Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20170220150004 (E.E.O.C. Nov. 16, 2017) Copy Citation 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. 0220150004 2 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 0220150004 3 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 0220150004 4 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. 0220150004 5 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). 0220150004 6 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 Copy with citationCopy as parenthetical citation