[Redacted], Charlie O., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 13, 2023

Appeal No. 2022000764 (E.E.O.C. Mar. 13, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Charlie O.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000764 Hearing No. 430202000571X Agency No. DON204215801508 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”), pursuant to 29 C.F.R. § 1614.403, from the Agency’s October 28, 2021 Final Order concerning an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Rigger, WG-5210-10, with the Rigging Branch (Code 741) of the Lifting and Handling Department (Code 700) at the Norfolk Naval Shipyard ("NNSY") in Portsmouth, Virginia. On February 26, 2020, Complainant filed formal EEO complaint alleging that the Agency subjected him to harassment/a hostile work environment on the bases of race (White), sex (male), and reprisal for prior protected EEO activity when: 1. On February 5, 2019, Complainant was issued a Notice of Proposed Removal. 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. 2022000764 2 2. Beginning in or around April 2019 (after leaving Code 105.3), Complainant faced continuing harassment and was removed from jobs based on allegations that he was “a bad apple,” “a failure” and “aggressive.” Examples include but were not limited to: a. On approximately August 12, 2019, a Temporary Supervisor pre-acted Complainant and said he was “lucky to have a job,” a reference to Complainant’s time in Code 105.3, and, b. Sometime after August 12, 2019, Supervisor removed Complainant from a nuclear instructor position.2 The evidence developed during the Agency’s investigation of the complaint shows the following. Prior EEO Complaint On September 3, 2017, Complainant, who had been working as a Rigger/Mechanic (Code 741) at NNSY since 2010, was promoted to the position of Physical Science Technician, GS-1311-05, with the Radiological Monitoring Division (Code 105.3) of the Radiological Control Office (Code 105). The Code 105.3 position was contingent on Complainant’s successful completion of the Radiological Control Technician Qualification School (“RCTQS”) Introductory Course. Complainant was enrolled in the RCTQS Introductory Course held from February 28, 2018 to August 1, 2018, but was removed on July 26, 2018 for academic failure. On November 29, 2018, Complainant filed an EEO complaint (Agency Case No. DON184215801163 or “Complaint 1”) alleging that the events that led to his removal from RCTQS training constituted discriminatory harassment based on race, sex and reprisal. As framed by the EEOC Administrative Judge (AJ) who ultimately issued a decision on the complaint, Complaint 1 alleged that “on or about July 27, 2018, Complainant received two different test sheets and was subsequently removed from [RCTQS] and Complainant was not allowed to return even while others were allowed to return.” EEOC Hearing No. 430202000340X (July 8, 2020). The AJ ultimately issued an Order Imposing Sanctions (Default Judgment) against the Agency “for failure to provide sufficient cause to overlook its repeated error in processing [Complaint 1] and failure to conduct a timely investigation.” The AJ issued a separate Order on July 13, 2020, instructing the parties on determining damages for Complaint 1. 2 Claim 2(b) will also be analyzed as a disparate treatment claim because it alleges a discrete act (reassignment) which the Agency accepted as timely raised with an EEO counselor. See Conlin v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120055310 (Dec. 5, 2006). 2022000764 3 In the decision issued on Complaint 1, the AJ referred to the instant complaint, specifying that for Complaint 1, Complainant cannot “claim relief for any discriminatory actions that occurred after the November 29, 2018, date of filing…[because] any discriminatory actions after that date were never added to [Complaint 1].”3 In other words, while the instant complaint may concern some of the same events as Complaint 1, the AJ’s decision on Complaint 1 does not apply to the instant complaint.4 We also note that Complaint 1 was pending throughout the relevant time frame for the instant complaint, however, the AJ’s decision reveals that Complaint 1 was never investigated, so it is not clear if the Management officials named in the instant complaint were aware of Complainant’s EEO activity. Current EEO Complaint On February 5, 2019, Complainant received the Notice of Proposed Removal (from both the position of Physical Science Technician and from federal service) for failure to complete the RCTQS training program. To avoid termination, Complainant obtained reassignment to his prior position in the Rigging Branch (Code 741) of the Lifting and Handling Department (Code 700) effective April 28, 2019. In June 2019, Complainant was reassigned to work as a subject matter expert (“SME”) outside of Code 700, but he maintained the same job title, grade and wages. Complainant’s new first level supervisor was the Resource Manager, Nuclear Mechanical Continuing Training and Development (Code 930), GS-12, (“Supervisor”), (white, male). Supervisor testified that he was the one who requested the reassignment based on his prior experience working with Complainant and because Complainant came to him with concerns that he would be terminated after he left Code 105.3. On July 25, 2019, Supervisor drafted a memorandum to initiate Complainant’s return to Code 741, as the reassignment was “not working out.” Supervisor recounts incidents in June and July where Complainant failed to follow instructions and how Complainant demonstrated that he could not work with the other SMEs due to personality conflicts. Supervisor clarifies that Complainant did not conduct trainings or hold the position title of “Nuclear Instructor” at any point during the reassignment. 