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

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022000806 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Royce O.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000806 Hearing No. 480-2021-00353X Agency No. DON-20-62995-01637 DECISION On November 29, 2021, 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 29, 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. 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 Fitness Director at the Agency’s Naval Air Station facility in Sigonella, Italy. On May 20, 2020, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for protected EEO activity under Title VII of the Civil Rights Act of 1964 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. 2022000806 2 1. On February 11, 2020, the Fleet Readiness Director (Director) rescinded a job offer to Complainant as the Morale, Welfare, and Recreation, Site Manager (NF- 05), Naval Air Station, Sigonella, Italy; 2. On September 30, 2020, Complainant learned that he did not receive an interview for the Community Recreation Director (NF-04) position.2 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. The AJ assigned to the case granted the Agency’s September 10, 2021 motion for a decision without a hearing after Complainant failed to file a response and issued a decision without a hearing on November 29, 2021. The AJ found that, even assuming arguendo that Complainant could establish a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions and there was no evidence to support Complainant’s assertions of discriminatory animus. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). Complainant appealed, challenging the propriety of the AJ’s granting the Agency’s summary judgment without permitting him to respond and also arguing that the AJ erred by accepting the Agency’s account of the facts. In response, the Agency argues that Complainant is only reiterating the same assertions he has made throughout the process to no avail and urges affirmance of the AJ’s decision. ANALYSIS AND FINDINGS 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. (Aug. 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). Upon review of the Agency’s motion for summary judgment and the record as a whole, we agree with the AJ that the Agency’s motion accurately recounted the relevant material facts and identified the legal standard for granting summary judgment. We find that the AJ correctly determined that the record was sufficiently developed, and that Complainant failed to establish a genuine dispute of material fact. 2 Complainant initially filed a complaint alleging his sex was the basis for claim 1 and then amended his complaint, alleging reprisal for filing his complaint as the basis for claim 2. 2022000806 3 Contrary to Complainant’s argument on appeal, the AJ did not fail to provide Complainant with the necessary information on how to respond to the Agency’s motion as the necessary information was included in the AJ’s Case Management Order. To the extent Complainant appears to be arguing he was at a disadvantage because he had no counsel, that was not the AJ’s responsibility nor could the AJ provide Complainant any additional assistance because of Complainant’s pro se status. Moreover, Complainant’s insistence that there are genuine issues of material fact in dispute because he disputes the veracity of the Agency’s explanation is without merit as Complainant did not provide any actual evidence to support his assertions. It is well settled that mere assertions of a factual dispute without more are not sufficient to defeat a motion for summary judgment. See Darrell C. v. U.S. Postal Serv., EEOC Appeal No. 0120181833 (July 12, 2019); Quartermain v. U.S. Comm’n on Civil Rights, EEOC Appeal No. 0120112994 (May 21, 2013). Accordingly, we find that the AJ properly issued a decision without a hearing. We find that the AJ’s decision correctly identified the legal standards for Complainant to prove that he was subjected to disparate treatment on the bases of his sex and/or reprisal. We further find that, even assuming arguendo that Complainant has established a prima facie case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Director stated that she took over communications with Complainant about the job offer in claim 1 because Complainant was not responding to HR in a timely manner and had provided contradictory information about the status of his arrival. See Report of Investigation (ROI) at 112. She explained that Complainant had demonstrated odd behavior throughout the hiring process, not responding in a timely manner, behaving disrespectfully by asking for her time outside of business hours and then canceling last minute because it was not convenient for him, and providing vague and contradictory information. See ROI at 112-113. She also stated that this was the fourth time Complainant had applied and interviewed for the position and ultimately declined. See ROI at 113. The Regional HR Director confirmed that the job offer was rescinded due to a period of unresponsiveness and Complainant’s own unprofessional behavior. See ROI at 145. With respect to claim 2, the Director explained that Complainant was not listed on the certificate of eligible provided by HR due to an administrative error when the applications were processed. See ROI at 452. The Regional HR Director confirmed that it was an administrative error because the Headquarters HR team in Millington, Tennessee moved out the posting without coordinating the crediting plan with the hiring official so that they accidentally screened out any candidates who were not currently overseas. See ROI at 457. We find that the AJ correctly found that Complainant did not establish that the Agency’s reasons are a pretext for discrimination. Complainant did not provide any evidence to support his assertions aside from challenging the veracity of the Agency’s statements but without any supporting evidence to indicate any error or inconsistency in the Agency’s explanations or any indication of discriminatory animus. The Commission has repeatedly stated that mere assertions or conjecture that an agency’s explanation is a pretext for intentional discrimination are insufficient because subjective belief, however genuine, does not constitute evidence of pretext. Juliet B. v. U.S. Postal Serv., EEOC Appeal No. 0120182519 (Oct. 8, 2019); Richardson v. Dep’t of Agriculture, EEOC Petition No. 03A40016 (Dec. 11, 2003). 2022000806 4 Moreover, while Complainant clearly believes he was somehow targeted through the administrative error, his belief is unsupported by any evidence and in any event, pretext inquiry is not concerned with bad judgment, impeccability, dislike, or a mistake. See Marvin W. v. Dep’t of Homeland Security, EEOC Appeal No. 0120170438 (Dec. 12, 2018); Velda F. v. Dep’t of the Interior, EEOC Appeal No. 0120122684 (Jul. 10, 2018) (affirming that a mistake on the part of the Agency, without more, does not establish discriminatory animus). There is simply no evidence in the record of any discriminatory animus on the part of the Agency and as such, Complainant’s claim must fail. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the AJ’s decision finding that Complainant did not establish that he was subjected to discrimination as alleged. 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. 2022000806 5 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. 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. 2022000806 6 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 13, 2023 Date