0120131872
08-12-2014
Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120131872
Agency No. ARUSAR12JAN00073
DECISION
On April 8, 2013, Complainant filed an appeal from the Agency's March 8, 2013, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as the Business Manager at the Agency's Hacienda facility in Fort Hunter Liggett, California.
On January 30, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when:
1. In October and November 2011, Complainant was required to use annual leave following the death of his parents;
2. On January 9, 2012, Complainant's request for compensatory time was denied by his supervisor (Supervisor) and Complainant was not allowed to adjust his work schedule to meet suspenses;
3. On January 11, 2012, an unscheduled cash count and inventory inspection was conducted; and
4. On April 13, 2012, Complainant was separated from his employment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and issued a final agency decision on December 27, 2012. Complainant was provided with appeal rights to the Merit Systems Protection Board (MSPB). Complainant filed an appeal with the MSPB. However, the MSPB determined that Complainant did not have standing. As such, Complainant withdrew his MSPB appeal. The Agency issued a new final decision on March 8, 2013, providing Complainant with appeal rights to the Commission. The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
Complainant appealed asserting that the Supervisor's reasons for his actions were false. Complainant argued that he complained about the Supervisor's inappropriate actions with female workers and volunteers. Complainant indicated that the Supervisor provided preferential treatment to females.
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. (November 9, 1999) (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").
A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she 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). 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). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
As for the issue of leave, Complainant averred that he specifically requested annual leave in lieu of sick leave. As such, Complainant was provided with the leave he requested in order to attend the funeral of his mother. As to claim (2), Complainant requested compensatory time to complete his suspenses on January 9, 2012. The Supervisor indicated that management tried to adjust hours so that additional personnel costs are not incurred. He noted that Complainant was instructed not to work on Sundays. However, Complainant would work on Sundays and then ask for approval after the fact. In response to claim (3), the Chief Financial Officer (CFO) averred that she conducted the unannounced cash count because she had concerns about the backlog of daily activity reports for the facility. When there were no deficiencies found, the CFO took no further action.
Finally, as to the removal action raised in claim (4), the Supervisor noted Complainant's disregard for directives given him by management. The Supervisor indicated that Complainant's compliance rate for submitting suspenses was about 50%. The Supervisor averred that Complainant disagreed with the direction management went with the Hacienda. Complainant would make recommendations which were not accepted by management. As a result, the Supervisor noted a decline in Complainant's conduct. He also noted that Complainant failed to provide leadership in the facility for the other employees. Based on Complainant's conduct, the Supervisor recommended Complainant's removal. The Second Line Supervisor approved of the recommendation.
We find that the Agency has provided legitimate, nondiscriminatory reasons. We turn to Complainant to show that the Agency's reasons were pretext. Upon review, Complainant agreed that he requested annual leave in order to attend his mother's funeral. Further, he did not challenge the CFO's decision. We shall focus on claims (2) and (4). Complainant argued that others were permitted to work overtime. Complainant named subordinate employees who were not comparable. Furthermore, employees asked in advance for compensatory time which Complainant failed to do with the Supervisor. As to claim (4), Complainant argued that the Supervisor wanted to remove him because he complained about how the Supervisor acted with female employees and volunteers. However, during the fact finding conference, Complainant clearly indicated that he disagreed with the decisions made by management regarding operations of the Hacienda. Complainant admitted to conduct issues based on these disagreements. For example, he would not attend meetings because he disagreed with management. Based on our review of the record, we find that Complainant has not shown that the Agency's reasons were pretext for discrimination based on his sex or any prior protected activity.
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 final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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).
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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 12, 2014
__________________
Date
2
0120131872
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131872