[Redacted], Scott K., 1 Complainant,v.John E. Whitley, Acting Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2021001038 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scott K.,1 Complainant, v. John E. Whitley, Acting Secretary, Department of the Army, Agency. Appeal No. 2021001038 Hearing No. 410-2020-00144X Agency No. ARGORDON19JAN00059 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403, from the Agency’s 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order finding no discrimination. BACKGROUND During the period at issue, Complainant served as a HealthCare Administrator (HCA) in the Department of Nursing, at the Agency’s Dwight David Eisenhower Army Medical Center (DDEAMC) located at Fort Gordon, Georgia. On February 6, 2018, Complainant filed a complaint alleging that he was discriminated against based on race (Black American), sex (male), age (over 40), and national origin (Black American) when on November 1, 2018, A1 abolished his position and he was issued a management directed reassignment from the Department of Nursing to the Obstetrics and Gynecology (OB/GYN) Clinic.2 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. 2 Complainant subsequently withdrew the basis of sex. 2021001038 2 After its investigation, 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 requested a hearing. Subsequently, the AJ, sua sponte, issued a decision by summary judgment in favor of the Agency on September 30, 2020. The Agency issued a final order adopting the AJ’s decision on February 10, 2021.3 The AJ noted the affidavits of A1 (Deputy Commander) and A2 (Commander) that the DDEAMC underwent a reorganization that resulted in the realignment of certain positions, specifically the HCA position. The purpose of the restructure was to provide better administrative support to the clinical areas with the most need of HCAs and to consolidate the management of all HCA’s within the Clinical Operations Division. Both A1 and A2 stated that no positions were abolished, however, existing positions were relocated to different areas of the hospital. As a result, all HCA positions, including Complainant’s, were realigned within the organization to different clinical areas that were in need. The record indicated that sixteen HCAs were realigned to the Clinical Operation Division. Eight of them were White, seven were Black, and one was Asian. Fifteen HCAs were over forty and one under forty. Regarding Complainant’s claim that he was treated differently than C1, a younger white HCA and C2, a younger black HCA, the record, the AJ noted, indicated that they were assigned to assist Deputy Commanders, but the assignments were not permanent and would not lead to a promotion. Furthermore, all HCAs were assigned to the Clinical Operations Division, without any changes to their pay, grade, or duties, and all were assigned to different areas of the hospital or to a Deputy. The record further indicated that the HCA assignments could change at any time and they were to be rotated to give each HCA an opportunity to assist throughout DDEAMC. Complainant was assigned to the OB-GYN Clinic because that department needed an HCA, whereas the Nursing Department needed a GS-11 Administrative Officer. Therefore, the Nursing Department was realigned to meet that need. S1, the Deputy Commander for the Nursing Department, stated that an administrator with Complainant’s skill level, as indicated in his position description, was not needed and his skills would be better utilized in a clinic setting. S1 felt they needed an Administrator at the GS-9 level and that they currently were not utilizing Complainant to the full extent of his position description. The AJ found that Complainant failed to show the Agency’s reasons for reorganizing and realigning the DDEAMC and reassigning him to the OB/GYN Clinic were done with a discriminatory motive and failed to rebut the Agency’s reasons with any evidence that would undermine the Agency’s explanation. 3 Notwithstanding the Agency’s issuance of the final order on February 10, 2021, by operation of our regulations, the AJ’s September 30, 2020 decision became the Agency’s final order forty days after its receipt. See 29 C.F.R. § 1614.109(i). 2021001038 3 ANALYSIS AND FINDINGS 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 review of the AJ’s decision and the evidence of record, 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. CONCLUSION Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision finding no discrimination. 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. 2021001038 4 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. 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. 2021001038 5 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 8, 2021 Date