3 The AJ’s Default Judgment Order references the instant complaint, stating, “[o]n February 26, 2020, Complainant filed a Formal Complaint [i.e. the instant complaint] …This matter is…not included in the present case.” The AJ’s Order notes that the instant complaint originally included some of the same claims as Complaint 1 because the Agency failed to investigate Complaint 1. The Order also acknowledges and rejects the Agency’s suggestion that Complaint 1 “be remanded to be investigated and perhaps consolidated with the… complaint filed by Complainant on February 26, 2020.” 4 On June 30, 2021, Complainant and the Agency entered into a settlement agreement to resolve the matter of damages arising from Complaint 1. The terms stipulated that Complainant would not withdraw the instant complaint as consideration for entering the agreement. 2022000764 4 In August 2019, Supervisor went on leave for 2 weeks and instructed Complainant and the other SMEs to report to the Refueling Assistant Project Superintendent (Code 300N), GS-12, (“Temporary Supervisor”) (white, male, no prior EEO activity) in his absence. On August 20, 2019, Temporary Supervisor submitted a “Pre-Action Investigation Request” detailing three instances where Complainant demonstrated insubordination on or around August 12, 2019. The investigation was subsequently approved by the Rigging Branch Head. At Supervisor’s request, Complainant was returned to Code 741. After investigating the instant complaint, the Agency provided Complainant with the report of investigation (“ROI”) and notice of right to request a hearing before an EEOC AJ. Complainant timely requested a hearing, and the parties were provided with an opportunity to engage in discovery. Then, the Agency submitted a motion for a decision without a hearing and the AJ issued a decision by summary judgment in favor of the Agency. The Agency issued its Final Order adopting the AJ’s finding that Complainant failed to prove discrimination as alleged. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The Commission's regulations allow an AJ to grant summary judgment when they find 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). 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, Complainant has not established a dispute of material fact. Significantly, he did not respond to the Agency’s Motion for Summary Judgment, which contained a statement of facts adopted by the AJ. In addition, he did not file a brief in support of the instant appeal or reply when the Agency filed a brief in opposition. 2022000764 5 We note that when reviewing the record, we have carefully considered Complainant’s assertions in his affidavit and rebuttal testimony and the accompanying documents that he provided for the ROI. Likewise, we considered any arguments or assertions Complainant made elsewhere in the ROI, such as emails and the Pre-Action investigative report. Even construing any inferences raised by the ROI and undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Regarding Claim 2(b), the Agency’s legitimate nondiscriminatory reason for “remov[ing] Complainant from a nuclear instructor position” is that Complainant never held such a position. The ROI contains personnel documentation demonstrating that Complainant maintained his position of record (Rigger or Mechanic) throughout the relevant time frame. Supervisor also emphatically testifies that he assigned Complainant SME duties, not instructor duties. Although the record reflects that Complainant helped edit a training presentation in his role as an SME, there is no evidence that Complainant performed other instructor duties such as created training materials or conducted training classes. As previously stated, Complainant did not submit any argument to dispute the Agency’s characterization of his SME position. 2022000764 6 Assuming, for the sake of argument, that Claim 2(b) refers to Supervisor’s removal of Complainant from his SME position, so that Complainant was returned to Code 741, we find that Supervisor was acting within the scope of his authority as a management official. In addition, Supervisor provides a legitimate nondiscriminatory reason for his action (the SME position “did not work out” due to Complainant’s conduct). The ROI includes testimony from Supervisor, Temporary Supervisor, the other SMEs who reported to Supervisor, and a copy of the investigative report for the August 20, 2019 Pre-Action, supporting Supervisor’s legitimate nondiscriminatory reason. Other than bald assertions, Complainant has not provided any evidence that would indicate that a question of material fact exists over whether Supervisor’s legitimate nondiscriminatory reason was pretext. “At summary judgment stage…unsupported allegations do not create a material issue of fact.” See Gregorio S. v. Dep’t of Justice, EEOC Appeal No. 2019005676 (Nov. 4, 2020) quoting Weinstock v. Columbia Univ., 224 F.3d 33 (2nd Cir. 2000). Harassment/Hostile Work Environment To prove his harassment claim, Complainant must establish that he was subjected to conduct that was either so severe or so pervasive that a “reasonable person” in his position would have found the conduct to be hostile or abusive. Complainant must also prove that the conduct was taken because of his race, sex, and/or prior EEO activity. Only if Complainant establishes both hostility and motive, will the question of Agency liability present itself. