[Redacted], Alejandro B., 1 Complainant,v.Lloyd J. Austin, III Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

Mar 16, 2021

Appeal No. 2020001100 (E.E.O.C. Mar. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alejandro B.,1 Complainant, v. Lloyd J. Austin, III Secretary, Department of Defense (Army & Air Force Exchange Service), Agency. Appeal No. 2020001100 Hearing No. 570-2014-00560X Agency Nos. AAFES-13.062; AAFES-13.045 DECISION On November 12, 2019, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the decision of an EEOC Administrative Judge (AJ), dated September 11, 2018, concerning his equal employment opportunity (EEO) complaint in which he alleged 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.2 At the time of events giving rise to this complaint, Complainant worked as a Stockroom Operations Manager, Pay Band (PB)-4D, at the Agency’s Misawa Air Force Base Exchange in Misawa, Japan. 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 Complainant indicated on appeal that he was appealing because more that 40 days had elapsed since the AJ issued her decision and the Agency had not issued a final order. It appears from the record, however, that the Agency did issue a final order adopting the AJ’s decision on September 26, 2018. However, the evidence of record does not clearly establish that Complainant ever received the Agency’s final order. Therefore, we exercise our discretion to excuse any untimely filing and accept the appeal. 2020001100 2 On June 10, 2013, Complainant filed an EEO complaint. The complaint did not specify the bases or dates of his claim. Based on the limited information in the complaint and the related report of the EEO counselor, the Agency characterized the complaint as alleging Complainant was discriminated against on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity when: 1. on an unspecified date, Complainant’s then-first level acting supervisor subjected him to unwanted and unwelcome touching and public humiliation in the presence of co- workers; 2. on an unspecified date, he was subjected to reprisal for participating in protected EEO activity when the Area Manager assigned his claim to “Loss Prevention” to investigate his claim against his first level supervisor; 3. on April 25, 2013, Complainant’s second level supervisor sent messages to his co- workers, attempting to harass and bully him; 4. on May 3, 2013, Complainant’s third level supervisor ended his performance review rebuttal process, without answering his questions; 5. on May 7, 2013, the General Manager subjected him to reprisal when he was issued a Letter of Suspension for insubordination; and 6. Complainant was denied the opportunity to rebut a communication entry in his Communication Record. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC AJ. Complainant timely requested a hearing. Over Complainant's objections, the AJ assigned to the case granted the Agency’s August 3, 2015 motion for a decision without a hearing and issued a decision by summary judgment in favor of the Agency on September 11, 2018. The AJ concluded that Complainant failed to establish any genuine issues of material fact or credibility which required a hearing in this matter. The AJ reasoned that Complainant had not established his discrimination claims because Complainant’s own affidavit showed that he did not believe that the alleged events were based on his race, gender, and/or reprisal. The AJ also found there was no evidence that the alleged events actually occurred as alleged (as reflected by the video surveillance or by the witnesses). The AJ concluded that Complainant failed to provide evidence of any previous EEO activity, evidence of pretext of the Agency’s stated reasons, or evidence of a hostile work environment due to his race, gender or prior EEO activity. The instant appeal followed. 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. 2020001100 3 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. (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. We recognize that Complainant disagreed with management’s perception of his actions. Complainant’s own affidavit stated that the actions were due to reasons other than his race, gender or prior EEO activity. Upon careful review of the AJ’s decision and the evidence of record, we conclude that the AJ correctly determined that the entry of summary judgment in favor of the Agency was appropriate. CONCLUSION 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. 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. 2020001100 4 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. 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. 2020001100 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 March 16, 2021 Date