Larry L. Kitchen, Complainant,v.Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJun 11, 2009
0120073122 (E.E.O.C. Jun. 11, 2009)

0120073122

06-11-2009

Larry L. Kitchen, Complainant, v. Robert M. Gates, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Larry L. Kitchen,

Complainant,

v.

Robert M. Gates,

Secretary,

Department of Defense,

(Defense Logistics Agency),

Agency.

Appeal No. 0120073122

Hearing No. 170-2005-00213X

Agency No. TA04014

DECISION

On June 28, 2007, complainant filed an appeal from the agency's May

31, 2007 final order 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

For the following reasons, the Commission AFFIRMS the agency's final

order.

BACKGROUND

On September 8, 2003, complainant began working for the agency's Defense

Supply Center as a Supply Technician, GS-2005-05, assigned to the Produce

Buying Office (PBO) located in Fort Worth, Texas.

On July 22, 2004, complainant filed an EEO complaint alleging that he

was discriminated against on the bases of race (African-American) and in

reprisal for prior protected EEO activity when he was terminated effective

May 28, 2004, during his probationary period for unsatisfactory conduct.

At the conclusion of the EEO investigation, complainant was provided with

a copy of the report of investigation and notice of his right to request

a hearing before an EEOC Administrative Judge (AJ). Complainant timely

requested a hearing. The AJ held a hearing on February 8, 2007 and

February 20, 2007. The AJ issued a decision in favor of the agency on

May 7, 2007. The agency subsequently issued a final order adopting the

AJ's finding that complainant failed to prove that he was subjected to

discrimination as alleged.

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).

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).

He must generally 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 Construction

Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be

dispensed with in this case, however, since the agency has articulated

legitimate and nondiscriminatory reasons for its conduct. See United

States Postal Service Board of Governors v. Aikens, 460 U.S. 711,

713-17 (1983); Holley v. Department of Veterans Affairs, EEOC Request

No. 05950842 (November 13, 1997). To ultimately prevail, complainant must

prove, by a preponderance of the evidence, that the agency's explanation

is a pretext for discrimination. Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509

U.S. 502, 519 (1993); Texas Department of Community Affairs v. Burdine,

450 U.S. 248, 256 (1981); Holley v. Department of Veterans Affairs,

EEOC Request No. 05950842 (November 13, 1997); Pavelka v. Department of

the Navy, EEOC Request No. 05950351 (December 14, 1995).

Complainant can establish a prima facie case of reprisal discrimination

by presenting facts that, if unexplained, reasonably give rise to an

inference of discrimination. Shapiro v. Social Security Administration,

EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal

claim, and in accordance with the burdens set forth in McDonnell

Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,

425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),

and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473

(November 20, 1997), a complainant may establish a prima facie case of

reprisal by showing that: (1) he or she engaged in a protected activity;

(2) the agency was aware of the protected activity; (3) subsequently,

he or she was subjected to adverse treatment by the agency; and (4) a

nexus exists between the protected activity and the adverse treatment.

Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340

(September 25, 2000).

The record shows that during the time period at issue herein,

complainant's supervisor (S1) was the Branch Supervisor of 14 PBOs

throughout the United States. S1's office was physically located in

Philadelphia, Pennsylvania and she was the first-line supervisor of all

the employees in the Fort Worth, Texas PBO. The record shows that while

S1 was complainant's official supervisor, the GS-12 Team Leader (TL)

at the Fort Worth, Texas PBO acted more like complainant's first-line

supervisor. In addition, a GS-11 Produce Buyer (PB1) often assisted TL

in her duties when TL was out of the office. In addition to TL and PB1,

there were five GS-5 Supply Technicians in the Fort Worth, Texas PBO.

The record shows that TL interviewed complainant and that S1 was the

deciding official who hired complainant based on TL's recommendation.

The record further shows that S1 reluctantly approved an alternative

schedule for complainant during his first 90 days of employment, although

she did not like it and believed it was a burden. Granting an employee

an alternative work schedule during the employee's first 90 days of

employment had not been done before. However, TL felt that it could work

out because she was impressed with complainant and wanted to hire him.

S1 testified that during the last week of December 2003, TL called her

and said that complainant wanted to extend his flexible schedule for an

additional 90 days. S1 further asserts that she told TL "absolutely not"

and said that complainant needed to be placed on a fixed work schedule

because complainant's position was responsible for a designated group

of customers.

