Elmer C.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Apr 1, 2016

0120151917 (E.E.O.C. Apr. 1, 2016)

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

Elmer C.,1
Complainant,

v.

Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120151917

Agency No. DLAN-14-0103

DECISION

Complainant appeals to the Commission from the Agency’s final decision dated April 7, 2015,
finding no discrimination with regard to his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967
(ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we AFFIRM the
Agency’s final decision finding of no discrimination of a portion of the complaint and dismissal
of the remainder of the complaint.

BACKGROUND

The record indicates that the Agency identified Complainant’s complaint filed on April 22,
2014, as whether he was discriminated against based on race (Black), age (over 40), disability,
and in reprisal for prior EEO activity when:

(A) He was issued a Letter of Warning (LOW) on January 9, 2014, for failure to follow
instructions.
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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(B) (1) On December 27, 2013, he was issued a LOW, which was later rescinded, for
failing to follow instructions by his first line supervisor (S1); and (2) On September 19,
2013, a coworker witnessed a meeting with management which demonstrated
management’s and the EEO Counselor’s influence on his employment.

Complainant does not dispute the Agency’s framing of his complaint. The record indicates
that on May 1, 2014, the Agency dismissed claim (B)(1) for failure to state a claim pursuant to
29 C.F.R. § 1614.107(a)(1) and claim (B)(2) due to untimely EEO Counselor contact pursuant
to 29 C.F.R. § 1614.107(a)(2). The Agency accepted claim (A) for investigation and upon its
completion, Complainant did not request a hearing. The Agency thus issued its final Agency
decision finding no discrimination concerning claim (A). In its decision, the Agency,
upholding its dismissal of claim (B)(2), overturned its dismissal of claim (B)(1) and examined
the matter along with claim (A). On appeal, Complainant other than filing a notice of appeal
does not submit an appeal brief.

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 (EEO MD-110), Chap. 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").

The record indicates that during the relevant time period at issue, Complainant was employed
as a Material Analyst Handler, WG-6907-06, at the Agency’s Distribution Oklahoma City,
Oklahoma. Complainant was under S1’s supervision since September, 2014. Initially, we find
that the Agency properly dismissed Complainant’s claim (B)(2) due to untimely EEO
Counselor contact since the alleged incident occurred on September 19, 2013, and he did not
contact an EEO Counselor until January 13, 2014, which was beyond the 45-day time limit set
by the regulations. See 29 C.F.R. § 1614.107(a)(2). Complainant does not provide any
justification for his untimely EEO Counselor contact. In addition, we note that the Agency
also dismissed the subject claim in an alternative ground for failure to state a claim since
Complainant failed to show he was harmed concerning the terms or conditions of his
employment as a result of the mere meeting held on September 19, 2013. It appears that the
subject meeting was held between management and Complainant’s two union officials to
discuss his reassignment which was requested by him and his coworker. During the meeting, a
manager merely made comments that the EEO office advised management not to reassign
Complainant. It is noted that Complainant’s reassignment, discussed in the foregoing meeting,
is not a live issue in the instant complaint. Based on the foregoing, we find that claim (B)(2) is
also properly dismissed for failure to state a claim.

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Turning to claims (A) and (B)(1), after a review of the record, assuming arguendo that
Complainant had established a prima facie case of discrimination, we find that the Agency has
articulated legitimate, nondiscriminatory reasons for the alleged incidents. We note that
although the Agency did not initially accepted claim (B)(1) for investigation, the record has
sufficient information to address its merits since the subject matter was addressed by
Complainant and witnesses throughout the investigation. The Agency also obtained
supplemental declaration from S1 concerning the subject matter. The manager, identified in
(B)(2), indicated that she was not involved with the LOWs, described in claims (A) or (B)(1).

S1 stated that S1 initially issued Complainant the December 27, 2013 LOW, for his failure to
follow instructions, i.e., two charges for failing to read the Safety review in November and
December, 2013, and one charge for failing to complete Learning Management System (LMS)
training in December, 2013. Complainant claimed that the two charges concerning the Safety
review were in violation of his master labor agreement. S1 stated that management
subsequently instructed S1 to remove the charges concerning the Safety review from the LOW
and reissue a new LOW to Complainant. Thus, S1 indicated that S1 rescinded the December
27, 2013 LOW and issued the January 9, 2014 LOW to Complainant for his failure to
complete the LMS training in December, 2013. Complainant does not dispute the fact that he
indeed failed to complete the LMS training as instructed by S1 during the relevant time period.

After a review of the record, we find that Complainant failed to show that there were any
similarly situated employees not in his protected groups who were treated differently under
similar circumstances. With regard to his claim of harassment, we find that Complainant
failed to establish the severity of the conduct in question or that it was related to any protected
basis of discrimination. It is noted that we do not address in this decision whether
Complainant is a qualified individual with a disability. Furthermore, we note that Complainant
has not claimed that he was denied a reasonable accommodation; nor has he claimed that he
was required to perform his duties beyond his medical restrictions. Based on the foregoing,
we find that Complainant has failed to show that the Agency’s action was motivated by
discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final decision is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)

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:

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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 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, 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 (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

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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

April 1, 2016
Date