[Redacted], Cary J., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity Commission

Feb 15, 2023

Appeal No. 2022000261 (E.E.O.C. Feb. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cary J.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services, Agency. Appeal No. 2022000261 Agency No. HHS-OS-0011-2019 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final decision dated September 21, 2021, finding no discrimination concerning his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For the following reasons, we AFFIRM the Agency’s final decision finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisory Emergency Management Specialist, GS-0089-15, Information Technology Service Division, Office of Resource Management at the Agency’s Office of the Assistant Secretary for Preparedness and Response (OASPR or ASPR) in Washington D.C. The Agency framed Complainant’s complaint, filed on February 21, 2019, as alleging that: Whether he was discriminated against in reprisal for opposing an unlawful discriminatory practice when: 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. 2022000261 2 1. On September 19, 2018, he requested the OASPR Human Resources leadership investigate harassment (non-sexual) claims that were reported by anonymous employees. Whether he was subjected to discrimination and harassment (non-sexual) on the bases of sex (male), age (over 40), and in reprisal for opposing an unlawful discriminatory practice when: 2. On December 7, 2018, the Agency assigned him to the Cybersecurity Advisor, GS-15, position effective December 10, 2018. 3. On December 10, 2018, he learned that management had impeded his ability to compete for the Director, Office of Security, Intelligence, and Information Management (SIIM), GS-15, position. 4. On January 7, 2019, he learned that the Agency selected another employee outside of the Agency as the Director, SIIM, GS-15, position. 5. a. In November 2018, and ongoing, management impeded his ability to compete for a SES (Senior Executive Service) position. b. On December 4, 2018, OASPR management subjected him to coercive and threatening behavior. c. On December 10, 2018, and ongoing, OASPR management removed him from participating on the ASPR Senior Leadership Team. d. On January 7, 2019, the Agency informed him that he would be moving from his window office on the fifth floor to the building’s basement. Complainant has not challenged the Agency’s framing of the complaint. 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 EEOC Administrative Judge or a final Agency decision. 29 C.F.R. § 1614.108(f). Complainant requested a final Agency decision without a hearing. The Agency issued a final decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Agency dismissed claim 1 for failure to state a claim since it involved unidentified employees and not Complainant. Regarding claims 2 and 5b, the record reveals that in 2018, OASPR went through a realignment of staff. As a result, OASPR employees were reassigned based on the organization’s needs. The record indicates that during the realignment period, Complainant was detailed to the Acting SIIM Director position. Complainant does not claim this detail was discriminatory. 2022000261 3 Complainant’s second-level supervisor (S2), Assistant Secretary for OASPR, a political appointee, stated that in July - fall 2018, an Associate Deputy proposed Complainant’s detail to a Cybersecurity Advisor position. On December 3, 2018, S2 met with Complainant and offered Complainant the Cybersecurity Advisor position that was proposed by the Associate Deputy. S2 indicated that based on Complainant’s resume, Complainant had very deep cybersecurity experience. Complainant told S2 that he would think about the offer. S2 stated that on December 4, 2018, S2 stopped by Complainant’s office but Complainant was angry and hostile and told S2 that he was not interested in the Cybersecurity Advisor position because he was not an expert in the field and expressed his interest in applying for a SIIM Director, SES, position instead. S2 told Complainant that the SIIM Director position was not a SES position rather it was a GS-15 position. The record indicates that on December 7, 2018, Complainant’s first-level supervisor (S1), an SES, Deputy Assistant Secretary, issued Complainant a notice of his reassignment to the Cybersecurity Advisor, GS-15, position due to the organization consolidation and prioritization of cybersecurity. S1 indicated that Complainant was being reassigned in order to meet the needs of the organization as well as taking into consideration Complainant’s background and qualifications. The notice indicated that there would be no change to Complainant’s position description. The record indicates that Complainant’s position title remained as a Supervisory Emergency Management Specialist, GS-15. Complainant’s coworker (C1), female, a GS-15 employee, position title unknown, at the Incident Management Team Program, indicated that in 2018, OASPR went through a realignment of