[Redacted], Denis C., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jul 5, 2022

Appeal No. 2021002282 (E.E.O.C. Jul. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Denis C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2021002282 Hearing No. 480-2020-00644X Agency No. DON 19-68094-04657 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s January 23, 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. and 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 a Materials Expediter, WG-07, at the Agency’s Naval Hospital Camp Pendleton in Camp Pendleton, California. On October 4, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him based on race (Black), color (black), age (48), 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. 2021002282 2 1. From June 2015 through September 2019, management prevented Complainant from ordering supplies; 2. From June 2015 through September 2019, management prevented Complainant from being in a leadership position or having authority; 3. From June 2015 through September 2019, Complainant was treated differently when management preselected candidates without competition thereby depriving Complainant the opportunity to apply and be considered for the position; 4. From June 2015 through September 2019, Complainant was overlooked for promotion opportunities while similarly situated employees who were younger and of a different race and color were treated differently; 5. From July 2018 through September 2019, a coworker was taken off Complainant’s team, which made tasks more difficult for Complainant and another coworker; and 6. On September 3, 2019, the selecting official (SO), Assistant Department Head, GS-12, did not select Complainant for the Supervisor Inventory Management Specialist, GS-2210-11, position. The complaint originally included the following additional claims, which the Agency ultimately dismissed: 7. “On 3 September 2019, selecting officials violated Merit System Principles and committed Prohibited Personnel Practices when [another employee] was preselected for the Supervisor Inventory Management Specialist [position,] GS- 2010-11, through a Management Identification of Candidates (MIoC) recruitment action”; 8. “On 28 June 2019, you were not selected for the Supervisor Inventory Management Specialist GS-2010-11 position”; 9. “On an unknown date in March 2019, you were accused of not being a team player, though other similarly situated employees were treated differently”; 10. “On 10 August 2018, you were not selected for the Supervisor Inventory Management Specialist GS-2010-09 position”; 11. “On 11 July 2018, the interview for the Supervisor Inventory Management Specialist GS-2010-09 position was schedule[d] while you were on leave without an offer of alternative means to interview”; 12. “On an unknown date in May 2018, you received negative performance ratings”; 13. “On an unknown date in March 2018, you were told that you would never get promoted if you stayed in the Material Management Department”; 14. “From September 2017 through September 2019, you were treated differently because you served in a different branch of military service”; 15. “On 5 June 2015, you received a[ ] Letter of Reprimand.” The Agency dismissed claims 8 through 13 and 15 pursuant to 29 C.F.R. § 1614.105(a)(1) for untimely EEO counselor contact and dismissed claims 7 and 14 pursuant to 29 C.F.R § 1614.107(a)(1) for failure to state a claim. 2021002282 3 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 EEOC Administrative Judge (AJ). Complainant requested a hearing. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and, over Complainant’s objections, issued a decision by summary judgment in favor of the Agency. The Agency subsequently issued a final order fully implementing the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The instant appeal followed. The AJ found that, taking the facts as presented in the report of investigation and viewing the evidence in the light most favorable to Complaint, he failed to create a genuine issue of material fact to establish discrimination based on race, color, age, or reprisal. Regarding claim 1, the AJ determined that the record showed Complainant eventually was allowed to order certain supplies. The AJ also found that other employees in Complainant’s section outside of his protected characteristics were similarly denied the ability to order some of the same supplies Complainant claims he was denied. Regarding claims 2, 3, 4, and 6-which all involve allegations that the Agency prevented Complainant from promotion opportunities and leadership positions-the AJ found that of the nonselections Complainant identified as part of these claims, only the position specified in claim 6 was timely raised with an EEO counselor. In analyzing that nonselection, the AJ found that SO and the two other members of the selection panel, without discussion beforehand, independently scored the applicants’ resumes and candidate questionnaires.2 The Agency’s legitimate, nondiscriminatory reason for not selecting Complainant was that all three selection panel members rated the selectee as the highest overall scorer, with Complainant rating either second or third of the three applicants for the position. The AJ, in comparing Complainant’s application with the selectee’s, found that Complainant was not the plainly superior candidate and that the selectee had been acting as a supervisor in the Material Management Department, as well as working directly in relevant fields within that department. Therefore, the AJ found that the Agency’s articulated reason was not pretextual. Regarding claim 5, Complainant’s supervisor, Supervisory Supply Management Specialist, GS- 11, moved an employee from Complainant’s section to a different section. The supervisor stated that the employee was moved to a different area where assistance was most needed after another employee working in that area was promoted. To alleviate Complainant’s extra workload, the supervisor relieved Complainant of some of his workload and had other employees help assist Complainant. The AJ concluded that there was nothing in the record to suggest that Complainant’s race, color, age, or prior EEO activity influenced the Agency in any of its decisions or that the legitimate, nondiscriminatory reasons for its actions were pretextual. 2 There were no interviews conducted for the selection of this position. The selection panel reviewed only resumes and a candidate questionnaire filled out by each applicant. 2021002282 4 ANALYSIS AND FINDINGS Dismissal of Claims 7-15 As an initial matter, we address the claims that were dismissed for untimely EEO counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). On appeal, Complainant argues these claims should not be treated as untimely, stating that they “may not have been timel[y] because the act had to happen. [Human Resources] would take a long time to certify certain promotions unless things were being done secretly. I cannot make a claim about someone getting a promotion if I don’t know for sure. That only makes sense[ ] that some claims may not be timel[y].” Complainant does not specify the dates he became aware he did not receive the promotions at issue; nor does he appear to dispute the dates enumerated in the dismissed claims. The record shows Complainant contacted an EEO counselor, at the earliest, on September 6, 2019, which is more than 45 days after the dates of claims 8 through 13 and 15. We therefore find that the Agency correctly dismissed these claims on the grounds that Complainant sought EEO counseling in an untimely manner. Complainant’s vague explanations for his untimely contact is insufficient to justify an extension of the time limits. As to claims 7 and 14, Complainant does not appear to dispute the dismissal of those claims on appeal. To the extent Complainant is challenging the dismissal of those claims, we find that Complainant failed to show how he was aggrieved in claim 14, we find that claim 14 was appropriately dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. We find that claim 7 concerns the same nonselection as claim 6 and is properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same claim as being adjudicated in this decision. 2021002282 5 Summary Judgment The Commission’s regulations allow an AJ to grant summary judgment when she or he 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. 3 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 his 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 3 We note that, in addressing an AJ’s issuance of a decision without a hearing, a complainant’s opposition must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. See Celotex, 477 U.S. at 324. Here, Complainant’s broad allegations of years-long widespread retaliation, harassment, favoritism, and other unethical practices by management are bare assertions without support in the record. 2021002282 6 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. 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). 2021002282 7 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 July 5, 2022 Date