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

Equal Employment Opportunity Commission

Dec 13, 2022

Appeal No. 2021001593 (E.E.O.C. Dec. 13, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman P.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Request No. 2022002684 Appeal No. 2021001593 Hearing No. 551-2016-00002X Agency No. 14-4523A-03460 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in Herman P. v. Dep’t of the Navy, EEOC Appeal No. 2021001593 (Mar. 15, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). Complainant was a Physical Science Technician (PST) at the Agency’s Puget Sound Naval Shipyard and Intermediate Maintenance Facility in Bremerton, Washington. Complainant began working for the Agency on July 7, 2014, under a one-year probationary period. His immediate supervisor was A1, the New Hire Supervisor. A2, the Branch Head, was his second-level supervisor. A3 was his third-level supervisor. 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. 2022002684 2 According to A1, the one-year probationary period was a time to see how the employee presents themselves and to evaluate them for continued employment. A fully qualified PST must undergo and successfully complete the training program. PSTs provide radiological oversight of employees working on the waterfront. The training program takes approximately one year. During the year, employees are trained locally and then attend a six-month school in Virginia. When the employee returns from the school in Virginia, they have about three months of additional training locally. According to A1, the employee must pass the examinations to be fully qualified to perform the work. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (African American), national origin (African), color (black), and in reprisal for prior protected EEO activity when: a. On August 19, 2014, he was not promoted/selected for the GS-09 Physical Science Technician position (Vacancy No. 11422303); and b. 1. on August 26, 2014, he was not informed of another GS-09 PST opening; 2. on August 28, 2014, he was involuntarily resigned; 3. on August 28, 2014, he was wrongfully discharged; 4. on or about October 24, 2014, he was deemed ineligible for a GS-08/09 PST position; 5. he was not offered an opportunity to move to another position in lieu of his resignation; and 6. he was not offered the opportunity to retake examinations. Following an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ assigned to the matter issued a summary judgment decision in favor of the Agency. In the decision, the AJ found that the Agency had articulated legitimate, nondiscriminatory reasons for its actions. The AJ determined that the record reflected that Complainant had struggled with the academic portion of his year-long training program, and Agency officials gave Complainant the opportunity to resign in lieu of termination when they determined that he would likely not be successful in the training program, which costs the Agency $100,000 per trainee. The AJ found that Complainant failed to show that the Agency’s reasons for its actions were pretextual. Furthermore, the AJ determined that the incidents alleged were insufficiently severe or pervasive to establish a hostile work environment. 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. In the previous decision, the Commission affirmed the final order. 2022002684 3 In his request for reconsideration, Complainant expresses his disagreement with the previous decision and reiterates arguments previously made on appeal. In addition, Complainant argues that: (a) OFO did not read or respond to his submissions, (b) the previous decision only ruled on one claim, i.e., allegations b (2) and b (3) concerning his involuntary resignation and discharge and (c) the previous decision reached the wrong conclusion on the one claim it did analyze. Complainant argues that his January 5, 2021, and February 15, 2021, submissions on appeal demonstrate that he was subjected to discrimination. Accordingly, Complainant requests that the Commission grant his request for reconsideration. Complainant also submitted a statement outlining what he considered to be “judicial misconduct” committed by all of the EEOC Administrative Judges and Office of Federal Operations (OFO) attorneys who adjudicated his four EEO complaints, which includes the instant matter, another pending complaint, and two prior complaints, and the complaint of his colleague. Complainant, among other things, argued that: they are all Caucasians, and/or White, and/or native of the U.S.A., whereas they all know that I am not (as seen in my claims regarding each of my EEO Complaints), and they all discriminated against me, and/or have had bias against me, and wrongfully and intentionally make me lose each of my 4 cases. Complainant also argued that because certain Administrative Judges have ruled against him in the past that they have demonstrated bias against him because of his race, color, and national origin and should have recused themselves from his subsequent cases. The Agency maintains that Complainant does not meet the criteria for reconsideration and argues that his request should be denied. ANALYSIS AND FINDINGS The Commission emphasizes that a request for reconsideration is not a second appeal. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9 § VI.