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

Equal Employment Opportunity Commission

Feb 2, 2023

Appeal No. 2022000351 (E.E.O.C. Feb. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darren M.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022000351 Hearing No. 480-2021-00126X Agency No. 20-60495-01704 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated September 17, 2021, implementing an EEOC Administrative Judge’s decision dismissing his complaint of unlawful 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 VACATES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Installation Training Officer, GS-0301-12, at the Agency’s Naval Air Station in Fallon, Nevada. On May 4, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability (Post-Traumatic Stress Disorder (PTSD)) when: 1. On July 11, 2019, a Commander questioned Complainant’s mental health to the extent of saying “get back to seeing that therapist;” 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. 2022000351 2 2. Around August 2019, the Supervisory Information Technology Specialist told the Command Master Chief that Complainant abused a Petty Officer to discredit and ruin his reputation; 3. On August 7, 2019, the Supervisory Information Technology Specialist directed an Information Technology Department staff member to remove his workstation from his office without notification; 4. In September 2019, the Commander attempted to implement timecard standards on Complainant; 5. On September 10, 2019, the Commander belittled Complainant in front of coworkers and junior Sailors; 6. On October 2, 2019, the Commander questioned Complainant regarding a false anonymous complaint saying, “if you didn’t do anything wrong, you don’t have anything to worry about;” 7. In November 2019, a Sailor working for the Emergency Management Specialist conducted an informal “investigation” on Complainant and said, “if you were lying, I wanted it on paper;” 8. In December 2019, Complainant found out the Emergency Management Specialist, during an anonymous Inspector General (IG) complaint, provided his crucial information regarding dates, times, location, and when his vehicle was or was not at his residence; 9. On or around December 19, 2019, when speaking to local Naval Criminal Investigative Services (NCIS) agents, the Supervisory Information Technology Specialist accused Complainant of violating Operational Security when attending rotary meetings; 10. On January 23, 2020, a Commander questioned Complainant’s timekeeping; 11. On March 10-11, 2020, the Supervisory Information Technology Specialist attempted to discipline Complainant by insinuating he was breaking classified security protocol; and 12. Between April 3 and 7, 2020, the Emergency Management Specialist directed Complainant out of a Critical Emergency Preparations meeting, stating it was not his “swim lane.” 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 requested a hearing. On July 20, 2021, the AJ assigned to the matter notified the parties that he intended to dismiss the complaint for failure to state a claim. Specifically, the AJ accepted as true all the allegations in Complainant’s formal complaint and found that Complainant failed to sufficiently allege matters that were either severe or pervasive enough to rise to the level of an actionable hostile work environment. In response, Complainant first argued that the AJ’s notice of intent was procedurally deficient because he failed to state the undisputed facts or to afford the parties the opportunity for discovery. 2022000351 3 Complainant then argued that he established a prima facie case of a hostile work environment because he was told to see a therapist and he was accused of verbally abusing another employee. Complainant contended these actions were constant, and therefore sufficiently severe or pervasive. On August 5, 2021, the AJ issued a decision dismissing the instant complaint. In his decision, the AJ explained that Complainant’s response “misses the mark.” The AJ emphasized the distinction between a dismissal for failure to state a claim and a decision granting summary judgment; a decision to dismiss for failure to state a claim tests only the sufficiency of Complainant’s allegations, not the sufficiency of the evidence. The AJ concluded that even if Complainant’s allegations were true, Complainant failed to allege facts that would demonstrate the presence of severe or pervasive conduct. Rather, while “smattering of inoffensive slights, disagreements, and inquiries alleged by Complainant” objectively gave “rise to bruised or wounded feelings,” they did not satisfy the severe or pervasive standard necessary to state a claim. The Agency issued a final order accepting the AJ’s decision. The instant appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant reiterates his argument that the AJ’s decision to dismiss his complaint was procedurally deficient because the AJ did not identify the applicable legal standards, identify the undisputed material facts, and provide the parties an opportunity to identify specific evidence that would create genuine issues of material fact. Complainant also