positions. As a result of the realignment, C1 stated, employees were reassigned to different positions, some employees were allowed to choose and some employees, including C1, were assigned to positions they were not qualified for, placing them outside the scope of their pre- alignment position description. C1 indicated that as a result of the realignment, she was reassigned to the Intel Division which did not align with her abilities. The Chief of Staff, SES, OASPR, indicated that Complainant was serving as the Acting SIIM Director prior to his reassignment to the Cybersecurity Advisor position and management lost confidence in his ability to serve in that Acting position. The Chief of Staff stated that since Complainant had cybersecurity talents and expertise, he was best used to improve OASPR’s cyber capabilities which were lacking. Regarding claims 3, 4, and 5a, S1 and S2 indicated that no one impeded Complainant’s ability to compete for the SIIM Director position or an SES position. The HR Director indicated that she was a selecting official for the SIIM Director, GS-15 position at issue. The HR Director stated that there was no vacancy announcement created for the position; rather, under the Agency’s merit promotion plan, she utilized a shared certificate, which was a list of candidates eligible for the position posted in another Agency. The HR Director noted that the shared certificate process was very popular because HR had a lot of turn over, and they were taking a long time to get vacancy announcements posted. 2022000261 4 Complainant had not applied for a particular position at another agency and thus was not on the shared certificate. Therefore, Complainant was never considered for the position. The HR Director indicated that she selected a female (Selectee), from outside the Agency, for the SIIM Director position. Regarding claim 5c, S2 indicated that since Complainant was reassigned to the Senior Cybersecurity Advisor position, he did not need to participate on the OASPR Senior Leadership Team meetings. Regarding claim 5d, S2 stated that due to Complainant’s reassignment to the Senior Cybersecurity Advisor position, his office was also changed to the floor where everyone within his new office was located. Based on the foregoing, the Agency issued its decision finding that Complainant failed to establish discrimination as alleged. On appeal, Complainant requests that the Commission sanction the Agency by issuing a default judgment due to the Agency’s failure to issue a final decision in a timely manner. Complainant indicates that although he requested a final decision on September 17, 2019, he did not receive a final Agency decision until September 21, 2021. Complainant states that the Agency’s delay caused him harm to his career and emotional distress. In response to Complainant’s appeal, the Agency acknowledges that it took more than 60 days to issue a final decision as required by 29 C.F.R. § 1614.110(b). However, the Agency states that it has not acted in a manner that would warrant a default judgment and Complainant has not demonstrated that he has been prejudiced by the delay. ANALYSIS AND FINDINGS Complainant’s Request for Default Judgment Complainant claims on appeal that the Agency delayed issuing a final decision. Complainant thus asks the Commission to issue a default judgment against the Agency. We note that our regulations require agency action in a timely manner at many points in the EEO process. Tammy S. v. Dep’t of Def., EEOC Appeal No. 0120084008 (June 6, 2014). Compliance with these timeframes is not optional; as the Commission stated in Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009), “the Commission has the inherent power to protect its administrative process from abuse by either party and must ensure that agencies, as well as complainants, abide by its regulations.” Because of the length of time it can take to process a federal sector EEO complaint, any delays in complying with the time frames in the regulations can impact the outcome of the complainant’s claims. Id. 2022000261 5 Here, we find that the Agency failed to comply with the Commission’s regulations. The record reveals that the Agency investigated Complainant’s complaint and provided the report of investigation to Complainant on August 16, 2019, which was within 180 days from the filing of the complaint. 