0120160209
03-30-2018
Ariel L.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ariel L.,1
Complainant,
v.
Richard V. Spencer,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120160209
Agency No. 140024403833
DECISION
On October 13, 2015, 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 23, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision (FAD) which found that Complainant did not demonstrate that he was subjected to discrimination as he alleged.
ISSUE PRESENTED
The issue presented in this case is whether the Agency erred in finding that Complainant was not subjected to discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Purchasing Agent, GS-08 at the Agency's Naval Supply Systems Command, Fleet Logistics Center at the Seal Beach Site, San Diego, California. On September 24, 2014, Complainant reported to his supervisor that he found some of his files, as well as a stack of contracting documents were in a recycling container in the next office. His supervisor indicated that the cleaning staff had been in the office over the weekend to clean the carpets and that they perhaps picked them up and may have switched the bins as they moved furniture; she noted that the stacks of paper next to his desk were two feet tall. Complainant questioned why the documents were placed in the recycle bin in the next office and insinuated a coworker must have placed them there. The supervisor subsequently asked the staff about the documents; and everyone denied throwing them away.
On January 7, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), age (66), and reprisal for prior protected EEO activity when on September 24, 2014, he informed the Supervisory Contract Specialist, that he found his contract documents in a recycle bin and she offered no resolution.2
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 pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that the Agency articulated legitimate, nondiscriminatory reasons for its actions. Specifically, management explained that the carpets were being cleaned in the office and everyone had been instructed to remove everything off the floor. Complainant had piles of clutter in his office so his supervisor believed that the cleaners most likely moved Complainant's papers. Complainant also indicated that he believed that a coworker had thrown the paperwork away. The supervisor indicated that she asked all of his coworkers whether they had moved Complainant's paperwork and they all replied that they had not. The FAD found that Complainant did not demonstrate that the Agency's reasons were pretext for discrimination. As such, the FAD found that Complainant did not prove that he was subjected to discrimination as he alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant contends, among other things, that he disagreed with the Agency's dismissal of claims (a), (c), (d) and (e). He also maintains that management made false accusations against him which placed him on 90 days of administrative leave while two internal investigations were being conducted. Complainant asserts that management "trumped up" additional incidents to meet their goal to either suspend or terminate his employment. Complainant contends that these actions by management were done in support of the Division Director. Complainant alleges that as a result of the Agency's reprisal actions he experienced a constructive discharge on March 27, 2015, and has filed a complaint regarding that matter.
ANALYSIS AND FINDINGS
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").
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that even if we assume arguendo that Complainant established a prima facie case of discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that Complainant's contract documents were most probably moved following the carpets being cleaned. Further, contrary to Complainant's argument, Complainant's supervisor did offer resolution as she questioned his coworkers and found that they had not disposed of his contract documents. We find Complainant did not provide any persuasive evidence that the Agency's reasons were a pretext for discrimination.
With respect to Complainant's contentions on appeal, we find that other than his conclusory statements regarding his disagreement with the dismissed claims, his ongoing disagreements with the Agency and his future actions against the Agency, he has not provided any evidence with regard to this case which demonstrates that the FAD incorrectly found that he was not subjected to discrimination.
CONCLUSION
Accordingly, we AFFIRM the Agency's FAD which found that Complainant did not demonstrate that he was subjected to discrimination as he alleged.
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
_3/30/18_________________
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.
2 Complainant also alleged four additional claims: (a). On or about 27 August 2014, a coworker showed signs of hostility towards him by repeatedly reaching around him at the printer without giving notice: (c). On 2 October 2014, his first level supervisor, displayed an aggressively angry behavior towards him about a problematic customer contract; (d). On 7 October 2014, he was questioned by his supervisor in the presence of Security about an incident between him and a coworker; and (e). On 20 October 2014, he was placed on administrative leave in connection with a Management Inquiry into allegations. The Agency dismissed claims (a), (c), (d), and (e) for failure to state a claim as Complainant failed to show that he was aggrieved. We agree that claims (a), (c), (d), and (e) were properly dismissed for failure to state a claim and they will not be discussed further in this decision. The dismissal of these claims is AFFIRMED.
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