[Redacted], Percy K., 1 Complainant,v.Lloyd J. Austin, III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity Commission

Apr 5, 2021

Appeal No. 2020003153 (E.E.O.C. Apr. 5, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Percy K.,1 Complainant, v. Lloyd J. Austin, III, Secretary, Department of Defense (Defense Contract Audit Agency), Agency. Appeal No. 2020003153 Hearing No. 520-2019-00208X Agency No. DCAA-Case-NE16-004 DECISION On March 2, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 20, 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. For the following reasons, we AFFIRM the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Auditor, GS-0511- 12, at the Agency’s Long Island Branch Office in Central Islip, New York. On April 29, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American) and reprisal for prior protected EEO activity (participating as a witness in the EEO process for another employee on December 16, 2014) under Title VII of the Civil Rights Act of 1964. Following several amendments to the complaint, the Agency accepted the following claims of discrimination 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. 2020003153 2 1. On May 8, 2015, Complainant’s second-level supervisor (S2) tried to deny Complainant’s request to leave work early on that day. Complainant requested the leave to care for a family member due to a medical situation; 2. On July 22, 2015, S2 accused Complainant of refusing to do work for the Senior Auditor who was serving as Acting Supervisor; 3. On September 10, 2015, S2 verbally denied Complainant’s request to be reassigned to the Garden City Sub Office; 4. On February 16, 2016, S2 called Complainant and pressured him to come into the office to work although his first level supervisor (S1) had approved him to telework at home due to inclement weather; 5. On February 25, 2016, S2 told Complainant in a mid-year review memorandum that he could no longer telework due to his performance having fallen below the “Fully Successful” level; and 6. On February 25, 2016, S1 gave Complainant a mid-year review memorandum and told Complainant that his performance had fallen below the “Fully Successful” level. Complainant also alleged discrimination based solely on reprisal (participating as a witness in the EEO process for another employee on December 16, 2014) when: 7. On or about July 5, 2016, Complainant became aware of information and has documentation to support that his performance appraisal covering the period of July 1, 2014 to December 27, 2014, which was signed by S2 on February 11, 2015, should have been above “Fully Successful.” Complainant also alleged that this newly acquired information also affected his overall evaluation for the year dated August 11, 2015, which covered the period between December 28, 2014 to June 30, 2015; 8. On October 1, 2016, Complainant’s coworkers were moved to different teams, but he was not moved to a different team and location; and 9. On September 6, 2016, Complainant received a “Minimally Successful” performance appraisal for the period of July 1, 2015 to June 30, 2016. After its investigation into the complaint, 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. During the hearing process, Complainant filed a motion to amend his complaint to include an additional eight claims. On September 18, 2018, the assigned AJ granted Complainant’s motion, in part, and amended the complaint to include the following six claims of discrimination when: 10. On May 5, 2017, S1 rated him as “Minimally Successful” in his annual performance appraisal even though the work he performed was sufficient for the Agency to open a fraud investigation against the contractor he had been auditing; 11. On October 4, 2017, management maintained the performance rating as “Minimally Successful” during his mid-year evaluation; 2020003153 3 12. On October 24, 2014, S2 issued him a “Letter of Reprimand,” because he provided investigative support (to a federal agent and investigative division) instead of performing a voucher review as regular audit work; 13. On November 14, 2017, S1 placed him on a performance improvement plan (PIP). The assignment given was later canceled on or about April 27, 2018, because the assignment was un-auditable; 14. On June 25, 2018, the Regional Audit Manager instructed S2 not to be involved in the performance plan but on July 17, 2018, S2 defied the directive; and 15. As of August 10, 2018, Complainant remained on a PIP (since November 2017) in retaliation for participating as a witness in an EEO case/process. Thereafter, on March 7, 2019 and May 22, 2019, Complainant filed additional motions to amend his complaint to include two additional claims of discrimination when: 16. On February 14, 2019, a “Notice of Proposed Removal for Unacceptable Performance” was issued. Management maintained that Complainant’s performance was unacceptable; and 17. Complainant’s removal was proposed, and he was subsequently removed from his position, effective May 22, 2019. The Agency subsequently submitted a motion for a decision without a hearing, which Complainant timely opposed. The Agency then filed a reply. On February 14, 2020, the AJ issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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 to produce evidence to support a finding that the Agency was motivated by discriminatory animus. 2020003153 4 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. Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that the AJ correctly determined that the preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision 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). 2020003153 5 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. 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 5, 2021 Date