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

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2021000968 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nick N.,1 Complainant, v. Carlos Del Toro, Secretary Department of the Navy, Agency. Appeal No. 2021000968 Hearing No. 430-2017-00252X Agency No. DON16-62381-00961 DECISION On October 14, 2020, 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 29, 2020 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Engine Utilityman, WM-9957-10, in the Agency’s Military Sealift Command at the Naval Station in Norfolk, Virginia. On April 26, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), disability (perceived), and in reprisal for 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. 2021000968 2 1. On December 22, 2015, the First Engineer gave Complainant an unsatisfactory evaluation which Complainant claimed was based on assignments not given to him within the evaluation timeframe; 2. Complainant was not assigned to a USNS ship and had to remain at the Military Sealift Command’s Customer Support Unit-West (CSU-W), awaiting assignment; and 3. The Medical Service Officer aboard the USNS Amelia Earhart released Complainant’s medical information to the chain of command, which caused Complainant to be removed from the USNS Amelia Earhart and remain at the CSU-W. Complainant claims disability discrimination due to his first level supervisor and the rest of management perceiving him as disabled due to his anxiety condition. Report of Investigation (ROI), p. 98. Claim 1 - Evaluation Complainant’s new first level supervisor gave Complainant a “Good” rating, that Complainant viewed as unsatisfactory. ROI, pp. 329-331, and pp. 731-736. Complainant stated he had received better reviews prior to the arrival of his new first-level supervisor (S1), the First Engineer (Asian/Vietnamese-American, no prior EEO). S1 stated Complainant always needed assistance, which Complainant disputed. S1 explained that Complainant attempted a permanent repair using tape and consistently failed to reply to radio calls from supervisors. Complainant averred that S1 favored an Asian (Filipino) co-worker (CW1). S1 stated that he viewed CW1 as having issues like Complainant. He stated that CW1 received the same rating as he gave Complainant. S1 stated that he had rated two other engineers, who were African-American, as Outstanding. Claims 2 and 3 - Awaiting Assignment and Updating of Medical Information All employees, upon being diagnosed with a chronic medical condition sign a written agreement acknowledging they will update the Agency regarding the status of their medical condition on a regular basis. The failure to provide the required updates can result in the employee being viewed as not fit for duty. ROI, p. 102. Complainant alleged that he did not recall the name of the individual who released his information, but he believed the information must have been released around December 2015. ROI, p. 96. The record shows the unnamed management official was Military Sealift Command (MSC) Physician’s Assistant (Caucasian, prior EEO), who was the ship’s Medical Officer. He said Complainant’s medical condition was disclosed to the Agency’s Medical team in August 2007. He asserted the condition did not limit Complainant’s ability to do the job, so long as he provided updated information as requested. 2021000968 3 The Medical Officer alerted the chain of command that Complainant’s medical information had not been updated. The Medical Officer specifically said he contacted management because “the Mariner was overdue in providing the required periodic update and refused the opportunity to obtain the required update. His medical condition was six months out of date and that required him to come home and get that updated.” ROI, p. 666, p. 1028. He averred he did not know Complainant’s race or EEO activity. The MSC followed the Agency’s protocol and precedent by re-patriating an employee who refused to timely obtain a physical and update his medical condition. The record shows that Complainant was removed from his assigned ship, because he refused to obtain an updated physical evaluation or update his evaluation of his chronic medical condition, while he was overseas. ROI 103, 674-682, 688-694. There were multiple medical facilities where Complainant could have gotten an updated medical status, while his assigned ship was in Singapore. MSC had designated providers that could conduct the physicals. Complainant preferred to wait to use his regular doctors. ROI, p. 103. Due to the lack of updated medical information, Complainant was required to remain at the CSU-W, while he obtained an updated physical evaluation and an updated evaluation of his chronic medical condition, which is reflected as anxiety. He then had to await appointment to an available appropriate assignment on a ship. ROI, p. 103. Complainant averred the Agency previously accepted the same medical documentation in the past and he believed the only difference this time was his EEO filing. ROI, p. 95. 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 EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case sua sponte issued a summary judgment decision in favor of the Agency. In the decision, the AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, the performance evaluation Complainant received from S1 was based on S1’s assessment of Complainant’s performance while he supervised Complainant. Further, Complainant was removed from USNS Amelia Earhart because he refused to obtain an updated physical evaluation and an updated evaluation of his chronic medical condition while overseas. Complainant was required to remain at CSU-W until he obtained an updated physical evaluation and an updated evaluation of his chronic medical condition and an appropriate assignment on a ship become available. The AJ concluded that Complainant failed to demonstrate that the Agency’s reasons were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination or reprisal as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. The instant appeal followed. 2021000968 4 ANALYSIS AND FINDINGS 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, 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. We assume for purposes of our analysis that Complainant established a prima facie case of discrimination and reprisal. The record showed that the Agency articulated legitimate, non- discriminatory reasons for its actions. S1 stated that Complainant was issued a “Good” rating because that is what his performance warranted. For example, S1 noted that Complainant failed to repair a sewer system properly and another utilityman had to correct it. S1 added that Complainant performed several other duties unsatisfactorily. Although Complainant disagreed with the supervisor’s perceptions, he did not offer evidence that the stated reasons were untrue. Further, because his paperwork was not up-to-date, he was removed from the ship pursuant to Agency procedure. ROI, p. 96. He then had to await assignment for an available ship. We note that there is no evidence demonstrating that the Medical Officer released any of Complainant’s confidential medical information to any individual who did not have a need-to-know basis in violation of the Rehabilitation Act. Moreover, Complainant did not show evidence that the named management officials in this matter harbored discriminatory animus based on his protected groups. 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. Accordingly, for the reasons stated here, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2021000968 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). 2021000968 6 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 February 9, 2022 Date