S1 made the decision to terminate complainant after consulting with an

employee relations specialist. S1 drafted complainant's termination

letter with input from TL. S1 testified about several concerns she had

with complainant. The first occurred in October 2003, when she was told

that complainant yelled at a vendor and would not get off the phone even

after TL told him to do so. S1 also was concerned when she learned that

complainant told the vendor that he was on the evaluation committee and

would make sure that the vendor did not get an award. S1's next concern

with complainant occurred at the end of December 2003, when complainant

requested an extension of his 90-day flexible schedule, which she denied.

S1 also testified that at the end of January 2004, TL notified her

that complainant had sent e-mails to vendors requesting that they

identify whether their products were foreign or domestic. TL felt that

complainant was acting outside of his responsibility and authority.

S1 told TL to send a memorandum to all employees stating that all

"official communications" from the office had to be reviewed by TL or

PB1 before being sent. The record shows that after this January 21,

2004 notice from TL, complainant sent an e-mail requesting that vendors

e-mail their orders in the future. This e-mail from complainant to the

vendors was not copied to either TL or PB1. S1 considered this e-mail

to be official correspondence and a direct violation of the January 21,

2004 notice.

S1 further testified about an issue in January 2004, when complainant

gave the impression that TL had approved an alternative schedule when

she had not. In addition, S1 was concerned by an incident that occurred

during the third week of March 2004, in which the Office Manager (OM)

requested that all Supply Technicians complete a log with pertinent

information on each school. OM received no report on the Arkansas

schools, which were complainant's responsibility. S1 testified that

she later learned that complainant had e-mailed the vendors instead of

calling them, and most had not responded. Complainant then had to call

the vendors. S1 also learned of issues with complainant whereby he was

conducting personal business and preparing homework, as well as sleeping

at the office. S1 testified that she spoke with TL several times about

issues with complainant but that TL did not have disciplinary authority.

S1 also explained that she gave complainant a "Fully Successful"

performance rating for the period September 2003 through December 2003

even though there were problems with complainant during the first few

months of employment because he was a new employee at the time. However,

according to S1, the issues started "snowballing" after that.

TL corroborated S1's testimony and also noted that complainant had leave

issues which included his failure to request leave in advance. Although

S1 testified that she typically approved complainant's leave requests,

on many occasions he would just come in and say that he would be back

in an hour. TL also testified that, while complainant told her ahead of

time and got permission for his appointments, she told complainant that

he needed to slow down on his leave requests. TL acknowledged that it

was not a violation of the rules to take all of the leave a person had

once it was earned; however, it was disruptive to the office. TL also

testified that on one occasion complainant lied to PB1, who was acting as

the Team Leader in TL's absence, about a leave request. Specifically,

TL testified that complainant told PB1 that she had approved a leave

request when she in fact had not. TL admitted, however, that complainant

was never written up with regard to his leave issues.

TL testified that complainant also failed to follow instructions on

several occasions. On one occasion, complainant e-mailed vendors when

he had been instructed to call them. On another occasion, complainant

continued arguing with a vendor even after he had been instructed to end

the conversation. Following this event, TL spoke with complainant and

told him that he could not speak to vendors in that way. According to

TL, complainant kept defending himself. TL told complainant that the

argument came about because complainant was arrogant. According to TL,

complainant responded by stating that he was confident. The next day,

complainant placed the definitions of "arrogance" and "confidence"

on TL's desk. TL testified that she simply threw the definitions

away but considered complainant's behavior arrogant and inappropriate.

TL further testified that she spoke to both S1 and a personnel specialist

about complainant's behavior as early as October of 2003, at an agency

conference for vendors.

TL also testified that complainant sent out an e-mail to vendors

inquiring about whether their product was foreign or domestic.

TL explained that this e-mail was not appropriate and not a type of

decision that complainant was authorized to make, but rather was a

supervisory decision. Following this incident, TL explicitly notified

complainant that all official correspondence needed to go through her.

