0120140178
08-30-2016
Stephen F.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stephen F.,1
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120140178
Hearing No. 570-2011-00701X
Agency No. DOE100079HQNN
DECISION
On October 24, 2013, Complainant filed an appeal from the Agency's September 25, 2013, 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, the Commission AFFIRMS the Agency's final order.
ISSUES PRESENTED
Whether substantial evidence supports the Equal Employment Opportunity Commission Administrative Judge's (AJ's) finding that the Agency did not discriminate against, or subject Complainant to harassment based on race, color, national origin, religion, and in reprisal for protected EEO activity when it did not promote him; gave him "arbitrary and secret" assignments; reassigned him; did not provide information about his 2009 performance evaluation; changed his job classification; threatened to discipline him; required him to relocate; and failed to provide him meaningful assignments.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Nuclear Engineer at the Agency's National Nuclear Security Administration (NNSA), NA-17, in Washington, D.C. In February 2006, Complainant was selected for a detail assignment as a Senior Technical Advisor to the NNSA Principal Deputy Administrator (PDA1), which was extended multiple times. The PDA1 retired from the Agency in July 2006, and Complainant stated that prior to his retirement, the PDA1 promised him a promotion.
A new Principal Deputy Administrator (PDA2) was appointed in April 2007. The PDA2 and Complainant had discussions about Complainant's future, following his detail assignment. Complainant stated that the PDA2 instructed him to prepare a position description for a permanent position of a Senior Technical Advisor, at the excepted service, level five. In April 2008, Complainant met with a Supervisory Human Resources Specialist (SHRS), who explained that the process would involve approval by the Executive Resources Board. The SHRS spoke with the PDA2's assistant, who stated that the Agency did not intend to promote Complainant to level five, but that they might consider level four. The SHRS stated that no one instructed her to take any further action.
Also in April 2008, Complainant discussed the possibility of his reassignment to NA-50 with its then Director (D1), following the end of his detail assignment. On January 8, 2009, Complainant learned that he was reassigned to NA-50, and that his job title was changed from Nuclear Engineer to General Engineer, effective August 2008. However, Complainant remained on detail until the PDA2 left the Agency in April 2009. Complainant was again informed that he was reassigned to NA-50, but started a detail assignment to NA-26, effective April 20, 2009. Complainant requested that his job title change back to Nuclear Engineer. In November or December 2009, Complainant learned that he had been given a default performance rating of "Fully Meets Expectations."
In April 2010, Complainant met with the Director, NA-50 (D2), who informed him that he was being reassigned to NA-56, in Germantown, Maryland.
On May 21, 2010, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Indian-American), national origin (India), and color (dark brown) when:
1. he was denied a promotion, raise, or bonus when he was detailed or assigned throughout the NNSA, and when he was denied the opportunity to return to his original organization;
2. he was given arbitrary and secret assignments and reassignments, and was denied requests for help to continue working in his area of expertise;
3. his fiscal year 2009 performance rating was not shared with him, his managers were not asked for input, he did not know who conducted his appraisal, and he did not know the basis of his appraisal;
4. his job classification was changed from Nuclear Engineer to General Engineer, and he was not informed of this action for five months;
5. on April 6, 2010, D2 threatened him with discipline, including possible removal from federal service, if he did not relocate to the Germantown location.
Complainant also alleged that he was discriminated against, and subjected to a hostile work environment, on the bases of race, national origin, color, religion (Hindu), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
6. he was required to relocate to Germantown, and when he did, he was denied opportunities to work on NNSA initiatives or nuclear projects; and
7. his supervisors failed to assign him meaningful assignments, and assigned him to lead a project that was "on hold for lack of funding and other issues."
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 Administrative Judge. Complainant timely requested a hearing; the AJ held a hearing on August 8-9, 2013, and issued a decision on September 10, 2013.
