[Redacted], Jimmy C., 1 Complainant,v.Jennifer M. Granholm, Secretary, Department of Energy, Agency.

Equal Employment Opportunity Commission

Feb 10, 2022

Appeal No. 2021001111 (E.E.O.C. Feb. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jimmy C.,1 Complainant, v. Jennifer M. Granholm, Secretary, Department of Energy, Agency. Appeal No. 2021001111 Hearing Nos. 550-2019-00041X, 550-2019-00042X Agency Nos. 17-0032-BPA, 17-0096-BPA DECISION On December 3, 2020, 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 November 9, 2020 final order concerning his equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Lead Information Technology (IT) Specialist, GS-2210-13, in the Agency’s Infrastructure Services (JN) at the Bonneville Power Administration facility in Vancouver, Washington. On March 22, 2017, and October 2, 2017, Complainant filed two EEO complaints that collectively alleged that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (Irritable Bowel Syndrome) 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. 2021001111 2 1. Complainant received an overall rating of failure to meet expectations for the performance appraisal period covering November 1, 2015, to October 31, 2016; 2. Complainant was reprimanded on October 17, 2016, for failing to submit weekly status reports beginning in June 2016; 3. Complainant is subjected to constant monitoring and accountability more than his coworkers; 4. Complainant was not provided the required Initial Progress reviews when he was scheduled to meet with his supervisor (S1) for Progress Review 2; 5. Complainant’s office cubicle is being used for visitors and for storage when he is not there; 6. Complainant was assigned a new Position Description different from his position of record; and 7. On March 24, 2017, S1 suspended Complainant for five days.2 After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing on both complaints. The AJ assigned to the matter consolidated the complaints and issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, as to Claim (1), S1 stated that Complainant’s rating was based on Complainant’s failure to complete assigned tasks, produce quality work, and communicate with his manager and other team members, as well as failure to follow instructions. In Claim (2), Complainant was required to submit weekly status reports as part of his telework agreement, and he did not. Complainant was monitored, as alleged in Claim (3), because he was not physically in the office due to his telework agreement. The Agency also demonstrated, in Claim (4), that Complainant did not receive a progress review because Complainant did not sign off on his progress plan so that it could be reviewed during the year. In addition, S1 cited Complainant’s lack of cooperation and competing responsibilities for other team members as his reason for not providing the progress report. In Claim (5), the Agency explained that the office was undergoing a large Agency-wide phone replacement project during this time and they were very short on storage space. 2 In Jimmy C. v. Dep’t of Energy, EEOC Appeal No. 0120172504 (Jan. 4, 2018), the Commission reversed the Agency’s dismissal of Claims (1) and (2) and remanded the matters for further processing. 2021001111 3 Complainant and other employees’ cubicles were also utilized for storage. With respect to Claim (6), Complainant and his second-level supervisor (S2) worked together to develop a new position description for Complainant and S2 was under the impression that Complainant approved of the new position description since they had drafted it together. There were no lead positions available at that time and Complainant retained his pay and grade. Finally, regarding Claim (7), S1 explained that following issuance of the reprimand for failing to submit weekly status reports, Complainant continued to fail to submit weekly reports. As a result, Complainant was issued the five-day suspension. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. In addition, the AJ determined that the alleged incidents were insufficiently severe or pervasive to establish a hostile work environment. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency issued its final order fully adopting the AJ’s decision. 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. 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 order adopting the AJ’s decision. 2021001111 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). 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. 2021001111 5 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 10, 2022 Date