TL also issued a leave request and work schedule e-mail in February

of 2004 as a result of complainant's actions. A policy letter was

also issued to all PBO offices in the country by S1 with regard to

the use of cell phones in the office. TL testified that complainant

used his cell phone to conduct personal business at his desk and that

this was disruptive to other persons in the office. According to S1

and TL, this e-mail was issued as a result of complainant's actions.

TL also testified that complainant sent an e-mail to vendors requesting

information without prior authorization after he received the earlier

notice requiring prior supervisor approval of official correspondence.

In addition, according to TL, several vendors complained that they did

not have the proper software to open the e-mail. One vendor told TL that

complainant told him that if he did not comply, he (complainant) would

see that the vendor did not receive any further orders. TL said that

complainant never sought prior approval before sending out this e-mail.

TL also testified that complainant failed to timely place orders and as

a result the school overspent. Finally, TL testified that complainant

conducted personal business at work. According to TL, several employees

reported that complainant also talked about his insurance business

at work. One employee also said that she saw complainant sleeping at

work on one occasion. Another employee said that complainant did his

homework while at the office.

Contrary to complainant's assertions, TL denied fabricating the

allegations against the complainant or recommending his termination

because of his race. She further denied any knowledge of complainant's

alleged prior EEO activity. S1 also testified that she did not terminate

complainant because of his race, but because of his disruptive behavior.

S1 testified that because complainant was a probationary employee, he

was subject to termination if he was not working out and she was not

required to give a written notice. The record shows that at the time

complainant was employed with the agency there were no other probationary

employees in the office.

Complainant denied that he failed to follow proper leave procedures and

said that no one ever told him that he was requesting leave improperly.

Complainant testified that he was able to complete his work in a

timely manner. Complainant stated that even though he was told not to

use all of his leave every month, he was never shown any office policy

with regard to how to handle irate vendors or proper leave procedures.

Complainant contends that White employees conducted personal business

at work. He stated that he was never told anything about conducting

personal business on company time and was never counseled for this issue.

Additionally, he testified that there was no set time for breaks.

With regard to the use of his personal cell phone, complainant concedes

that TL asked him to discontinue wearing the headset for his personal

phone while in the office. Complainant testified that he was only told

that sending e-mails to vendors was a problem after his termination.

Complainant contends that he received a database from a GS-5 Clerk who

worked at the Fort Worth, Texas office (C1). This database included

the e-mail addresses of the vendors.1

Complainant admitted that he e-mailed vendors to ask them if their

products were domestic or foreign. Complainant explained that he did

so because the agency would not pay for foreign products. After this

e-mail, he received an e-mail telling him that it was inappropriate for

him to make such an inquiry. Complainant did not recall telling vendors

that they could only submit orders by e-mail. Complainant testified

that he requested that vendors submit their price changes on Thursday

versus the normal Friday due date because he knew he would be on leave

Friday and wanted to complete the work. He said that PB1 personally

thanked him for this. Complainant denied ever contacting the State of

Arkansas Distribution Manager and telling him how to spend his money.

He also denied that he slept on the job.

Complainant acknowledged that he had no prior contact with an EEO

counselor except for the instant case. He further acknowledged

that he was the only probationary Supply Technician at the agency.

In addition, complainant admitted that no one ever said that he was

terminated because of his race. Complainant stated that he believed

that he was terminated because of his race, because he was treated

differently from his co-worker. Complainant said that he had a concern

about Black vendors in Arkansas based on what the Black vendors told him.

He testified that he is not aware of the statistics and did not ask for

such information. Moreover, complainant stated that he did not consider it

to be discipline or counseling when supervisors spoke to him about issues.

Complainant stated that he had an insurance business at the time he

worked for the agency, but the bulk of his appointments dealt with his

consultant business. He was also a full-time student during this time.

Complainant also testified that he wore earpieces for both his work and

cell phone while in the office. In addition, complainant testified that

he had a suspicion that S1's memorandum dated February 20, 2004 (which

prohibited the use of a personal cell phone while in the office and

personal business during duty hours) was issued because of his behavior.

Complainant also admitted that he did not seek prior approval before

sending an e-mail to vendors titled "School Order Transmittal Policy" and

dated January 21, 2004 or before sending a March 22, 2004 e-mail about

price changes. This e-mail was sent after he received the January 15,

2004, e-mail from TL stating that all correspondence from the office

should be submitted for prior approval. Complainant stated that he did

not consider his January 21, 2004, e-mail to be official correspondence.

