[Redacted], Bart M., 1 Complainant,v.Michael S. Regan, Administrator, Environmental Protection Agency, Agency.

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2022000482 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M.,1 Complainant, v. Michael S. Regan, Administrator, Environmental Protection Agency, Agency. Appeal No. 2022000482 Hearing No. 520-2017-00050X Agency No. 2015-0093-R02 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, concerning an equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a GS-1350-12 Geologist in the Agency’s Region 2 Division of Enforcement and Compliance Assistance located in New York, New York. Complainant had worked in the Underground Storage Tank (UST) division under the direct supervision of Team Leader (TL) until September 2014. Thereafter, Complainant worked under the direct supervision of the Branch Chief of the Resource Conservation and Recovery Act Compliance Branch (Branch Chief). Complainant had written a letter in September 2014 to the Agency’s Region 2 Administrator alleging that TL had subjected him to a hostile work environment. The Agency initiated an investigation into Complainant’s allegations and Complainant was moved under Branch Chief’s direct supervision and into a cubicle on Branch Chief’s floor away from TL. 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. 2022000482 2 In January 2015, Agency officials provided Division Director a verbal report and recommendations regarding the matter. Division Director was informed that while there was no harassment found, Complainant and TL had a difficult working relationship. Officials recommended that Complainant be permanently reassigned out of the UST team. Division Director discussed the matter with Human Resources officials and upper management. Ultimately, Division Director decided instead to reassign Complainant back to the UST team because there was work that needed to be completed and because the investigation had concluded that TL had not harassed Complainant. In January 2015, Division Director had a conversation with Branch Chief and informed him that the investigation was complete, that she had received a verbal report, and that she had requested a written report. Division Director requested that Branch Chief inform Complainant that there was no finding of harassment and that he would be returning to his position under TL. In July 2015, Branch Chief had a conversation with Complainant and asked if he had heard anything about the investigation into his allegations against TL and whether he had heard anything about the positions he had applied for in other regions. Complainant informed Branch Chief that he had not heard anything recently about either matter. During the conversation, Branch Chief asked Complainant how much federal service he had and if he had thought about retirement. Complainant responded that he planned to work until he was 70, but that could change. Branch Chief then stated that Division Director had stated that the investigation was taking too long and that she was returning Complainant to the UST team under TL. Complainant responded, “that is not going to happen.” Branch Chief then told Complainant that Division Director had made the decision and that he would meet with Complainant that next week to reassign him to TL. Complainant again responded, “that is not going to happen” and Branch Chief responded, “then maybe you should talk to your lawyer or consider retirement.” Complainant later met with the Labor Relations Officer (LRO) and the Chief Union Steward. Complainant relayed what Branch Chief told him and LRO informed Complainant that the investigation had been completed and a final oral report had been provided to Division Director in January. Complainant subsequently complained and the Region undertook an investigation into Branch Chief’s actions. A written report with recommendations regarding Complainant’s allegations against TL was issued in December 2015 and a written report regarding Complainant’s allegations against Branch Chief was issued in March 2016. In April 2016, TL received a letter of reprimand for raising his voice at Complainant and Branch Chief received a verbal counseling. Division Director informed Complainant in April 2016, that he would not be assigned under TL’s supervision. On November 12, 2015, Complainant filed an EEO complaint alleging that the Agency subjected him to a discrimination and a hostile work environment based on his age (63) when: (1) on July 10, 2015, the Division Director, via the Branch Chief, directed him to return to work for his previous alleged harasser, the Underground Storage Tank (UST) Team Leader (TL), by July 17, 2015; (2) on July 10, 2015, Branch Chief (a) discussed his retirement with him by asking him about his federal service time and his plans for retirement, and (b) pressured him to retire by 2022000482 3 threatening to enforce the Division Director’s directive to reassign him under TL; and (3) on July 30, 2015, he learned that Division Director misrepresented and “concealed” the status of the Human Resources internal investigation into his “hostile work environment whistleblower” complaint to avoid permanently reassigning him to another program not under TL and to pressure him to retire.2 After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the matter subsequently issued a summary judgment decision in favor of the Agency finding that Complainant was not subjected to discrimination as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ's decision, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i). 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. 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 factfinder could not find in Complainant’s favor. 2 Complainant also alleged reprisal for a prior whistleblowing complaint as a basis of discrimination. The Agency dismissed this basis reasoning that whistleblowing activity was not within the purview of the laws enforced by the Commission. Complainant raised no challenges regarding this while the matter was pending before the EEOC Administrative Judge, and the Commission can find no basis to disturb the Agency’s dismissal decision. 2022000482 4 We find that the totality of the conduct at issue was insufficiently severe or pervasive to establish a hostile work environment. Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile work environment, there is no persuasive evidence that discriminatory animus played a role in any of the Agency's actions. The record shows that Division Director received an oral report of the investigation into Complainant’s allegations against TL. Division Director then requested a written report, even though one was not required. There appeared to be some miscommunication between Division Director, Branch Chief, and Complainant about the status of the investigation, but there is no evidence supporting that Division Director otherwise concealed the status or results of the investigation. In addition, while the record demonstrates that Branch Chief inquired about Complainant’s retirement plans during a conversation about Complainant’s job search and the status of the investigation into TL, the record does not support that Branch Chief intended to pressure or intimidate Complainant based on his age. Furthermore, Complainant’s speculation that Division Director’s initial decision to return him to UST was intended to force him to retire is unsupported. Division Director acknowledged that her original decision went against the recommendations from the investigation; however, she noted that she received clearance from Human Resources and her decision was based only on work that needed to be completed in UST. Complainant has presented no evidence demonstrating that the Agency’s proffered reasons for its actions were pretextual. Furthermore, even assuming the incidents occurred as Complainant alleged, Complainant failed to show a basis for imputing liability upon the Agency. Agency officials investigated Complainant’s allegations and issued discipline to both TL and Branch Chief for their conduct. Division Director ultimately informed Complainant that he would not be assigned back under TL’s supervision. There is no evidence that any similar conduct reccurred. 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 or subjected to a hostile work environment 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. 2022000482 5 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. 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. 2022000482 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 March 27, 2023 Date