29 C.F.R. § 1614.108(f). Upon receipt of the report of investigation, Complainant sent his letter dated August 22, 2019, to the Agency indicating deficiencies therein. Specifically, Complainant requested, in part, to conduct additional investigation related to four specific witnesses. Accordingly, the Agency conducted a supplement investigation from September 11, 2019, through November 21, 2019. The supplemental report of investigation, including the four witness affidavits dated September 16, 17, 19, and 20, 2019, and Complainant’s supplement rebuttal statement dated October 4, 2019, which was submitted to the Agency on December 5, 2019. While Complainant submitted his request for a final Agency decision without a hearing on September 17, 2019, under these circumstances, we find that the supplemental investigation requested by Complainant effectively tolled the 60-day time limit to issue a final decision, required by 29 C.F.R. § 1614.110(b), until February 3, 2020 (60 days after December 5, 2019). Our records reveal that on March 25, 2020, Complainant filed a prior appeal, EEOC Appeal No. 2020002874 (June 23, 2021), to the Commission requesting a default judgment in his favor because the Agency had not issued a final decision within 60 days of his September 17, 2019 request. In response to Complainant’s appeal, the Agency stated that it has acted in good faith throughout the complaint process. The Agency indicated that it timely completed the investigation and conducted a supplemental investigation at Complainant’s request. The Agency stated that it had been unable to timely issue a final decision in this complaint because of an extensive backlog. Specifically, the Agency explained that its Office of EEO, Diversity and Inclusion which processed final Agency decisions for the entire Agency recently realigned and was in the process of transitioning final Agency decision writing from contractors to federal employees and was currently in the process of hiring federal employees for those vacancies. The Agency indicated that its EEO office also recently lost its only two contract final Agency decision writers in December 2019, and February 2020, because both contractors accepted positions elsewhere. The Agency submitted a declaration of the Director of the Office of EEO, Diversity and Inclusion. Therein, the Director stated that she became the Director of EEO, Diversity and Inclusion on August 11, 2019, when the Agency realigned the EEO Office and confirmed a final Agency decision writing backlog situation, as described above. The Commission, in EEOC Appeal No. 2020002874, dismissed the appeal because the Agency had not issued a final decision and there was no matter over which the Commission had jurisdiction. The Commission found that because the appeal was premature, it would not address Complainant’s request for a default judgment. The Commission stated that Complainant could raise his request for a default judgment in a subsequent appeal from a final Agency decision. The Commission ordered the Agency to issue a final Agency decision within 30 days from the date the appeal decision was issued. The Agency did not issue a final Agency decision until September 21, 2021, which was beyond the 30-day time limit ordered by the Commission. 2022000261 6 Considering the foregoing events, we find that the Agency delayed a total of 110 days (50 days (February 3, 2019 to March 25, 2020) plus 60 days (July 23, 2021, to September 21, 2021)) in issuing a final Agency decision. After a review of the record, although we find that the Agency failed to timely issue its final Agency decision, we find that the Agency did not act in a manner to warrant a default judgment sanction. See, e.g., Anthony M. v. Dep’t of the Air Force, EEOC Appeal No. 2019003380 (Sept. 22, 2020) (no default judgment when agency decision was two years late); Josefina L. v. Soc. Sec. Admin., 0120142023 (July 19, 2016), req. for recon. denied, EEOC Request No. 0520170108 (Feb. 9, 2017) (finding that the agency’s 571-day delay in issuing the decision did not warrant sanctions, as complainant did not show she was prejudiced by the delay); Abe K. v. Dep’t of Agric., EEOC Appeal No. 0120141252 (Nov. 4, 2016) (declining to sanction an agency that issued a decision after approximately 326 days when complainant failed to show that he was prejudiced by the delay); Jocelyn R. v. Dep’t of Def., EEOC Appeal No. 0120152852 (Mar. 11, 2016) (citing Complainant v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a decision after approximately 371 days)). Upon review, we find no evidence that the Agency’s delay in this case was attributed to contumacious conduct or bad faith. Further, we find that Complainant failed to show that he was prejudiced by the Agency’s delay. Thus, under the specific circumstances present, we do not find the Agency’s delay warrant the sanction of granting default judgement. While we will not impose a sanction in the present case, we do find the Agency’s failure to abide by the regulations twice, i.e., by delaying 50 days after the completion of a supplemental investigation of the complaint pursuant to 29 C.F.R. §1614.110(b), and again delaying an additional 60 days in noncompliance with the Commission’s Order specified in EEOC Appeal No. 2020002874, reflects negatively on the Agency’s support for the integrity of the EEO process. As a result, we will notify Federal Sector Programs (FSP) which monitors the federal agencies’ EEO programs of the Agency’s failure to comply with the regulations regarding the timely processing of complaints. See Foster B. v. Department of Homeland Security, EEOC Appeal No. 2021000598 (Feb. 7, 2022). Complainant’s Claims of Discrimination As this is an appeal from a decision issued without a hearing, the agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law"). 