Agency.

Equal Employment Opportunity Commission

Nov 16, 2017

0220150004 (E.E.O.C. Nov. 16, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Hayden K.,1
Grievant,

v.

Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0220150004

Agency No. 12711

DECISION

On December 12, 2014, Grievant 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
November 13, 2014, 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 finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Grievant worked as a Chief Steward aboard
the USNS (United States Naval Ship) Charles Drew. Complainant was responsible for the day-
to-day operations and management of the Food Service Division. Complainant first boarded the
USNS Charles Drew on February 19, 2013. During the relevant time, Complainant’s supervisor
was the Supply Officer. The Captain oversaw the full operation of the ship.

On November 9, 2013, the Captain and the Supply Officer met with Complainant and counseled
him about complying with the Agency’s policies and procedures involving discretionary use of
overtime funds and leave because Grievant disregarded the policies implemented due to
sequestration and the government shutdown. Grievant was also counseled regarding the proper
use of his time, the need for his office door to remain open during normal working hours, and his

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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failure to take action to clean and repair the ship’s common spaces, messes, and passage ways.
Finally, he was instructed to inform the Supply Officer of his personnel’s status and work issues
instead of the Supply Officer having to seek out this information

On November 22, 2013, the Grievant received a Letter of Caution regarding his failure to report
for his assignment to the Duty Section/Fire Party #1 on November 19, 2013. The Letter of
Caution stated Grievant departed the ship without permission and without a standby to take his
duty.

The record contains an email from the Captain to an employee in Labor and Employee Relations
dated November 25, 2013. In this email, the Captain states he has two supervisors in the Supply
Department, Grievant and a Junior Supply Officer (JSO) who have not been cooperating with
their department head regarding attendance and the proper use of overtime. The Captain stated
that both individuals have been counseled and that this has turned into a “community” issue.
The Captain stated that half the Supply Department aboard the ship is Filipino and that they
“look up” to Grievant and the JSO. The Captain stated that Grievant and the JSO are subverting
their department head’s policies and procedures and this has become a “cultural issue” among
Filipinos within the department. The Captain stated that Grievant and the JSO have undermined
his ability to maintain good order and discipline aboard the ship. The Captain states he wants the
two off his ship. The Captain states the two have their priorities and sense of duty off target,
especially regarding their being Filipino and using that to influence the behavior of other
Filipinos aboard the ship. The Captain said he cannot have such behavior as it is starting to
create animosity and dissention among other members within the department and throughout the
ship.

On December 6, 2013, the Captain recommended that Grievant be suspended from duty for 21
days for: his unauthorized purchases of table clothes and uniforms; his failure to follow
directions from the Captain and the Supply Officer to bring the ship’s cleanliness up to
acceptable standards; and for Grievant’s failure to muster on November 19, 2013, as assigned.

On December 7, 2013, Grievant was forced to leave the ship. Prior to leaving, Grievant
completed the Chief Steward Turnover Checklist, which stated among other things that he
“[v]erified that all log entries and other documents requiring signature of outgoing Chief Steward
are completed.” Between December 7 – 9, 2013, Grievant responded to the Captain’s proposed
21-day suspension.

On January 4, 2014, a Food Analyst conducted an audit to investigate the breach in foodservice
accountability that was suspected by the Captain. The Auditor reviewed the previous 12 months
of the ship’s Food Service records management system, conducted a full wall-to-wall inventory,
reviewed the transfer of accountability/turnover, requisitions/receipting, records of previous
inventories conducted, and the daily receipts for the expenditures of food. The Auditor’s report
found there was $14,644.41 of fresh fruits, vegetables, and dairy on the record books but not in
the storeroom. The report also found 76 items in the storeroom that were not listed on the food
item file in the Food Management System, totaling $12,962.32. The report noted that from
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August 1 through December 4, 2013, Grievant did not keep the records required of him. The
report stated that receipts were not posted in a timely manner. The Auditor found that there were
no indications that Grievant conducted a wall-to-wall inventory on three dates identified. The
Auditor recommended that disciplinary action in the form of a 30-day suspension should be
brought against Grievant for his mismanagement of the ship’s Foodservice Operation during his
tour as Chief Steward.

On July 16, 2014, Deciding Official One, the Deputy Director, CIVMAR Manpower and
Personnel issued a Letter of Reprimand to Grievant for Failure to Comply with the Day-to-Day
Operations and Management of the Food Service Division during his tenure aboard the USNS
Drew as allowed by the Civilian Marine Personnel Instruction 750. The Letter of Reprimand
referenced the results of the Auditor’s Report that determined that from August to December 4,
2013, Grievant failed to follow working instructions and guidelines and failed to maintain
required records.

