[Redacted], Stefan H., 1 Complainant,v.Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency.

Equal Employment Opportunity Commission

Apr 27, 2022

Appeal No. 2021003412 (E.E.O.C. Apr. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stefan H.,1 Complainant, v. Xavier Becerra, Secretary, Department of Health and Human Services (Indian Health Service), Agency. Appeal No. 2021003412 Hearing No. 443-2020-00071X Agency No. HHS-IHS-0893-2019 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 June 4, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. At the time of events giving rise to this complaint, Complainant worked as a Rehabilitation Aftercare Specialist at the Agency’s Rapid City Service Unit, Great Plains Area in Rapid City, South Dakota. On December 4, 2018, the Human Resources Regional Director requested a reduction in force (RIF) due to a pending contract, which would result in the Great Plains Tribal Chairmen’s Health Board assuming some of the Rapid City Service Unit’s operations. As such, some federal positions would be abolished and the employees occupying them would be terminated. The Acting Area Director approved the RIF. Report of Investigation (ROI) at 127-8. 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. 2021003412 2 On August 14, 2019, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (American Indian), sex (male), disability (mental and physical), and age (67), and in reprisal for prior protected EEO activity, when: 1. on March 15, 2019, Complainant learned that his 2018 Performance Management Appraisal Program (PMAP) evaluation did not accurately reflect his job performance; and 2. on June 6, 2019, Complainant learned that he would be subjected to a RIF.2 The Agency accepted claim 2 for investigation and dismissed claim 1 as untimely. ROI at 51. After its investigation into the complaint, the Agency provided Complainant with a copy of the ROI and notice of right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. During the initial conference, Complainant raised the dismissal of claim 1. The AJ gave Complainant a deadline of June 17, 2020, to file a motion to request the reversal of the dismissal of claim 1. The Agency submitted a motion for a decision without a hearing. On October 20, 2020, Complainant simultaneously filed his opposition to the Agency’s motion and his motion to reinstate claim 1. Subsequently, the AJ issued a decision by summary judgment in favor of the Agency. As an initial matter, the AJ denied Complainant’s untimely attempt to reverse the dismissal of claim 1. The AJ noted that Complainant received his appraisal at least as early as April 6, 2019, yet he did not contact an EEO counselor until June 10, 2019, which was 65 days later. Regarding claim 2, the AJ found that Complainant failed to establish a prima facie case of discrimination or reprisal. Specifically, Complainant did not present evidence that the Supervisory Human Resources Specialist (SHRS), who was responsible for administering the RIF, was aware of Complainant’s age, disability, or EEO activity. In addition, Complainant failed to identify any similarly situated employee who was treated more favorably. Even assuming that Complainant established a prima facie case of discrimination and reprisal, the AJ found that the record did not indicate that the Agency’s application of the RIF was a pretext for discrimination or reprisal. The AJ concluded that there were no genuine issues of material fact or issues of credibility, and that summary judgment was appropriate. The Agency issued a final order 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 2 Complainant retired in August 2019. ROI at 59. 2021003412 3 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 he 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. Complainant challenges some facts, such as SHRS’s awareness of Complainant’s age. However, we find that this was not a material fact because Complainant did not identify any similarly situated younger employee who was treated more favorably. In addition, Complainant argues facts related to his PMAP, but this claim was dismissed. While Complainant contests the dismissal of his PMAP claim, the AJ gave Complainant an opportunity to request a reverse the dismissal, but he failed to timely file his motion. We note that an AJ has full responsibility for the adjudication of the complaint, including overseeing the development of the record, and has broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a), (e). In this case, the AJ properly acted within his discretion to impose a deadline for Complainant’s motion to reinstate claim 1. Moreover, Complainant offered no explanation for his untimely filing. As such, we find that the AJ’s denial of Complainant’s request to reinstate claim 1 was appropriate. Complainant asserts that he did not receive his signed PMAP until June 2019, and he provides new emails to support his contention. However, as a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation. See EEO MD-110 at Chap. 9, § VI.A.3. Complainant has not provided arguments or evidence to show that these emails were not available during the investigation, or any explanation as to why they were not provided to the investigator during the investigative stage. Accordingly, the Commission declines to consider this new evidence on appeal. For claim 2, Complainant argues that his position was similar to a Social Worker position, which was not subjected to a RIF. However, to be considered “similarly situated,” all relevant aspects of the comparative employee’s work situation must be identical or nearly identical, to that of Complainant, including, but not limited to reporting to the same supervisor, performing the same job function, and working the same schedule. See Cantu v. Dep’t of Homeland Sec., EEOC Appeal No. 01A60528 (Jul. 14, 2006); Grappone v. Dep’t of the Navy, EEOC No. 01A10667 (Sept. 7, 2001) reconsideration denied, EEOC Request No. 05A20020 (Jan. 28, 2002). Here, Complainant only argues that his position was similar, but he did not identify comparators who 2021003412 4 were similarly situated, yet outside of his protected classes and treated more favorably. We note that SHRS averred that Complainant was the only employee who occupied a Rehabilitation and Aftercare Specialist position. ROI at 108. In addition, Complainant provided no arguments or evidence connecting his protected EEO activity to his RIF notification. As such, we find that Complainant did not establish a prima facie case of discrimination based on his age, disability, race, or sex, or in reprisal for protected EEO activity for claim 2. To the extent that Complainant argues that his PMAP score resulted in his RIF notification, the PMAP claim was not investigated and, therefore, we will not address Complainant’s arguments related to the PMAP. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in his 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 against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 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, 2021003412 5 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. 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. 2021003412 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 April 27, 2022 Date