Complainant,v.Ray Mabus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Jan 31, 2014

0120121496 (E.E.O.C. Jan. 31, 2014)

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

Complainant,

v.

Ray Mabus,
Secretary,
Department of the Navy,
Agency.

Appeal No. 0120121496

Agency No. 106700402469

DECISION
On January 31, 2012, Complainant filed an appeal from the Agency’s December 21, 2011 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. The Commission deems the appeal timely and accepts it
for de novo review pursuant to 29 C.F.R. § 1614.405(a). 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 Information
Technology (IT) Specialist, GS-2210-12, assigned to Logistics Command, Command, Control,
Communication, and Computers (C4), Maintenance Support Branch, Marine Corps Logistics
Base, located in Albany, GA. On July 21, 2010, Complainant filed an EEO complaint alleging
that the Agency discriminated against him and subjected him to a hostile work environment on
the bases of race (African-American), age (53), and in reprisal for prior EEO activity when:

(a) on March 18, 2010, his first-line supervisor (S1) attempted to provoke him into a
confrontation by yelling at him and ordering him to stay in a meeting that same day;
(b) on May 20, 2010, his third-line supervisor and Division Director (S3) made reference
to using an older employee to let younger employees know how not to handle
themselves when it came to management inquiries;
(c) on or about April 1, 2010, his second-line supervisor (S2) and a Labor/Employee
Relations representative (HR1) used threats and intimidation to entrap him into a false
charge to have him removed, terminated and/or suspended without pay in their face-to-
face meeting with him to teach him a lesson;
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(d) on or about November 15, 2010, S1 and management conducted a management inquiry
on a complaint by a coworker about him attempting to label him as a trouble maker and
damage his work ethic and character; and
(e) on or about June 1, 2010, he was suspended for three days without pay.1

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). 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 Complainant
failed to prove that the Agency subjected him to discrimination as alleged.

FACTUAL BACKGROUND
The record shows that on March 18, 2010, Complainant and S1 had an argument where S1
became loud, used profanity, and waved his arms around. Complainant reported the incident
to S2 who immediately commenced an investigation. A few days later, on March 24, 2010,
Complainant levied additional allegations against S1. Complainant noted the following
additional incidents that have occurred since S1 became his supervisor: “1. Harassment; 2.
Creating a hostile work environment causing employee health conditions; 3. Defamation of
character and making false statement/e-mails; 4. Argumentative and Confrontational; 5.
Threatening; 6. Terroristic Threats; 7. Favoritism with certain employees; 8. Invalid work
assignments/Mismanagement; 9. Training; [and] 10. Retaliation.”

S2 responded to Complainant's e-mail requesting that he produce supporting details and any
documentation he had to support the charges he had raised. Complainant responded via e-mail
stating "I have been instructed, at this time, not to provide any documentation, only to make
C4 management aware of the situations I have listed.” S2 again directed Complainant to
provide any documents, e-mails, or other pertinent information he had in order to assist
management in their investigation of his complaint. Upon advice from the human resources
and legal departments, S2 advised Complainant that as a federal civilian employee he was
obligated to cooperate in any investigation and failure to do so could lead to disciplinary
action. Complainant failed to produce any additional information or documentation. On April,
19, 2010, after additional futile attempts to get Complainant to answer questions and provide
additional information regarding his charges against S1, S2 issued Complainant a Notice of
Contemplated 5-Day Suspension for refusing to participate in the investigation. Complainant
responded requesting the suspension be rescinded and stating that he did not have any
information to provide and his refusal to cooperate was due to his intent to obtain legal
guidance. S3 reduced the proposed five-day suspension to three days.

1 Complainant also alleged that from March 24, 2010 through May 19, 2010, he was subjected
to a criminal act of terrorist threats from S1. The Agency dismissed the claim, and
Complainant does not contest the dismissal on appeal.
0120121496

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In November 2010, one of Complainant's co-workers (C1) had a loud confrontation with
another co-worker (C2) who had asked C1 to stop popping her chewing gum. C1 complained
about this incident. The Plans Support Division Chief (PSDC)2

was assigned to investigate this
incident. The PSDC asked Complainant to provide a witness statement. Complainant states
that he does not know what this complaint was about or the outcome of the investigation. The
record indicates that both C1 and C2 were counseled. Complainant asserts this investigation
was an attempt by management to create a second incident against him in order to justify his
termination.

ANALYSIS AND FINDINGS
The Agency concluded that Complainant failed to establish that he was subjected to a hostile
work environment from the standpoint of a reasonable person. In addition, the Agency
concluded that Complainant failed to establish that the alleged conduct was based on
discriminatory or retaliatory animus. The Agency also concluded that Complainant failed to
prove the conduct was severe or pervasive severe or pervasive enough to create a hostile work
environment.

We agree with the Agency’s conclusions and note that other than the March 18, 2010 incident
that occurred with S1, the record is devoid of evidence that any management official subjected
Complainant to any intimidating or offensive conduct. We also note that witness testimony
supports the conclusion that while the work environment was difficult and stressful at times, S1
did not treat any individuals more favorably than others. In addition, S2 and S3 explained that
Complainant was issued a suspension because he failed to cooperate with an ongoing
investigation.3 We find sufficient evidence in the record to support this explanation, which
Complainant did not show to be pretext. We also note that Complainant fails to support his
generally vague claims with corroborating evidence. In addition, we conclude that the record
is devoid of evidence to support a finding that any alleged employment action was based upon
discriminatory or retaliatory animus.4

CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision holding that Complainant failed to prove, by a preponderance of the
evidence, that discrimination or retaliation occurred as alleged.

2 The PSDC was not in Complainant’s chain of command.
3 Complainant raised a variety of excuses for failing to cooperate with the investigation, i.e.,
claiming he was under a gag order, had no legal representation and was relying on the “Fifth
Amendment”.
4 The record supports the finding that S2 and S3 (i.e., the decision-makers with respect to
Complainant’s suspension) had no knowledge of Complainant’s prior EEO activity.

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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.

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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

Date
January 31, 2014