0220140016
11-22-2016
Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jake H.,1
Grievant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0220140016
DECISION
On September 10, 2014, Grievant filed an appeal from the Agency's August 13, 2014, decision concerning his grievance 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.
BACKGROUND
At the time of events giving rise to this complaint, Grievant worked as a Water Treatment Operator at the Agency's Water Treatment Plant located on the Marine Corps Base facility in Quantico, Virginia.
On April 12, 2014, Grievant filed a grievance alleging that the Agency discriminated against him on the basis of race (African-American) when, on March 18, 2014, he received a Letter of Leave Requirement and Restriction.
On June 30, 2014, the Agency issued the decision on the Step 1 Grievance. On May 28, 2014, Grievant indicated that some received similar letters but others received Letters of Supervisor Concern. He also asserted that other employees had leave issues but there was no explanation for what triggered a Letter of Concern versus a Letter of Leave Restriction. Grievant alleged that his supervisor (Supervisor) arrived late to work on several occasions and took a lot of leave. The Step 1 Grievance decision found that Grievant's grievance did not have merit noting that there was no proof that management acted in an unfair manner. As such, the decision found that the Letter of Leave Requirement and Restriction should remain in effect until its time period has expired.
On July 8, 2014, Grievant filed a Step 2 grievance. The Agency issued its Step 2 Decision on August 13, 2014. Grievant again asserted that he was treated unfairly due to his race and that African-American employees were targeted. In support of his claim of discrimination, he challenged the alleged pattern of leave abuse. The Agency found that the Letter of Leave Requirement and Restriction was warranted and that Grievant failed to provide any evidence of discrimination. As such, the Agency concluded that Grievant did not show that he was subjected to discrimination based on race.
This appeal followed. On appeal, Grievant asserted that the Supervisor exhibited a pattern of leave usage but was not punished. He also argued that the Supervisor showed favoritism to certain employees. Grievant provided for the first time an email from May 2013, where the Supervisor apologized for a joke which Grievant believed to be racist. The Agency asked that the Commission affirm its Step 2 Grievance Decision.
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 Federal Labor Relations Authority on a grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised.
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found. for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Grievant to prevail, he must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).
Grievant asserted that he was subjected to discrimination based on race. Assuming that he established a prima facie case, we note that the Agency has proffered legitimate, non-discriminatory reasons for the issuance of the Letter - namely, based on Grievant's leave record from May 2013 to November 2013, his leave usage was unacceptable. The Agency noted that he had a large amount of unscheduled leave and that the pattern of unscheduled absences caused his supervisor concern and management noted a negative impact his absences had on the organization and the Agency's mission. Grievant asserted that the Agency's reasons were pretext arguing that others had similar leave usage but were not similarly disciplined. A review of the record shows that Complainant had over 94 hours of unscheduled leave. Grievant asserted that others had similar levels of unscheduled leave usage. However, we find that Grievant provided numbers without supporting documentation to establish the basis for his claim. Accordingly, we find that Grievant has not prevailed in his claim of unlawful discrimination.
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 Step 2 grievance decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
The Commission may, in its discretion, reconsider the decision in this case if the Grievant 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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).
GRIEVANT'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 Grievant'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 22, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Grievant's name when the decision is published to non-parties and the Commission's website.
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