U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Julius P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Uniformed Services University of the Health Sciences), Agency. Appeal No. 2022002729 Hearing No. 451-2019-00213X Agency No. USU-18-005 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s final order dated April 4, 2022, dismissing his complaint of unlawful 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d) et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Uniformed Services University of the Health Sciences (USU) as a GS-0301-11 Program Administrative Specialist at Brooke Army Medical Center (BAMC) in San Antonio, Texas. Complainant initiated contact with an EEO counselor on April 26, 2018. On July 2, 2018, Complainant filed a formal complaint, which he subsequently amended, alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), age (born in 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. 2022002729 2 November 1966), and reprisal for prior protected EEO activity (the instant EEO complaint) when: a) On or about May 30, 2018, a performance element titled professional development was removed from Complainant’s performance plan as a critical element by Complainant’s first-line supervisor (“Supervisor”); b) On or about May 15, 2018, Supervisor wrote a “watered down” annual performance appraisal for Complainant when compared to the performance appraisal Complainant received the year before; c) On or about November 29, 2017, Complainant was offered a USU faculty appointment by the Dean of the USU College of Allied Health Sciences and, on or about January 21, 2018, the Department of Medicine nullified the faculty appointment; d) On February 2, 2018, Complainant asked Supervisor for a Department of Medicine faculty appointment, and Complainant’s request was denied; e) On or about November 8, 2018, Complainant received an email from an Agency official endorsing a workshop “Encore to Men in the #Me Too Era,” which encouraged attendance. Complainant asked multiple times to be excluded from notice of these events; f) On an unspecified date, the Chief of the BAMC Department of Medicine (“Chief”) made degrading comments about Complainant; g) On an unspecified date, the Chief Healthcare Administrator of the Department of Medicine (“Healthcare Administrator”) intimidated Complainant and made disparaging slanderous comments about Complainant to Supervisor; h) On or about November 16, 2018, duties were removed from Complainant; i) On or about November 5, 2018, Complainant’s multiple requests for information regarding his employment and other personnel matters were ignored by Human Resources, the Office of General Counsel (OGC), the Department of Medicine, the Agreements Office, and the Office of External Affairs; j) On an unspecified date, the OGC violated Complainant’s confidentiality and privacy by forwarding Complainant’s requests for information internally to other OGC attorneys; k) On or about October 12, 2018, Complainant’s performance plan was not updated to include Complainant’s work responsibilities and performance expectations; l) On or about December 17, 2018, the Director of the Civilian Human Resources Directorate (“CHR Director”) emailed Complainant that he had not had a conversation about Complainant with Supervisor when Supervisor confirmed that he did speak with CHR Director about Complainant; m) On or about December 27, 2018, Complainant requested a phone meeting with management officials to discuss Complainant’s performance appraisal, employee information, and hostile work environment. Management officials did not respond to Complainant’s requests to meet; 2022002729 3 n) On or about December 14, 2018, an OGC Attorney2 (“Agency Representative”) led a conference call about an HR matter with Supervisor. Agency Representative identified himself as Human Resources but did not disclose that he is Agency counsel for EEO matters; o) On or about September 12, 2018, Complainant’s performance plan was finalized by Department of Medicine leadership (Supervisor and the Vice Chair) without including changes recommended by Complainant. Complainant raised concerns about the approved performance plan to his chain of command and [CHR] but did not receive a response; p) On or about October 23, 2018, an IT Specialist asked, “Is this office [Complainant’s] the one I need to move out to the trailers?” Healthcare Administrator smirked and laughed at the IT Specialist’s question. This interaction caused Complainant significant stress and insomnia; q) On or about January 15, 2019, the USU Inspector General (IG) provided Supervisor with “Agency Guidance on a Defensive Position” and instructed Supervisor not to discuss EEO matters of retaliation and harassment with Complainant; r) On or about February 12, 2019, Complainant notified Supervisor that performance issues were not taking