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

Equal Employment Opportunity Commission

Apr 13, 2022

Appeal No. 2022000946 (E.E.O.C. Apr. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mitchell K.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022000946 Hearing No. 450-2020-00276X Agency No. ARCEFTW19NOV04367 DECISION On December 2, 2021, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 2, 2012 final action concerning an equal employment opportunity (EEO) complaint claiming 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND On September 4, 2018, Complainant was appointed to the position of Contract Specialist (Intern), Contracting Division under the ACTEDS internship program at the Agency’s USACE- SWF Contracting Branch in Fort Worth, Texas. The ACTEDS program required a trial period of two years before an intern was eligible to be converted to a competitive appointment. 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. 2022000946 2 On December 14, 2019, Complainant filed a formal complaint. Therein, Complainant claimed that the Agency subjected him to a hostile work environment based on disability2 and in reprisal for protected EEO activity (prior activity) when: 1. On October 15, 2019, he requested from Supervisory Contract Specialist, the reason he was not being rotated as an Intern to the Military Contracting Branch as planned, and he did not receive a response; 2. On October 15, 2019, he requested the status of his Family Medical Leave Act (FMLA) from the Supervisor Contract Specialist and he was not given an answer; 3. On October 15, 2019, he was placed on Administrative Leave by the Chief, Contracting Division; and 4. On October 23, 2019, he was terminated from his Contracting Specialist (Intern), GS- 1102-09, position by the Chief, Contracting Division for inappropriate behavior in the workplace while in a probationary status. After its investigation, 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 AJ issued a Notice of Proposed Summary Judgment. Complainant did not respond to the Notice. The AJ subsequently issued a decision by summary judgment, finding no discrimination. The Agency issued its final action adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. Complainant did not submit a brief on 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. 2 Complainant identified his disabilities as Fibromyalgia, Anxiety, and Post Traumatic Stress Disorder. For purposes of this analysis, we assume, without so finding, that Complainant was an individual with a disability. 2022000946 3 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). 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 asked the Supervisory Contract Specialist why he was not being rotated to the Military Branch, but he did not receive a response. The Supervisor Contract Specialist stated that she could not give a response to Complainant because she was not the Agency employee who made that decision. The Branch Chief stated that Complainant was not rotated to the Military Branch because he was not ready for the complex actions dealing with military construction. Regarding claim 2, Complainant alleged that on October 15, 2019, he requested the status of his Family Medical Leave Act (FMLA) from the Supervisor Contract Specialist and he was not given an answer. The Deputy of Contracting asserted that he did not know the current status of that matter, and that he would have to check on the status of the request, and get back with Complainant. He noted that Complainant was “incredulous” of his response and he told the Supervisor Contract Specialist that he was lying. Following the October 15, 2019 meeting, the Supervisor Contract Specialist followed up on the status of Complainant’s FMLA application and advised Complainant that the personnel office was adjudicating his FMLA application packet to ensure it complied with policy and management would be notified once that process was completed. Regarding claim 3, Complainant claimed he was placed on administrative leave, precipitated by the following events. At that time, management had announced rotations for the interns. However, management officials did not feel Complainant had mastered the skills in the job he was in, so they decided to leave him in the same rotation. Complainant, however, stated that he could not remain in the current work environment, and if did so, he may “explode” and “do something.” The Chief, Contracting Division (“Chief”), also Complainant’s third line supervisor (“S3”), stated that he felt there was a credible threat and he had several individuals that were concerned for their safety. Regarding claim 4, Complainant stated that on October 23, 2019, he was terminated from his Contracting Specialist (Intern), GS-1102-09, position by S3 for inappropriate behavior in the workplace while in a probationary status. 2022000946 4 S3 stated that on October 15, 2019, Complainant went to his supervisor’s office to demand why he was not being assigned to the military branch. The supervisor informed him that she did not know and at that time, Complainant was angry about the new rotation schedule. Complainant told the supervisor that because her supervisor was not in the office that he was going to the Deputy’s office. The supervisor offered to go with Complainant, and he agreed. When Complainant and the supervisor went to the Deputy’s office, the supervisor explained that Complainant demanded to know why he was not being moved to the Military Branch. The Deputy explained to Complainant that the supervisors had assessed the interns and assigned them based on their skills. The supervisors decided that it would be best for Complainant to remain in Civil Branch so he would have greater opportunity to enhance his basis contracting skills. Moreover, the Deputy noted Complainant became “extremely angry” when he was told he would not be rotating to the Military Branch and noted Complainant started rocking back and forth, his hands clamped down on the arms of the chairs and he gritted his teeth.” He noted that Complainant raised his voice and forcefully asserted that he should have had input on who was to serve was his supervisor. Complainant then wanted to exercise his Family Medical Leave Act (FMLA) now. The Deputy informed Complainant that he would let him know if his FMLA paperwork met the requirements before approval. The AJ determined that based on her review of the record, no genuine disputes of material fact and no questions of credibility existed. The AJ concluded that the evidence of record did not demonstrate that management, through the actions and discussions with Complainant as delineated above, were motivated in anyway by discriminatory animus. We AFFIRM the Agency’s final action adopting the AJ’s summary judgment decision finding no discrimination. 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. 2022000946 5 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. 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. 2022000946 6 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 April 13, 2022 Date