[Redacted], Donovan T., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2022

Appeal No. 2022002835 (E.E.O.C. Sep. 21, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donovan T.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022002835 Hearing No. 480-2021-00651X Agency No. ARZAMA21MAR01090 DECISION On April 27, 2022, 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 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. For the following reasons, the Commission AFFIRMS the Agency’s final order. During the relevant time, Complainant worked as a Facilities Technician at the Agency’s Directorate of Family and Morale, Welfare and Recreation (DFMWR) in Camp Zama, Japan. On April 29, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of race (African-American) when, on February 26, 2021, he was separated from his employment with the Agency. 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. 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. 2022002835 2 Over Complainant's objections, the AJ assigned to the case granted the Agency’s January 20, 2022, motion for a decision without a hearing and issued a decision without a hearing on March 8, 2022. When the Agency failed to issue a final order within forty days of receipt of the AJ’s decision, the AJ’s decision finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged became the Agency’s final action pursuant to 29 C.F.R. § 1614.109(i). The instant appeal followed. 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 (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 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. To the extent that Complainant’s attorney alleges a dispute of facts, such as whether Complainant was “on duty during any of the incidents that formed the basis for the barment decision or that those incidents were otherwise related to Complainant’s employment duties,” the Commission finds that this is not a material fact, meaning that it is not dispositive of the outcome in this case. As such, the Commission finds that there are no material facts in dispute, and we find that a summary judgment was proper. Furthermore, 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. To the extent that Complainant’s attorney argues that Programs Director described Complainant to the EEO counselor as “tall, black and muscular … who could get easily upset,” and, therefore, the “barment notice is based, potentially on the assumption that Complainant is an angry black man,” the Commission cannot agree that this is supported by any evidence of record. As an initial matter, Complainant’s attorney’s attribution of words to Programs Director is void for completeness. 2022002835 3 The EEO Counselor’s report states, as follows: “When asked to describe [Complainant], Mr. Programs Director said he was tall, black and muscular. He then said that [Complainant] would workout on his lunch breaks and after work. He also said that [Complainant] was a very nice person who could easily get upset.” ROI at 16. This was a response to a requested description, and the Commission finds that the inclusion of the entirety of the context of the response is inconsistent with a mere racial stereotype, as asserted by Complainant’s attorney. Assuming, arguendo, that Complainant established a prima facie case of racial discrimination, we find that the Agency provided a legitimate non-discriminatory reason for his removal. Specifically, Complainant was purportedly found to be at fault in three separate serious incidents between October 2019 and October 2020, with video evidence providing evidence contrary to Complainant’s version of the facts. ROI at 167. Being barred from an Agency facility is sufficient for removal, according to the Agency’s policy. ROI at 110. As we find that the Agency provided a legitimate, nondiscriminatory reason for Complainant’s removal, we now turn to Complainant to provide evidence that the Agency’s reason was mere pretext for discrimination. We find he failed to do so. Complainant’s attorney, himself, asserts no more than that there was a potential assumption of a racial stereotype. The Commission finds that, consistent with this statement, the record is devoid of any evidence that the Agency’s action was due to racial animus, aside from Complainant’s suppositions, assumptions, and inferences. Ultimately, a Complainant must prove, by a preponderance of the evidence, that the agency’s articulated reason for its action was not its true reason, but a sham or pretext for unlawful discrimination. Tex. Dep’t of Cmty. Aff. v. Burdine, 450 U.S. 248, 252-53 (1981); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); . St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “[P]retext can be demonstrated by ‘showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the [Agency’s] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence.’” Dalesandro v. U.S. Postal Serv., EEOC Appeal No. 01A50250 (Jan. 30, 2006) (alterations in original) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). A complainant’s generalized testimony alleging a subjective belief that a particular action was motivated by discrimination is insufficient to show pretext. See Perry v. Dep’t of Hous. & Urban Dev., EEOC Appeal No. 01A54957 (Jan. 4. 2006). The Commission cannot second-guess an Agency’s decisions involving personnel unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Burdine, 450 U.S. at 259 . Ultimately, an employer has broad discretion to set policies and carry out personnel decisions. Id. Therefore, Complainant must present enough evidence to raise a genuine issue of material fact as to whether the responsible management officials were motivated by unlawful considerations of discrimination in connection with the claim as articulated. See Reeves, 530 U.S. at 143; see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993). The question is not whether the Agency made the best, or even a sound, business decision; it is whether the real reason is discrimination. 2022002835 4 Mere assertions or conjecture that an agency's explanation is a pretext for intentional discrimination is insufficient because subjective belief, however genuine, does not constitute evidence of pretext. The focus of pretext inquiry is whether an agency's actions were motivated by discriminatory animus. Further, at all times the ultimate burden of persuasion remains with Complainant to demonstrate by a preponderance of the evidence that the Agency was motivated by prohibited discrimination.” Alameda B. v. Dep’t of the Treasury, EEOC Appeal No. 0120181968 (Sept. 24, 2019). We find that the record is devoid of such evidence in this case. Accordingly, we AFFIRM the Agency’s final order implementing 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). 2022002835 5 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 21, 2022 Date