[Redacted], Melvin C., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 6, 2022

Appeal No. 2021004561 (E.E.O.C. Oct. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melvin C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021004561 Hearing No. 480-2021-00099X Agency No. 20-00243-00153 DECISION On August 12, 2021, 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 August 10, 2021, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND and ANALYSIS At the time of events giving rise to this complaint, Complainant worked as a Security Specialist, Antiterrorism Chief at the Agency’s Marine Corps Recruit Depot in San Diego, California. On January 31, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of race (African-American), sex (male), color (Black), age (YOB: 1965), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2021004561 2 1. On January 8, 2020, the Operations Officer (OO) issued Complainant an email “reminder” about workplace accountability; 2. On November 5, 2019, Complainant received a letter of caution from the Mission Assurance Program Director (PD) for failure to check out with his supervisor or letting anyone know about his whereabouts; 3. On October 9, 2019, Complainant was informed by the PD that the OO was asking individuals within the Operations Office if they knew of Complainant’s whereabouts and to “watch your back because they are coming after you.” 4. On April 17, 2020, he was issued a proposed removal letter by the OO.2 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 Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant’s objections, the AJ assigned to the case granted the Agency’s May 20, 2021, motion for a decision without a hearing and issued a decision without a hearing on July 8, 2021. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions and Complainant did not establish that any of the reasons were a pretext for discrimination. The AJ further found that Complainant did not allege any abusive conduct or language sufficiently severe or pervasive to constitute a hostile work environment. 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. 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. (Aug. 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). Upon review of the record as a whole, we find that the AJ’s decision accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. The AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. We reject Complainant’s assertion on appeal that there are credibility issues or disputes of fact which required a hearing as Complainant has not presented any evidence to support his assertions. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 10200181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Accordingly, we find that the AJ properly issued a decision without a hearing. 2 Complainant’s complaint initially raised only claims 1 through 3 and then he later amended his complaint to add claim 4, alleging the removal was retaliatory for having filed the instant complaint. See Report of Investigation (ROI) at 69-72. 2021004561 3 We further find that the AJ’s decision correctly identified the legal standards for Complainant to establish that he was subjected to disparate treatment and a hostile work environment. We conclude that the AJ correctly determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The record indicates that Complainant had previously been counseled for not reporting his whereabouts during his duty hours so that his supervisors did not know where he was and responded in an unprofessional manner when his supervisors questioned him about his whereabouts. See Report of Investigation (ROI) at 110, 112. The letter of proposed removal stated Complainant’s removal was proposed based on five different charges: (1) Failure to follow Supervisor’s Direction; (2) Failure to Follow Proper Procedures; (3) Lack of candor; (4) Failure to follow Proper leave procedures; and (5) Unauthorized Absence. See ROI at 137-40. The Agency found that all the charges were sustained and therefore Complainant’s removal became effective on June 19, 2020. See ROI at 146-48. We conclude that the AJ correctly found that Complainant did not establish that any of the Agency’s reasons were a pretext for discrimination. Significantly, Complainant did not provide any evidence to support his assertions of a discriminatory motive nor is there any evidence in the record to support Complainant’s assertion that the allegations of misconduct in the letter of proposed removal are unfounded. Rather, the record indicates that Complainant had previously been counseled, reprimanded, and suspended for various incidents of misconduct similar to those mentioned in the letter of proposed removal, as well as for a failure to properly safeguard classified materials. See ROI at 110-132. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). We note that to the extent one of Complainant’s coworkers stated that he and Complainant were both treated unfairly because they are civilian employees, being a civilian is not a protected basis under EEO laws. See ROI at 227; Assunta V. v. Dep’t of Veterans Affs., EEOC Appeal No. 2020000500 (Dec. 19, 2019). Finally, while it is clear that Complainant takes issue with the OO’s and the PD’s management styles and decisions, none of the incidents taken together are sufficiently severe or pervasive to constitute unlawful harassment. See Wen Y. v. U.S. Postal Serv., EEOC Appeal No. 2021002631 (July 11, 2022) (common workplace occurrences, such as routine work assignments, instructions, and admonishments, do not rise to the level of harassment). Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we therefore AFFIRM the Agency’s final order finding that Complainant did not establish that he was discriminated against as alleged. 2021004561 4 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). 2021004561 5 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 October 6, 2022 Date