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

Equal Employment Opportunity Commission

Dec 23, 2022

Appeal No. 2021004266 (E.E.O.C. Dec. 23, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zachary H.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2021004266 Hearing No. 550-2019-00236X Agency No. ARUSAR17JUL02451 DECISION On July 22, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the EEOC Administrative Judge’s (AJ) June 2, 2021, decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 AJ’s June 2, 2021, decision. At the time of events giving rise to this complaint, Complainant worked as a Police Officer, GS- 0083-06, at the Agency’s Directorate of Emergency Services facility in Fort Hunter Liggett, California. On July 18, 2017, Complainant initiated EEO Counselor contact. On September 15, 2017, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment and discriminated against him on the bases of disability (physical and mental), age (59), and reprisal for prior protected EEO activity when: 1. Complainant was not provided a reasonable accommodation (RA); 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. 2021004266 2 2. Complainant received negative oral counselings; 3. Complainant was required to provide excessive justification to support leave requests; 4. Complainant was not provided training opportunities, preferred assignments, or awards; 5. on May 28, 2017, he was constructively discharged from employment; 6. Complainant was not allowed to retire with Law Enforcement Officer benefits; and 7. Complainant’s Health Insurance Portability and Accountability Act and Privacy Act rights were violated. On September 25, 2017, the Agency issued a partial acceptance and dismissal. The Agency accepted claims 1 through 6 for investigation. The Agency dismissed claim 7 for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation. Complainant was also informed that he was not entitled to a hearing before an EEOC Administrative Judge (AJ) because Complainant’s claim 5 alleged constructive discharge which is appealable to the Merit Systems Protection Board (MSPB) under mixed-case procedures. On June 6, 2018, the Agency issued a final Agency decision (FAD). In the FAD, the Agency determined that Complainant was not discriminated as alleged. The FAD provided Complainant with appeal rights to the MSPB, and not the EEOC. Complainant appealed to the MSPB. On August 24, 2018, the MSPB AJ dismissed the matter for lack of jurisdiction finding that Complainant was not constructively discharged. The MSPB AJ returned it the matter to the Agency for further processing as a non-mixed complaint2. Following the dismissal by the MSPB, Complainant requested a hearing with an EEOC AJ. Over Complainant's objections, the AJ assigned to the case granted the Agency’s Motion for Summary Judgment and issued a decision without a hearing on June 2, 2021. In their decision, the AJ noted that Complainant had challenged the Agency’s statement of undisputed material facts, but that he did so without providing specific examples. Instead, the AJ found Complainant’s response to be general in nature and determined that the facts were undisputed and incorporated the Agency’s statement into their decision. 2 On September 26, 2018, Complainant contacted an EEO Counselor and raised a complaint alleging retaliation related to the processing of the instant matter. On January 22, 2019, the Agency issued a final decision dismissing the complaint for alleging dissatisfaction with the processing of a previously filed complaint pursuant to 29 C.F.R. § 1614.107(a)(8). Complainant appealed that matter to the Commission. The Commission affirmed the Agency’s dismissal of the spin-off complaint. Zachary H. v. Dep’t of the Army, EEOC Appeal No. 2019002841 (Sept. 27, 2019). 2021004266 3 As a preliminary matter, the AJ determined that based on the record, Complainant’s complaint should be dismissed due to untimeliness pursuant to 29 C.F.R. § 1614.105(a)(1), 1614.107(a)(2), and 1614.109(b). The AJ stated that claim 5, occurred on May 28, 2017, and yet Complainant did not contact an EEO Counselor until July 18, 2017. This was beyond the 45-day timeframe limitation by several days with no explanation as to why there was a delay. The AJ also noted that the other claims undoubtedly occurred prior to claim 5. Lastly, the AJ noted that timeliness issues could not be simply resolved by alleging a hostile work environment claim either. Nonetheless, the AJ determined that based on the record, summary judgment in favor of the Agency was appropriate. When an AJ has issued a decision under 29 C.F.R. § 1614.109, the Agency shall take final action on the complaint by issuing a final order within 40 days of the receipt of the hearing file and the AJ's decision. 29 C.F.R. § 1614.110(a). EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order within 40 days of receipt of the AJ's decision in accordance with 29 C.F.R. § 1614.110, the decision of the AJ shall become the final action of the Agency. When the Agency did not issue its final order on July 26, 2021, the AJ’s June 2, 2021, decision had already become Agency's final action by operation of law. Ela O. v Nat'l Sec. Agency, EEOC Appeal No. 0720130021 (Oct. 30, 2015) (AJ's finding of discrimination became agency's final decision by operation of law where agency failed to take action during the 40-day period). CONTENTIONS ON APPEAL On appeal, Complainant asserts that the investigation was inadequate. He notes for example that his attorney served a Request for Admissions to the Agency, but that they never received a response. Complainant also contends that there are genuine issues of material fact in dispute which demonstrate that the AJ erred in issuing their decision without a hearing. Additionally, Complainant asserts that the AJ made inappropriate credibility determinations in their decision. Ultimately, Complainant asserts that the AJ abused their discretion when they issued summary judgment in favor of the Agency. In response, the Agency asserts that the AJ appropriately found in favor of the Agency and that the Commission should affirm that decision. ANALYSIS AND FINDINGS As a preliminary matter, we note that Complainant raised concerns with the processing of his complaint. Complainant claims on appeal that the investigation was inadequate. For example, Complainant stated that the Agency refused to respond to Requests for Admissions. Upon review of the entire record, the Commission is not persuaded that the investigation into Complainant's complaint was incomplete or improper. Furthermore, as discussed below, we do not find that the AJ abused their discretion by issuing summary judgment. 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). 2021004266 4 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. (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, instead making generalized assumptions and statements. Even construing any inferences raised by the undisputed facts in favor of Complainant, a reasonable factfinder 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 preponderance of the evidence did not establish that Complainant was discriminated against by the Agency as alleged. Accordingly, we AFFIRM the Agency’s final order implementing the AJ’s decision. 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). 2021004266 5 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. The court has the sole discretion to grant or deny these types of requests. 2021004266 6 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 23, 2022 Date