Alejandro B.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Oct 3, 2018

0120172798 (E.E.O.C. Oct. 3, 2018)

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

Alejandro B.,1
Complainant,

v.

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

Appeal No. 0120172798

Hearing No. 430-2014-00431X

Agency No. 134008503078

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated July 13, 2017, finding no discrimination with
regard to his 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For
the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Maintenance
Supervisor I, WS-4701-10, at the Agency’s Public Works Department (PWD) in the
Maintenance Emergency & Services Shop facility in Norfolk, Virginia. On September 9, 2013,
Complainant filed an EEO complaint alleging that the Agency discriminated against him on the
bases of race (African-American), sex (male), color (black), age (65), and reprisal for prior
protected EEO activity under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967 when:

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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1. On or about August 8, 2013, an investigation was initiated against him for an
alleged safety violation;
2. On or about September 9, 2013, he was not selected to fill a 120-day temporary
appointment to Norfolk’s PWD Project’s Superintendent Position, GS-1601-12;
3. On or about December 13, 2013, he was placed on a Performance Improvement
Plan (PIP); and
4. On or about January 16, 2014, he discovered he was not selected to fill the
Maintenance Superintendent position, GS-1601-11/12, located at Naval Station
Norfolk, Virginia.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). Over Complainant's objections, the AJ assigned to the
case granted the Agency’s Motion for Summary Judgment dated March 26, 2015. On August 1,
2017, the AJ issued a decision without holding a hearing, finding no discrimination. The
Agency’s final order implemented the AJ’s decision. Complainant appeals the Agency’s final
order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. 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 the instant case, the AJ incorporated the Agency’s Motion for Decision Without a Hearing and
found that Complainant failed to establish that he was subjected to a hostile work environment or
discrimination. To prevail in a disparate treatment claim, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Complainant must initially establish 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 Construction Co. v. Waters, 438 U.S. 567, 576 (1978). The
burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its
actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
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To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133
(2000). Additionally, to establish a prima facie case of reprisal Complainant must show that: (1)
he engaged in a protected activity; (2) the agency was aware of the protected activity; (3)
subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists
between the protected activity and the adverse treatment. Whitmire v. Dep’t of the Air Force,
EEOC Appeal No. 01A00340 (Sept. 25, 2000). Here, we find that assuming, arguendo,
Complainant established a prima facie case of discrimination on alleged bases, the Agency
nonetheless articulated legitimate, nondiscriminatory reasons for its actions and no nexus existed
between his previous EEO filings and any adverse treatment.

Regarding claim (1), a few employees of PWD reported potential safety issues concerning the
work crew Complainant supervised. At least one of those employees was unaware of
Complainant’s previous EEO filings. Complainant’s first-level supervisor (S1), Maintenance
Superintendent for Emergency & Services, directed Complainant to complete a “Heads Up”
report detailing the safety issues and violations of his work crew. Complainant failed to submit a
report in accordance with policy. Therefore, an investigation was initiated to determine why
Complainant had failed to follow directions.

Regarding claim (2), Complainant’s second-level supervisor (S2), a PWD Production Manager,
reviewed candidates for the temporary assignment based on resumes, qualifications and
professional/work related interaction with the individuals. S2 stated he selected two individuals
with experience working in the Projects Department which has specific and unique requirements
of longer term execution cycles for projects, larger workforces, cost oversight, and other
operational obligations. S2 stated Complainant was considered but not selected based on more
qualified candidates, his limited supervisory skills, as well as the fact that Complainant was
being considered for a PIP at the time.

Regarding claim (3), S1 made the decision to place Complainant on a PIP in order to give him an
opportunity to improve his performance. S1 noted in addition to his failure to file reports as
directed, Complainant needs to improve on his customer communication skills, responding to his
employees’ requests, and performing at a level equal to his peers. S1 noted these shortfalls cause
S1 to dedicate his time to performing Complainant’s job duties or supervising him more closely
to ensure his job duties are met. S1 stated no one asked him to put Complainant on a PIP. S1
ultimately cancelled the PIP after consulting with a Human Resource Officer and was instructed
to consider the PIP for the next fiscal year. If the PIP had not been cancelled, S1 stated
Complainant would have failed in 6 of the 7 areas set for him to improve upon.

Regarding claim (4), the Maintenance Superintendent position was reopened to allow
Complainant and other candidates to apply. Complainant applied but was found to be unqualified
for the position. S1 and S2 both stated there were more qualified candidates with experience
working within that department and more supervisory skills. Additionally, at the time
Complainant was being considered for a PIP at the time. Ultimately, the position was not filled
but an African-American male over 40 years old, was selected to the position temporarily.
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After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s Motion.
Upon review, the AJ found and we agree that Complainant was not subjected to discriminatory
harassment. Complainant failed to establish that any of the incidents were related to any
protected basis of discrimination. Based on the foregoing, we find that Complainant failed to
show that the Agency’s action was motivated by discrimination as he alleged.2

CONCLUSION

Accordingly, the Agency’s final order 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.

2 Complainant raised two other claims which were dismissed by the Agency prior to the hearing.
Complainant is not challenging the dismissal of those claims on appeal.
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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

October 3, 2018
Date