On July 30, 2014, Grievant filed a grievance regarding his Letter of Reprimand stating he
believed that the Captain discriminated against him because of his national origin, Filipino.
Grievant also believed the audit was conducted fraudulently because it was not conducted in his
presence and alleged that he was not given an opportunity to rebut the charges against him.

On August 27, 2014, Deciding Official Two, Deputy Director of Manpower and Personnel
issued the Agency’s decision on the grievance. Deciding Official Two found that the Captain
did not discriminate against Grievant and that the Letter of Reprimand was warranted because
Grievant committed the misconduct. Deciding Official Two found the audit was not conducted
fraudulently and stated there was no requirement that the audit be conducted in Complainant’s
presence. Deciding Official Two also noted that Grievant provided responses to the allegations.
Deciding Official Two stated that as Chief Steward, Grievant was expected to account for the
fresh fruit and vegetable supply by issuing them to the galley or recording them as a loss due to
spoilage. Deciding Official Two determined that the Letter of Reprimand was warranted.

On September 16, 2014, Grievant filed his third step grievance. Grievant argued that without
specific indications of what discrepancies were involved in the fresh fruit and vegetable supply,
it is impossible for him to provide a fact-based refutation of the audit’s results. Further, Grievant
stated that while the Captain may have not been the ultimate authority in issuing the Letter of
Reprimand, as the Captain of the ship being audited, he would have had considerable influence
in the way the audit was conducted and the results of the audit.

On November 13, 2014, the Agency issued a decision on the third step grievance. Deciding
Official 3, the Admiral, reviewed the case, including Grievant’s replies, and found no evidence
indicating that Grievant was subjected to discrimination. The Admiral noted that the result of the
audit itself was not a matter covered by the grievance procedures. The Admiral stated that the
audit results showed that Grievant’s mismanagement occurred over a period of months and was
not for one specific incident. The Admiral agreed with Deciding Official Two’s assessment that
Grievant’s heritage had no bearing on whether the Letter of Reprimand was appropriate. The
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Admiral found no evidence indicating that Grievant was treated disparately and determined the
action taken in this case was supported by the evidence.

Grievant appealed the Agency’s final grievance decision to the Commission. In support of his
appeal, Grievant states that the audit was the result of prejudice by the Captain based on his
Filipino heritage. Grievant refers to a November 2013 email from the Captain in which the
Captain refers to a “cultural” and “community” issue allegedly created by Grievant and another
Filipino employee. Grievant claimed he was not allowed to refute anything that happened during
the audit process as he was not on board at the time the audit was conducted.

In response to Grievant’s appeal, the Agency stated that the Agency articulated a legitimate,
nondiscriminatory reason for issuing the Letter of Reprimand. The Agency noted that an
independent audit revealed that he failed to perform his duties as Chief Steward. The Agency
argued Grievant did not show that the Agency’s explanation was a pretext for discrimination.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.401(d) provides that a grievant may appeal to the
Commission from a final decision of the Agency, the Arbitrator, or the FLRA on a grievance
when an issue of employment discrimination was raised in a negotiated grievance procedure that
permits such issues to be raised. We find that the Commission has jurisdiction over Grievant's
appeal as it concerns the Agency’s final decision finding that he was not subjected to
discrimination when the Agency issued him a Letter of Reprimand.

At the outset, we note that on appeal Grievant did not challenge the definition of his complaint.
Upon review, we find Grievant did not establish by a preponderance of evidence that he was
subjected to discrimination based on his national origin when he was issued a Letter of
Reprimand. The Agency articulated a legitimate, nondiscriminatory reason for issuing him the
Letter of Reprimand. Specifically, an independent audit showed that Grievant failed to record
inventory for at least three months, he post-dated many of his record entries, and did not perform
wall-to-wall inventories as required by his position. Grievant did not claim that any individuals
outside of his protected class were treated differently upon such types of findings by an audit.
Grievant cites the Captain’s November 2013 email as support for his claim of discrimination.
The record reveals the email expressed the Captain’s concern that Grievant and another
supervisor were not cooperating with their department head regarding attendance and that the
Captain felt this was undermining his authority. The Captain noted the two supervisors were
Filipino and were looked up to by Filipino crew members and that the issue was creating
animosity and dissention among the other crew members. We find the November 2013 email
does not constitute direct evidence of discrimination or pretext. There is no evidence that the
Captain influenced the independent analyst who conducted the audit. Further, we note that the
Captain was not a deciding official on the Letter of Reprimand. Other than Grievant’s
speculation, no evidence was presented that the Captain influenced any of the deciding officials
involved. We find Grievant has not established that he was subjected to discrimination as
alleged.
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CONCLUSION

Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED.

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).
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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

November 16, 2017
Date