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

Equal Employment Opportunity Commission

Mar 15, 2023

Appeal No. 2022002594 (E.E.O.C. Mar. 15, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randolph T.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2022002594 Agency No. DON 21-00421-00535 DECISION On April 11, 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 March 28, 2022, final decision 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. and 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 decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a General Business Industrial Specialist at the Agency’s Joint Program Office facility in Arlington, Virginia. On June 23, 2021, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), color (White), and age (67) when: 1. On December 15, 2020, he was subjected to disparate treatment when he was not selected for Program Manager, NH-0340-04 position advertised under Vacancy Announcement No. 20201029-CACL-025; 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. 2022002594 2 2. On January 12, 2021, he was subjected to disparate treatment when a member of the Agency’s Senior Executive Service made remarks that she believed Complainant’s age and retirement eligibility were motivating factors for his nonselection; and 3. On or around February 11, 2021, during a town hall meeting, comments were made that made it clear to him his age was a motivating factor in his not being selected for a position he had applied for in October 2020; The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(2) and accepted claim 3 for investigation.2 As to claim 3, Complainant asserted that he was subjected to disparate treatment when the comment was made. Complainant attended a Program Executive Officer Town Hall on February 11, 2021, that included approximately 1,200 attendees. Report of Investigation (ROI) at 407. During the Town Hall, Lieutenant (Lt.) General, a member of the Agency’s Senior Management, stated that the majority of senior leadership was “pale, stale, and male.” ROI at 408, 416. Complainant explained that this remark made it “crystal clear” that he was “being forced out of my job because of my age” and was evidence of “the trifecta of discrimination for age, race, and sex.” ROI at 144, 408. Lt. General indicated that he made the “stale, pale, and male” comment because he wanted to encourage greater diversity, because senior management was working hard on diversity and inclusion and their Diversity and Inclusion Action Group was starting up. ROI at 416, 418. 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). In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency’s final decision restated the dismissal of the claims 1 and 2. As to claim 3, the Agency concluded that Complainant failed to prove that the Agency subjected him to disparate treatment as alleged. The instant appeal followed. CONTENTIONS ON APPEAL In his brief to the Commission, Complainant focuses his arguments regarding the circumstances surrounding the nonselection itself raised in claim 1. However, Complainant does not challenge the Agency’s dismissal of claim 1. In response, the Agency requests that we affirm its final decision. 2 Complainant failed to appeal the dismissal of claims 1 and 2. We note that the Commission has the discretion to review only those issues specifically raised in an appeal. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9, § IV.A.3 (Aug. 5, 2015). As such, the dismissed claims will not be addressed herein. 2022002594 3 ANALYSIS AND FINDINGS As this is an appeal from a 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). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that a complaint can be dismissed if it fails to state a claim. The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Upon review, with respect to claim 3, we find that Complainant has not shown any harm or loss with respect to a term, condition, or privilege of employment based on the comment made by Lt. General at the town hall. Therefore, we find that claim 3 should be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision on the grounds that the complaint fails to state a claim. 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. 2022002594 4 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. 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. 2022002594 5 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 March 15, 2023 Date