[Redacted], Edmond F, 1 Complainant,v.Christopher T. Hanson, Chairman, Nuclear Regulatory Commission, Agency.

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021002534 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edmond F,1 Complainant, v. Christopher T. Hanson, Chairman, Nuclear Regulatory Commission, Agency. Appeal No. 2021002534 Hearing No. 450-2020-00061X Agency No. NRC-19-06 DECISION Complainant filed a timely appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 26, 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. At the time of events giving rise to this complaint, Complainant worked as a Branch Chief, GG- 801-15, at the Agency’s Region IV, Division of Reactor Safety/Engineering facility in Arlington, Texas. On March 5, 2019, Complainant filed a formal complaint alleging that the Agency discriminated against him: 1. On the basis of race (African-American) when on November 5, 2018, Complainant was told that he was being reassigned to Engineering Branch 1 by the Deputy Director, Division of Reactor Safety, Region IV (“Deputy Director”). 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. 2021002534 2 2. On the bases of race (African-American) and reprisal (prior EEO activity, filing his informal complaint) when on March 15, 2019, Deputy Directed failed to notify Complainant of a pending personnel decision in Complainant’s branch. Deputy Director notified Complainant’s employees but never mentioned the changes to Complainant. After its investigation into the complaint, the Agency provided Complainant with a copy of the report of investigation and notice of right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested a hearing. The Agency submitted a motion for a decision without a hearing. The AJ subsequently issued a decision by summary judgment in favor of the Agency. 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. (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 for Complainant. The evidence of record shows that following the retirement of one of its longest-employed branch chiefs in 2018, the Agency sought to implement organizational changes involving the rotation of branch chiefs. Agency senior leadership expressed that rotating supervisors would promote Agency operations by ensuring that the Region’s branch chiefs had broad experience in multiple areas, and it also believed that periodically rotating branch chiefs would expand the branch chiefs’ technical and leadership skills. Subsequently in 2018 and 2019, Region IV reassigned roughly ten (10) branch chiefs, including Complainant. Complainant acknowledged that periodic reassignments can be healthy in an organization, but contended his reassignment was unfair because it was to the benefit of Deputy Director’s white male friend. 2021002534 3 Complainant has raised the issue that the AJ did not consider his untimely filed opposition to the Agency’s Motion for Summary Judgment. However, the AJ specifically noted that even if Complainant’s brief was considered, Complainant did not dispute the Agency’s material facts in any meaningful way. Despite Complainant’s repeated statements that Fact 122 is in dispute, and looking at the facts in the light most favorable to Complainant, we agree with the AJ. The image that emerges from the totality of the record is that the Agency implemented significant organizational changes which left Complainant feeling aggrieved that the rotation of branch chiefs appeared to benefit a friend of the Deputy Director. Absent discriminatory animus, the Commission will not second guess an Agency's business decisions. Texas v. Dep't of Community Affairs v. Burdine, 450 U.S. 248, 249 (1981). In addition, the Commission has consistently held that employment decisions based on friendship or favoritism are not in violation of Title VII so long as they are not also premised on some basis which is unlawful under Title VII. Anderson v. Dep’t. of Air Force, EEOC Appeal No. 0120120121 (April 18, 2013); see also Garrett W. v. U.S. Postal Serv., EEOC Appeal No. 0120173051 (October 30, 2018) (“Nepotism, does not identify a protected class under EEOC regulations, and therefore cannot be the basis for an actionable claim of discrimination.”); Sierra-Barber v. Dep't of the Interior, EEOC Appeal No. 0120055126 (Jan. 31, 2007) (allegations of nepotism and favoritism do not violate EEO statutes). Complainant failed to establish any facts that would show his reassignment or the potential reassignment of other employees to be supervised by Complainant was motivated by discriminatory animus or retaliation. Complainant's subjective belief of discriminatory animus is not persuasive evidence. See Chatman v. Dep't of the Army, EEOC Appeal No. 0120080445 (Aug. 7, 2009). Without proof of a demonstrably discriminatory motive, the wisdom of the Agency's business decisions may not be second-guessed. Mendez v. U.S. Postal Serv., EEOC Appeal No. 0120090593 (May 20, 2010). 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. 2 The Agency’s Motion for Summary Judgment laid out a statement of material facts that are not in dispute. Fact 12 states “During this November 5th conversation, [Deputy Director] explained that these rotations would give another branch chief an opportunity to bolster his Senior Executive Service Candidate Development Program package and would benefit the Complainant as well because these moves support the continuing development of every branch chief. ROI at 94, 151.” (Agency Motion for Summary Judgment, p. 4). 2021002534 4 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). 2021002534 5 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 16, 2022 Date