[Redacted], Tommy C., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 24, 2021

Appeal No. 2020000977 (E.E.O.C. Mar. 24, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy C.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2020000977 Hearing No. 430201700247X Agency No. ARBRAGG16OCT04051 DECISION Complainant timely appealed, pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 4, 2019 Final Order concerning an 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Operations Center Manager, GS-13, at the 1st Sustainment Command (Forward) U.S. Army Central Theater, in Fort Bragg, North Carolina.2 On October 27, 2016, Complainant filed a Formal EEO Complaint alleging that he was subject to unlawful retaliation for prior and ongoing EEO activity resulting in disparate treatment and a hostile work environment 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. 2 As of February 15, 2017, the mission of the 1st Theater Sustainment Command was to be relocated from Fort Bragg, North Carolina to Fort Knox, Kentucky. However, on February 13, 2017, Complainant already tendered his resignation, effective March 17, 2017. 2020000977 2 (a) On September 22, 2016, Complainant became aware that his second-level supervisor (“S2”) [who was named in Complainant’s prior and open EEO actions] purposefully excluded him from staff supervisory meetings, which resulted in Complainant not nominating his subordinate employees for awards; (b) On September 22, 2016, Complainant became aware that he would not receive an annual incentive award; and (c) On October 13, 2016, Complainant became aware that S2 refused to adjust the rating scheme by placing Complainant under a supervisor with a GS-12 equivalent grade level, thereby demeaning Complainant and his GS-13 position. On November 2, 2016, the Agency issued a Letter of Acceptance and Partial Dismissal, which accepted Claims (a) and (b) for investigation, but dismissed Claim (c) for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a). After its investigation into Claims (a) and (b), 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 Agency submitted a motion for a decision without a hearing. Complainant’s June 21, 2019 response to the Agency’s motion included a challenge to its dismissal of Claim (c). The AJ determined that Complainant waived his right to further pursue Claim (c) and declined to disturb the Agency’s dismissal. With respect to Claims (a) and (b), the AJ, over Complainant’s objections, issued a decision by summary judgment in favor of the Agency on September 1, 2019. The Agency 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. 2020000977 3 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 in Complainant’s favor. A complainant can establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 802 (1973)). Specifically, in reprisal, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) the complainant engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, complainant was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. The record reflects that on October 28, 2015, Complainant filed an earlier EEO complaint (Agency Case No. ARBRAGG15OCT0485) alleging that he was subjected to a hostile work environment and discrimination based on race and reprisal for prior EEO activity (Agency Case No. ARBRAGGl50CT04400). S2 was aware of both EEO complaints, which identified him as a responding management official. On December 7, 2015, Complainant and the Agency resolved the matter by entering into a negotiated settlement agreement. In February and March 2016, Complainant notified the Agency that it was in breach of the agreement. After the Agency determined that it was not in breach, Complainant appealed to the Commission. In EEOC Request No. 0520160455 (May 18, 2018), the Commission determined that Agency had provided sufficient evidence that it met all of its obligations under the agreement. Although Complainant’s protected EEO activity described above was ongoing through the relevant time frame for the instant complaint, he has not shown that S2 was aware of it, as is required for a prima facie case for reprisal. The most recent evidence that S2 was aware of Complainant’s protected EEO activity was from November 2015, when an EEO counselor contacted S2 about the EEO complaint that was later resolved by the December 7, 2015 agreement. S2 did not sign the agreement and was not involved with the provision at issue in Complainant’s breach claim. Moreover, the matter in the underlying complaint would have appeared resolved when Complainant was promoted to GS-13 on May 15, 2016. These time frames are too distant to create a temporal nexus giving rise to an inference of reprisal in relation to the allegations in Claims (a) and (b). Complainant also discusses his involvement with an internal investigation of S2’s leadership that took place during summer and fall of 2016. Assuming, arguendo, that S1 was aware of this investigation at the time of the alleged discriminatory acts in the instant complaint, it is insufficient to establish a prima facie case of reprisal under Title VII because Complaint offers no evidence that the internal investigation constituted protected EEO activity. 2020000977 4 Complainant argues that a hearing is warranted because a question of fact and credibility exists, with respect to S2’s proffered legitimate nondiscriminatory reasons for the actions in Claims (a) and (b). S2 explained that he left Complainant off of the email instructing supervisors about recommending subordinates for awards, and later excluded Complainant and his team from consideration for awards, because Complainant was on annual and sick leave. Complainant contends that S2 was aware that he had access to his emails while on leave through his government-issued cell phone. He also asserted that prior to his protected EEO activity, he was included in all email traffic related to his staff, such as leave, awards, and schedules regardless of his leave status at the time. He also cites an instance on August 18, 2016, when his team was singled out for EEO training, and the management official convening the training allegedly stated that the training was intended to be “a warning shot for those folks that think they cannot be touched.” Complainant does not explain how S2 would have been aware of his recent EEO activity, and, other than his assertions, Complainant has not offered any evidence linking these instances to the earlier protected EEO activity that S2 knew about. As Complainant did not establish a prima facie case for reprisal, dismissal by summary judgment was proper. Having carefully reviewed the evidence of record and the AJ’s decision, 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. Dismissal of Claim (c) The AJ properly deemed Complainant to have waived his right to appeal the Agency’s dismissal of Claim (c). The record reflects that on February 26, 2018, the AJ issued an Acknowledgement and Order, which, among other things, provided the parties with thirty calendar days “to identify any claims the Agency has dismissed from the complaint during the agency investigative process, pursuant to 29 C.F.R. § 1614.107(a), and to comment on the appropriateness of each dismissal.” Afterward, the AJ would determine whether the dismissal was proper and whether to reinstate the dismissed claims. See 29 C.F.R. § 1614.107(b). The Order also specified that “if the complainant fails to oppose in writing the dismissal of a claim within the thirty-day comment period, the opportunity to have the dismissal reviewed by the AJ shall be deemed waived.” There is no evidence in the record that Complainant raised Claim (c) with the AJ within the thirty-day time frame provided. On appeal, Complainant offers no explanation for the delay that would allow the Commission to revive Claim (c) and consider it as part of his complaint. CONCLUSION Accordingly, we AFFIRM the Agency’s Final Order adopting the AJ’s decision. 2020000977 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). 2020000977 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 March 24, 2021 Date