[Redacted], Tommy C., 1 Complainant,v.Thomas W. Harker, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 10, 2021

Appeal No. 2020002149 (E.E.O.C. Mar. 10, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy C.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020002149 Hearing No. 570-2017-00362X Agency No. 16-67856-00762 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 12, 2019 notice of final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Agency’s decision finding no discrimination is AFFIRMED. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Visual Information Specialist, GS-1084-9, for the Agency’s Marine Corps University. On May 2, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of age and in reprisal for prior protected EEO activity when: a. On February 26, 2016, Person A, Customer Service Branch (CSB), GS-2210- 13, first- level supervisor, sent an email to contractors in Washington, DC, reassigning 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. 2020002149 2 Complainant’s responsibilities, when previously Complainant had requested Person A not use his name. b. On February 10, 2016, Lieutenant Colonel (LtCol) Person B, Information Education Technology (IET), Deputy Director, told Complainant, “I dreamed that you died of an overdose,” and then LtCol Person B walked away. c. On February 1, 2016, Complainant informed a contractor (via email) that he could not task Complainant with duties. Since then, a General Schedule (GS) billet has been generated for the said contract d. On February 1, 2016, Person C, a contractor, was allowed to monitor Complainant’s calendar during working hours, medical appointments, training, leave and other personal business, interfering with his work performance which subjected him to a hostile work environment. e. On January 28, 2016, Person A sent an email to Person D, a contractor, stating Person D, who has worked for Complainant for three years, no longer works for him; although Complainant is the senior audio visual employee. f. Around mid-January 2016, Person E, AD-1701-9.33, IET, Director and LtCol Person B directed Complainant to apologize to Person F (contractor) and Person A for sending an email to others in the CSB stating and clarifying Complainant is a GS employee and not a contractor. g. On an unspecified date in late November and prior to December 25, 2015, MCU, IET hired Person G (GS-11) and Person A assigned Person G to schedule the audio visual rooms, which previously was Complainant’s responsibility (contained in his PD), and Person C tasked Complainant with doing a fillable check list for Person G to use. h. Since mid-November 2015, Person A has harassed and singled-out Complainant as an outcast since he told Person A he has over 20 years Marine Corps customer service as a Visual Information Specialist and 16 years working for MCU. i. On November 9, 2015, Person A directed Complainant to report back to his worksite (Warner Hall) between briefs at 2076 South Street, MCU building. Complainant had a brief at MCU building from 0800 - 0900 and followed by a brief (in the same building) at 0945 -1030. Complainant had to report to Warner Hall (his worksite) and then return to MCU for the next brief. j. On November 2, 2015, Complainant was relocated from a private office and pushed backed into an empty cubicle without a computer, monitor or light while the other eight employees had computers, monitors and desk lights. 2020002149 3 k. From November 2, 2015 to the present, Complainant has been harassed since being reassigned back to the CSB from the Education Training Branch (ETB) for any little thing: meetings, time cards, leave, and Audio Visual (A/V) support. l. Since October 2015 and continuing to the present, when Complainant filed an Informal EEO Complaint, Person A removed his responsibilities and assigned them to various contractors and recently hired GS-7 employees, which has not allowed him to fulfill his work tasks and duties because they have been assigned to contractors. Complainant is only assigned the tickets if the contractors do not know what to do. m. On May 18, 2015, Person E informed Complainant his position description (PD) was to be rewritten, (GS-1084 to GS-1071), although he has yet to receive a copy of it. n. On an unspecified date in 2015, Person H, ETB, Director, informed Complainant he had been written up by Captain Person I, CSB Lead, and Complainant was not allowed to see the write-up. o. Since late July or August 2012, the terms and agreements in the Settlement Agreement (signed by Person J, Director and Person E) has not been upheld nor adhered to. p. On July 2, 2012, Complainant was reassigned from the CSB to ETB as a result of filing a grievance on July 2, 2012 IET (previous) Director, because of unjust treatment. After its investigation into the complaint, 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. The Agency filed a Motion for Findings and Conclusions Without a Hearing. Complainant did not file a response to the Agency Motion. The AJ subsequently issued a decision by summary judgment in favor of the Agency. The Agency issued its notice of final order fully implementing the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed. 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). 2020002149 4 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). At the outset, we note that Complainant does not challenge the framing of the claims. We find the record in the present case fully developed. 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 against by the Agency as alleged. CONCLUSION Accordingly, we AFFIRM the Agency’s notice of final order fully implementing 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. 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. 2020002149 5 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. 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. 2020002149 6 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 10, 2021 Date