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or will have a substantial impact on the policies, practices, or operations of the Agency. Thus, the Commission’s scope of review on a request for reconsideration is narrow. Lopez v. Dep’t of the Air Force, EEOC Request No. 05890749 (Sept. 28, 1989). At the outset, we reject Complainant’s assertion that the mere fact that the race, color, or national origin of the adjudicators in his various cases may differ from his means those adjudicators were inherently or demonstrably biased against him. 2022002684 4 Aside from Complainant’s bare assertion, there is no evidence to support his allegation of bias on the part of any Administrative Judge or OFO attorney.2 Also, we find that Complainant has not provided evidence to support his assertion that various Administrative Judges engaged in judicial misconduct by not recusing themselves from his subsequent cases. A motion for recusal should be granted upon a substantial showing of personal bias on the part of the Administrative Judge. Guient v. U.S. Postal Serv., EEOC Appeal No. 0120092811 (Oct. 27, 2009). The Commission has held that merely ruling against one party in the past does not justify recusal. See Smith v. Agriculture, EEOC Request No. 0520100326 (May 28, 2010). With respect to the specific arguments raised by Complainant in his instant request, we note Complainant’s argument on appeal that the AJ conducted the hearing process in a manner that favored the Agency, for example, regarding her rulings granting summary judgment in the Agency’s favor, the way she structured her decision, and presenting the Agency’s undisputed facts while not specifically stating that she even considered his opposition and motion for summary judgment. The Commission notes that EEOC regulations and our precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings. See 29 C.F.R. § 1614.109; see also Equal Employment Opportunity Management Directive 110 for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 7 (Aug. 5, 2015). We have reviewed all documentary evidence in the record and do not find evidence of bias, or other reversible error, resulting from the AJ’s management and adjudication of this case. We also find no evidence to support Complainant’s assertion that the AJ did not consider the documentation that he submitted in opposition to the Agency’s motion for summary judgment. We specifically note the AJ’s ruling that “[t]he Agency’s list of undisputed facts is incorporated into this decision, with the exceptions of [Complainant’s] disputes of fact listed above.” We further find no support for Complainant’s first contention that the previous decision failed to consider the statements that he submitted both on appeal and to the AJ. The previous decision expressly stated that its findings were based on a “[c]areful review of the AJ’s decision and the evidence of record, as well as the parties’ arguments on appeal . . . .” We reject Complainant’s implied contention that the only logical way the AJ and the Commission could have ruled in the Agency’s favor was if his arguments were either ignored or misunderstood. Regarding Complainant’s allegation that, on August 19, 2014, he was not promoted/selected for the GS-09 Physical Science Technician position (claim a), we note that initially Complainant applied at both the GS-06 and GS-09 level and was offered and accepted a GS-06 position. Between July 7, 2014, and August 28, 2014, he was employed by the Agency. Complainant was hired with a one-year probationary period. 2 See Catheryn P. v. U.S. Postal Serv., EEOC Appeal No. 2021002386 (Feb. 28, 2022) (noting that an allegation of bias without more is not sufficient reason to reverse an AJ’s decision but rather that a complainant “must show that the AJ’s bias against her so permeated the process, that it would have been impossible to receive a fair hearing, or that the process was so tainted by substantial personal bias that she did not receive a fair and impartial hearing.”). 2022002684 5 Sometime in July 2014, the Agency solicited applications for 50 - GS-09 positions. Complainant applied for one of these positions. Complainant contended that the Agency should have hired him at the GS-09 level based on his education. According to A3, she considered Complainant for the GS-09 position, but ultimately decided that it would not be appropriate because he had been hired at the GS-06 level and had just begun the training program. Complainant, among other things, argued that the Agency could not cite any policy or regulation that prohibited it from hiring him for the GS-09 position despite his recent hire at the GS-06 level. He also maintained that he should not have been required to complete an entire year of work before being non-competitively promoted to a higher grade because the GS-9 position was open to all U.S. citizens, regardless of whether they were already employed at a lower GS level. We note, however, that the Agency never asserted that it was prohibited from hiring Complainant for the GS-09 position, weeks after hiring him for the GS-06 position. A3 concluded that it would not have been appropriate to do so in her opinion. Complainant did not establish that this decision was based on discriminatory animus. We note that employers have broad discretion to set policies and carry out personnel decisions and should not be second-guessed by a reviewing authority absent evidence of unlawful motivation. