Cyrus A.,1 Complainant,v.Rick Perry, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Nov 7, 2019

0120182580 (E.E.O.C. Nov. 7, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Cyrus A.,1
Complainant,

v.

Rick Perry,
Secretary,
Department of Energy,
Agency.

Appeal No. 0120182580

Hearing No. 490-2016-00218X

Agency No. 160033AL

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 May 14, 2018, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as an Intelligence
Operations Specialist/Liaison Officer (LNO) NQ-0132-03 at the Agency’s National Nuclear
Security Administration facility in Albuquerque, New Mexico. The record reveals that
Complainant had engaged in protected activity when he filed prior EEO complaints on April 29,
2015, and June 9, 2015, alleging in both that his first-level supervisor (S1) had created a hostile
work environment in reprisal for his prior EEO complaints.

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.

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On December 14, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when:

1. During a staff meeting on October 1, 2015, Complainant’s first- and second-line
supervisors informed him that his (and his coworkers’) positions as Liaison
Officers would be dissolved, and the dissolving of the positions was pending
imminent, final upper-management approval;
2. On October 22, 2015, Complainant received an email from his first-line
supervisor, informing him that he would be restricted in his Liaison Officer
work-related travel and activities; and
3. On or about April 20, 2016, his position as Liaison Officer was terminated at
the Office of Secure Transportation Agent Operations Eastern Command
(AOEC), and he was involuntarily reassigned as a Training Specialist at the
AOEC Training Facility.

After 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 requested a hearing. Over Complainant's
objections, the AJ assigned to the case granted the Agency’s January 24, 2017, motion for a
decision without a hearing and issued a decision without a hearing on April 9, 2018.

The AJ found that Complainant did not establish a prima facie case of reprisal because the record
shows that well before Complainant filed his first EEO complaint in April, 2015, the Agency had
experienced a change in leadership on October 1, 2014, when it hired S1 as the new Liaison Branch
Chief and he initiated a review of the Liaison Outreach Program (LOP) under which Complainant
worked. Months before the first EEO charge was made, S1 informed Complainant and the other
employees that significant changes were forthcoming. Complainant himself stated that S1’s
negative attitude toward LOP was expressed during the February 23-27, 2015 meetings at which
S1 outlined preliminary guidance regarding the restructuring of alleged inefficient and costly
practices. Based on these facts, the AJ concluded that S1’s alleged “negative” attitude toward the
LOP or Complainant could not have been triggered by Complainant’s EEO activity.

Additionally, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons
for taking the complained of actions. The record showed that by September 30, 2015, talk about
the impending reorganization was circulating among the employees because the Agency had
determined that the manner in which the Liaison Officers had been conducting business was
inefficient and costly and that a reorganization would result in savings to the Agency. On October
1, 2015, Complainant was officially informed that S1 recommended that Complainant be
reassigned from his position as a Liaison Officer to a Training Specialist without loss of pay or
change in benefits. Based on this evidence, the AJ found that the Agency reorganization and
elimination of positions was motivated by notions of efficiency and cost-savings, not retaliation
for exercising EEO rights.
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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. This appeal followed.

ANALYSIS AND FINDINGS

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.

An AJ may issue a decision without a hearing only after determining that the record has been
adequately developed. See Petty v. Dep’t of Def., EEOC Appeal No. 01A24206 (July 11, 2003).
We carefully reviewed the record and find that it is adequately developed. To successfully oppose
a decision without a hearing, Complainant must identify material facts of record that are in dispute
or present further material evidence establishing facts in dispute.

We find no error in the AJ’s analysis of the evidence nor any reason in the record to set aside the
AJ’s finding of no discrimination. We agree with the Agency and AJ that Complainant failed to
produce any evidence to show that the Agency’s actions were motivated by retaliation. We note
that change in the LOP was underway months before Complainant filed his first EEO complaint.

CONCLUSION

The Commission AFFIRMS the Agency’s order finding no discrimination.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request 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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. §
1614.403(g). 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.
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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

November 7, 2019
Date