Jeremy C.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

May 31, 2018

0120181468 (E.E.O.C. May. 31, 2018)

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

Jeremy C.,1
Complainant,

v.

Dr. Mark T. Esper,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120181468

Hearing No. 430-2016-00287X

Agency No. ARUSAR15AUG02999

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s March 23, 2018, final
action 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. For the following reasons, the Commission AFFIRMS the Agency’s
final action.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Physical Security
Specialist/Inspector, GS-0080-09, at the Agency’s 81st Regional Support Command (RSC),
Directorate of Emergency Services (DES) located in Fort Jackson, South Carolina. His first line
Supervisor was Person A, Supervisory Security Specialist (Force Protection Officer). His second
line supervisor was Person B, Supervisory Physical Security Specialist (Director of Emergency
Services). During the relevant time, Person C was a Traffic Management Specialist working for
the Directorate of Logistics (DOL). Person C provided General Service Administration (GSA)
vehicle support for his directorate and had no organizational relationship with Complainant.

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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Person C issued vehicles to the DES Vehicle Coordinator, Person D, who then issued them to
DES employees.

On October 10, 2015, Complainant filed an EEO complaint alleging that the Agency
discriminated against him on the basis of race (Caucasian) when:

On July 17 and September 4, 2015, Person C, Traffic Management Specialist, only
offered Complainant a General Service Administration (GSA) vehicle with mechanical
difficulties.

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 Equal Employment
Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The
Agency filed its Motion for Decision Without a Hearing on September 8, 2016. The AJ noted
Complainant filed his response dated October 29, 2017, well over one month after the September
27, 2016 deadline without seeking leave to do so from the AJ. The AJ issued a decision without
a hearing finding no discrimination on March 15, 2018.

The Agency subsequently issued a final action on March 23, 2018. The Agency’s final action
fully implemented the AJ’s finding that Complainant failed to prove that the Agency subjected
him to discrimination as alleged.

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), at 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”).

At the outset, we note Complainant does not challenge the definition of his complaint on appeal.
Upon review of the record, we find that the AJ properly found that the present complaint was
suitable for summary judgment. We find that the record is adequately developed and there are
no disputes of material fact.

Generally, claims of disparate treatment are examined under the tripartite analysis first
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester
Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222
(1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case of
discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of
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discrimination, i.e., that a prohibited consideration was a factor in the adverse employment
action. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978).

Once a complainant has established a prima facie case, the burden of production then shifts to
the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of
Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden
reverts back to Complainant to demonstrate by a preponderance of the evidence that the
Agency's reason(s) for its action was a pretext for discrimination. 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. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711,
715-16 (1983).

In the present case, Complainant’s assigned GSA vehicle, a Ford Fusion, was involved in an
accident on April 15, 2015, and the vehicle was totaled. Approximately two months later, a
fellow Physical Security Inspector (Coworker), was also involved in an accident with his own
assigned GSA vehicle and it was also totaled. Complainant asserted that the Coworker received
his replacement vehicle sooner than he did. The Agency asserted the Coworker received a
replacement vehicle sooner than Complainant because there was a delay in processing the
accident report related to Complainant’s accident and an additional delay in obtaining
Complainant’s replacement vehicle from its source.

The Agency asserted Complainant was issued a Ford Fusion as a replacement for the Ford
Fusion he was driving as it was the same model as his prior vehicle, had the lowest mileage for
available Fusions, and met his personal medical needs. The Agency stated it was unaware there
were any deficiencies with the replacement vehicle when it was initially assigned to
Complainant. After receiving the vehicle, Complainant noticed the replacement vehicle had
bumper damage and problems with the brakes. He brought this to management’s attention and
the vehicle was repaired once the deficiencies were identified. DOL employees took the repaired
vehicle out for a test drive to ensure it was in good condition before reissuing it to Complainant.
The employees determined the vehicle was defect free and good to drive and gave the vehicle to
Complainant. Upon review, we find Complainant failed to show the Agency’s actions were
motivated by discriminatory animus based on his race.

CONCLUSION

Accordingly, the Agency’s final action finding no discrimination is AFFIRMED.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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

May 31, 2018
Date