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981); Vanek v. Dep’t of the Treasury, EEOC Request No. 05940906 (Jan. 16, 1997). With respect to claims b (2), b (3), b (5), and b (6), the Agency stated that it gave Complainant the opportunity to resign in lieu of termination because his unsatisfactory academic performance led management to believe he would not be successful during the required specialized training program. We note that the record indicates that Complainant had been given the opportunity to re- take several quizzes and an initial math test, but management decided not to give him the opportunity to re-take other examinations based on his inadequate scores on the practical exams.3 A1 stated that “[b]ased on [Complainant’s] academic scores during the pre-academic training, I did not feel he would do well if he continued in the training program. I notified the chain of command, and the decision was made to allow him to resign or be terminated during the probationary period.” She further noted that Complainant “did not pass some of the exams; more than one. When employees have multiple failures in the prerequisite coursework, I do not feel confident they will make it through the qualifications school in Virginia.” Management officials stressed that they believed that Complainant was not a good fit for the Agency because he failed to perform satisfactorily academically. Complainant argued that his scores were not as bad as was depicted by management and that his co-workers, C1 (white female) and C2 (white male) and others also had to re-take examinations and quizzes but were not terminated. 3 According to A1, Complainant “went through a weeklong class for contamination and was tested on his knowledge of the subject. He did not pass the written exam (76) and he failed both practical exam sections (63 and a 23). There were also some quizzes he had to take more than once to receive a passing score. [Complainant] would not have had to retest the failed practical exam that day as those have to be scheduled by the training department.” The failed practical exams took place on August 28, 2014, the day of his resignation. 2022002684 6 A3 stated that for employees who were not successful, academically, if they “[h]ave been vetted and on board for 90 days, we will look for a position. We have invested money in the employee. If less than 90 days, the employee is terminated.” With respect to C1, A3 noted that they “had a position as a data clerk open and she was moved to that job.” According to A3, there was a Black male, who failed the Norfolk course, but because he was vetted, i.e., had worked for over 90-days, he was able to find a position elsewhere at the shipyard. She also recalled a white employee who had recently been terminated for academic reasons, who was also vetted, but could not find a job. According to A3, “if an employee cannot meet the academic requirements, they are terminated. If the employee is less than 90 days, they have not been vetted. When an employee has been working 90 days or more, they can be reassigned to another position.” We find that Complainant did not provide evidence that created a genuine issue of material fact that he was treated differently than his similarly situated co-workers from outside of his protected groups. On the contrary, the record indicates that like him other employees were allowed to retest, were removed from their PST positions for academic reasons, and if they worked for more than 90-days, unlike Complainant, who was only employed 52 days, they could be reassigned to other positions when there were vacant positions available. While Complainant disagrees with the Agency’s stated reasons for its actions, Complainant has not shown that the Agency’s reasons for its actions were unworthy of credence or that discriminatory or retaliatory animus more likely motivated the Agency’s actions. Where a complainant is a probationary employee, we have long held that he or she are subject to retention, advancement, or termination at the discretion of an agency so long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). Here, we find no evidence that creates a genuine issue of material fact that discriminatory animus based on Complainant’s protected categories played a role here.4 Regarding claim b (1), Complainant’s assertion that, on August 26, 2014, he was not informed of another GS-09 PST opening, the Agency noted that no one was told specifically about it. C3, one of Complainant’s comparators, the record showed learned about the position because he checked USA Jobs. Regarding claim b (4), Complainant’s claim that, on or about October 24, 2014, he was deemed ineligible for a GS-08/09 PST position, the Agency noted that a Human Resources Specialist, who did not know Complainant, determined that he was ineligible because he did not meet the specialized experience and/or education requirements for the position. 4 When a party moves for summary judgment, the non-moving party’s opposition must consist of more than bare assertions, general denials, conclusory allegations or mere suspicion and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for a hearing. Fernandes v. USPS, EEOC Appeal No. 0120113904 (Jul. 25, 2013) (citing Celotex v. Catrett, 477 U.S. 317, 322-23 (1986)). 2022002684 7 Like our previous decision, we find that the Agency offered legitimate, non-discriminatory reasons for its actions in claims b (1), and b (4), and find no persuasive evidence that creates a genuine issue of material fact that pretext exits. Regarding Complainant’s hostile work environment claim, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant’s claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley v. United States Postal Service, EEOC Appeal No. 01982923 (Sep. 21, 2000). We have reviewed the entire record and considered all of Complainant’s contentions here and before as well as the evidence that was generated at every stage of the complaint process. Complainant has failed to persuade us that our prior decision contained clear errors meriting a grant of his request for reconsideration under the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2021001593 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. 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. 2022002684 8 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 13, 2022 Date