[Redacted], Travis H., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Oct 11, 2022

Appeal No. 2021004192 (E.E.O.C. Oct. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Travis H.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2021004192 Hearing No. 570-2017-00687X Agency No. EPA-2016-0078-HQ DECISION On July 17, 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 July 21, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 At the time of events giving rise to this complaint, Complainant worked as a Toxicologist at the Agency’s Health Effects Division in the Office of Pesticides Program in Crystal City, Virginia. On June 22, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), religion (Christian), disability (physical), age (56), 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. 2021004192 2 1. On February 9, 2016, Complainant was not selected for the Toxicology Science Advisory Council (ToxSAC), Chair position in the Office of Pesticides Program (OPP), Health Effects Division (HED), by supervisory toxicologist (Supervisor 1); 2. On February 23, 2016, Complainant was not permitted to take benchmark dose training; 3. On February 23, 2016, Complainant was not permitted to participate in metabolism training; 4. On or about July 2014 a management official (Manager) made disparaging remarks about Complainant’s religion, political affiliation, and home state of Iowa; 5. On or about September 2009, a supervisor (Supervisor 2), called Complainant “old man” and told him to “shut up”; 6. On September 1, 2016. he was advised that he was not selected for Vacancy Announcement No. R-OCSPP-MP-2016-0035; and 7. On September 1, 2016, he was advised that he was not selected for Vacancy Announcement No. R-OCSPP-MP-2016-0026. 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on June 17, 2021. In the AJ decision, the AJ found that while Complainant firmly believed he was the most qualified candidate, with plainly superior qualifications, he failed to present sufficient evidence that the Agency deviated from its established policies and procedures; subjected him to a process or standards different from similarly situation employees outside of his protected classes; or targeted him illegitimately because of his protected class. The AJ noted that at the heart of Complainant's arguments was his dissatisfaction and personal grievances that management failed to acquiesce to his subjective preferences. The AJ likewise found that Complainant’s claims of a hostile work environment were rooted in normal workplace disputes. 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. The instant appeal followed. 2021004192 3 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). As noted by the AJ, Complainant has attempted to support his case primarily by asserting his beliefs and opinions. Moreover, Complainant's complaints of a hostile work environment appear to be normal workplace tribulations. While Complainant has made extensive arguments on appeal, he has not pointed to any genuine dispute in material fact. Rather, Complainant has made an attempt to disqualify the AJ by referring to the AJ’s background and personal life, asserting unfounded claims of bias. Such bare assertions are not persuasive, nor do they advance the merits of Complainant’s case. At no point in Complainant’s appeal has Complainant presented evidence which would unsettle the AJ decision. In sum, 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). 2021004192 4 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. The court has the sole discretion to grant or deny these types of requests. 2021004192 5 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 11, 2022 Date