[Redacted], Armand C., 1 Complainant,v.Lloyd J. Austin, III, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Dec 13, 2021

Appeal No. 2020004406 (E.E.O.C. Dec. 13, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Armand C.,1 Complainant, v. Lloyd J. Austin, III, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2020004406 Hearing No. 570-2017-00404X Agency No. DIA-2015-00054 DECISION On July 31, 2020, 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 final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Financial Specialist Analyst, GG-0501-11, at the Agency’s Office of the Chief Financial Officer in Washington, D.C. On June 10, 2015 (and later amended), Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases of disability (physical) and reprisal for prior protected EEO activity when: 1. On October 10, 2014, Complainant notified his supervisor of his trigeminal condition, presented her with his Family Medical Leave Act (FMLA) paperwork, 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. 2020004406 2 and they both agreed that he could sometimes arrive late to work due to the side effects of his medications; 2. On an unspecified date between February to March 2015, Complainant was notified that his supervisor would justify placing him on a Letter of Instruction, because he was occasionally tardy for work; 3. On or around March 18, 2015, his supervisor notified Complainant that she had scheduled a meeting, that same day with the Office of Human Resources, that he believed was regarding his time and attendance; 4. On March 18, 2015, his supervisor issued Complainant a Letter of Instruction; 5. On March 19, 2015, Complainant was charged three hours absent without leave (AWOL); and 6. Complainant claimed he was subjected to retaliatory harassment (for requesting a reasonable accommodation and FMLA in October 2014) as evidenced by multiple incidents which included being reassigned from the Vendor Pay Office, being yelled at and being accused of providing bad data, being issued a Letter of Counseling, being denied advanced sick leave, his pay was delayed, he was denied access to the North Building at another facility, being issued a Notice of Seven-Day Suspension on February 11, 2016, and being issued a Notice of Five- Day Suspension on April 14, 2016. 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 held a hearing on November 4 and 5, 2019, and issued a decision on January 10, 2020. In the decision, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. When the Agency failed to issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i).2 This appeal followed. ANALYSIS AND FINDINGS As an initial matter, the Commission will address the Agency’s argument that Complainant’s July 31, 2020 appeal was untimely filed. The record reveals that the AJ issued his decision on January 10, 2020. Once the Agency failed to issue a final order within 40 days of the AJ's decision, the AJ's decision became, by operation of law, the Agency’s final action on February 19, 2020, notwithstanding its subsequent untimely issued final order. 29 C.F.R. § 1614.109(i). Further, the Commission has held there is no regulatory provision that sets a specific time limitation for filing an appeal in circumstances such as this wherein an AJ's decision becomes final by operation of 29 C.F.R. § 1614.109(i). Avery S. v. Dep't of the Treasury, EEOC Request No. 2020000221 (Jan. 22, 2020). 2 Thereafter, on June 5, 2020, the Agency issued a final order fully adopting the AJ’s decision. 2020004406 3 Rather, the time for Complainant to file an appeal in this instance is governed by the doctrine of laches -- “an equitable remedy under which an individual's failure to diligently pursue their actions can bar their claims.” O'Dell v. Dep't of Health and Human Serv., EEOC Request No. 05901130 (Dec. 27, 1990). Here, we conclude that laches does not apply to Complainant’s July 31, 2020 appeal, and that the appeal is ripe for adjudication. Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive 110, Chapter 9, at § VI.B. (Aug. 5, 2015). Upon careful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal, we conclude that substantial evidence of record supports the AJ’s determination that Complainant has not proven discrimination or reprisal by the Agency as alleged. We discern no reason to overturn the AJ’s decision. 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). 2020004406 4 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. The court has the sole discretion to grant or deny these types of requests. 2020004406 5 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 December 13, 2021 Date