[Redacted], Ty S., 1 Complainant,v.Debra A. Haaland, Secretary, Department of the Interior, Agency.

Equal Employment Opportunity Commission

Mar 28, 2022

Appeal No. 2021001900 (E.E.O.C. Mar. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ty S.,1 Complainant, v. Debra A. Haaland, Secretary, Department of the Interior, Agency. Appeal No. 2021001900 Hearing No. 570-2019-00661X Agency No. DOI-OS-18-0295 DECISION On January 28, 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 January 26, 2021 final order 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. BACKGROUND During the period at issue, Complainant worked as an Audit and Oversight Specialist with the Agency’s Office of the Chief Information Officer (OCIO). Complainant worked remotely. On May 4, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), color (Black), and reprisal for prior protected EEO activity. By letter dated July 20, 2018, the Agency determined Complainant’s complaint for investigation and determined that it was comprised of the following claims: 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. 2021001900 2 1. On March 23, 2018, [Complainant’s] first-level supervisor (S1)] issued [him] a Letter of Counseling that [he was] not allowed to formally contest or rebut; 2. On or about April 10, 2018, after [Complainant] requested a new supervisor from [his] [fourth-level supervisor, (S4)], [S1] sent [him] a threatening email asking [him] when [he] would like to receive [his] mid-year performance review. 3. On June 27, 2018, management initially assigned [Complainant’s second-level supervisor, (S2)] and subsequently a [named Human Resources Specialist (HR1)], both named responsible management officials in [his] existing EEO complaint to conduct a separate investigation into the harassment claim identified in [his] EEO complaint; and 4. On July 5, 2018, after speaking with [HR1], the Office of the Inspector General (OIG) closed his complaint and referred him to the Office of Personnel Management of the Merit Systems Protection Board.2 The Agency accepted claims (1) - (3) for investigation. However, the Agency dismissed claim (4) for failure to state a claim, reasoning that a complaint about an OIG referral to the MSPB did not state a claim in the EEO complaint process.3 After an 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. Complainant filed Motions for Partial Summary Judgment on May 26, and June 4, 2020. On June 5, 2020, the Agency filed a Motion for Summary Judgment (Agency’s Motion). Complainant filed an opposition to the Agency’s Motion and the Agency filed a Reply to Complainant’s opposition. On December 31, 2020, the AJ issued a decision without a hearing in favor of the Agency. The AJ found that the Agency articulated legitimate, nondiscriminatory reasons for its actions. The AJ further found that Complainant failed to establish that the Agency’s articulated reasons were pretext for discrimination and/or retaliation. Regarding claim (1), the Letter of Counseling, the AJ found that, “[S1] stated that he was issuing the letter because of Complainant’s repeated failure to perform assigned work and properly submit his work and communicate about the work that he was completing.” 2 The record reflects that some of these claims were amendments to the initial complaint. 3 Complainant does not expressly contest on appeal the dismissal of claim (4). Therefore, we decline to address it further herein. 2021001900 3 Regarding claim (2), Complainant not being provided a new supervisor, the AJ found that S2 stated that based on Complainant’s duties, management did not have another supervisor to assign to him and that S1 provided him the option of reporting to a team leader but Complainant declined. Regarding the email from S1, the AJ found that S1 asserted that the email requested that Complainant schedule a time for the mid-year review and that he sent the same email to the other employees he supervised. Regarding claim (3), the Agency’s internal investigation of Complainant’s harassment claims, the AJ found that Agency policies required that it conduct an investigation of Complainant’s harassment claims. HR1 stated that once she learned that S2 was a subject of the complaint, she offered to interview Complainant instead of S2, but Complainant declined to participate in the interview. The AJ further found that Complainant failed to establish that the Agency’s articulated reasons for its action were pretext for discrimination and/or retaliation. In addition, under a harassment analysis, the AJ found that Complainant failed to establish that the Agency’s actions were based on his protected classes. On Janaury 26, 2021, the Agency issued a final order implementing the AJ’s decision without a hearing finding no discrimination. The instant appeal followed. In response, the Agency filed an opposition brief on March 29, 2021. The Agency noted that Complainant had not filed a brief in support of his appeal and requested the uphold the AJ’s decision without a hearing finding no