[Redacted], Melanie K., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

May 19, 2021

Appeal No. 2020003211 (E.E.O.C. May. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melanie K.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2020003211 Hearing No. 541-2017-0037X Agency No. DOE 16-0079-WAPA DECISION On April 22, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked for a federal contractor, Chickasaw Nations Industries, as a Generalist 3 that provided clerical services to the Agency’s Western Area Power Administration (WAPA). Her position was physically located in the Agency’s Human Resources Department. She was also an applicant, seeking permanent federal employment, at the Agency’s facility in Lakewood, Colorado. On April 11, 2016 (and subsequently amended), Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (hearing loss in her left ear) and in reprisal for her prior protected EEO activity when: 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. 2020003211 2 1. On March 31, 2016, Complainant was notified she was not selected for the Fiscal Specialist position announced under vacancy announcement number WAPA-16- DE-96; 2. On an unspecified date, Complainant was notified that she was not selected for the Accounting Technician position, which was announced under vacancy announcement number WAPA-16-DE-132, and which closed on March 21, 2016; 3. On April 20, 2016, Complainant was notified she was not selected for the Fiscal Specialist position announced under vacancy announcement number WAPA-16- DE-140; 4. Complainant’s disability information was kept on a computer R-drive that Complainant believed was accessible by all WAPA employees; and 5. On March 28, 2016, she was subjected to a hostile work environment when the Human Resources Specialist reacted angrily after Complainant inquired why her applications for federal employment were not being forwarded to the selecting official, and that resulted in an altercation that Complainant perceived as threatening.2 Complainant has a hearing loss in her left ear. Her EEO activity was based on the actions associated with this complaint. She initially made EEO contact in February 2016 to complain about the Agency’s cancellation of a vacancy announcement for which she applied in January. No one was selected to fill that position. That non-selection was not raised in her formal complaint. Claims One to Three - Non-Selections The Agency announced three vacancies. The announcement was a “Delegated Examining (DE) announcement”, which meant that “Veterans go to the top of the highest category, if they are disabled or to the highest spot in the category in which they qualify in, if not disabled.” Human Resources has to refer the veterans first. Complainant testified that she applied and submitted her Schedule A documentation. Complainant averred that she applied under the Schedule A authority, and she did not apply under the merit promotion job announcement. Complainant was not a federal employee or a veteran. After first being told she was qualified, Complainant received another notification that her application had not been referred for consideration. Complainant stated that, because she was a Schedule A and qualified, her application should have automatically been forward to the hiring official, but her application “did not make it past Human Resources.” The record reveals that based on the information provided Complainant was not referred as a Schedule A applicant. Complainant’s applications were never referred to the selecting official. 2 The Agency dismissed several additional claims pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant raised no challenges regarding the dismissal of those claims and the Commission can find no basis to disturb the Agency’s decision in that respect. 2020003211 3 The Human Resources Specialist explained that the Agency did not generally refer non-veterans, because they are not eligible for selection and that was why Complainant was not referred to the selecting official. The Specialist said the DE announcement was not the proper place to receive consideration of a Schedule A applicant. She added that Complainant did not provide the documentation demonstrating that she wanted to be considered as a Schedule A applicant. The selecting official for the Fiscal Specialist positions was the Fiscal Operations Manager, GS- 0501-13 (prior EEO, no disability) (SO). She made her selection from the best qualified list she received from Human Resources (Exhibit 9C). Ultimately, both of the Fiscal Specialist positions were filled from a merit job announcement under which Complainant did not apply. One of the positions was also filed by a person with a disability. SO averred that she became aware that Complainant filed this EEO complaint in April or May 2016, which was after the selections were made. She stated she was unaware Complainant had a disability. SO further averred that Complainant’s name was not on the list she received from Human Resources and she made her selections off of those lists. After the veteran who was offered the Accounting Technician position declined, Complainant’s name was referred for consideration. Complainant was interviewed, but the selecting official selected another person whom she deemed more qualified. Complainant does not dispute these reasons. Claim Four - Access to the R Drive While carrying out her responsibilities, Complainant noticed that the Agency maintained information on the R-Drive that included the medical records of Schedule A applicants. Complainant made EEO contact after she discovered her own information was accessible. The Agency uses the R Drive as the internal filing structure. The Agency has a Schedule A Point of Contact, who maintains the files for those who have submitted their information for consideration. Claim Five - Hostile Work Environment When Complainant learned that her applications had not been forwarded for consideration, she confronted the Human Resources staffer. After the staffer responded to the inquiry and Complainant did not understand the explanation, the staffer went over to Complainant’s cubicle and loudly informed Complainant that her applications were not forwarded because she did not meet the stated qualifications. The conversation became heated. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before a EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s June 5, 2019 motion and issued a summary judgment decision on April 22, 2020, finding no discrimination or reprisal. 2020003211 4 In the decision, the AJ reasoned that the record was complete and there were no genuine disputes of material fact warranting a hearing. The AJ noted that it was undisputed that the selecting official was unaware that Complainant had applied, unaware of any prior EEO activity or that she had a hearing loss at the time the decisions were made for the two Fiscal Specialist positions. The AJ found that the record did not show that the officials were aware of Complainant’s medical condition. SO testified that she selected the candidate who was deemed the best qualified for the Accounting Technician position. The AJ found there was no evidence of pretext. The AJ noted that the issue regarding access to the medical records was considered by the Office of Special Counsel, which found that there was no unwarranted access to her medical records. Regarding the claim of a hostile work environment that occurred on March 28, 2016, the AJ relied on Complainant’s statement of the facts to conclude that the single incident was not severe or pervasive enough to establish a hostile work environment and there was no showing that the interaction was based on unlawful factors. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. 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 must further establish that such facts are material under applicable law. Such a dispute would indicate that a hearing is necessary. Here, however, the 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 in Complainant’s favor. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate in this case. Accordingly, we AFFIRM the Agency’s final action. 2020003211 5 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). 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. 2020003211 6 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 May 19, 2021 Date