0120121650
04-29-2014
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120121650
Agency No. 110014600160
DECISION
On March 1, 2012, Complainant filed an appeal from the Agency's February 3, 2012, final decision (FAD) 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 a Motor Vehicle Operator at the Agency's Motor Transportation Office, Marine Corps Air Station facility in Cherry Point, North Carolina.
On February 2, 2011, Complainant filed an EEO complaint alleging1 that the Agency discriminated against him on the basis of race (Caucasian) when:
1. Complainant was terminated during his probationary period, effective October 25, 2010.
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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), 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. Specifically, the FAD found that the Agency articulated legitimate nondiscriminatory reasons for its action, namely that Complainant was terminated because he failed to follow proper procedure when he did not properly sign for receipt of a cargo delivery, and that Complainant failed to establish that the Agency's articulated reason was a pretext for discrimination.
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").
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). 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). At all times, Complainant retains the burden of persuasion, and it is his obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. See Hicks, supra.
The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for Complainant's termination. See United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713 17 (1983). Specifically, the Motor Transport Officer who was Complainant's second-level supervisor (S-2: White) and was the person who decided to terminate Complainant testified that:
There were several reasons why [Complainant] was terminated. False information that was provided on a Federal job application or resume; rude, disruptive behavior, inability to become a comprehensive constructive part of a team; and then again the final incident was the issues we had with him arguing with the customers and the people we provided service with over their requirement to track the things that we transported for them.
Fact Finding Conference Transcript (FFCT), pp. 57-8.
In addition, the Termination Notice stated that Complainant was removed for the following reason:
On or about 12 October 2010, you failed to follow instructions regarding cargo manifest requirements (delivery, pick-up, and/or signature for cargo). You have previously been counseled on the appropriate procedures for cargo manifests. When directed to follow the instructions, you became argumentative with your supervisor. This conduct disrupts the timeliness, efficiency, and reliability of the services we provide to our customers.
Report of Investigation, Exhibit F-13.
The Agency having articulated legitimate nondiscriminatory reasons for its action, the burden thus returns to Complainant to demonstrate, by a preponderance of the evidence, that the Agency's reasons were pretextual, that is, they were not the true reasons or the action was influenced by legally impermissible criteria. Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 519.
Complainant denies that he provided false information on his job application or resume, that he was rude or disruptive, or that he was not a team-player. He argues that, contrary to the Termination Notice's claim that he had previously been notified of the requirement to sign the manifest form when picking up a load of items for delivery, this was in fact a new requirement and that it he was unaware of it at the time. See FFCT, pp. 13-15. We note that testimony on this matter is contradictory. One of Complainant's coworkers (CW 1: Caucasian) called by Complainant as a witness, testified that, when picking up items "we know we had to sign for it." FFCT, p. 175, but also said that the procedure varied depending on "who was working the shop there when you went to pick [deliveries] up," id., pp 175-6, and "it was a 50/50 chance you would sign or not sign." Id. Another coworker (CW-2, Caucasian) agreed with CW-1's testimony that the requirement to sign varied depending on the circumstances. See id., p. 202.
Complainant alleges that his supervisor (S-1: Black) discriminated against White employees and that this is why Complainant was removed from his position. The record contains contradictory testimony from some White employees who said that S-1 gave preferential treatment to other Black employees, see FFCT, pp. 158, 179, while another White employee denied this. See id., pp. 292-3. Even assuming arguendo that S-1 gave preferential treatment to Black employees, we note that it was S-2 and not S-1 who terminated Complainant's employment, and that the Human Resources Specialist (HR: White) recommended Complainant's termination to S-1 based on the fact that Complainant was a probationary employee. See id., p. 547.
Complainant contends that S-2 was influenced by S-1, but S-2 testified that:
in fact, [S-1] was advocating for [Complainant], that I not terminate him because he was a hard worker. And I had to explain to [S-1] being a hard worker is not the same thing as being a productive member of a team, a team player, attitude, and all of those other things need to be considered when we decide on whether or not we are going to keep a probationary employee.
Id., p. 59.
Furthermore, when asked what level of deficiency would be required to justify termination a probationary employee, HR testified that "it would require one incident of bad behavior, performance, deficiency, tardiness. It would take one situation and a manager/supervisor has a right to terminate that employee's probationary employment." Id., p. 236.
Following a review of the record we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that the Agency's articulated reasons for its action were a pretext for discrimination. While Complainant was able to present evidence that S-1 gave preferential treatment to Black employees, the record shows that it was not S-1 who was responsible for Complainant's termination. Instead the record shows that Complainant's termination was based on decisions made by HR and S-2, and there is nothing in the record to indicate that they harbored any animus towards Complainant's race or based their decisions on his race.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that Complainant has not met his burden of establishing, by a preponderance of the evidence, that discrimination occurred, and we AFFIRM the FAD.
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
April 29, 2014
__________________
Date
1 Complainant included other claims that were dismissed by the Agency on procedural grounds. On appeal, Complainant has not addressed these other claims and so we decline to address them in our decision.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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