discrimination. On March 30, 2021, Complainant filed a document claiming that he initially submitted an appeal brief via the EEOC Portal on the same date he filed his appeal on January 28, 2021. However, Complainant asserts that the portal only included a single page (out of a 33-page document) containing his EEOC Appeal Number. Complainant resubmitted a copy of his January 28, 2021 appeal brief. In addition, Complainant requested that OFO sanction the Agency for failing to timely submit an opposition brief within sixty days of his January 28, 2021 appeal and for the Agency’s failure to timely submit the record to OFO within thirty calendar days of his January 28, 2021 appeal. In Complainant’s brief dated January 28, 2021, Complainant asserts that the AJ did not attach to her decision a copy of his appeal rights. Complainant’s further asserts that the AJ improperly ignored his three motions (A motion to Compel and two Motion for Partial Summary Judgment). 2021001900 4 ANALYSIS AND FINDINGS Complainant’s Appeal Brief Complainant filed his appeal on January 28, 2021. Therefore, Complainant’s brief was due by March 1, 2021.4 Complainant’s appeal brief was uploaded to the EEOC Portal on March 30, 2021 beyond the deadline. However, Complainant asserts that he initially filed his brief on January 28, 2021, the same date he filed his appeal. Complainant asserts that although he was notified via the portal that his brief uploaded, only one page of his brief was actually uploaded. The record does contain a document uploaded to the EEOC Portal by Complainant on January 28, 2021, which contains only one page, with the appeal number. Based on these circumstances, we find Complainant’s brief to be timely and we will consider it herein. Complainant’s Request for Sanctions Our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep't of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional. As the Commission stated in Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must insure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant's claims. Id. We deny Complainant’s request for sanctions against the Agency because we find that the Agency complied with the timeframes at issue. Complainant requests that we sanction the Agency for not timely submitting the case file to OFO and not timely submitting its response brief. According to Commission regulations, the Agency was required to submit the complaint file to OFO within 30 days of initial notification that Complainant filed an appeal. 29 C.F.R. § 1614.403(e). Thirty days from January 28, 2021, is Saturday, February 27, 2021. Thus, the deadline was extended to March 1, 2021, the next business day. 29 C.F.R. 1614.604(d). Commission records reflect that the Agency submitted various files (including the Report of Investigation, complaint file and documents once this case was before an EEOC AJ) between January 28, 2021-March 1, 2021. Thus, we find that the Agency timely submitted the record to OFO. We also find that the Agency timely submitted its response brief. As discussed above, due to technical problems, Complainant did not file his full brief until after the Agency filed its March 29, 2021 response brief. Thus, according to Commission regulations, the Agency had sixty days from Complainant’s appeal, January 28, 2021, to file its opposition brief. 29 C.F.R. § 1614.403(f). 4 Thirty calendar days from January 28, 2021 is Saturday, February 27, 2021. Thus, the deadline was extended to the next business day, March 1, 2021. 29 C.F.R. § 1614.604(d). 2021001900 5 Thus, the Agency had until March 29, 2021 to submit its response brief and its March 29, 2021 brief is timely. Based on the foregoing, we do not find sanctions are warranted in the instant matter. AJ’s Summary Judgment Decision The Commission’s regulations allow an AJ to issue a decision without a hearing upon finding that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). EEOC’s decision without a hearing regulation follows the summary judgment procedure from federal court. Fed. R. Civ. P. 56. The U.S. Supreme Court held summary judgment is appropriate where a judge determines no genuine issue of material fact exists under the legal and evidentiary standards. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a summary judgment motion, the judge is to determine whether there are genuine issues for trial, as opposed to weighing the evidence. Id. at 249. At the summary judgment stage, the judge must believe the non-moving party’s evidence and must draw justifiable inferences in the non-moving party’s favor. Id. at 255. A “genuine issue of fact” is one that a reasonable judge could find in favor for 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 “material” fact has the potential to affect the outcome of a case. 