objects that he was not given the opportunity to conduct discovery. Further, Complainant contends that the AJ changed his legal reasoning, from the standard applicable to a hostile work environment to the standard applicable to dismissing a complaint for failure to state a claim. Complainant maintains that he articulated sufficient facts in his complaint to state a claim because he has alleged that he was aggrieved based on his disability, “which in and of itself is all that it takes to state a claim. Complainant further maintains that he established a prima facie claim of a hostile work environment, in part because it was obvious that he was subjected to conduct that was severe and pervasive. Accordingly, Complainant requests that we reverse the AJ’s dismissal. ANALYSIS AND FINDINGS An EEOC Administrative Judge may dismiss a complaint pursuant to 29 C.F.R. § 1614.109(b) if the complaint fails to state a claim. The AJ may do so on his own initiative, or upon an agency’s motion to dismiss. Id. § 1614.109(b). In his July 20, 2021 Notice of Intent, the AJ clearly notified the parties of his intention in several ways. First, the notice was titled, “Notice of Intent to Dismiss.” (Emphasis added.) Second, in opening his Notice, the AJ states that he believes that “Complainant’s allegations, even if true, fail to state a claim [and that] I intend to dismiss.” (Emphasis added.) The AJ then cites Section 1614.109(b), the regulation giving him authority to do so. 2022000351 4 The AJ then provides the legal standard for a hostile work environment, articulates facts from the record, including Complainant’s allegations against the Commander, the Supervisory Information Technology Specialist and the Emergency Management Specialist. The AJ concludes that Complainant’s allegations “amount to routine operational disagreements and inconveniences” and that only one allegation touched on Complainant's disability. Therefore, Complainant failed to show his allegations were sufficiently severe or pervasive to state a claim of a hostile work environment. The AJ set a deadline of August 4, 2021, for the parties’ response. We find that the AJ’s Notice of Intent was procedurally sufficient. To determine whether Complainant is an aggrieved employee, we are required to determine the legal theory upon which Complainant’s allegations rest and determine whether these allegations, if taken true, would state a claim. See, e.g., Davida L. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2022004203 (Oct. 6, 2022) (analyzing a hostile work environment allegation to determine whether it stated a claim). Here, Complainant alleged he was subjected to a hostile work environment. To establish a claim of discriminatory harassment, Complainant must show that: (1) he belongs to a statutorily protected class; (2) he was subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on his statutorily protected class; and (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the Agency. Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). The instant complaint turns on the second prong, which requires Complainant to allege facts that demonstrate, if true, that he was subjected to conduct that was objectively severe or pervasive that a reasonable person would believe the conduct rises to the level of a hostile work environment. We find that Complainant's allegations are sufficient to state a claim of a hostile work environment. Construing the allegations in his favor, as we must, Complainant has alleged that the Commander questioned his mental fitness and that subsequently he suffered a series of harassing actions by the Commander and others in his department due to his disability. Such allegations, if true, could rise to the level of creating a hostile work environment. The AJ found that Complainant’s allegations amounted to routine operational disagreements and inconveniences and that only the comment about Complainant’s treatment plan was based on Complainant’s protected class. Thus, the AJ concluded that even if the alleged conduct was based on discriminatory animus, Complainant would not be entitled to relief. We find this reason goes to the merits of Complainant's complaint and is irrelevant to the procedural issue of whether he has stated a justiciable hostile work environment claim. See Osborne v. Dep't of the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993); Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). 2022000351 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final order and REMAND the matter for further processing in accordance with the ORDER below. ORDER Within thirty (30) calendar days of the date this decision is issued the Agency shall submit to the Hearings Unit of the EEOC’s Los Angeles District Office a renewed request for a hearing on this complaint, the complaint file, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. §1614.110. 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. 2022000351 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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. 2022000351 7 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 February 2, 2023 Date