place during the rating period. Supervisor did not respond to Complainant’s request for the required performance activities in accordance with DCPAS/DMAP MOU; s) On or about March 12, 2019, Complainant’s performance appraisal for FY18 was “watered down” and contained only 389 characters compared to the performance appraisals Complainant received for FY17 (5,251 characters) and FY16 (7,448 characters) that were received prior to Complainant’s EEO activity; and t) On or about March 12, 2019, Complainant was constructively discharged from the Uniformed Services University of the Health Sciences. The Agency dismissed claims (e), (i), (j), (k), (l), (n), (o), and (r) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. In addition to finding that claim (e) failed to state a claim, Complainant had requested that this no longer be included in his EEO complaint. The Agency determined that claims (e), (i), (j), (k), and (l) neither affected a term or condition of employment nor were reasonably likely to deter protected activity. Regarding claims (k) and (o), the Agency found that the mere fact that a performance plan was not updated was insufficient to demonstrate a harm or loss in the absence of a negative performance review. The Agency also noted that Complainant’s FY18 performance evaluation, the subject of claim (o), was the subject of previously accepted claim (b). The Agency found that, to the extent claim (j) alleged a violation of the Privacy Act, another basis for dismissing the claim was that jurisdiction over Privacy Act violations rests exclusively in the United States District Courts. 2 The OGC Attorney referenced in this claim served as the Agency’s representative during the hearing process. 2022002729 4 Finally, concerning claim (n), the Agency determined that alleging harm to Supervisor, a third party, did not show personal harm to Complainant with respect to a term, condition, or privilege of employment. At the conclusion of the investigation into accepted claims (a), (b), (c), (d), (f), (g), (h), (m), (s), and (t), the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The Agency filed a motion to dismiss the remaining claims. The Agency’s motion stated that claims (e), (i), (j), (k), (l), (n), (o), and (r) had properly been dismissed. The Agency argued that Complainant’s EEO counselor contact was untimely for claims (c) and (d). According to the Agency, claims (a), (b), and (s) regarding the content of his performance plan and the number of characters used in the appraisal failed to state a claim. The Agency also found that claims (c) and (d), concerning Complainant’s desired faculty appointment, failed to state a claim because such an appointment was not a condition of employment or listed anywhere in his position description. Regarding claim (f), the record reflected that Supervisor told Complainant that Chief said, “USU staff are not deserving of respect or apologies because they are guests at BAMC,” and the Agency argued that such a conversation would not deter protected activity and did not cause Complainant to suffer any direct, personal harm. The Agency asserted that claim (g) failed to state a claim because Complainant stated that Healthcare Administrator appeared in their area without permission, sent emails “IN ALL CAPS,” “acted in the manner of a landlord,” and, after Complainant reported a stolen laptop, did not respond or appear interested in looking for the laptop. According to the Agency, none of these actions or remarks caused Complainant to suffer direct, personal deprivation sufficient to render him aggrieved. The Agency stated that claim (h) failed to state a claim because Complainant clarified during the investigation that no one removed any duties from him. Regarding claim (m), the Agency asserted that Complainant not receiving a response to his request to meet with management did not make him aggrieved. The Agency argued that claim (p) failed to state a claim because the question, smirk, and laugh were unaccompanied by any concrete action and therefore was not a direct and personal deprivation sufficient to render him aggrieved. Finally, regarding claim (t), during the investigation, Complainant clarified that he notified Supervisor in writing that he had accepted a position with the Defense Health Agency. Although Complainant stated that he believed he was working in a hostile work environment, the Agency contended that, because Complainant’s claims, even taken together, were insufficient to allege a hostile work environment, Complainant had not stated a claim of constructive discharge. In response to the Agency’s motion to dismiss, Complainant requested sanctions against the Agency for the Agency’s failure to timely respond to his inquiries, for Agency Representative impersonating the CHR Director, and for Agency Representative’s responses to Complainant’s settlement offer. Complainant also requested that his dismissed claims be reinstated because the EEO process was “manipulated” by the Agency, effectively forcing him out of a job he loved. 