The AJ found that Complainant had established a prima facie case of discrimination based on race, national origin, color, and in reprisal for prior EEO activity; and then found that the Agency articulated legitimate, non-discriminatory reasons for its actions. For example, the AJ found that Complainant was not, and could not be, guaranteed a promotion; he refused to submit a performance appraisal for 2009; and the inadvertent change to his job classification was ultimately corrected.
Additionally, the AJ found that Complainant's assertion that the Agency orchestrated the extensions for his detail assignment was "illogical," and that he requested the extensions because he wished to stay until he received a permanent promotion. The AJ noted that in 2008, a "shift in power" occurred as a result of the election of a Democratic president, following two terms of a Republican president, and that Complainant was the only employee who remained in his position after the shift, because of his desire to do so. The AJ also found that Complainant was a "floating employee who had been in limbo of his own creation, as he tried to wait for a promotion."
The AJ concluded that Complainant did not demonstrate that his failure to receive a promotion, and all the events which followed, were due to his color, race, religion, national origin, or in reprisal for prior EEO activity. Additionally, the AJ found that the alleged incidents of harassment were not sufficiently severe or pervasive to rise to the level of creating a hostile work environment because he had not shown that they were frequent; extended over a long period of time; or were physically threatening or humiliating.
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. Complainant filed the instant appeal, and submitted a statement in support of his appeal. The Agency filed an opposition brief on November 14, 2013.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the AJ erred when she misunderstood or missed evidence contained in the record. Specifically, Complainant alleges that the AJ erred in finding that:
1. his detail extensions were executed at his request because he wished to stay until he received a promotion;
2. he was the only detailed or permanent staff member who remained in his position after the "shift in power," following an administration change; and
3. the Agency was faced with a "floating employee who had been in limbo of his own creation, as he tried to wait for a promotion."
The Agency counters that the AJ's findings are correct and supported by substantial evidence in the record.
STANDARD OF REVIEW
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at � VI.B. (Aug. 5, 2015).
ANALYSIS AND FINDINGS
The Commission has the discretion to review only those issues specifically raised in an appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, 9-10 (August 5, 2015). On appeal, Complainant only argues that the AJ erred when she found that Complainant's detail was extended because he wished to stay; that he was a "floating employee;" and that he was the only employee who stayed in his position after the administration change.
In support of Complainant's assertion that he did not request to extend his detail, or that he was a "floating employee," he argues that the record shows that he wished to go back to his home office. Complainant states that the AJ missed the evidence in his home office supervisor's (S1's) affidavit. S1 stated that he knew that Complainant wanted to return.2 However, at the hearing, the Director, Office of Human Capital Management testified that Complainant did not want to go back and that he was working to find a suitable placement for him; and that Complainant was not happy when he was informed of his assignment to NA-50 because "he was being taken away from the front office." The Chief Human Capital Officer (CHCO) also testified that Complainant asked not to go back; and when Complainant was presented with post-detail options, including returning to his home office, he "wasn't really pleased with any one of those." Additionally, the D2 testified that he considered Complainant to be a "floating employee" because he had served on "many details to many places for an extended period of time." As such, we find substantial evidence in the record to support the AJ's finding that Complainant wished to remain on detail, which created his "floating employee" status.
Complainant also argues that he was not the only employee who remained after the power shift. However, he does not name any other employees who stayed; or specify how the AJ erred in making her determination. We note that the CHCO testified that Complainant's detail was to serve a political appointee, who was temporary, and that when a new appointee came in, the Agency moved the "career people" back. Accordingly, we find that substantial evidence supports the AJ's finding that Complainant was the only employee who decided to remain in his position after the power shift.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order adopting the AJ's finding that Complainant had not shown that the Agency discriminated against, or subjected Complainant to harassment based on race, color, national origin, religion, and in reprisal for protected EEO activity when it did not promote him; gave him "arbitrary and secret" assignments; reassigned him; did not provide information about his 2009 performance evaluation; changed his job classification; threatened to discipline him; required him to relocate; and failed to provide him meaningful assignments.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__8/30/16________________
Date
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 S1 did not testify at the hearing.
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