[Redacted], Cedrick S, 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense, Agency.Download PDFEqual Employment Opportunity CommissionOct 12, 2022Appeal No. 2021004204 (E.E.O.C. Oct. 12, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cedrick S,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense, Agency. Appeal No. 2021004204 Hearing No. 570-2017-00411X Agency No. 2016-PFPA-036 DECISION On July 19, 2021, 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 June 16, 2021, final order concerning his 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Emergency Preparedness Coordinator, GS-0301-14 at the Agency’s Pentagon Force Protection Agency (PFA) in Washington, DC. Complainant, age 64 (year of birth [YOB] 1962) did not indicate that he had engaged in prior protected EEO activity. From January 2009 until March 28, 2016, he was assigned the duties of Continuity Manager Lead in his role as an Emergency Management Coordinator. 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 2021004204 On March 28, 2016, Complainant was assigned the duties of Emergency Preparedness Coordinator in the Agency’s Office of Emergency Management in his role as an Emergency Management Coordinator. Complainant’s job series and position with the Agency did not change. Report of Investigation ((ROI) at 65 and 494-95. From March 28, 2016 to August 14, 2016, Complainant’s first-level supervisor was the Director, Emergency Preparedness Division (EPD [Supervisor 1]). From March 28, 2016 through June 2016, Complainant’s second-level supervisor was the Assistant Director for Emergency Management (Supervisor 2A); and in June 2016, an Acting Director of Emergency Management, who was ultimately selected as Director, became Complainant’s second-level supervisor (Supervisor 2B). ROI at 620, 638, and 647. Coworker 1 (age 60, [YOB 1956]), served as the Continuity and Accountability Advisor, beginning in February 2015. His first level supervisor was Supervisor 2A until June 2016, and then his first-level supervisor became Supervisor 2B. Coworker 1 previously served in a Continuity-related position at the White House. ROI at 658-60. Coworker 2 (age 37 [YOB 1979]) was hired in March 2016 as Continuity of Operations Coordinator, GS-0301-13, and then moved into the position of Continuity Manager, GS-0301-14 in approximately May or June 2016. ROI at 688. His first-level supervisor was Supervisor 1. His second-level supervisor was Supervisor 2A, and then Supervisor 2B. ROI at 689. Coworker 3 (age 52 [YOB 1964]) was an Emergency Preparedness Coordinator, GS-0301-14. Her first-level supervisor was Supervisor 1; and her second-level supervisor was Supervisor 2A, then Supervisor 2B. Coworker 3 is a peer of Complainant. ROI at 672-73. Supervisor 2A reassigned job duties between Complainant and Coworker 2 on March 28, 2016 because Supervisor 2A wanted to “inject some fresh perspective into the Planning Team and the Continuity Team.” ROI at 640. According to Supervisor 2A, Coworker 2 had arrived as a new employee of the Agency with extensive experience at the Federal level of continuity programs, and Supervisor 2A wanted to apply Coworker 2’s perspective to the Agency. He added that around the same time, Coworker 3 stated that she “hit a wall” with her program, which Complainant could assist with. ROI at 641. According to Coworker 1, Coworker 2 was a National Continuity Training Program manager at FEMA and was highly qualified with specific training that only about 25 people in the United States have; and Coworker 2 brought experience that Complainant did not have. ROI at 659-60. Supervisor 2B instructed Supervisor 1 to conduct an inquiry into Coworker 2’s allegations that Complainant was using profanity and stating that he was going to get his job back. Supervisor 2B also explained that the supervisors - not subordinates - should determine how to supervise and conducting a management inquiry was permitted within the guidelines of the Agency’s procedures. ROI at 651. Supervisor 1 had issued to Complainant a verbal counseling and document the conversation. He noted, “I did not document it as a performance counseling or anything like that, it was just done as a conversation.” ROI at 623. 3 2021004204 Coworker 1 also explained that the Agency has an obligation to conduct an investigation due to Coworker 2’s complaints of a hostile work environment. ROI at 663. In April 2016, Complainant stated during two staff meetings “since I don’t have a job I have nothing to provide,” when asked for input regarding the office’s work. ROI at 500. On April 11, 2016, Complainant submitted a formal grievance regarding his reassignment from the Continuity Division to the Emergency Management Division, as well as other allegations, including workplace bullying. ROI at 124-31. Complainant resubmitted his grievance on April 25, 2016. ROI at 132-33. On June 6, 2016, Supervisor 2B issued an Action Memo, “Director’s Inquiry of the grievance filed by [Complainant]” detailing his investigation into Complainant’s grievance related to his reassignment, as well as allegations of workplace bullying and fraud. ROI at 480-85. Supervisor 2B determined that Complainant’s reassignment was a management directed reassignment that was consistent with applicable agency guidelines and not made by “adverse means.” However, Supervisor 2B determined that the notification of the reassignment could have been handled differently and that informing Complainant of the reassignment while he was on convalescent leave could have been avoided. ROI at 480. Supervisor 2B also reviewed Complainant’s allegations related to his performance evaluation and noted that Complainant always