Here, Complainant has not pointed with any specificity to particular evidence in the investigative file or other evidence of record that indicates such a dispute concerning facts that are material to the adjudication of his claim. Complainant argues that the AJ failed to fully develop the record before issuing her decision. Specifically, Complainant maintains that the AJ failed to issue a decision addressing Complainant’s motion to compel. A review of the AJ’s Decision and Order, however, shows that the AJ ruled that “[a]ny other pending motions are DENIED” which would include Complainant’s Motion to Compel. We note that AJs have broad discretion in the conduct of hearings, including discovery, and the determination of whether to admit evidence, issue sanctions or permit or compel the testimony of witnesses. See 29 C.F.R. § 1614. 109. 2020001089 3 The Agency points out on appeal that it, “provided the protected group(s) of any employee, the position, offense, penalty, date of action, and the name, position, and protected group(s) of the agency officials taking the action.” Accordingly, we find that Complainant has not shown that the AJ abused her discretion in denying his Motion. In sum, 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). Here, the responsible Agency officials articulated a legitimate, nondiscriminatory reason for the suspension. The October 11, 2016 Notice of Proposed Suspension revealed that the action was being taken because: On Thursday, 22 September 2016 you sent an email to [the Supervisory Personnel Psychologist (SPP)], Exam Development Branch Head, in which you wrote "Why don't we just make [SPP] carry her fat ass up there!" You then sent a second email to [SPP] stating, "That was a mistake. Wasn't intended for you. Sorry." Following a response from Complainant, the suspension was subsequently reduced from seven to three days in a decision dated November 28, 2016 and signed by the Executive Director (ED). The decision stated that the suspension was for disrespectful conduct. 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 articulated reason was not its true reason but was a pretext for discrimination or reprisal. 2020001089 4 See Hicks; Burdine; McDonnell Douglas. Following a review of the record we find that Complainant has failed to meet this burden. We note that Complainant does not dispute that he sent the email in question, nor does he dispute the content of the email. Complainant, however, argues that because he explained that he sent the email inadvertently, the subsequent punishment was unwarranted and constituted reprisal for prior protected activity. On appeal, Complainant argues: The unintentional nature of this email is a significant [sic] in that I believe it erodes management’s proffered non-discriminatory explanation for the suspension. [ED] repeatedly stated . . . that the suspension was given in order to deter disrespectful conduct in the future. However, cases involving inadvertent behavior indicate that such [sic] there is no appropriate penalty for inadvertent actions. Complainant then cites what appears to be a Merit Systems Protection Board (MSPB) decision concerning an employee of the Department of Justice. As an employee of a different Agency, the employee in the case cited by Complainant is not similarly situated with Complainant and hence it is not clear what relevance the cited case has to the instant complaint. With regards to Complainant’s argument generally that because he inadvertently included SPP in the email his punishment was unwarranted, we are unconvinced by such an argument. We note that ED explained in the initial Proposed Notice that, “[n]ot only was your email disrespectful, it was insulting and hurtful. Whether you intended for her to see the message or not, making comment such as this about any person in the workplace is unacceptable and will not be tolerated.” These and other comments by ED show that, contrary to Complainant’s repeated claims, management did take the issue of whether Complainant intended the email for SPP into account, and found that it did not exonerate Complainant. Furthermore, based on the Proposed Notice, the issue is not whether or not Complainant intended to send the email to SPP, but whether Complainant sent a disrespectful, insulting, and hurtful email about an Agency employee to anyone. The facts clearly show that he did, and notably Complainant has not denied that he did, he only maintains that he did not intend to send it to SPP. In his Formal complaint and again during the investigation, Complainant argues that pretext can be shown by the fact that management officials allegedly failed to comply with the “Douglas Factors” prior to issuing the suspension. We note that the Douglas Factors are standards applicable to proceedings involving MSPB and are not necessarily applicable to claims involving employment discrimination. Even assuming arguendo that Agency officials failed to comply with the Douglas Factors or with Agency rules governing disciplinary action, that does not establish that their actions were based on reprisal. Given that the original email sent by Complainant was “disrespectful, insulting, and hurtful” towards a member of management, ED appears to have been annoyed with Complainant’s lack of respect towards management rather than motivated by retaliatory animus for engaging in protected EEO activity. 2020001089 5 We note in this regard that Complainant himself appears to recognize this when he averred that management “should be aware that the email at issue was inadvertent, and that [SPP]s' response to it was more of an emotional reaction than a legitimate disciplinary action.” An “emotional reaction” is not the same thing as reprisal for engaging in protected EEO activity. Nor do we find that Complainant has established that a nexus existed between his prior EEO activity and his suspension. The U.S. Supreme Court has noted that where a retaliation claim is based solely on the temporal proximity between a protected activity and an adverse treatment, a complainant must establish that the proximity is “very close.” Clark County School District v. Breeden, 532 U.S. 268, 273 (2001). Complainant, however, indicates that his prior EEO activity occurred between 2009 and “the Fall of 2015” which, without more, is too long a period to suggest a nexus with his December 2016 suspension. We note in this regard that while ED acknowledged knowing about Complainant’s prior protected activity, he denied basing his decision on such activity. 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 unlawful reprisal occurred, and we AFFIRM the final order. 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 2020001089 6 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. 2020001089 7 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 August 5, 2021 Date