[Redacted], Jess P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency.

Equal Employment Opportunity Commission

Jul 18, 2022

Appeal No. 2020005383 (E.E.O.C. Jul. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jess P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Health Agency), Agency. Appeal No. 2020005383 Hearing No. 531-2019-00704X Agency No. DHANCR 18-0028 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 August 13, 2020, final decision 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. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the complaint for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Coordinator at the Agency’s Department of Rehabilitation Orthotic Prosthetic Lab, Walter Reed National Military Medical Center in Bethesda, Maryland. On May 25, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment based on race (African American), 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. 2020005383 2 a) on or about May 11, 2018, either the Orthotic & Prosthetics Services Director (Director) or another management official falsely alleged to a Supervisory Health Systems Specialist (SHSS) that Complainant was fired from his contractor position in 2014 for “stealing time,” meaning time and attendance fraud; b) on February 2, 2018, Complainant was told that the Director was driving a coworker (CW1) home and stated, “I know for a fact that [Complainant] is the whistleblower and I’ll have something for his ass before I retire”;2 c) in October 2017, CW1 and another coworker (CW2) told Complainant that, during a closed-door meeting, the Director said, “all Black people are lazy” and “the only thing [Complainant] is good for is showing up for work on time.” The Director also reportedly said in reference to Complainant, “if I could fire his ass, I would”; d) in September 2016, another coworker (CW3), told Complainant that the Director told her that Complainant “likes to ‘roofie’ White women and rape them”; e) in May 2014, the Director sent a text message to Complainant’s personal phone which contained a photo of a statue of three monkeys sitting on a bench and was captioned as Complainant’s children; f) in October 2013, the Director furloughed Complainant for approximately 18-19 days during the government shutdown because he did not see patients, but others in the department who did not see patients were not furloughed; g) in June 2013, Complainant’s peers were promoted to GS-11 Health System Specialists while he was reassigned from Supervisory Administrative Coordinator to Administrative Coordinator and remained a GS-8; h) in 2011, Complainant asked the Director about converting his position from Supervisory Administrative Coordinator to a Health System Specialist and was told that he was not eligible for the reassignment and promotion because he had no college degree, but the position did not require a college degree; i) on January 2, 2011, the Director changed Complainant’s position to Supervisory Administrative Coordinator, while his coworkers were reassigned and promoted to GS-9 Health Systems Specialists with promotion potential; j) in August 2010, the Director reassigned Complainant’s major job duty for purchasing and processing prosthetic orders, without reason; 2 A witness stated that he and Complainant reviewed receipts for prosthetics components and noticed that the prices from two vendors were inflated, by as much as 700%. The witness and Complainant reported the matter to the Inspector General. Report of Investigation at 246-7. 2020005383 3 k) on or about July 10, 2018, a Health Systems Specialist (HSS) told Complainant that SHSS said that Complainant could not wear scrubs in the hospital as administrative personnel because it was unprofessional, which Complainant believed to be harassment; l) on June 25, 2018, Complainant became aware that SHSS told the Chief, Department of Rehabilitation (Chief) that Complainant requested for SHSS to become his supervisor, which was untrue; m) on or about June 21, 2018, SHSS sent an email to the Chief that Complainant was a “no show” for a scheduled meeting; however, Complainant did not show because he was confused about the time change; n) on or about June 19, 2018, SHSS changed Complainant’s tour of duty from 6:00 am to 3:30 pm and attempted to remove his alternative work schedule; o) on or about May 1, 2018, SHSS told Complainant that he was not allowed to work the hours of 5:30 am to 3:00 pm and requested that Complainant write down everything he does during his shift; p) on or about April 15, 2018, SHSS called Complainant to his office and told him that Complainant “wanted it easy, doesn’t want to work hard for anything, and just wanted to come and go as he pleased”; and q) from approximately April 15, 2018, to August 10, 2018, SHSS looked for Complainant for no reason, just wanting to “lay eyes” on him. The Agency accepted claims (a), (b), and (k)-(q) for investigation. The Agency dismissed claim (g) because Complainant did not raise this during the EEO counseling stage. In addition, the Agency noted that incidents (c)-(f), and (h)-(j) were untimely discrete claims, and as such, they would only be background information for the hostile work environment claim, and relief could not be granted for these allegations. Report of Investigation (ROI) at 49-51. At the conclusion of the investigation, the Agency provided Complainant with a copy of the ROI and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. The instant appeal followed, and Complainant filed a brief in support of his appeal. The Agency opposed Complainant’s appeal.3 3 The Agency challenged the timeliness of Complainant’s appeal. However, where there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 2020005383 4 CONTENTIONS ON APPEAL Through his attorney, Complainant argues that the Agency produced an incomplete ROI. Complainant notes that the Agency dismissed some issues because they were not independently actionable and untimely, but still forwarded seven of the dismissed issues to be investigated