received ratings of “Level 3 - Fully Successful,” with the exception of one rating of 4 after Complainant filed a grievance that was reviewed by a former Director of Law Enforcement. ROI at 482-83. On June 9, 2016, the Agency issued an Action Memo based on Supervisor 2B’s June 6, 2016 Action Memo, which noted a determination that Supervisor 2A acted within his authority when he reassigned Complainant, and found that Complainant’s transfer did not result in any changes to Complainant’s grade, supervisory status, pay, or responsibilities as defined in the position description. It also noted that the Agency needed to improve its supervision of Complainant and his colleagues, and it was noted that Complainant’s’ allegations of a hostile work environment were not sustained. ROI at 486. On June 15, 2016, Supervisor 2A’s then supervisor (Supervisor 3) responded to Complainant’s “Formal Grievance” regarding Complainant’s request for a reassignment and noted that since Complainant had already filed a formal complaint with the Office of Equal Employment Opportunity Programs (“EEOP”), his request was no longer covered under Administrative Instruction 37 “Employee Grievance.” ROI at 169. On June 24, 2016, Supervisor 1 issued a Memorandum for Record (MFR) to Complainant with the subject line, “Maintaining a Professional Atmosphere.” The purpose of the MFR was to document a verbal conversation between Supervisor 1 and Complainant which took place that same day. Supervisor 1 noted that negative comments in the EPD had been “focused on [Complainant’s] reassignment from Continuity Readiness to Emergency Preparedness and [his] dissatisfaction with that decision.” 4 2021004204 Supervisor 1 also noted that it was imperative to maintain a professional work atmosphere and that “[f]uture occurrences of negative behavior on the part of any EPD member will result in the matter being referred for administrative inquiry or investigation.” ROI at 78. For the rating period that ended June 30, 2016 (July 1, 2015 to June 30, 2016), Supervisor 1 rated Complainant as “Level 3 - Fully Successful,” and based on that rating, he received an 8-hour Time-Off Award. ROI at 118-23. Supervisor 1 provided a detailed and reasonable explanation for his rating of Complainant for the performance period, highlighting a change in Complainant’s performance after his reassignment. According to Supervisor 1, [Complainant’s] involvement went from his normal work instead into doing as little as possible and only doing the work he was assigned. Supervisor 1 did not rate Complainant prior to the performance cycle in question. ROI at 627-28. On October 18, 2016, Supervisor 3 issued a Memorandum titled “Request for Reconsideration of Approved Performance Appraisal” in which he responded to Complainant’s request for reconsideration of his performance appraisal for the July 1, 2015 to June 30, 2016 rating period. Supervisor 3 stated that he reviewed Complainant’s request for reconsideration and all supporting documentation and made the decision not to grant Complainant’ request for rating changes to Complainant’s rating of record or the ratings of his critical elements. ROI at 112. Complainant remains employed in the Agency’s Office of Emergency Management. At no time was Complainant given a Notice of Proposed Removal from the Agency; he was not placed on a Performance Improvement Plan, nor was he issued a rating less than “Level 3, Fully Successful.” Management had no knowledge of any prior EEO activity involving Complainant. ROI at 621 and 639, On May 25, 2016, (with subsequent amendment on July 19, 2016, August 19, 2016, September 16, 2016, and October 27, 2016), Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of age (64) and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967. Complainant’s allegations are framed as follows: 1. Was Complainant discriminated against on the bases of age (64, born September 28,1952) and reprisal when on March 28, 2016, Supervisor 2A reassigned Complainant from his position as a Continuity Manager Lead to an Emergency Preparedness Coordinator, and replaced him with a younger, less experienced coworker; 2. Was Complainant discriminated against based on reprisal (instant complaint) when on June 24, 2016, Supervisor 1 administered a verbal and written counseling to him stating he was creating a negative work environment by espousing his opinions amongst his peers about the re-assignment of the Continuity Manager Lead position; 3. Was Complainant discriminated against based on reprisal (instant complaint) when on July 27, 2016, Supervisor 2B conducted a management inquiry based on a complaint by Complainant’s coworkers regarding a “verbal explosion” on the Emergency 5 2021004204 Preparedness Directorate office floor; and 4. Was Complainant discriminated against based on reprisal (instant complaint) when on August 24, 2016, Supervisor 1 gave Complainant a “Level 3, Fully Successful” rating on his Fiscal Year 2016 Employee Performance plan. The Agency accepted the complaint for investigation. 