[Redacted], Augustine P., 1 Complainant,v.Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency.

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022004353 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Augustine P.,1 Complainant, v. Lloyd J. Austin III, Secretary, Department of Defense (Defense Intelligence Agency), Agency. Appeal No. 2022004353 Hearing No. 510-2020-00047X Agency No. DIA-2019-00028 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 3, 2022, final order 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. At the time of events giving rise to this complaint, Complainant worked as an Intelligence Officer at the Agency’s U.S. Central Command in Tampa, Florida. On May 7, 2019, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and harassment based on his disability (physical) and in reprisal for prior protected EEO activity, when: 1. from August 29, 2018, through March 28, 2019, Complainant’s first-line supervisor (Supervisor) failed to respond to Complainant’s requests for his 2018-2019 annual performance objectives and meaningful, relevant duty assignments; 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. 2022004353 2 2. on March 18, 2019, Complainant learned that Agency personnel from the Iran Division contacted the leadership in the Central Asia Branch in October 2014, and told them that Complainant’s writing and analytical abilities were “subpar,” or words to that effect; 3. on May 1, 2019, Complainant learned that Agency personnel made disparaging remarks about him in 2016; and 4. on July 7, 2019, Complainant learned that someone told Supervisor, “try not to fix him,” referring to Complainant. 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 EEOC 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. The AJ found that Complainant did not allege conduct that was frequent, severe, physically threatening or humiliating, or that unreasonably interfered with his work performance. The AJ noted that Complainant complained of comments made years earlier and a dispute regarding his performance objectives following his transfer to another branch. However, employment actions, such as routine work assignments and instructions, do not rise to the level of discriminatory harassment. For claim 1, the AJ found that it was undisputed that Supervisor did not provide any employee with timely performance objectives. The AJ stated that a reorganization contributed to the delay, and Supervisor acknowledged that he got busy but should have issued the written performance objectives sooner. The AJ determined that there was no evidence that Supervisor’s mistake was due to Complainant’s protected classes, and that Complainant’s conjecture and speculation did not demonstrate that this was more than an administrative oversight. The AJ also noted that Complainant’s description of his assignments as not sufficiently meaningful does not amount to an abusive or hostile work environment. The AJ added that mere awareness of Complainant’s disability and EEO activity was insufficient to demonstrate discrimination or reprisal. Regarding the comments made about Complainant (incidents 2-4), the AJ found that there was nothing to establish that they amounted to a hostile or abusive working environment. The AJ further found that these few statements, made over the course of years, did not constitute a severe or pervasive hostile environment. Rather, an opinion of Complainant’s work as “subpar,” and comments that Complainant was insubordinate and resistant to feedback, did not amount to a hostile work environment. The AJ concluded that Complainant did not establish that the Agency subjected him to discrimination, or a hostile work environment, based on his disability, or in reprisal for prior protected EEO activity. 2022004353 3 The Agency issued its final order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. The instant appeal followed, and Complainant provided a brief and additional evidence in support of his appeal.2 The Agency did not respond to Complainant’s appeal. 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, at Chap. 9, § VI.B. (Aug. 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). As an initial matter, 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 id. at Chap. 9, § VI.A.3. Here, Complainant has not provided arguments or evidence to show that these new materials 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 will not consider this new evidence on appeal. Complainant also accuses the Agency of ex parte communication with the AJ when it sent its Statement of Undisputed Facts. Complainant states that he only received a copy of the Agency’s Motion for Summary Judgment via email on February 18, 2021. A review of the Agency’s motion, also uploaded onto the EEOC’s portal on February 18, 2021, shows that the Agency attached its Statement of Undisputed Facts to its Motion for Summary Judgment. As such, there is no evidence of any ex parte communication. 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. 2 Complainant uploaded an “addendum” and additional documents on August 24, 2022. However, the Commission’s regulations provide that “[a]ny statement or brief on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal.” 29 C.F.R. §1614.403(d). We find that this “addendum” was not filed within 30 days of Complainant’s June 20, 2022, appeal. As such, we decline to consider Complainant’s untimely submissions. 2022004353 4 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. On appeal, Complainant asserts that there are material facts in dispute regarding his performance appraisal, promotions, bonuses, and training. However, we note that these are not accepted claims in the instant complaint. Complainant also argues that there are disputes of material facts “pertaining to specific statements in the Order.” For example, Complainant disputes that updates to the Human Resources (HR) system and a reorganization led to widespread delays in the issuance of written performance objectives. He avers that issues with the HR system had “nothing to do with this complaint”; the reorganization was “simply not true”; and that Supervisor made “some lame excuse for his inaction.” However, Complainant provided no supporting evidence to establish a genuine dispute. The Commission has found that mere allegations, speculations, and conclusory statements, without more, are insufficient to create a genuine issue of material fact. See Lee v. Dep’t of Homeland Sec., EEOC Appeal No 0520110581 (Jan. 12, 2012), citing Baker v. U.S. Postal Serv., EEOC Appeal No. 01981962 (June 26, 2001), req. for recon. denied, EEOC Request No. 05A10914 (Oct. 1, 2001). Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder could not find in Complainant’s favor. Assuming, arguendo, that the incidents occurred as described by Complainant and were based on his disability, they do not rise to the level of unlawful harassment. Generally, “simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.” Kozak v. U.S. Postal Serv., EEOC Appeal No. 01A63021 (Aug. 23, 2006); Battle v. U.S. Postal Serv., EEOC Appeal No. 0120083387 (Feb. 4, 2010). Such conduct “must be both objectively and subjectively offensive, [such] that a reasonable person would find [the work environment to be] hostile or abusive, and … that the victim in fact did perceive to be so.” Id. As determined by the AJ, some comments about Complainant, made over the course of a few years, were not severe or pervasive to change his working conditions to a hostile work environment. In addition, to ultimately prevail in his claim of retaliatory harassment, Complainant must show that he was subjected to conduct sufficient to dissuade a “reasonable person” from making or supporting a charge of discrimination. See Burlington N. and Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006); EEOC Enforcement Guidance on Retaliation and Related Issues, EEOC Notice No. 915.004, § II(B)(3) & n. 137 (Aug. 25, 2016). Only if both elements are present, retaliatory motivation and a chilling effect on protected EEO activity, will the question of Agency liability for reprisal-based harassment present itself. See Janeen S. v. Dep’t of Com., EEOC Appeal No. 0120160024 (Dec. 20, 2017). While Complainant asserts that his case is “mainly about retaliation,” he provided no evidence, aside from his own assertions, that any of the complained of conduct was due to his prior EEO activity. 2022004353 5 To the extent that Complainant argues that the Agency did not provide “substantial evidence” in response to his claims, an Agency merely has to articulate legitimate, nondiscriminatory reasons for its actions, and then it is Complainant’s burden to prove that the Agency’s actions were pretext for discrimination. See Complainant v. Dep’t of Homeland Sec., EEOC Appeal No. 0120123327 (Apr. 28, 2015); Yoon v. Dep’t of the Army, EEOC Request No. 0520110577 (Dec. 16, 2011); O’Loughlin v. Soc. Sec. Admin., EEOC Request No. 05980011 (Apr. 26, 2001). Upon careful review of the AJ’s decision and the evidence of record, as well as Complainant’s 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. 2022004353 6 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. 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 September 27, 2022 Date