as background information for the claim of hostile work environment. However, the EEO investigator identified the accepted issues without these seven incidents, and no witnesses were asked about the hostile work environment background issues (c)-(f) and (h)-(j). Complainant also asserts that the Agency did not obtain testimony from the Chief; and that the record is missing race data of the relevant workforce. The Agency responds that Complainant did not raise any issues with the ROI until approximately 16 months after the investigation should have been received, even though the matter was previously before an AJ. The Agency notes that Complainant had the opportunity to supplement the record through the discovery process, yet he asked for the complaint to be dismissed and remanded to the Agency for a final decision. ANALYSIS AND FINDINGS EEOC Regulation requires, inter alia, that an agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. 29 C.F.R. § 1614.108(b); Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 6, § IV.B. (Aug. 5, 2015). An investigation must include “a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the complainant’s group as compared with the treatment of similarly situated employees...and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.” Id. Chap. 6 at § IV.C. In addition, an investigator must identify and obtain “all relevant evidence from all sources regardless of how it may affect the outcome.” Id. Chap. 6 at § VI.D. Upon review, we find that Complainant correctly points out that the Agency accepted incidents (c)-(f), and (h)-(j) for investigation as background information for the hostile work environment claim but failed to investigate the incidents. ROI at 49-51. The Agency offered no explanation for why the EEO investigator did not obtain any evidence for incidents (c)-(f), and (h)-(j). 05930703 (Jan. 4, 1994) quoting Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992). Here, the Agency provided no evidence of the date when Complainant’s attorney received the final decision. As such, we decline to grant the Agency’s request to dismiss the appeal. 2020005383 5 We also note that the EEO Investigator documented that the Chief did not respond to attempts to obtain his testimony. ROI at 253, 287-88. However, we find that the Chief’s testimony is crucial evidence that needs to be obtained for Complainant’s claims.4 While Complainant argues that the record is missing race data of the relevant workforce, he did not identify any similarly situated comparators for the Agency to provide race information for. When asked for the names of his comparators, Complainant responded, “I do not know,” and he only offered speculation that the Director treated those without EEO complaints and Caucasian employees more favorably. ROI at 205. We remind Complainant that it is his burden to establish a prima facie case of race discrimination, including identifying either that similarly situated individuals outside his protected class were treated differently, or other circumstances surrounding the adverse employment action(s) gave rise to an inference of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As such, we find that the Agency did not err because Complainant did not identify any similarly situated comparators who were treated more favorably. The Commission finds that the investigation was inadequate and that the record lacks the thoroughness required for the factfinder to completely address Complainant’s harassment claim. Accordingly, we VACATE the Agency’s final decision and we REMAND this matter to the Agency for a supplemental investigation in accordance with the ORDER below. ORDER Within sixty (60) days from the date this decision is issued, the Agency shall conduct a supplemental investigation, to include the following actions: 1. Obtain evidence for incidents (c)-(f), and (h)-(j). The evidentiary record shall include, but is not limited to, affidavits from Complainant, Agency officials, and witnesses with knowledge of these incidents. 2. Obtain an affidavit from the Chief for all accepted claims and incidents of alleged harassment.5 3. The Agency shall issue a new final decision with an appropriate analysis of the relevant facts and addressing the merits of Complainant’s allegations of discrimination and harassment based on his race, and in reprisal for prior protected EEO activity, with appeal 4 We note that when employees fail, without good cause shown, to respond fully and in timely fashion to requests for affidavits, the Commission on appeal may, in appropriate circumstances take action, such as drawing an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information. See 29 C.F.R. § 1614.108(c)(3). 5 The Chief’s identity can be found towards the bottom of page four of the EEO Counselor’s Report. ROI at 17. 2020005383 6 rights to the Commission. Events (c)-(f), and (h)-(j) shall only be considered as part of the harassment claim. Upon completion of the investigation, the Agency must provide the Complainant with a copy of the supplemental record and findings and return the completed record to the Compliance Officer, as referenced below. The Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a statement concerning the supplemental record to the Compliance Officer. Upon receipt by the Compliance Officer, the supplemental record will be included in the appeal file and the appeal will be processed appropriately. In accordance with Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § IX.E (Aug. 5, 2015), the Agency shall give priority to this remanded case in order to comply with the time frames contained in this Order. The Office of Federal Operations will issue sanctions against agencies when it determines that agencies are not making reasonable efforts to comply with a Commission order to investigate a complaint. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 2020005383 7 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). 2020005383 8 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 18, 2022 Date