[Redacted], Zachariah W., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor, Agency.

Equal Employment Opportunity Commission

Apr 5, 2022

Appeal No. 2022001546 (E.E.O.C. Apr. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachariah W.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor, Agency. Appeal No. 2022001546 Hearing No. 531-2019-00638X Agency No. 18-03-083 DECISION 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 December 27, 2021, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. At the time of events giving rise to this complaint, Complainant worked as a Criminal Investigator/Special Agent at the Agency’s Office of Inspector General at the Regional Office in Philadelphia, Pennsylvania. On May 1, 2017, the Agency proposed Complainant’s removal for not being medically fit for his position. The parties subsequently entered into a settlement agreement and the Agency agreed to refrain from acting on the proposed removal and place Complainant on a leave without pay status pending the processing of his disability retirement application. If Complainant’s disability retirement application was denied, Complainant agreed that he would resign. Complainant’s disability retirement was approved on January 26, 2018, with an effective date of February 3, 2018. Report of Investigation (ROI) at 411-13, 426-8, 451- 2, 1183. 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. 2022001546 2 On May 31, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on disability (autoimmune disorder) and in reprisal for prior protected EEO activity, when: 1. on February 2, 2018, after Complainant’s physician cleared Complainant to return to work without limitations, his request for reinstatement to his prior position was denied; and 2. on January 7, 2019, Complainant was unable to apply to Vacancy Announcement No. MS-10-OIG-OSI-13, because the vacancy was limited to current federal employees.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that Complainant did not establish a prima facie case of discrimination based on disability or in reprisal for protected EEO activity. However, even assuming that he had, the AJ held that the Agency articulated legitimate reasons for its actions. For claim 1, the Agency did not pursue Complainant’s request for reinstatement because his disability retirement was approved two days after his request. In addition, the letter approving Complainant’s disability retirement described how disability retirement can end, including the submission of a written and signed statement of medical recovery that Complainant would voluntarily submit. However, there was no evidence in the record that Complainant ever attempted to withdraw his disability retirement application or sought to show that he had medically recovered after it was accepted. Regarding claim 2, the Agency explained that the vacancy was for a temporary position due to an employee’s military deployment and it decided that borrowing another individual from another component who was already familiar with the job and programs was the most efficient manner to fill the position. The AJ then determined that Complainant offered no evidence that the Agency’s explanations were unworthy of credence or a pretext for a discriminatory motive. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 2 The Agency initially accepted two additional claims. The Administrative Judge (AJ) dismissed them as untimely and noted that Complainant did not allege harassment in his opposition to the Agency’s Motion for Summary Judgment. The Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not contest the AJ’s dismissal of these claims; as such, we will not address them in the instant decision. 2022001546 3 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 factfinder 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. (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). 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 he 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 has failed to establish such a dispute. Through his attorney, Complainant asserts that the “most significant” questions of material fact are relevant to whether Complainant’s disability retirement status precluded, or otherwise required the Agency to not reinstate him to his former position; and he alleges that the Agency prevented his return to work when it “specifically delayed” its response to his request for reinstatement until after his retirement application was approved. Complainant Appeal Brief at 10-11. However, Complainant did not cite to any evidence to show a genuine dispute of any material facts and mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant also asserts that there is a need for credibility assessments. Complainant claims that, when he informed the Agency of his request for reinstatement, the Assistant Counsel to the Inspector General responded that he should not expect an immediate response that week due to “a variety of illnesses and scheduling issues,” but she began to inquire about the status of Complainant’s disability retirement application, seeking to hurry the process along. Complainant Appeal Brief at 12. However, Complainant only offers speculation that the Agency sought to “hurry” the processing of his retirement application, which was handled by another federal agency and he provided no evidence to contradict the Assistant Counsel’s statement that Complainant should expect a delay in a response due to “a variety of illnesses and scheduling issues.” In addition, Complainant contends that the Agency was seeking to use his disability retirement as a pretextual reason for the denial of reinstatement. 2022001546 4 However, Complainant ignores their settlement agreement. On January 31, 2018, Complainant’s then attorney acknowledged that the approval of Complainant’s disability retirement application “effectively fulfills” the settlement agreement. As such, the Agency declined to consider Complainant’s request for reinstatement. ROI at 399, 401. We find that Complainant’s disability retirement was not a pretextual reason for the denial of his reinstatement; rather, it was the fulfillment of the executed settlement agreement.3 For claim 2, Complainant avers that the Special Agent in Charge (SAC) who drafted Vacancy Announcement MS-19-OIG-OSI-13 testified that she used the same position description for this vacancy announcement as she had used before, but she did not state that in those prior instances, the vacancy was similarly limited to Agency employees or Interagency Career Transition Assistance Plan candidates. Complainant Appeal Brief at 13. However, we find that this is not a material fact because whether these earlier positions were similarly limited does not have the potential to affect the outcome of this case. For the vacancy at issue, SAC provided specific testimony that this temporary vacancy was limited to internal candidates to backfill a position for the deployment timeframe and to avoid the addition of an employee who would accrue extra salary and benefits. SAC added that, after the position ended, both the deployed employee and selectee would return to their respective positions. ROI at 1106-7. The selectee’s application confirms that he was a current employee with the Agency. ROI at 1148. We note that Complainant did not provide any arguments or evidence to dispute SAC’s proffered reasons. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. 3 We note that the settlement agreement did not include any provision regarding reinstatement. 2022001546 5 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. 2022001546 6 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, 2022 Date