Elmer C.,1 Complainant,v.Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.Download PDFEqual Employment Opportunity CommissionMar 29, 20160120142065 (E.E.O.C. Mar. 29, 2016) Copy Citation 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. 0120142065 Agency No. DLAN-13-0214 DECISION Complainant appeals to the Commission from the Agency’s final decision dated April 10, 2014, finding no discrimination concerning 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. For the following reasons, we AFFIRM the Agency’s final decision finding of no discrimination. BACKGROUND In his complaint, filed on July 3, 2013, Complainant alleged discrimination based on race (Black), age (over 40), sex (male), and in reprisal for prior EEO activity when: (1) Following a dispute with a Work Leader (WL) regarding the break room refrigerator, he was forced to move to Building Eighteen for the rest of the day where he was without food and medicine and should have been taken to the Occupational Health Clinic. 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. 0120142065 2 (2) On May 22, 2013, he was suspended for two days, June 10-11, 2013, for his First Offense of Misconduct – Disorderly Conduct on May 2, 2013. Further, the WL involved in the incident was not disciplined. After completion of the investigation of the complaint, Complainant requested a final Agency decision without a hearing. The Agency thus issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. 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"). 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. During the relevant time period at issue, Complainant was employed as a Material Analyst Handler, WG-6807-06, in Central Receiving, at Agency’s Distribution, located at Tinker Air Force Base in Oklahoma City, Oklahoma. With regard to claim (1), Complainant’s first level supervisor (S1) indicated that on May 2, 2013, as usual, she conducted a 15-minute morning staff meeting and informed her staff, including Complainant, that the break room refrigerator would be cleaned out around noon that day. S1 stated that around 7:30 am, Complainant came to her extremely upset and informed her that the WL, who was assigned to clean the refrigerator, had thrown away his lunch. S1 immediately went to the break room to assess the situation. S1 indicated that there were two other employees assisting the WL to clean up the refrigerator and she was told that the WL was only throwing away moldy food items. At some point, stated S1, Complainant returned to the break room and confronted the WL about the whereabouts of his lunch and hollered and screamed on multiple occasions as he stood over the WL. During the confrontation, the WL told Complainant to stop his “bitching” and yelled to someone to call 911; then, the military police arrived and questioned all relevant participants and left the scene without taking any official actions. S1 then directed Complainant to report to Building 18 for the remainder of the day in order to let things cool down between Complainant and the WL. 0120142065 3 The WL indicated that on the day of the incident, she was cleaning the refrigerator as she was instructed do so by Complainant’s second level supervisor (S2); she threw out only the moldy items; at some point, Complainant came and accused her of throwing his lunch and spoke loudly; he then left and returned to the break room on multiple occasions; he ultimately approached her, stood over her, and yelled at her angrily; and, she then yelled to her coworker to call 911 because in the past she had several negative interactions with him and she was afraid that he was going to become violent with her. S2 acknowledged assigning the WL to clean out the refrigerator immediately after the meeting due to the extreme filth with lots of moldy food items. S2 indicated that at the relevant incident day, S2 was aware that Complainant believed that his food and medication, i.e., pills for his diabetes, were discarded; S2 made several attempts to locate Complainant’s items to no avail; and, S2 offered to buy him lunch but he declined his offer. Complainant does not dispute the fact that he refused to take S2’s offer to buy him lunch. We note that Complainant did not claim that he did not have his diabetes pills at the time of the incident and that he requested but was denied to obtain such pills. Both S1 and S2 noted that Complainant had exhibited anger issues in the past and that several employees were afraid to interact with him. With regard to claim (2), S2 indicated that although S1 proposed to suspend Complainant for five days under the guidance of the Agency Human Resource office, S2 ultimately issued him the two-day suspension at issue for his disorderly misconduct, described above. S2 stated that he had a meeting with Complainant on May 20, 2013, in order to get a better understanding of the May 2, 2013 incident; during the meeting, S2 suggested that he apologize to the WL for his comments and actions toward her but he declined; and he accused S2 of “selling out” and showed no remorse for his conduct. After a review of the record, we find that Complainant failed to show that the Agency’s articulated reasons were a mere pretext for discrimination. 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. 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 finding of no discrimination 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: 0120142065 4 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 0120142065 5 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 March 29, 2016 Date Copy with citationCopy as parenthetical citation