0120170392
10-12-2018
Adalberto S.,1 Complainant, v. Dr. Mark T. Esper, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Adalberto S.,1
Complainant,
v.
Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120170392
Agency No. ARAPG14AUG03152
DECISION
On October 29, 2016, 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 September 22, 2016, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
Whether Complainant established that he was discriminated against when he was issued a written counseling statement for Failure to be at Place of Duty/Failure to Notify Supervisor of Absence, and when he was directed to move his work station.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Digital System Training Analyst NH-1702-02 at the Agency's Readiness Management Division of the Program Executive Office Command, Control, and Communication Tactical facility in Fort Bragg, North Carolina. On September 6, 2014, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of reprisal when:
1. On July 31, 2014, he was issued a written counseling statement for "Failure to be at Place of Duty/Failure to Notify Supervisor of Absence, and
2. On August 6, 2014, he was directed to move his work station on May 7, 2014.
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. In accordance with Complainant's request, the Agency issued a final decision (FAD) pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In 2012 and 2013, Complainant filed two separate EEO complaints. M1, Regional Lead Digital Systems Engineer NH-0301-03, was Complainant's second line supervisor. He was identified as a responsible management official in Complainant's prior EEO complaint.
On October 3, 2012, Complainant signed a Work Expectations Statement, which stated, in pertinent part, that "You must be present and accounted for during the duty day and while on exercises and any absence must be approved through the supervisor chain."
On July 31, 2014, Complainant was issued a counseling statement from M1, which stated, in pertinent part, that:
I have observed the following problem with your job performance:
a. On 31 July 2014, you reported to work then departed your place of duty shortly after 0800 with no notification to your supervisor. This is an absence from the regularly scheduled tour of duty which has not been authorized by leaving the work site without permission.
b. In order to be in compliance, you must ensure communication with leadership of all appointments/events that will remove you from the workplace.
M1 also indicated that Complainant's failure "[t]o comply with these job performance standards and the goals . . . will result in disciplinary action that can include . . . suspension or removal from your current position."
M1 contends that Issue (I) was based his going to Complainant's desk to talk with him and being unable to locate him. Complainant appeared to have left the workplace, and was not present for the remainder of the day. The record contains statements from other witnesses indicating that it was mandatory for supervisors to know an employees' whereabouts during working hours. Complainant claimed that was not a requirement, and that he was sought because he had filed EEO complaints.
M1 contends that Issue (II) was based, among other things, on management's effort to facilitate communication and to have all the Digital System Engineers, including Complainant, on the same floor. He also cited the realignment of personnel and budget cuts. Complainant stated that the move was due to his EEO Complaints. Complainant maintained that he had heard different reasons for the move from different co-workers. Complainant was aware that one co-worker was not going to be moved, but the record indicates that the co-worker had left the organization.
CONTENTIONS ON APPEAL
Complainant's statement on appeal reiterates his contention that the Agency's actions were based on his prior EEO activity. The Agency maintains that its final decision should be affirmed.
STANDARD OF REVIEW
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 Chapter 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").
ANALYSIS AND FINDINGS
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. at 802-04. Complainant carries the initial burden of establishing a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Assuming, arguendo, Complainant established a prima facie case of discrimination based on reprisal, we find the Agency presented legitimate, non-discriminatory reasons for its actions as articulated above. Moreover, we find that Complainant has not provided persuasive evidence indicating that the Agency's reasons were pretextual. Complainant did not demonstrate such "weaknesses, implausibility, inconsistencies, incoherencies, or contradictions in the [Agency's] proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence." Evelyn S. v. Dep't of Labor, EEOC Appeal No. 0120160132 (Sept. 14, 2017); See, also, Widmar v. Sun Chem. Corp., 772 F.3d 457, 465 (7th Cir. 2014). Complainant has simply stated that the actions were the result of his filing EEO complaints and retaliatory. Complainant has not, however, provided convincing evidence to establish his contentions. Accordingly, we find that the Complainant has failed to prove by a preponderance of the evidence that the actions taken by the Agency were a pretext for unlawful discrimination directed at him based on reprisal.
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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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
__10/12/18________________
Date
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.
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