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

Equal Employment Opportunity Commission

Mar 29, 2021

Appeal No. 2020002995 (E.E.O.C. Mar. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy R.,1 Complainant, v. Thomas W. Harker, Acting Secretary, Department of the Navy, Agency. Appeal No. 2020002995 Hearing No. 430-2017-00130X Agency No. DON-16-00178-001143 DECISION On April 3, 2020, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 5, 2020 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, we AFFIRM the Agency’s final order. At the time of events giving rise to this complaint, Complainant worked as a Senior Engineer, ND-0830-04 at the Agency’s Naval Sea Systems Command, Naval Surface Warfare Center Dahlgren Division (NSWCDD) in Dahlgren, Virginia. On February 16, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to a hostile work environment on the bases of national origin (Ukrainian), age (over 40), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967. Complainant provided a series of events in support of his claims of harassment. The following events are illustrative of his claims: 1. Harassment based on national origin and/or age: 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. 2020002995 2 a. In September 2012, Complainant was demoted from a ND5 to ND4 following his return from an external assignment; d. Since September 2012, Complainant has never been invited to branch technical meetings, program reviews, or branch staff meetings, and his professional reputation was ruined by adverse management actions and comments which made it difficult for Complainant to move to a different government job outside of NSWCDD; i. Since September 2012, Complainant’s contribution to the U.S. Navy has been routinely downplayed and his continuous improvement contribution and performance were disapproved; j. In August 2014, Complainant was excluded from a group achievement and merit award for the “Laser Weapons Quick Decision Reliability” program; and m. On December 13, 2015, Complainant did not receive any Continuous and Bonus Pay money for FY2015.2 2. Harassment based on reprisal: a. From July 14, 2015 to present, management has not given Complainant his patent award certificate, award ceremony, and patent plaque for the patent he was awarded on July 14, 2015; c. On February 9, 2016, Complainant was given an unrealistic task and no funds to work on the task, causing him to work pro bono (Although he produced a good report, he was punished when he received unfair negative feedback); e. On March 15, 2016, Complainant was subjected to intense questioning to determine if he was physically violent and presented a physical threat when he was invited to a meeting with the Division Director to discuss the hostile work environment, and he also answered questions related to the harassment of his wife because he believed that his wife was attacked on social media and that this attack was organized by the Chief Engineer of the Lethality and Effectiveness Branch; j. On March 24, 2016, the Branch Head canceled a meeting with Complainant to discuss his Mid-Year Performance Review; k. On March 25, 2016, the Branch Head told Complainant that funding for his travel request to attend the Joint Army-Navy-NASA-Air Force meeting in Newport News, Virginia, scheduled to occur on May 16-20, 2016 was denied (He was to deliver a conference paper that was approved by the department at the meeting); l. On April 4, 2016, Complainant received an email from the Branch Head containing negative feedback from a meeting he attended with the Branch 2 We note that Complainant also raised reprisal as a basis for claim m. 2020002995 3 Chief to discuss his Mid-Year Performance Review (This was the first time he had received written feedback after a verbal performance review discussion); m. On April 11, 2016, the Acting Deputy Department Head issued Complainant a letter of reprimand; q. On April 11, 2016, the Acting Deputy Department Head damaged Complainant’s reputation and significantly damaged his ability to secure funds from H and Q Departments when he told him to sever his ties with the laser program; r. On April 11, 2016, Complainant was issued a letter of reprimand by the Acting Deputy Department Head that revoked his telework agreement based on a false statement made by a coworker in a previous draft of the letter of reprimand, and although the statement was removed, telework was not reinstated; u. Complainant was no longer permitted to have a flexible work schedule; z. Management tried to constructively fire Complainant by damaging his reputation and discrediting him; and bb. Management has given poor references for Complainant to entities with whom he has sought employment. 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 timely requested a hearing. The Agency submitted a motion for a decision without a hearing, which Complainant opposed. The AJ subsequently issued a decision by summary judgment in favor of the Agency. On March 5, 2020, the Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. 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 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. 2020002995 4 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. 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, 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). 2020002995 5 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. 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 29, 2021 Date