Clinton M.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Army & Air Force Exchange Service), Agency.

Equal Employment Opportunity Commission

May 16, 2018

0120162493 (E.E.O.C. May. 16, 2018)

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

Clinton M.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Army & Air Force Exchange Service),
Agency.

Appeal No. 0120162493

Hearing No. 560-2016-00044X

Agency No. 15.037

DECISION

On July 22, 2016, 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
May 6, 2016, 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. Our review is de novo. 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 an Exchange General
Manager, Pay Band 5A, at the Agency’s Scott Air Force Base in Illinois.

On February 26, 2015, Complainant filed an EEO complaint wherein he claimed that the Agency
discriminated against him and harassed him on the bases of his race (African-American), color
(black), disability (stomach condition/anxiety/stress), and in reprisal for his prior protected EEO
activity under Title VII and the Rehabilitation Act 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. In October 2013, two Agency officials conducted a management inquiry against him.

2. In December 2013, Complainant was issued an Advance Notice of Suspension letter,
which was later removed.

3. On April 18, 2014, Complainant was verbally notified of a transfer of assignment
effective June 14, 2014, which was later removed.

Complainant claimed that he was subjected to reprisal and harassment based on his disability
when:

4. On October 6, 2014, he was issued an Advance Notice of Separation, placed on
administrative leave and not allowed to retrieve his personal belongings.

5. On December 5, 2014, Complainant was separated from employment.

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 EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew his request.
Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b).

The Agency determined that Complainant failed to prove that it subjected him to discrimination
as alleged. The Agency stated that on September 20, 2013, a Senior Store Associate sent an email
on her last day of work and complained of a hostile work environment. The Agency noted that on
September 24, 2013, an anonymous complaint was submitted complaining about a hostile and
intimidating work environment. The anonymous letter stated that Complainant remarked on many
occasions that he “could commit murder.” The letter listed other concerns such as workplace
bullying, age discrimination, favoritism, and verbal abuse. The Agency subsequently initiated a
management inquiry. As a result of the inquiry, on December 13, 2013, Complainant’s third-level
Supervisor issued Complainant an Advance Notice of Fourteen-Day Suspension. Complainant
was cited for continued use of poor judgment and decision making, his threatening and
intimidating tactics toward subordinates, and for creating a hostile work environment. Altogether,
sixteen incidents were referenced as well as Complainant’s prior suspension in 2012 for
inappropriate comments and intimidating behavior toward subordinates. The third-level
Supervisor gave Complainant the option to sign a settlement agreement that provided for an
imposition of the suspension and included a lateral transfer to Fort Knox. Complainant signed the
settlement agreement and requested a delay in administering the suspension. According to
Complainant, the settlement agreement was subsequently invalidated and he was never suspended
since the suspension and orders to Fort Knox would have to have been issued within thirty days.

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On June 12, 2014, Complainant signed a Transfer Agreement to relocate to Dallas, Texas effective
August 16, 2014. The reassignment did not occur after Complainant referred to the job as a waste
and said he would delete the position. The Agency stated that on July 30, 2014, Complainant’s
first-level Supervisor discussed with Complainant his poor performance, ineffectiveness and
unresponsiveness. According to the Agency, despite the discussion, Complainant did not improve.
On October 2, 2014, Complainant received an Advance Notice of Separation for Cause and
Administrative Leave letter. The Agency stated that on October 21, 2014, Complainant responded
to the letter and stated that he acknowledged his performance had, over the past year, been less
than the standard he set; that he had been mentally and physically exhausted and stressed due to
medical issues; that medication had been prescribed for him; and that the allegations against him
were false. According to Complainant, given that everything had piled up, he was afraid to read
his email or communicate with his Supervisor. On December 5, 2014, the third-level Supervisor
issued Complainant a Final Notice of Separation.

Complainant’s first and third-level Supervisors became aware in June 2014 of his EEO activity
regarding the current matter. Complainant stated that although he did not provide management
with medical documentation, the Agency accommodated him by permitting him to report to work
late due to his stomach problems. The Agency stated that Complainant asserted that the officials
who conducted the management inquiry did so in a derogatory and condescending manner.
Complainant charged one of the officials with attempting to form alliances against him with the
Store Manager and the Business Manager. The official at issue denied coercing employees to
make statements against Complainant. The Agency stated that the anonymous letter identified the
Store Manager as being responsible for the harsh treatment, but the Store Manager stated that she
was following Complainant’s direction. According to the official who questioned her, he informed
the Store Manager that she had to make a choice about the path she would follow professionally
or it was not going to go well. The Agency noted that an Inspector General’s inquiry did not
substantiate Complainant’s accusations.

