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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal Nos. 2021004896, 2021004493 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mario H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal Nos. 2021004896, 2021004493 Hearing Nos. 530-2018-00194X, 530-2019-00340X Agency Nos. ARCECOM17JUL02738, ARTYAD18JUL03184 DECISION Complainant filed timely appeals, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 18, 2021 final orders concerning his equal employment opportunity (EEO) complaints 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. The Commission exercises its discretion to consolidate these appeals in accordance with 29 C.F.R. § 1614.606. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Information Technology (IT) Specialist, GS-2210-09, at the Agency’s Tobyhanna Army Depot in Pennsylvania. On August 14, 2017, Complainant filed an EEO complaint (ARCECOM17JUL02738) alleging that the Agency discriminated against him on the bases of race (Asian) and national origin (Laos) when: 1. Complainant was offered less overtime than his coworkers from February 2017 through June 2017 and was offered no overtime from July 1 to July 23, 2017. 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. 2021004493, 2021004896 2 On August 20, 2018, Complainant filed a second EEO complaint (ARTYAD18JUL03184) alleging that the Agency discriminated against him on the bases of race and national origin when: 2. Complainant was denied permanent reassignment out of the Customer Service Branch; and 3. Complainant was denied a noncompetitive re-promotion to the GS-11 level. Specifically, management overlooked Complainant and repromoted a GS-07 employee to a Lead Visual Information Specialist (GS-1001-11) position. Complainant learned of this repromotion on July 25, 2018. The Agency dismissed Claim (2) on multiple grounds including for stating the same claim that was raised in a prior complaint and for untimely EEO Counselor contact. After its investigation into the complaints, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge (AJ). Complainant timely requested hearings. The AJ assigned to the cases consolidated the complaints for processing. During the hearing process, the AJ denied Complainant’s motions to amend his complaint, including his request to revive Claim (2). The AJ affirmed the Agency’s dismissal and rejected Complainant’s attempts to frame the claim as a continuing violation. The AJ subsequently issued a summary judgment decision in favor of the Agency on Claim (3) but denied the motion as to Claim (1). In the summary judgment decision, the AJ determined that the Agency articulated legitimate, nondiscriminatory reasons for its actions regarding Claim (3). The Agency explained that it repromoted another employee because that employee previously held a GS-11 position and was qualified for repromotion. Further, the AJ found that Complainant failed to articulate evidence demonstrating that he was eligible for repromotion; Complainant had not been on the repromotion list dating back to 2007. The AJ concluded that Complainant failed to demonstrate that these reasons were pretext for unlawful discrimination. As a result, the AJ found that Complainant was not subjected to discrimination as to Claim (3). The AJ held a hearing on Claim (1) on June 30, 2021. On July 7, 2021, the AJ issued a bench decision as to Claim (1). The AJ found that overtime was being made available to permit the Agency to complete the time-sensitive task of re-imaging 1,000 to 1,500 computers. The AJ found credible the Agency’s explanation regarding the process of re-imaging computers. Specifically, the Agency had two IT specialists who were experienced in re-imaging computers, while Complainant and 13 other IT specialists were not. The process required two employees at all times, so the Agency sought to facilitate the process by having one of the experienced IT specialists pair with an inexperienced IT specialist for any given overtime shift. Because there were 14 inexperienced IT specialists, the Agency rotated the inexperienced employees more frequently, which naturally resulted in less overtime to these employees. Of the inexperienced IT specialists, Complainant had among the most hours of overtime. The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions were pretextual. As a result, the AJ found that Complainant was not subjected to discrimination as alleged as to Claim (1). 2021004493, 2021004896 3 The Agency subsequently issued final orders fully adopting the AJ’s decisions. The instant appeals followed. CONTENTIONS ON APPEAL On appeal, Complainant contends that the AJ erred in denying his motions to amend his complaint. In addition, Complainant argues the Agency’s explanations as to Claim (1) were not credible and that his supervisor harbored racial bias against him. Complainant also argues the Agency improperly dismissed Claim (2) and argues that he did not state the same claim as that raised in a prior complaint because the complaint in which he raises the claim was filed several years later. Complainant offers no substantive arguments concerning the AJ’s decision with respect to Claim (3). Accordingly, Complainant requests that the Commission reverse the final order. ANALYSIS AND FINDINGS As a preliminary matter we will address Complainant’s contentions regarding the dismissal of Claim (2). We note that the Agency alternatively dismissed Claim (2) as having been untimely raised with an EEO counselor. Indeed, aside from the allegation raised in Claim (2), nothing in Complainant’s allegation suggests that Complainant sought, and was denied, reassignment at any time in the 45 days prior to his contact with an EEO counselor. Accordingly, the Commission can find no basis to disturb the dismissal of this claim. Additionally, Complainant contends that the AJ abused her discretion in denying his requests to amend his complaint. We note that AJs have full responsibility for the adjudication of the complaint, including overseeing the development of the record, and have broad discretion in the conduct of hearings. 29 C.F.R. § 1614.109(a)(e). Given the AJ's broad authority to regulate the conduct of a hearing, a party claiming that the AJ abused his or her discretion faces a very high bar. Trina C v. U.S. Postal Serv., EEOC Appeal No. 0120142617 (Sept. 13, 2016) citing Kenyatta S v. Dep't of Justice, EEOC Appeal No. 0720150016 n.3 (June 2, 2016) (responsibility for adjudicating complaints pursuant to 29 C.F.R. § 1614.109(e) gives AJs wide latitude in directing terms, conduct, and course of administrative hearings before EEOC). The Commission has reviewed the record and finds no abuse of discretion by the AJ. Further, the Commission is unable to find any evidence of bias, or other reversible error, resulting from the manner in which the AJ managed this case. The AJ’s Summary Judgment Decision (Claim (3), Agency No. ARTYAD18JUL03184) 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. 2021004493, 2021004896 4 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. The Agency explained that the selectee was on a priority repromotion list which meant that she was eligible for noncompetitive repromotion to a position at the GS-11 level. Further, the selectee previously held a GS-11 position, was qualified for the position, and was subject to the Agency’s Special Consideration for Repromotion policy because she was receiving grade or pay retention benefits. There is no evidence that Complainant had expressed any interest in the position or was otherwise denied an opportunity for the position. Complainant presented no evidence demonstrating that these reasons were pretextual. 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 Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Ultimately, an employer has broad discretion to carry out personnel decisions. Id. 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. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in Complainant’s favor. Accordingly, we find that the AJ properly found that Complainant was not subjected to discrimination regarding Claim (3). The AJ’s Decision After a Hearing - (Claim (1), Agency No. ARCECOM17JUL02738) Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). 2021004493, 2021004896 5 A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman- Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony, or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEO MD-110, Chap. 9, at § VI.B. After a thorough and comprehensive review of the record, including all statements on appeal, we conclude that the AJ’s factual findings and credibility determinations are supported by substantial record evidence. The Commission finds that substantial record evidence supports the AJ's finding that Complainant has not shown that the Agency's reasons were pretext for unlawful discrimination. Accordingly, we AFFIRM the Agency’s final orders. 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. 2021004493, 2021004896 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 (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 January 26, 2023 Date