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 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. To the extent that Complainant argues that the AJ improperly ignored three motions, we disagree. The AJ, in her December 31, 2020 decision, denied Complainant’s motions for partial summary judgment based on her decision that the record warranted a decision without a hearing in favor of the Agency. AJ Decision at fn. 1. The AJ’s denial of these motions was proper based on our concurrence that the record warrants a decision by summary judgment in favor of the Agency, as discussed below. We further find that the AJ, on May 22, 2020, properly denied Complainant’s May 12, 2020 Motion to Compel Responses to Discovery. The AJ found Complainant’s Motion to be untimely based on the discovery timeframes set forth in the AJ’s February 4, 2020 Case Management Order. We find the AJ’s denial of this motion to be proper. Even assuming arguendo that Complainant’s Motion to Compel was timely, we find that the record was adequately developed for a decision without a hearing. 2021001900 6 To the extent Complainant asserts that the AJ’s decision did not include appeal rights, we find this to be harmless error. The record reflects that the Agency’s January 26, 2021 final order provided Complainant appeal rights. Complainant subsequently timely filed an appeal with OFO. A claim of disparate treatment is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For complainant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency’s actions were motivated by discrimination. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). The Agency articulated a legitimate, nondiscriminatory reason for issuing the Letter of Counseling (LOC) to Complainant on March 23, 2018. The record contains a declaration of penalty of perjury from S1. Therein, S1 asserts that he issued Complainant the LOC to encourage him to perform the work assigned. S1 stated that Complainant had not submitted any assigned work since the implementation of his performance plan on November 9, 2017. Report of Investigation (ROI) at 200. The record also contains a copy of the March 23, 2018 LOC to Complainant from S1. Therein, S1 stated that Complainant has failed to perform assigned work, communicate with S1 regarding his assigned tasks, and did not provide the location of his saved work. ROI at 203-204. The Agency articulated legitimate, nondiscriminatory reasons for the actions identified in claim (2), not being assigned a new supervisor and S1 sending an email to Complainant regarding mid- year performance reviews. Complainant’s fourth-level supervisor (S4) stated, in a declaration under penalty of perjury, that Complainant’s qualifications for IT security compliance and oversight did not fit in with the needs in the OCIO’s other groups. ROI at 179. 2021001900 7 Complainant’s second-level supervisor (S2) asserted that S1 offered for Complainant to work for a team leader, but Complainant declined. ROI at 154. In addition, S1 asserts in a declaration that he sent an email to Complainant on April 10, 2018 asking Complainant when he would like to discuss his mid-year performance, because supervisors are directed to conduct mid-year reviews with their employees. S1 asserted that he sent a similar message to his other employees around the same time. ROI at 202. The record contains copies of emails from S1 dated April 10, 2018 sent to other employees asking them when they would like to discuss their mid-year performance. ROI 208-212. The Agency articulated legitimate, nondiscriminatory reasons for the Agency’s actions identified in claim (3), that HR1 and S2 were involved in investigating his harassment claims. HR1, in her declaration, asserts that Complainant’s harassment allegations triggered the Agency’s Policy on Prevention and Elimination of Harassing Conduct. ROI at 220. HR1 asserted that the policy requested an intake interview with the employee. Id. HR1 asserts that she reached out to S2 to conduct the interview because Complainant’s claim involved a LOC by S1. Id. HR1 asserted that Complainant subsequently contacted her that S2 was also named in his harassment claim. Id. HR1 asserted that she contacted Complainant and offered that she would conduct the interview and gave him the option to provide written responses to the interview questions but Complainant declined to participate. Id. We further find that Complainant failed to show that the Agency’s articulated reasons for its actions were pretext for discrimination and/or retaliation. Finally, we find that Complainant failed to establish a prima facie case of harassment. As discussed above, we found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, which Complainant failed to establish was pretext for discrimination and/or retaliation. Thus, we find that Complainant failed to establish that the alleged harassing conduct was based on his protected classes. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order implementing the AJ’s decision without a hearing 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 2021001900 8 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). 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. 2021001900 9 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 28, 2022 Date