With regard to Complainant’s separation from employment, the Agency stated that Complainant
acknowledged being non-responsive due to his mental state. However, Complainant claimed that
the Agency did not follow progressive discipline. The Agency noted that Complainant’s
Supervisor asserted that Complainant’s nonresponsiveness became progressively worse in the
March/April 2014 timeframe. The Agency stated that on one occasion the Supervisor drove to
Complainant’s location but Complainant refused to meet with him. According to the Agency, in
November 2014, the third-line Supervisor offered Complainant a settlement agreement in lieu of
being separated and gave him a deadline to respond. The Agency stated that the third-line
Supervisor requested that Complainant provide medical documentation, but Complainant did not
respond to the settlement offer or submit medical documentation.

The Agency determined that it articulated legitimate, nondiscriminatory reasons for the actions at
issue and Complainant did not provide evidence to show that management’s explanation was
pretext intended to hide discriminatory motivation. The Agency further determined that the
actions at issue were not sufficiently severe or pervasive to constitute harassment.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that one of the officials who conducted the management inquiry
was verbally abusive to him and attempted to intimidate employees to make derogatory comments
about him, and that all avenues were pursued to disparage his character and fitness for
management. With regard to his medical condition, Complainant maintains that he suffered
stomach pain and his physicians believe he was suffering from stress. Complainant states that his
mental health therapist stated he was suffering from severe anxiety and mild depression.
According to Complainant, he did not check his emails due to fear and mental anguish he could
not control. Complainant contends that the third-line Supervisor failed to follow the standard
procedures for progressive discipline. Complainant asks why rather than a separation the Agency
did not pursue oral or written reprimands or short or long term suspensions concerning his failure
to respond to emails. Complainant argues that the third-line Supervisor coerced him into signing
the settlement agreement in December 2013. Complainant notes that he was issued the Advance
Notice of Separation 35 days after he refused in August 2014 to sign a settlement agreement where
he would have waived all his rights. Complainant claims the Advance Notice of Separation was
reprisal for him not signing the settlement agreement on August 26, 2014. Complainant maintains
that from October 2013 through December 2014, he was subjected to verbal abuse, harassment
and character defamation from senior leadership. Complainant states that in October 2013, his
administrative assistant was removed and a new person placed in that position even though it was
within his authority to select the person who filled that position. Complainant argues that he was
not allowed to fill other positions and laterally transfer employees. According to Complainant, he
was not approved for the Executive Management Program and not allowed to attend the General
Manager/Main Store Manager conference in March 2014. Complainant states as to the conference
that he is unaware of any non-minority management official that the third-level Supervisor
prevented from attending.

In response, the Agency asserts that the third-line Supervisor decided to withdraw the Advance
Notice of Suspension and transfer Complainant to Fort Knox because he wanted to give
Complainant a fresh start and because Complainant raised concerns about working with another
employee assigned to Fort Knox. The Agency states that Complainant ultimately refused the
transfer and remained as the General Manager at Scott Air Force Base.

The Agency argues that Complainant failed to establish a prima facie case of discrimination
because he failed to show any similarly situated employees who were treated more favorably. The
Agency maintains that Complainant has not produced any evidence linking any of the alleged
incidents of harassment to any of his protected bases. The Agency notes that by Complainant’s
own admissions, he recognized that his performance was unsatisfactory, he failed to report to work
and he failed to communicate with his Supervisor. The Agency asserts that all actions by
management toward Complainant were in direct response to his behavior and performance on the
job. The Agency argues that the alleged incidents of harassment were isolated and a reasonable
person would not consider them hostile or abusive. The Agency notes that the management inquiry
was required in light of the two complaints filed by former and current Scott Air Force Base
Exchange employees concerning an alleged hostile work environment.
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As to the Advance Notice of Fourteen-Day Suspension and lateral transfer to Exchange
Headquarters, the Agency states that the proposed suspension was based on the findings of the
management inquiry.