2022002729 5 In response to Complainant’s request for sanctions and request for reinstatement of the dismissed claims, the Agency stated that Complainant’s request for sanctions was baseless and that his request for the dismissed claims to be reinstated was untimely. The AJ assigned to the case issued an order denying Complainant’s request for sanctions and request to reinstate claim. The AJ found that there was no basis for sanctioning the Agency. The AJ also determined that the Agency properly dismissed claims (e), (i), (j), (k), (l), (n), (o), (q), (r), and (s) and that there was no evidence in the record supporting Complainant’s allegation that the Agency manipulated the EEO process. The AJ also issued a briefing order, providing Complainant an opportunity to respond to the Agency’s motion to dismiss claims (a), (b), (c), (d), (f), (g), (h), (m), (p), (s), and (t). Complainant filed a response to the Agency’s motion to dismiss, asserting that he stated valid claims of discrimination and reprisal and that he was forced into a constructive discharge. Complainant stated that, as a result, he was forced to move to another state for a lateral transfer and suffered financial harm. The Agency filed a reply to Complainant’s response, arguing that Complainant failed to state a claim for race, sex, and/or age discrimination, a claim under the Equal Pay Act, a claim of harassment, or a claim of reprisal. The AJ issued a decision granting the Agency’s motion to dismiss Complainant’s EEO complaint. The Agency subsequently issued a final order fully implementing the AJ’s dismissal. The instant appeal followed. Complainant makes no contentions on appeal. The Agency requests that the Commission affirm its final order. ANALYSIS AND FINDINGS As a preliminary matter, we consider whether the AJ’s decision not to sanction the Agency as requested by Complainant constituted an abuse of discretion. Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). The AJ’s discretionary authority includes the power to impose sanctions upon a party that fails to comply with their orders. See 29 C.F.R. § 1614.109(f)(3). The Commission’s interest lies in deterring the underlying conduct of the non-complying party and protecting its administrative process from abuse by either party to ensure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep’t of Veterans Affs., EEOC Request No. 0520080052 (Sept. 25, 2009). 2022002729 6 In support of his request for sanctions, Complainant alleged that Agency Representative impersonated the Human Resources Director when talking to Supervisor, that Agency Representative failed to properly respond to his inquiries regarding settlement, and that Agency Representative failed to accept his settlement demand. Upon review, we find that the AJ did not abuse their discretion in finding that there was no basis for sanctioning the Agency. Accordingly, we will consider the dismissal of Complainant’s claims. The record reflects that Complainant voluntarily withdrew claim (e) prior to the investigation of his complaint, so we will not further consider this allegation. Untimely EEO Counselor Contact (Claims c and d) EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106 and 1614.204(c), unless the Agency extends the time limits in accordance with § 1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. Complainant initiated contact with an EEO counselor on April 26, 2018, which was more than 45 days after the Department of Medicine nullified Complainant’s faculty appointment on January 21, 2018, as alleged in claim (c) and after Supervisor declined Complainant’s request for a faculty appointment on February 2, 2018, as alleged in claim (d). Moreover, although Complainant alleged a hostile work environment, these are discrete acts of discrimination. Accordingly, the AJ properly dismissed these allegations for untimely EEO counselor contact. Failure to State a Claim (Claims a, b, f, g, h, i, j, k, l, n, o, p, q, r, s, and t) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, 1614.106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). 