[Redacted], Bryce B., 1 Complainant,v.Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency.

Equal Employment Opportunity Commission

Sep 6, 2022

Appeal No. 2021003192 (E.E.O.C. Sep. 6, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bryce B.,1 Complainant, v. Deb A. Haaland, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 2021003192 Hearing No. 520-2020-01342X Agency No. DOI-NPS-20-0228 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 May 10, 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. At the time of events giving rise to this complaint, Complainant worked as a K-9 Police Officer at the Agency’s New York Field Office, Liberty District in Brooklyn, New York. On February 28, 2020, Complainant filed an EEO complaint alleging that the Agency retaliated against him for prior protected EEO activity (witness in coworker’s EEO complaint) when in December 2019 and January 2020, he was denied K-9 Instructor Training.2 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. 2 The Agency dismissed Complainant’s harassment claim for failure to state a claim. Report of Investigation (ROI) at 76-7. The Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § IV.A.3 (Aug. 5, 2015). On appeal, Complainant did not 2021003192 2 After its investigation into the complaint, the Agency provided Complainant with a copy of the Report of Investigation (ROI) 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. In a footnote, the AJ stated that Complainant’s attorney was disbarred and not licensed to practice in any jurisdiction. The AJ previously cautioned Complainant’s disbarred attorney from representing himself as an attorney and informed him that any documentation submitted indicating that he was licensed to practice law would not be accepted. However, Complainant’s disbarred attorney continued to defy the AJ’s order.3 The AJ found that Complainant “deceptively” alleged that the Agency did not timely respond to, or certify, its discovery responses. While the Agency requested sanctions against Complainant, the AJ chose not to do so, and instead, granted summary judgment in the Agency’s favor. The AJ found that there was no genuine dispute of material facts and incorporated the Agency’s Statement of Undisputed Material Facts. The AJ noted that no one took K-9 Instructor training in December 2019 or January 2020, and that Complainant’s second-line supervisor was unable to send anyone to this training for approximately three years. Accordingly, the AJ granted the Agency’s motion for summary judgment. 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 submitted a brief in support of his appeal.4 The Agency opposed 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). contest the Agency’s dismissal of his harassment claim; as such, we will not address it in the instant decision. 3 We note public records show that Complainant’s representative was disbarred in New York on September 12, 2019, and in New Jersey. We caution Complainant’s representative against continuing to present himself as an attorney, and we remind Complainant that he is entitled to an award of reasonable attorney’s fees only if he has been represented by an attorney, as defined by 29 C.F.R. § 1614.501(e)(1)(iii). 4 Complainant also filed a reply to the Agency’s opposition brief on August 2, 2021. 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). Complainant’s reply was not submitted within 30 days of his appeal, and as such, we will not consider his arguments in that document. 2021003192 3 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. (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). 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. Through his non-attorney representative, Complainant argues that the AJ “readily admits” to have failed to consider sworn depositions and the Agency’s record, and did not mention Complainant’s submissions, brief, or exhibits in the decision; and as such, there was an abuse of discretion. 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). Given the AJ’s broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C. v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016), citing Kenyatta S. v. Dep’t of Justice, EEOC Appeal No. 0720150016 n.3 (June 3, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). In this case, the AJ specified in the decision to have “reviewed and considered all documents and exhibits in the ROI and submitted by the parties, whether or not they are specifically referenced within this Decision.” We find that Complainant’s contention that the AJ admitted to failing to consider his submissions is not accurate, and there was no abuse of discretion. Complainant also contends that the AJ abused their discretion when stating that Complainant “deceptively” alleged that the Agency did not timely respond to, or certify, its discovery responses. Complainant avers that the Agency failed to timely respond to his request for admissions, and as such, the Admissions are deemed admitted. The Agency counters that it submitted its response to Complainant’s request for admissions within the parties’ agreed-upon, stipulated timeframe. A review of the documents shows that on December 15, 2020, the Agency asked Complainant’s representative if he was open to a two-week extension of discovery responses. On December 16, 2020, Complainant’s representative responded that he understood and stated, “[j]ust try to get them to me prior to depositions.” The depositions began on January 26, 2021, and the Agency sent its responses to Complainant’s request for admissions on January 25, 2021. 2021003192 4 We agree with the AJ that Complainant was deceptive in asserting that the Agency failed to meet deadlines because it is clear that the Agency relied upon Complainant’s representative’s express agreement to extend the Agency’s discovery deadlines. As such, we find that Complainant failed to establish any abuse of discretion by the AJ. Complainant also asserts that the AJ failed to consider the genuine issues of material fact brought forth by Complainant, and that there are credibility issues because the AJ relied upon “half- truths.” However, Complainant did not provide citations to the record to demonstrate a genuine dispute of a material fact or need for credibility assessments. For example, Complainant states that “the facts for which the erroneous decision relied upon are refuted by Agency Records, i.e. Agency’s own E-mails requesting who wants to be Trained as a K-9 Instructor and K-9 Officer [redacted name] response in the affirmative.” 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. den’d, EEOC Request No. 05A10914 (Oct. 1, 2001). Complainant also argues that he established pretext; for example, because K-9 Instructors were needed and required, and that the AJ incorrectly found that no one took K-9 Instructor training in December 2019 or January 2020.5 Complainant asserts that the AJ “lacks an understanding of how K-9 Instructor training works,” and that it occurs concurrently when K-9 officers receive their initial training. Complainant further argues that two officers from Union County, New Jersey received training in August 2019 and September 2020. However, Complainant raises these comparators for the first time on appeal, and we note that he reports that these officers were located in a different state. We find that, even if K-9 Instructors were needed, Complainant did not cite to any record evidence to prove that others received training in August 2019 or September 2020, or during the relevant timeframe of his alleged discrimination of December 2019 through January 2020. As such, we find that the AJ was not incorrect, nor “lacks understanding” of the training, and that Complainant did not establish that the Agency’s explanations were pretexts for retaliation. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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. 5 Complainant also avers that pretext is shown by the “extremely close temporal proximity” between his protected EEO activity and the denial of his training, but temporal proximity is used to establish a prima facie case of reprisal, not pretext. See Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 273 (2001). 2021003192 5 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). 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). 2021003192 6 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 6, 2022 Date