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 an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The parties engaged in discovery. The Agency timely served discovery requests on Complainant on March 1, 2021. On March 8, 2021, Complainant filed a motion requesting to “restart the case timeline,” in which he requested enlargements of the discovery timelines to allow him to again familiarize himself with his case and locate his documentation. On March 16, 2021, the AJ assigned to the case denied Complainant’s request, noting that it was untimely filed. On April 27, 2021, the Agency filed its motion for summary judgment (Agency’s motion). Although afforded an opportunity to advocate his position and explain why his case should survive summary judgment, Complainant failed to submit an opposition to the motion. After careful consideration of the entire record and viewing the facts in the light most favorable to Complainant, the AJ granted the Agency’s motion and issued a decision without a hearing on June 11, 2021. The AJ adopted the Agency’s motion in its entirety, determining its statement of undisputed material facts was accurate. The AJ also determined that the evidentiary record was developed sufficiently, finding that Complainant failed to present adequate circumstantial and/or direct evidence to properly support his claims of discrimination. The AJ observed that although Complainant disagreed wholly with the Agency’s actions, Agency Officials proffered legitimate nondiscriminatory reasons, based on permissible objective and subjective criteria. Accordingly, since the evidentiary record revealed management articulated legitimate nondiscriminatory reasons for its actions and maintained Complainant was not subjected to prohibited disparate treatment, the AJ shifted focus to whether Complainant could demonstrate pretext. According to the AJ, (1) Complainant failed to demonstrate a causal linkage between management’s actions and his protected classes stipulated in the complaint; (2) Complainant failed to demonstrate he was treated differently than similarly situated employees outside his protected classes; (3) Complainant’s allegations were supported entirely by his own assertions and speculations; (4) Complainant’s allegations were mostly general complaints of his unhappiness and disagreement with managerial decisions, which constituted normal tribulations of the workplace; and (5) Complainant was unable to satisfy his pretext burden. 6 2021004204 The AJ found that for all of Complainant’s allegations, he failed to present any sufficient evidence that the Agency deviated grossly from any of its established policies and procedures; subjected him to a process or standards different from similarly situated employees outside of his protected classes; or targeted him illegitimately because of his protected classes. According to the AJ, the crux of Complainant’s allegations and submitted evidence could be characterized chiefly by Complainant’s utter dissatisfaction and personal grievances that management failed to acquiesce to his subjective preferences, which was not a basis for discrimination. The AJ was unpersuaded by a preponderance of the evidence that the Agency’s relevant management officials acted with discriminatory intent and/or motive. According to the AJ, accumulatively, Complainant’s evidence was based largely on his beliefs, assumptions, and opinions to prove discrimination. As a result, asserted the AJ, apart from Complainant's own assertions, virtually nothing in the evidentiary record supported a finding of discrimination. Moreover, the AJ noted that the record was void of any corroborating evidence to support Complainant’s claims. Therefore, the AJ rejected Complainant’s position that Agency Officials were motivated by unlawful considerations of his protected classes. The AJ also observed that it appeared Complainant’s allegations amounted to normal tribulations of the workplace. According to the AJ, applying the reasonable person standard, none of management's actions, even if true were objectively severe, physically threatening, or humiliating. Hence, stated the AJ, the incidents at issue were not severe or pervasive enough to constitute harassment or an unlawful hostile work environment. 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. CONTENTIONS ON APPEAL On appeal, among other things, Complainant reiterates his allegations at length; contests the AJ’s decision; and questions the AJ’s conclusions, stating that the AJ made no reference to his submitted documents and responses to the Agency’s discovery requests. He alleges that the AJ did not adequately address his claims, asserting that the AJ copied and pasted information from another decision. Complainant’s cites to the AJ’s reference to Commission and one typing error (a repeated sentence that used her instead of his, the wrong pronoun) as support for his allegations. Complainant also took issue with the online EEO communication process, alleging that he was denied the opportunity to participate in discovery because of his lack of familiarity with the EEO website. On appeal, among other things, the Agency reiterates its stated reasons for the challenged actions. The Agency expresses agreement with the AJ’s decision, asserting that it was proper; and that Complainant failed to demonstrate a prima facie case of discrimination or retaliation. Nor did he present any arguments or evidence to show that the Agency’s articulated non-discriminatory explanations were pretextual. 7 2021004204 ANALYSIS AND FINDINGS 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. (Aug. 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. Given that Complainant had access to the ROI concerning his complaint and the opportunity to develop the record significantly during the EEO investigation and discovery before the AJ, we find that summary judgment was appropriate in this case. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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 order implementing 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. 8 2021004204 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. 9 2021004204 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 October 12, 2022 Date Copy with citationCopy as parenthetical citation