The Agency asserts that the Advance Notice of Separation for Cause and the eventual separation
were issued in direct response to Complainant’s misconduct. According to the Agency,
Complainant had numerous incidents where he failed to report to work, failed to return email and
telephone inquiries from his supervisors, was insubordinate and failed to perform his essential job
duties. With regard to Complainant’s placement on administrative leave, the Agency states that it
is not unusual for employees whose separation is proposed to be placed on paid administrative
leave during the reply period. The Agency maintains that when Complainant was placed on
administrative leave, he was not prevented from removing his personal belongings from his office.
The Agency states that Complainant’s Supervisor informed him that it was not necessary at the
proposal stage as a final decision on his continued employment had not been made yet. The
Agency asserts that the actions cited by Complainant did not unreasonably interfere with his work
environment. The Agency further argues that the alleged incidents were not sufficiently severe or
pervasive to constitute a hostile work environment.

ANALYSIS AND FINDINGS

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). He must generally 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, 411 U.S. at 802
n. 13. To establish a prima facie case of reprisal, Complainant must show that (1) he engaged in
protected EEO 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 his protected
activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No.
01A00340 (Sept. 25, 2000).

The prima facie inquiry may be dispensed with where, as here, the Agency articulated legitimate
and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens,
460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842
(Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the
evidence, that the Agency’s explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519
(1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka
v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995).

With regard to claim (1), the Agency stated that a management inquiry was conducted in response
to two complaints of a hostile work environment raised by a current employee and a former
employee. As for the Advance Notice of Suspension Letter at issue in claim (2), the Agency
asserted that it was issued based on the management inquiry’s findings.
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The Agency noted that it was required to take prompt and corrective action to address the
harassment allegations, but that the suspension was not put into effect. With respect to the Notice
of Lateral Transfer at issue in claim (3), the Agency stated that the transfer was intended to offer
Complainant a fresh start and to properly respond to the management inquiry’s findings. The
Agency noted that the transfer did not occur as Complainant rejected the position and the third-
line Supervisor allowed him to remain at Scott Air Force Base.

In terms of claim (4), the Agency asserted that the Advance Notice of Separation was issued based
on Complainant’s misconduct. The Agency noted that Complainant had numerous incidents where
he failed to report to work, failed to return email and telephone inquiries from his supervisors, was
insubordinate and failed to perform his essential job duties. As for Complainant’s placement on
administrative leave, the Agency stated that it is not unusual for employees whose separation is
proposed to be placed on paid administrative leave during the reply period. The Agency asserted
that Complainant was not prevented from removing his personal belongings from his office. The
Agency stated that Complainant’s Supervisor informed him that it was not necessary at the
proposal stage given that a final decision on his continued employment had not been made yet.

With respect to Complainant’s separation from employment at issue in claim (5), the Agency stated
that in the months that led up to his separation, Complainant demonstrated a flagrant disregard for
his Supervisor’s authority, failed to timely respond to emails and deadlines, and failed to perform
the basic duties of his position. We find that the Agency has articulated, legitimate reasons for its
actions in the matters at issue.

Complainant attempts to establish pretext by arguing that the Agency failed to follow progressive
discipline prior to issuing him a separation from employment. Complainant also claims that the
Advance Notice of Separation was reprisal for him refusing to sign a settlement agreement. We
find however, that even if the Agency did not strictly follow a course of progressive discipline, the
Agency regarded Complainant’s misconduct to be of sufficient severity to warrant the Advance
Notice of Suspension, the transfer to Dallas (that subsequently did not occur), the Advance Notice
of Separation, the placement on administrative leave, and subsequently the separation from
employment. Complainant has not shown that any deviation from a course of progressive
discipline was due to discriminatory animus. Complainant maintains that the management inquiry
improperly sought to coerce his staff to make statements against him. We observe that one of the
officials was aggressive in his questioning, but we discern no basis to disagree with the Agency’s
Office of Inspector General’s determination that did not substantiate Complainant’s accusations.
As to the remaining arguments of disparate treatment presented by Complainant, we find that he
has not submitted sufficient argument or evidence to demonstrate that the Agency’s reasons for its
actions were pretext intended to mask discriminatory motivation.

Finally, to the extent that Complainant alleges that he was subjected to a hostile work environment
with respect to the matters herein, the Commission finds that a finding of a hostile work
environment is precluded by the Commission’s determination that Complainant failed to establish
that any of the actions taken by the Agency were motivated by discriminatory animus. See Oakley
v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000).
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Therefore, the Commission finds that Complainant has not established that he was subjected to
reprisal or a hostile work environment as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted on
appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM the
Agency’s final decision because the preponderance of the evidence of record does not establish
that discrimination occurred.

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
1.
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).
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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

May 16, 2018
Date