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982); Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, EEOC Notice 915.002 (Jun. 18, 1999). The Commission has repeatedly found that allegations of a few isolated incidents of alleged harassment usually are not sufficient to state a harassment claim. See Phillips v. Dep’t of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996), Banks v. Dep’t of Health and Human Servs., EEOC Request No. 05940481 (Feb. 16, 1995). Allegations involving “common workplace occurrences,” such as routine work assignments, instructions, and admonishments, do not rise to the level of severity necessary to state a claim of harassment. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) citations omitted. Regarding Claim 1, the Agency provided extensive evidence that the February 5, 2019 Notice of Proposed Removal was a “common workplace occurrence,” consistent with its policies. Documents included a copy of the Agency’s policy allowing for removal as a disciplinary action for academic failure, and its directive for RCTQS trainees specifically. Pursuant to the directive, when an RCTQS trainee fails two written exams or two practical exams, an academic review board (“ARB”) will convene to evaluate the trainee’s knowledge and make recommendations. Such recommendations include placing the trainee in a “must pass” status for the remainder of RCTQS training. According to the directive, in the event that a trainee fails an exam while in “must pass” status, “the student will normally be recommended for removal from RCTQS.” 2022000764 7 Documentary evidence includes but is not limited to the ARB’s July 16, 2018 notice to Complainant that he was placed on “must pass” status, having failed a practical exam twice in June and July 2018; the July 18, 2018 ARB report, which examined Complainant’s overall knowledge in addition to the two failed exams, and documents establishing that Complainant failed another practical exam on or around July 26, 2018, resulting in his removal from his RCTQS class prior to its completion. The Agency also provided documentation that five other trainees were issued a Notice of Proposed Removal by the same official on the same grounds. Complainant challenges the credibility of the charge of “academic failure” underlying the Notice of Proposed Removal by claiming that two of the three failing grades were issued by an instructor who allegedly manipulated his grade and disrespected him in front of his classmates. We note that Complainant had an opportunity to engage in discovery, therefore, even if credibility issues remain, his testimony alone is insufficient to establish a genuine issue of material fact nor overcome the evidence supporting the Agency’s legitimate nondiscriminatory reasons. Cathy V. v. Dep’t of Homeland Sec., EEOC Appeal No. 2021001646 (Aug. 31, 2022) citing Harriet J. v. United States Postal Serv., EEOC Appeal No. 2020001702 (Nov. 3, 2020) (summary judgment was proper where the complainant, despite an opportunity to engage in discovery, offered “nothing more than self-serving averments”). Regardless, even if found to be true, Complainant has not shown that the instructor’s alleged actions are evidence that the ARB and officials responsible for issuing the Notice of Proposed Removal were motivated by discriminatory or retaliatory animus. The allegations raised in Claim 2(a) consist of isolated incidents and common workplace occurrences, which are not sufficient to establish an actionable claim of harassment. Although Complainant argues in detail that the Pre-Action was unwarranted, revealing his disagreement with Temporary Supervisor’s instructions for where he should complete his assignment. It is well established that instances of a supervisor questioning an employee with respect to their duties, even if done in a confrontational manner, is a “common workplace occurrence.” See Agnus W. v. United States Postal Serv., EEOC Appeal No. 0120160826 (Mar. 23, 2016) citing Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). We emphasize that while an employee may have a different idea about how operations should be run, “these are not issues which should be pursued in the EEO complaint process since decision makers in the complaint process cannot substitute their judgment on how to run the day-to-day operations of an Agency for that of the managers involved.” Dewitt L. v. Dep’t of the Navy, EEOC Appeal No. 0120160682 (May 3, 2016). We have not considered Claim 2(b) in the harassment analysis, given that for reasons previously discussed, Complainant was unable to establish that the Agency’s alleged actions were motivated by discriminatory or retaliatory animus. Upon careful review of the record, 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. 2022000764 8 CONCLUSION 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). 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. 2022000764 9 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 13, 2023 Date