0120122406
10-11-2012
Mathias K. Ntembo, Sr., Complainant, v. Leon E. Panetta, Secretary, Department of Defense, Agency.
Mathias K. Ntembo, Sr.,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120122406
Agency No. AAFES11054
DECISION
On April 23, 2012, Complainant filed an appeal from the Agency's March 21, 2012, final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Senior Store Associate at the Agency's Army and Air Force Exchange facility at Fort Campbell, Kentucky.
On May 6, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African), sex (Male), color (Black), age (62), and reprisal for prior protected EEO activity when he received advance notice of the Agency's intent to separate him for cause from his position with the Agency. Complainant further claims that the Agency's advance notice of separation later reduced to a seven day suspension without pay was based on unfounded claims that he threatened violence in the workplace.
The record in this matter indicates that in a document entitled Advance Notice of Separation of Cause dated January 13, 2011, Complainant was advised of the Agency's intention to remove him from his position as Senior Store Associate based on incidents occurring in December 2010. Specifically, the Agency indicated that on December 7, 2010, Complainant left his cash drawer unattended and was questioned about the matter by his supervisor. According to the Agency, during Complainant's meeting with his supervisor about the open cash drawer, Complainant began swaying back and forth in his chair, rubbing his head and saying in a threatening manner, "I just don't know, I didn't want to do it but I think I'm going to have to." When asked what Complainant meant by his comment he did not reply. The Agency alleges further that on December 11, 2010, while Complainant was assisting a customer with the customer's request for an item in stock, Complainant walked away and began assisting another customer. When a co-worker began to assist the customer Complainant had left, Complainant began yelling at the co-worker in a loud voice saying that the co-worker had turned the customer against him. The record further reveals that when Agency officials intervened to address the situation, Complainant began shouting in a sharp, loud tone with his hands balled up in a fist. Complainant was advised by his supervisor to lower his tone. The record further indicates that on December 16, 2010, a customer reported that he had been in the store twice in the past 30 days and walked out frustrated after Complainant failed to assist him. The customer reported that Complainant walked away from other customers to pick up the phone and stayed on the phone until another associate began to assist the waiting customers. On another occasion on December 22, 2010, Complainant yelled in a loud and threatening voice that his co-worker needed to come and assist him. On December 24, 2010, the record indicates that Complainant screamed at an Agency official within inches of his face, after the official asked Complainant to come to the front of the store to provide assistance, unaware that the front of the store had adequate coverage and Complainant was not needed. According to the Agency, Complainant behaved in a threatening manner when he yelled at the Agency official advising him that he had better call up to the front of the store before asking Complainant to offer assistance. Following an investigation into allegations of harassment by Complainant, the Agency learned that Complainant is habitually rude with co-workers including pushing or shoving them out of his way and directing them to answer the phone for him.
The record in this matter further indicates that in response to the Agency's advance notice to separate, Complainant denied committing any of the alleged acts including the threats of violence. In its Final Decision of Separation for Cause - Reduced to Suspension, dated February 3, 2011, the Agency reduced the notice of separation to a seven-day calendar suspension without pay. While the Agency found bases on its internal investigation of the incidents that Complainant had in fact committed the misconduct as set forth in its advance notice, the Agency's decision to reduce the separation to a suspension was based in part on the assessment of counselor in the Agency's Employee Assistance Program (EAP). The EAP counselor determined that some of Complainant's conduct was the result of cultural differences and communication barriers due to the fact that Complainant was from Cameroon, Africa.
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 EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded 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, at Chapter 9, � VI.A. (November 9, 1999) (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").
To prevail in a disparate treatment claim absent direct evidence of discrimination, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Complainant carries the initial burden of establishing a prima facie case by demonstrating that he or she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to prove, by a preponderance of the evidence, that the reason proffered by the Agency was a pretext for discrimination. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Man's Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993).
Complainant may establish a prima facie case of discrimination based on race by demonstrating that (1) he is a member of a protected class, (2) he was subjected to adverse treatment, and (3) he was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar. 13, 2003), Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). It is not necessary, however, for Complainant to rely strictly on comparative evidence to establish an inference the Agency was motivated by unlawful discrimination. Soriano v. U.S. Postal Serv., EEOC Appeal No. 01A14814 (Feb. 21, 2003); see also O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312 (1996); and EEOC Enforcement Guidance on O'Connor v. Consolidated Coin Caterers Corp., EEOC Notice No. 915.002, at n.4 (Sept. 18, 1996).
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. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas, 411 U.S. at 802). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas and Coffman v. Dep't of Veterans Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), Complainant may establish a prima facie case of reprisal by showing that: (1) he engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). A nexus may be shown by evidence that the adverse treatment followed the protected activity within such a period of time and in such a manner that a reprisal motive is inferred. See Clay v. Dep't of the Treasury, EEOC Appeal No. 01A35231 (Jan. 25, 2005).
Even assuming arguendo that Complainant satisfied the above elements to establish a prima facie case of discrimination, we find further that the Agency articulated legitimate, nondiscriminatory reasons for its conduct as alleged in this matter and Complainant failed to show that those reasons are pretext for discrimination. Complainant now bears the burden of proving by a preponderance of the evidence that the Agency's articulated reasons were a pretext for discrimination. Complainant can do this directly by showing that the Agency's preferred explanation is unworthy of credence. Burdine, 450 U.S. at 256. Upon review, we find that Complainant failed to establish pretext on any alleged basis. We find no evidence that the Agency's actions were motivated by discriminatory animus toward Complainant's protected classes.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the final agency decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 (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 (Z0610)
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
October 11, 2012
__________________
Date
2
0120122406
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122406