[Redacted], Alden V., 1 Maximo S., Kenneth M., Al W, Complainants,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Feb 28, 2022

Appeal Nos. 2022000368, 2022000370, 2022000371, 2022000390 (E.E.O.C. Feb. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alden V.,1 Maximo S., Kenneth M., Al W, Complainants, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal Nos. 2022000368, 2022000370, 2022000371, 2022000390 Hearing Nos. 480-2020-00708X, 480-2020-00706X, 480-2020-00707X, 480-2020-00705X Agency Nos. ARZAMA19SEP03377, ARZAMA19SEP03374, ARZAMA19SEP03375, ARZAMA19SEP03373 DECISION Complainants filed appeals, pursuant to 29 C.F.R. § 1614.403, from the Agency’s September 29, 2021, final actions concerning their equal employment opportunity (EEO) complaints 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. 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 actions. At the time of events giving rise to this complaint, Complainants all managed recreation activities and facilities at the Agency’s Torii Station in Okinawa, Japan. Complainant 1 was employed as a Recreation Specialist, Facility Manager, NF-0188-04, and managed the scuba shop. Complainant 2 was employed as an Assistant Aquatics Manager, NF-0030-03, and 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. 2022000368 2 managed the pool. Complainant 3 was employed as a Supervisory Sports Specialist, NF-0030-4, and managed the gym and sports activities. Complainant 4 was employed as a Recreation Specialist, Facility Manager, NF-0188-04, and managed equipment checkout and beach facilities. In November and December 2019, Complainants filed EEO complaints alleging that they were subjected to discrimination based on race (Caucasian), sex (male), and age (over 4), when the Agency eliminated their positions effective January 15, 2020. The Agency consolidated the complaints for joint processing during the investigation. After its investigation into the complaints, the Agency provided Complainants with a copy of the reports of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainants requested a hearing. The AJ consolidated the cases and notified the parties sua sponte of an intent to issue a decision without a hearing and afforded the parties an opportunity to respond. The Agency filed a response. Complainants filed a response and included discovery requests. The AJ ordered the Agency to respond to the discovery requests the AJ deemed appropriate. The Agency provided supplemental information. Complainants then filed a supplemental response. The AJ subsequently issued a consolidated decision by summary judgment in favor of the Agency. Specifically, the AJ noted the Agency explained that the removals were motivated by a need to cut costs during a budget crunch. The Agency undertook Business Based Actions to consolidate job duties into fewer positions. The Agency explained that Complainants’ positions alone had enough overlap to allow for consolidation of positions. The AJ found Complainants’ evidence, even when viewed in the light most favorable to them, was too scant and speculative to convince a reasonable factfinder that the Agency’s actions were tainted by consideration of their protected characteristics. The Agency issued separate final actions fully implementing the AJ’s finding that Complainants failed to prove discrimination as alleged. The instant appeals followed. As a threshold matter, EEOC regulations allow the Commission to consolidate two or more complaints filed by two or more complainants consisting of substantially similar allegations of discrimination or relating to the same matter. 29 C.F.R. § 1614.606. Accordingly, for the sake of clarity and administrative efficiency, we exercise our discretion and consolidate the above- referenced appeals. 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 fact finder 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 2022000368 3 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. (as revised, August 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 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder 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 actions fully implementing the AJ’s decision 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 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 2022000368 4 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. 2022000368 5 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 February 28, 2022 Date