[Redacted], Charlie K., 1 Complainant,v.Stephen T. Rippe, Chief Executive Officer, Armed Forces Retirement Home, Agency.

Equal Employment Opportunity Commission

Mar 16, 2021

Appeal No. 2020001671 (E.E.O.C. Mar. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlie K.,1 Complainant, v. Stephen T. Rippe, Chief Executive Officer, Armed Forces Retirement Home, Agency. Appeal No. 2020001671 Hearing Nos. 570-2017-01323X; 570-2019-00118X Agency Nos. AFRH-16-36; ARFH 17-42; AFRH-17-46 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), concerning his equal employment opportunity (EEO) 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. At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Chief of Campus Operations, GS-1601-13, at the Agency’s Armed Forces Retirement Home in Gulfport, Mississippi. Complainant filed three EEO complaints alleging discrimination and a hostile work environment by the Agency on the bases of race (African-American), sex (male), color (dark-skinned), age (51), and in reprisal for prior protected EEO activity 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. 2020001671 2 a. On or about November 2015, he became aware that all the other chiefs who work at the Agency were GS-14s (Caucasian), with the exception of the two Chief of Campus Operations who are GS-13s (African American);2 b. On or about August 23, 2016, he believed he received inaccurate information in an email from the Human Resources Officer (HRO) when she stated his job was down-graded to a GS-12 position; c. He believed he was provided with misleading information when he requested a copy of his desk audit from the Administrator, HRO, and a Human Resources Specialist (HRS) in March 2016 and did not receive it until on or about September 21, 2016; d. He believed he was held to different standards when management provided him a copy of the desk audit results on or about September 21, 2016, and he was not given the opportunity to rebut or appeal the results; e. On or about November 22, 2016, the Administrator failed to notify him on two separate occasions that the office could receive 59 minutes, but communicated it to the other Service Chiefs and his (Complainant’s) Administrative Assistant; f. On November 28, 2016, he made a request to fill the supervisory contract billet in his division and the request was not granted, which caused his workload to increase; g. On February 14, 2017, he became aware the Administrator signed a memorandum giving other officials the ability to make decisions regarding where memorabilia are hung, therefore undermining his authority to make decisions about facility matters, which falls within his scope of responsibilities; h. In March 2017 and April 2017, the Chief Financial Officer (CFO) singled him out during an annual credit card audit; i. On April 10, 2017, he received an email from the CFO notifying him that his subordinate's credit card privileges were suspended; j. He notified his supervisor, the Administrator, he was being singled out by the CFO, but no action was taken; 2 The AJ dismissed claim (a) as a discrete act finding that the incident occurred more than 45 days prior to Complainant’s initial EEO contact on September 12, 2016. However, the AJ found it could serve as background information supporting Complainant’s hostile work environment claim. The Commission has reviewed the AJ’s decision and finds no basis to disturb the AJ’s decision in that regard. 2020001671 3 k. On August 9, 2017, he became aware that a credit card investigation was initiated against him by the Administrator and CFO; l. On August 9, 2017, the Administrator added a comment to his performance evaluation, resulting in a lower score; m. On April 26, 2018, the Administrator, in the presence of a customer and co- worker, accused Complainant of failing to attend a scheduled meeting and yelled at him; and n. On or about April 10, 2018, Complainant was informed that the Administrator accused him of sharing the Admission Officer’s statement with his subordinate, an Administrative Assistant, in reference to the Admission Officer’s EEO complaint. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing for the complaints, which the AJ consolidated. The Agency submitted a motion for summary judgment. The AJ subsequently issued a decision by summary judgment in favor of the Agency, finding Complainant failed to prove discrimination or reprisal 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 fact-finder could not find in Complainant’s favor. 2020001671 4 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 or retaliated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final action 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. 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. 2020001671 5 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 March 16, 2021 Date