2022000261 7 As an initial matter we find that claim 1 is simply Complainant’s statement of his prior protected activity which is relevant for his claim of reprisal in the remainder of his complaint. Thus, claim 1 is not really a claim of discrimination. To the extent, however, that Complainant intends for claim 1 to be an actual separate claim of discrimination, we find that it was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Complainant was not aggrieved simply by, as raised in claim 1, making a request for some action to be taken. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that Complainant was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency’s explanation was pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant can do this by showing that the proffered explanations were unworthy of credence or that a discriminatory reason more likely motivated the Agency. Burdine, 450 U.S. at 256. A showing that the employer’s articulated reasons were not credible permits, but does not compel, a finding of discrimination. Hicks, 509 U.S. at 511. This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. See U.S. Postal Serv. Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t of the Navy, EEOC Petition No. 03900056 (May 31, 1990). To establish a claim of harassment, Complainant must establish that: (1) Complainant belongs to a statutorily protected class; (2) Complainant was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on Complainant’s statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). 2022000261 8 Further, the incidents must have been “sufficiently severe or pervasive to alter the conditions of [complainant’s] employment and create an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993); see also Oncale v. Sundowner Offshore Service, Inc., 23 U.S. 75 (1998). The harasser’s conduct should be evaluated from the objective viewpoint of a reasonable person in the victim’s circumstances. Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 at 6 (Mar. 8, 1994). Therefore, to prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of a protected basis. Only if Complainant establishes both of those elements, hostility and motive, will the question of Agency liability present itself. Regarding Complainant’s claims concerning his reassignment, the record reflects that OASPR went through a realignment in 2018. As a result, OASPR staff, including Complainant, were reassigned to positions based on the organizational needs. Complainant was initially reassigned as Acting SIIM Director in early 2018, which is not at issue, and then he was reassigned to the Cybersecurity Advisor position in December 2018. The Chief of Staff indicated that Complainant did not perform well while he was at the Acting SIIM Director position. Based on Complainant’s experience and qualifications, the Agency decided that Complainant would best serve in the Cybersecurity Advisor position due to a pressing need of cybersecurity talents in OASPR. S1 and S2 denied they threatened Complainant or impeded him concerning his reassignment or his ability to complete for an SES position. Upon review, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently regarding reassignment as a result of OASPR’s realignment. The Agency indicated that as a Senior Cybersecurity Advisor, Complainant was not required to participate on the OASPR Senior Leadership Team meetings, and his office was also moved to the building basement floor where everyone within his new office was located. Regarding the Agency’s selection for the SIIM Director, GS-15, position, the HR Director utilized a shared certificate without posting a vacancy announcement. Complainant was not on the shared certificate because he had not applied for a particular position at another agency. The HR Director ultimately selected the Selectee, a Compliance Branch Chief, GS-15, from the Department of Homeland for the SIIM Director position. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. Regarding the discrete incidents, we find that Complainant failed to show that any of the actions were motivated by discrimination. Further, we find that Complainant failed to show that there were any similarly situated employees not in his protected groups who were treated differently under similar circumstances. Regarding his claim of harassment, considering all the events, we find that Complainant failed to show that it was related to any protected basis of discrimination. 2022000261 9 Based on a thorough review of the record, considering all statements submitted on appeal, we find that Complainant failed to show that the Agency’s action was motivated by discrimination as he alleged. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 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. 2022000261 10 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. 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 15, 2023 Date