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

Equal Employment Opportunity Commission

Dec 8, 2021

Appeal No. 2021001051 (E.E.O.C. Dec. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Everett C.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021001051 Hearing No. 570-2019-00627X Agency No. AREUWIES18JUN02203 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 November 4, 2020, final action concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final action. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor, GS15, for the Agency Headquarters, U.S. Army Europe, Wiesbaden, Germany. During the relevant time, Lieutenant Colonel A was Complainant’s first level supervisor. His Second level supervisor was Colonel B, Judge Advocate. On July 3, 2018, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the bases of age (68) and in reprisal for prior protected EEO activity when: 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. 2021001051 2 1. On June 4, 2018, Lieutenant Colonel (LTC) A denied Complainant’s request for reconsideration to change his rating performance element number 4, Subject Matter Expert, from “Fully Successful” to “Outstanding” on his 2018 performance appraisal; 2. On June 4, 2018, LTC A drafted changes to Complainant’s position description and performance plan; 3. On June 4, 2018, Colonel B, Judge Advocate, canceled Complainant’s telework agreement; and 4. On or about May 15, 2017, Colonel B and LTC A created a hostile work environment toward Complainant to force Complainant into a constructive discharge. 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. The AJ assigned to the case determined sua sponte that the complaint did not warrant a hearing and over Complainant's objections, issued a decision without a hearing on October 20, 2020. The Agency subsequently issued a final action on November 4, 2020. The Agency’s final action fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. ANALYSIS AND FINDINGS As an initial matter we note that, as this is an appeal from a final decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 102, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the outcome of the case. 2021001051 3 If a case can only be resolved by weighing conflicting evidence, it is not appropriate for an AJ to issue a decision without a hearing. In the context of an administrative proceeding, an AJ may properly issue a decision without a hearing only upon a determination that the record has been adequately developed for summary disposition. Petty v. Defense Security Service, EEOC Appeal No. 01A24206 (July 11, 2003); Murphy v. Dep’t. of the Army, EEOC Appeal No. 01A04099 (July 11, 2003). At the outset, we note Complainant does not challenge the definition of the claims as identified in the AJ’s decision. To the extent Complainant is attempting to raise new claims on appeal occurring after June 4, 2018, we find such claims are not before the Commission and advise him to contact an EEO Counselor should he wish to pursue any new claims. Regarding claim 1, LTC A denied Complainant’s request for reconsideration to change his rating performance element number 4, Subject Matter Expert, from “Fully Successful” to “Outstanding” on his 2018 performance appraisal. In a June 4, 2018 memorandum, LTC A reminded Complainant that he and Colonel B had both requested Complainant to be proactive in identifying and remedying administrative and operational issues within the office. However, LTC A stated during the relevant period, Complainant failed to identify a tangible initiative or measurable achievement justifying an “Outstanding” rating. LTC A rejected Complainant’s allegation that he was held to performance standards that were outside his position description and performance plan. In addition, Colonel B noted that Complainant performed his objectives in a “Fully Successful” manner for two of the three objectives but did not do so in a “Outstanding” manner. Colonel B said that to be “Outstanding,” he would have to show that he produced exceptional results or exceeded expectations, which he did not do. Further, Colonel B noted Complainant did not have enough interaction with other divisions in the office or senior staff and did not produce sufficient work product. Regarding claim 2, Complainant alleged that LTC A drafted changes to his position description and performance claim. The AJ noted it was undisputed that LTC A never implemented the changes to either the position description or performance plan. We note Complainant does not claim otherwise on appeal. Regarding claim 3, Colonel B canceled Complainant’s telework agreement because: (1) Complainant did not attend, call in, or insure coverage for a host nation relations update; (2) Complainant took unauthorized telework and did not inform his supervisor concerning his whereabouts; (3) Complainant was not contributing sufficiently to the productivity in the office; and (4) Colonel B found that legal advice was best delivered face to face. Regarding claim 4, Complainant alleged that management subjected him to a hostile work environment in order to force him into a constructive discharge. However, Complainant failed to provide evidence proving he was subjected to intolerable working conditions. Further, he failed to prove that LTC A or Colonel B acted with discriminatory motive. Moreover, we note that Complainant never resigned or was removed from the Agency. 2021001051 4 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 or harassed by the Agency as alleged. CONCLUSION Accordingly, the Agency’s final action finding no discrimination is AFFIRMED. 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. 2021001051 5 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 December 8, 2021 Date