2022002729 7 In claims (a), (b), (k), (o), (r), and (s), Complainant alleged discrimination with respect to the removal of an element from his performance plan, receiving a “watered down” FY18 appraisal that was shorter in previous years, and his performance plan not being modified to include Complainant’s recommended changes. The record does not show that Complainant was harmed in regard to a term, condition, or privilege of employment as a result of these allegations or that the alleged actions would be reasonably likely to deter someone from engaging in protected activity. Accordingly, these claims were properly dismissed for failure to state a claim. Regarding claims (f) and (n), these allegations concern statements made to Supervisor by the Chief and by Agency Representative. Although Complainant alleged in claim (f) that Chief made “degrading comments about Complainant,” the record reflects that Chief made a comment about USU staff being guests at BAMC, which neither references Complainant nor appears degrading. Report of Investigation (ROI) at 541. Similarly, in claim (q), Complainant alleges that the Inspector General provided Supervisor with a guidance document. Statements or guidance provided to a third party, Supervisor, do not render Complainant aggrieved. Accordingly, these claims were properly dismissed for failure to state a claim. In claim (g), Complainant alleged that Healthcare Administrator intimidated him and made disparaging slanderous comments about Complainant to Supervisor. Complainant explained that Healthcare Administrator appeared in his office area unannounced, acted like a “landlord,” sent emails to Complainant or Supervisor asking them to come to his office “IN ALL CAPS,” and, when Complainant reported a missing laptop, expressed no interest in looking for the laptop. ROI at 548-56. In claim (p), an IT Specialist asked if he needed to move Complainant’s office to a trailer, and Complainant alleged that Healthcare Administrator smirked and laughed at the IT Specialist’s question. Complainant has not shown how these actions affected a term, condition, or privilege of employment, and these claims were properly dismissed. Complainant alleged in claim (h) that duties were removed from him. During the investigation, Complainant stated that he received an email stating that, although medical students had been approaching Complainant with computer access issues, he should refer these students to the Graduate Medical Education Office. ROI at 557-58. The record does not reflect that helping students with computer access issues was actually one of Complainant’s duties or that any adverse action was taken against him as a result of the email asking him to refer students elsewhere. Therefore, this claim fails to state a claim. In claims (i) and (m), Complainant alleged that he did not receive a response to his requests for information from various offices and his requests for a phone meeting with management. We find that Complainant is not aggrieved with respect to his requests being ignored and find that these claims fail to state a claim. In claim (j), Complainant alleged that the OGC violated his privacy by forwarding his requests for information internally to other OGC attorneys. 2022002729 8 The Privacy Act, 5 U.S.C. § 552(g)(1), provides an exclusive statutory framework governing the disclosure of identifiable information contained in federal systems of records and jurisdiction rests exclusively in the United States District Courts for matters brought under the provisions of the Privacy Act. Bucci v. Dep’t of Educ., EEOC Request Nos. 05890289, 05890290, 05890291 (Apr. 12, 1989). Therefore, the Agency’s decision to dismiss Complainant’s claim concerning a violation of the Privacy Act for failure to state a claim was proper. We find that Complainant is not aggrieved as alleged in claim (m). The CHR Director emailing Complainant that he had not had a conversation with Supervisor about Complainant when Supervisor told Complainant he had spoken with the CHR Director about Complainant does not state a claim. Finally, in claim (t), Complainant alleged that he was constructively discharged from USU. Complainant stated that he took a position with another agency because he felt that he was in a hostile work environment. The central question in a constructive discharge case is whether the employer, through its unlawful discriminatory behavior, made the employee’s working conditions so difficult that any reasonable person in the employee’s position would feel compelled to resign. Carmon-Coleman v. Dep’t of Def., EEOC Appeal No. 07A00003 (Apr. 17, 2002). The Commission has established three elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant's involuntary resignation resulted from the intolerable working conditions. See Walch v. Dep’t of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). Complainant cannot establish that he was subjected to discriminatory behavior that made his working conditions so difficult that any reasonable person in his position would feel compelled to resign. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order fully implementing the AJ’s dismissal of the EEO complaint. 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. 2022002729 9 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. 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. 2022002729 10 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 March 15, 2023 Date