He denied ever telling a vendor that it was mandatory to get appropriate

software to open e-mails.

Complainant also testified that he had a concern that Black vendors

were being treated unfairly based upon a conversation that he allegedly

overheard between TL and a vendor during a conference, and that he shared

this concern with PB1. Complainant asserts that PB1 did not explain to

him the process of awarding contracts because she said that it was not

his duty or responsibility.

TL testified that she did not recall any conversation with a vendor (V1)

about disparity of awards to minority vendors. TL recalled PB1 stating

that complainant wanted to be a part of the contract awarding process

to vendors. TL testified that the gist of her conversation with V1

was that he said that he just wanted his list followed. She said that

she would disagree with V1 if he said that he did not speak to her.

TL believes that V1 probably simply did not recall the conversation

since it occurred over three years ago and he is now retired.

One of complainant's co-workers, an African-American Supply Technician at

the Fort Worth, Texas PBO (PB2), testified that she never saw complainant

asleep or violating work policy. PB2 saw complainant conducting personal

business during work hours, but did not know whether or not he was on

a break. PB2 testified that complainant told her that he had concerns

about the race of vendors and said that Arkansas was the only state with

Black vendors. PB2 also stated that she has never been counseled or

disciplined for being late in reconciling documents or e-mailing vendors.

She testified that the agency issued a written policy on how to perform

the job after complainant was terminated. PB2 also testified that

she was the same grade as complainant but was not removed during her

probationary period. PB2 recalled complainant arguing with a vendor.

She testified that she worked with the same vendor after complainant

left and found the vendor difficult to work with. PB2 said that the

problem vendor had a very difficult clerk. However, she said that

she never raised her voice or yelled at the clerk, but just held back

the orders until she received the invoices. PB2 testified that she

was given procedures on how to perform her job. She stated that she

never permanently changed deadlines on her own and never went out on

her own to ask vendors whether the products were domestic or foreign.

She said that this was something that TL would do when she catalogued

the products. PB2 further testified that all employees in the office

were on a fixed schedule. With regard to the Arkansas vendors, PB2 said

that the concern was among three Black vendors.

AJ'S FINDINGS

The AJ concluded that complainant failed to establish a prima facie

case of discrimination or reprisal. However, assuming complainant

established a prima facie case of race discrimination or reprisal, the

AJ, concluded that the agency presented legitimate, non-discriminatory

and non-retaliatory reasons for the decision to terminate complainant

as set forth above.

The AJ also noted that while there was some conflict in the testimony

between TL and V1, it was not critical to the issues. The AJ also noted

that since the events of this case occurred over three years before the

hearing, it seemed reasonable that V1 would have forgotten a particular

conversation with TL. Moreover, the AJ concluded that the allegation

with regard to V1 was only one of many matters cited by the agency for

complainant's termination.

The AJ concluded that complainant's general disagreement with the

articulated basis for his termination, as well as his bare assertions that

his co-workers were treated more favorably, was not sufficient to show, by

a preponderance of the evidence, that the agency's proffered explanation

for termination was a pretext for race discrimination or reprisal.

CONCLUSION

Based on a thorough review of the record and the contentions on appeal,

including those not specifically addressed herein, we affirm the agency's

final order implementing the AJ's decision. We do not find persuasive

complainant's argument that the AJ erred in relying on management's

testimony. Even assuming, arguendo, that TL provided inconsistent

testimony at times, the substantial evidence of record supports the AJ's

conclusion that TL and S1 provided credible testimony. While the evidence

shows that management could have been better at documenting complainant's

performance and conduct issues, the preponderance of the evidence does

not support a finding that the decision to terminate complainant was

motivated by his race or prior EEO activity. Accordingly, we AFFIRM

the final agency order.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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), 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 (S0408)

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 (Z1008)

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

June 11, 2009

Date

1 C1 is a Supply Clerk at the Fort Worth, Texas PBO. She testified that

she created a database that had information, including e-mail addresses,

for the Arkansas schools and that she probably instructed complainant

on how to use the database. She stated that e-mail was more efficient

than telephoning or faxing a communication in her opinion. C1 testified

that her due dates for pricing lists were different than complainant's

due dates because she did not work with the schools.

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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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