[Redacted], Cletus W., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Jul 5, 2022

Appeal No. 2021002493 (E.E.O.C. Jul. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cletus W.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 2021002493 Hearing No. 550-2019-00338X Agency No. DLAN-18-0165 DECISION 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 February 17, 2021, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 worked as a Distribution Process Worker at the Agency’s San Joaquin Warehouse in Tracy, California. On July 2, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to non-sexual harassment on the bases of national origin2 (“Mexican American”), sex (male), color 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 Although Complainant also alleged discrimination on the basis of race (Mexican American), the Commission notes that it considers the term “Mexican” to be a national origin rather than a racial group. 2021002493 2 (Brown), disability (physical), and age (56), and in reprisal for prior protected EEO activity, when: 1. on or around November 2015, the Branch Chief issued Complainant a discussion card and cancelled his participation in wellness program activities while coworkers on light duty were allowed to participate in the wellness program; 2. on or about September 8, 2016, Complainant was issued a discussion card by his supervisor regarding leave usage; 3. on or about December 7, 2017, the Branch Chief did not speak with Complainant or ask for witnesses regarding allegations made against him by a coworker (CW). On or about December 8, 2017, Complainant alleged that the Branch Chief made statements about him to the police regarding an allegation made against him on December 7, 2017, which were slanderous; 4. on February 22, 2018, Complainant’s supervisor issued him a Notice of Proposed Suspension relating to the December 7, 2017, event; 5. on March 28, 2018, Complainant was reassigned to another work area “in close proximity to a supervisor with no contact order”;3 and 6. from April 14, 2018, to April 27, 2018, Complainant was suspended from duty without pay for conduct unbecoming a federal employee. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. An initial AJ issued a Notice of Intent to Consider Issuance of Decision Without a Hearing, and both parties filed responses. A second AJ subsequently issued a decision by summary judgment in favor of the Agency. The AJ found that, even when construed in a light most favorable to Complainant, the undisputed facts demonstrate that Complainant cannot make out a prima facie case of retaliation or discrimination based on race, color, sex, disability, or age. Regardless, the Agency articulated legitimate, nondiscriminatory reasons for its actions. For claim 1, the record showed that Complainant was on a leave restriction in 2015, which disqualified him from the wellness program and his participation was canceled because he was in a light duty status or otherwise failed to meet the criteria. 3 When asked to explain this claim, Complainant stated that he had a no-contact order to stay away from CW, and if there was a need for him to go to CW’s work area, he needed to first obtain permission from his supervisor. Report of Investigation (ROI) at 291. 2021002493 3 Regarding the issuance of the discussion cards for Complainant’s use of time and abuse of leave privileges alleged in claims 1 and 2, management officials consistently stated that Complainant refused to accept responsibility for his misconduct and failure to follow procedures. The AJ found that claims 3-6 resulted from Complainant’s physical “assault” of CW, which was investigated by the Agency and police. The AJ noted that the Agency determined that Complainant was at fault and his misconduct warranted disciplinary action, and as such, it suspended Complainant for 14 days. In addition, the Agency reassigned Complainant to an area away from CW and issued the no-contact order. The AJ determined that there was no evidence that management officials were motivated by Complainant’s race, color, disability, age, sex, or prior EEO activity, and that Complainant did not demonstrate that the Agency’s reasons were pretextual. The AJ also found that the complained of incidents were not abusive, severe, or pervasive; and that they were normal workplace interactions and simply did not rise to the level of actionable harassment. The AJ concluded that there were no genuine issues of material fact that Complainant was discriminated against or subjected to a hostile work environment, and they entered summary judgment in the Agency’s favor. The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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. (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 he 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. Through his attorney, Complainant argues that there are genuine disputes of material fact. For example, the record did not support the AJ’s conclusion that Complainant “assaulted” CW. 2021002493 4 In his appeal, Complainant provides a specific definition of assault from the New Lexicon Webster’s Dictionary of “a vigorous armed attack, a head-on charge, a violent critical attack, an unlawful threat to use force against another person.” However, this is simply the definition chosen by Complainant, and there are alternative definitions. For example, an assault can be committed “merely by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm.” Ladner v. U.S., 358 U.S. 169, 177 (1958). While Complainant takes issue with the AJ’s use of the term “assault,” we note that the AJ did not include a definition in their decision, but it is undisputed that CW complained of intentional physical contact by Complainant, which can reasonably be determined to be an assault. Complainant also asserts that he did not have an opportunity to engage in discovery, but he did not explain what evidence he sought to obtain through discovery. We carefully reviewed the record and find that it is adequately developed, and it does not reveal any genuine dispute of material facts. Therefore, the AJ’s issuance of a decision without a hearing was appropriate. Complainant contends that the Agency failed to provide him with a copy of the investigation report prior to the issuance of suspension decision, which violated the collective bargaining agreement (CBA). However, this appears to be a collateral attack, which involves a challenge to another forum’s proceeding, such as the grievance process, the workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep’t of Def., EEOC Request No. 05931059 (July 15, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his claim that the Agency violated the CBA is within the negotiated grievance process. Complainant also alleges that the Agency violated 5 U.S.C. Chap. 75, 5 C.F.R. Part 752, but his allegation is beyond the scope of the EEOC’s jurisdiction as provided in 29 C.F.R. §1614. Finally, Complainant asserts that there is a need for a credibility assessment of CW. However, the issue is not whether Complainant actually engaged in the conduct, but whether the Agency officials reasonably believed the allegations made against Complainant. See William G. v. Equal Emp’t Opportunity Comm., EEOC Appeal No. 2019000765 (Aug. 18, 2020), req. for recon. den’d, EEOC Request No 2021000220 (Dec. 20, 2021); Anderson v. U.S. Postal Serv., EEOC Appeal No. 0720090016 (Dec. 1, 2009). In this case, Complainant did not cite to any evidence to prove that the management officials did not reasonably believe CW’s version of events. A review of the police report and investigation report reveals that CW reported of Complainant “bumping” into her in a deliberate manner, and that he “forcefully and intentionally shouldered” her. ROI at 123, 201. The Investigating Officer determined that there was an ongoing history of confrontation between Complainant and CW, and that there was no reason to doubt CW, and he concluded that the incident occurred. ROI at 195. 2021002493 5 A Distribution Facilities Manager testified that he participated in a Workplace Violence Threat Assessment Team meeting, and they discussed the allegation that Complainant had “thrown his shoulder into [CW] while leaving in an aggressive fashion.” The threat assessment team decided to issue the no-contact order and a temporary reassignment. ROI at 334-35. In the decision to uphold the proposed suspension, the Deputy Chief noted that Complainant contended that CW made a false allegation and that the statements given about the incident were “incorrect.” However, the Deputy Chief considered all the evidence and concluded that the charges were fully supported by the facts in this case. ROI at 260-61. The Deputy Chief further testified that he found Complainant’s response to the proposed suspension “not compelling” because he was agitated when discussing the incident, and he insisted that “various people” were out to get him. ROI at 359. We find that the evidence shows that the management officials reasonably believed CW’s allegation, and Complainant provided no contrary evidence. Further, the Commission has long held that an Agency has broad discretion to set policies and carry out personnel decisions, and it should not be second-guessed by the reviewing authority absent evidence of unlawful motivation. See Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 259 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). In this case, there is no evidence of unlawful motivation for the Agency’s actions. 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 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. 2021002493 6 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. 2021002493 7 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 July 5, 2022 Date