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

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2022001975 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herb L.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2022001975 Hearing No. 560-2021-00262X Agency No. ARMCAAP21MAR00762 DECISION On March 1, 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 February 15, 2022 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Supply Specialist, GS-2001-09, at the Agency’s McAlester Army Ammunition Plant in McAlester, Oklahoma. On April 8, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him and subjected him to a hostile work environment on the bases race/national origin (Hispanic)2, sex (male), 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. 2 The Commission notes that the term “Hispanic” typically denotes national origin rather than race. 2022001975 2 1. On February 1, 2021, Complainant’s supervisor denied him a training opportunity; and 2. On February 25, 2021, Complainant’s supervisor informed him that he was not selected for the position of Traffic Management Specialist (GS-2130-09) Target 11. 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 issued a summary judgment decision in favor of the Agency. In the decision, the AJ determined that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. Specifically, regarding claim (1), Complainant was not qualified for the training course. It is undisputed that the training course was limited to GS-11 and GS-12 grade employees and high-performing GS-09 grade employees. At the time, Complainant was a GS-09 grade employee with a job title of General Supply Specialist. Complainant’s supervisor affirmed that Complainant was not high performing in his position. The AJ determined that the record demonstrated several of Complainant’s work deficiencies including his failure to complete work tasks in a timely manner, failure to pay attention to details, and his use of his work computer for non-work-related internet browsing while others worked. Further, Complainant’s supervisor stated that she did not approve the training because the training was not mandatory and she could not afford to send Complainant out for two weeks. Complainant acknowledged that he was not denied any previous training. Complainant’s supervisor asserted that her failure to communicate her decision to not sign the training application with Complainant was due to her being busy while the office was short-handed because of COVID-19 followed by an ice and snowstorm which required employees to remain at home. With respect to claim (2), selection panel members separately reviewed and scored each candidate’s resumes and interview performance. The panel members explained that the selectee was higher rated than Complainant because she demonstrated superior qualifications, provided greater detail than Complainant, was current on the required training, and had prior experience in the position. By contrast, Complainant provided generic explanations with little detail and was not current in his training. In addition, Complainant appeared upset during his interview and did not provide positive responses. Further, Complainant would need to complete training and, while he completed a temporary promotion in the Traffic Department, he spent less time in the position due to leave and additional training. Finally, Complainant claimed that he was subjected to a hostile work environment when his supervisor failed to answer his emails which set him up for failure and prevented him from being promoted. The AJ found that the record did not show that the totality of all of the conduct alleged was sufficiently severe or pervasive or based on discriminatory or retaliatory animus. 2022001975 3 The AJ concluded that Complainant failed to demonstrate that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently issued a final order fully adopting the AJ’s decision. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant argues that this complaint should be considered in the context of his past complaints as it shows a pattern. Complainant argues that his supervisor’s selection process for promotions is discriminatory. Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS 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. (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). 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 or retaliatory animus. Here, however, Complainant has failed to establish such a dispute. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder 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 Agency was entitled to summary judgment, because the evidence did not establish a genuine dispute of material fact warranting a hearing. Accordingly, we AFFIRM the Agency’s final order adopting the AJ’s decision. 2022001975 4 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). 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. 2022001975 5 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 alterthe 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 8, 2023 Date