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

Equal Employment Opportunity Commission

Aug 24, 2016

0120140849 (E.E.O.C. Aug. 24, 2016)

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

Hayden K.,1
Complainant,

v.

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

Appeal No. 0120140849

Hearing No. 410-2012-00303X

Agency No. DLAN-11-0285

DECISION

Complainant filed an appeal from the Agency’s final order dated October 21, 2013, 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.
For the following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

In his complaint filed on November 8, 2011, Complainant alleged discrimination based on
race/color (Black) and sex (male) when on September 26, 2011, he was terminated by the
Agency. The record indicates that at the conclusion of the investigation, Complainant
requested a hearing before an Equal Employment Opportunity Commission Administrative
Judge (AJ). On September 29, 2013, the AJ, after a hearing, issued a decision finding no
discrimination, which was implemented by the Agency in its final order. Complainant
appealed the Agency’s decision.

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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ANALYSIS AND FINDINGS

Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld
if supported by substantial evidence in the record. Substantial evidence is defined as “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory intent existed is a factual
finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions
of law are subject to a de novo standard of review, whether or not a hearing was held.

An AJ’s credibility determination based on the demeanor of a witness or on the tone of voice
of a witness will be accepted unless documents or other objective evidence so contradicts the
testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit
it. See EEOC Management Directive 110, Chapter 9, § VI.B. (November 9, 1999).

In this case, assuming arguendo that Complainant established a prima facie case of
discrimination, the AJ determined that the Agency articulated legitimate, nondiscriminatory
reasons for the alleged termination. The record indicates that on February 14, 2011,
Complainant was hired as a Distribution Process Worker, WG-6901-05, subject to a one year
probationary period at the Agency’s Consolidation and Containerization Point (CCP) in Robins
Air Force Base, Warner Robins, Georgia. The AJ noted that the CCP was responsible for
preparing shipments of equipment that could be parachuted into the forward lines in
Afghanistan in an effort to reduce the need for truck convoys that were subject to attack on the
ground.

The Agency stated that in the early part of August, 2011, Complainant’s coworker (C1)
(Black, male, a probationary employee), who was a highly regarded employee, complained to
management that his efforts at work were not being appreciated and his putting forth a greater
effort than his coworkers lead to negative comments from his coworkers. Specifically, C1
complained that Complainant and another coworker (C2) (Black, male, a probationary
employee) teased/harassed him about three to four times per week saying C1 was
management’s boy and making other offensive comments for doing a good job. An identified
Administrative Assistant (Black, female) stated that C1 told her several times that: negative
comments got worse after C1 went to management with C1’s complaints; C1 felt harassed by
Complainant and C2; and C1 was on the verge of tears when he told her. Thus, on August 19,
2011, the Administrative Assistant alerted the CCP Chief (White, male) to C1’s situation. On
August 23, 2011, CCP’s supervisors and workroom leaders held a meeting with Complainant,
C1, and C2 concerning the situation with C1 and cautioned Complainant and C2 that
harassment of any type would not be tolerated at the workplace. After several days, C1
discussed his workplace situation with his coworkers in the lunchroom and made a statement
that was construed as a threat to bring a gun to work. The threat was reported immediately to
management and C1 was sent home that day and was terminated.

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The Agency indicated that it conducted an investigation concerning C1’s behavior, described
above and his harassment claim at the workplace. During the investigation, a number of
employees reported that Complainant made taunting and snide comments about C1 even after
the August, 2011 meeting, described above. One coworker asserted that she, too, had been
personally harassed by Complainant during the relevant time period. The Chief stated that he
found the statements from his employees credible and that these statements corroborated C1’s
accusations that Complainant taunted him and harassed him. On September 22, 2011, the
Chief, advised by the Human Resources Office, issued Complainant a notice of termination
during his probationary period because: he had been disruptive and created conflict within the
workplace by taunting and spreading stories about coworkers; and he continued to do so even
after the August, 2011 meeting with his supervisors concerning his behavior. The Chief
indicated in the notice of termination that he also observed Complainant “loafing” and not
performing his duties. The AJ stated that the Chief testified credibly that he personally saw
Complainant doing nothing on the workroom floor and when he noticed the Chief’s presence,
he got busy very quickly. The Chief stated that he also terminated C2 at the same time for
violating the workplace policy.

Complainant claimed that the Chief made a number of statements that indicated racial bias on
his part and an identified individual (who was a retired chief at that time) told him that the
Chief used the term “nigger.” The AJ indicated that the identified individual however testified
that the Chief had used the subject term during the course of EEO training when he was
making a presentation. The AJ stated that the Chief testified credibly that: he did use the term
in an attempt to try to illustrate a point about the inappropriateness of using such a term in the
workplace; the identified individual objected to the use of the term in any fashion even during
the course of EEO training; he had picked up the use of the term from another EEO trainer; he
had used it several times without complaint; he used it for educational purpose, not as a racial
slur; and, when one of the training participants complained about his use of the term, he
stopped using the term from future presentations. The AJ found that Complainant failed to
showed that the Chief used the derogatory term on any occasion other than during the training
or to display racial animus.

The AJ found and we agree that Complainant failed to show by a preponderance of the
evidence that the Agency’s proffered reasons for his termination were pretextual. 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. Upon review, we find that the AJ’s factual findings of no discriminatory intent
are supported by substantial evidence in the record.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, the Agency’s final order finding no discrimination is AFFIRMED because the AJ’s
decision is supported by substantial evidence.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

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 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. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (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
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

August 24, 2016
Date