Christoper M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Contract Management Agency), Agency.

Equal Employment Opportunity Commission

Feb 28, 2019

0120171718 (E.E.O.C. Feb. 28, 2019)

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

Christoper M.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Contract Management Agency),
Agency.

Appeal No. 0120171718

Agency No. P8160052

DECISION

On April 12, 2017, 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
March 9, 2017, 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission AFFIRMS the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Quality Assurance
Specialist, GS-1910-11, at the DCMA-Stockton, Quality Assurance Group, in Oakland, California.

On June 27, 2016, Complainant filed an EEO complaint alleging that the Agency subjected him to
discrimination and harassment/hostile work environment on the bases of national origin
(Hispanic), disability, and reprisal for prior protected EEO activity under Title VII of the Civil
Rights Act of 1964, and Section 501 of the Rehabilitation Act of 1973 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 January 22, 2016, he received a “Termination During Probationary Period” letter;
2) Between January 2015 and January 22, 2016, management denied his reasonable
accommodation requests;
3) On November 9, 2015, he received a Letter of Warning and Instruction (LOWI);
4) On November 7, 2015, management demanded that he change his permanent work
schedule;
5) Between March 20, 2015, and January 2016, he was harassed and treated unfairly
when:

a. In January 2016, his first line supervisor characterized him as a “troublemaker”
because he was assisting a coworker with an EEO complaint;
b. On or about December 18, 2015 to December 23, 2015, his supervisor placed an
individual whom he accused of harassment in a supervisory position over him;
c. On October 19, 2015, his supervisor demanded that he report to work after she had
previously directed him to take a week off;
d. On October 15, 2015 and April 7, 2015, his supervisor failed to take action when
he informed her of a verbal altercation with a coworker;
e. On October 13, 2015, he heard a coworker shout and use profanity regarding an
email directive from the Team Lead;
f. On September 9, 2015, he heard a coworker cursing, yelling, and slamming his
desk about attending mandatory training the next day;
g. On September 9, 2015, he heard a coworker make disparaging comments about a
female coworker, to include calling her a “bitch.”
h. On or about August 7, 2015, he heard two workers engaged in a discussion
concerning immigration whom they referred to as “illegal aliens” and corrupt;
i. On May 7, 2015, he heard a coworker yelling at the Team Lead while using
profanity;
j. On April 29, 2015, a coworker yelled to him, “I’m going to fucking kill this guy!
God dammit”;
k. On April 20, 2015, he heard two coworkers cursing, joking and discussing
“swinging dicks”;
l. On April 7, 2015, a coworker called him a liar and made false pejorative comments;
and
m. On March 20, 2015, he heard three coworkers make racial and disparaging
comments about Blacks and Hispanics.

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 (AJ). In accordance with Complainant’s request,
the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). For claims (3) and (4), the
Agency dismissed these claims in accordance with 29 C.F.R. § 1614.107(a)(2) for untimely
contact with an EEO counselor. As for claims (1), (2), and (5), the decision concluded that
Complainant failed to prove that the Agency subjected him to discrimination as alleged.

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On appeal, Complainant contends that Agency engaged in discrimination by terminating him
during his probationary period and subjecting him to a hostile work environment.2

ANALYSIS AND FINDINGS

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”).

In the absence of direct evidence of discrimination, the allocation of burdens and order of
presentation of proof in a Title VII case alleging discrimination is a three-step process. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976), aff'd 545 F.2d 222 (1st Cir.
1976) (applying McDonnell Douglas to retaliation cases). 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 Constr. Co. v. Waters,
438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the
particular case. McDonnell Douglas, 441 U.S. at 804 n.14. The burden then shifts to the Agency
to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). 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, 143 (2000); St. Mary's Honor Ctr v. Hicks, 509 U.S. 502,
519 (1993).

Assuming arguendo that Complainant established a prima facie case of discrimination based on
the alleged bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its
decision to terminate him during his probationary employment. As reflected in the investigative
record and final decision, the Agency removed Complainant from federal service because he failed
to attend a Defense Acquisition Workforce Improvement Act training course. In removing
Complainant, the Agency noted that he made several unauthorized changes to his travel
arrangements, which needlessly delayed his travel orders, and ultimately prevented him from
attending the course. The Agency also cited Complainant’s conduct, to include his
discourteousness to management when making the unauthorized travel changes and inappropriate
interactions with colleagues (i.e., November 2015 Letter of Warning and Instruction), as additional
bases for his removal.

2 Complainant does not challenge the Agency’s finding of no discrimination in claim (2) or the
procedural dismissal of claims (3) and (4). Therefore, we shall not address those claims further
herein.
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Upon review, we find that Complainant has failed to rebut the Agency’s articulated legitimate,
nondiscriminatory reasons for his probationary removal. We have long held that a probationary
employee is subject to retention, advancement, or termination at the discretion of an agency so
long as these decisions are not based on a protected category. Kaftanic v. U.S. Postal Serv., EEOC
Appeal No. 01882895 (Dec. 27, 1988) (citing Arnett v. Kennedy, 416 U.S. 134, 152 (1974)). The
probationary period is designed to provide an Agency with an opportunity to evaluate an
individual's conduct and performance to determine whether an appointment to the civil service
should become final. Complainant’s contentions on appeal are unpersuasive. Complainant has not
persuasively shown that he was treated less favorably than similarly-situated employees or shown
that the Agency’s decision to terminate him was motivated by discrimination.

We also do not find merit in Complainant’s contention that he was subjected to a hostile work
environment. In so finding, we note that many of Complainant’s allegations of harassment conflict
with witness testimony. The Agency found that the allegations contained in claims 5a-5c and
claims 5e-5l did not occur as alleged. For claim 5d, the Agency determined that the incident in
question occurred, but not as alleged and that this incident was more in the nature of an issue of
liability if a hostile work environment was proven. As for claim 5m, the Agency found that the
incident in question occurred, but did not find that any comment disparaging Hispanics was made.
Even if comments were made disparaging Black individuals, there is no indication that the
comments were pervasive or rose to the level of constituting a hostile work environment. We find
that Complainant has failed to establish, by a preponderance of the evidence, that the alleged
discriminatory acts occurred or, if they did occur, constituted a discriminatory, hostile work
environment. Accordingly, based upon our review of the evidence of record, we find that
Complainant cannot prevail on his hostile work environment claim.

CONCLUSION

We AFFIRM the Agency’s decision finding no discrimination.

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
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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

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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

February 28, 2019
Date