Michel S.,1 Complainant,v.Dr. Mark T. Esper, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Oct 18, 2018

0120181776 (E.E.O.C. Oct. 18, 2018)

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

Michel S.,1
Complainant,

v.

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

Appeal No. 0120181776

Hearing No. 551-2015-00112X

Agency No. ARLEWIS14JUL02585

DECISION

Complainant appeals to the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final order dated April 3, 2018, finding no discrimination
regarding 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. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the
following reasons, we AFFIRM the Agency’s final order finding no discrimination.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Fitness Faculty
Manager, NF-0030-04, at the Community Recreation Division, Department of Army Directorate
of Family, Morale, Welfare and Recreation (DFMWR), Joint Base Lewis – McCord (JBLM) in
Washington.

On September 10, 2014, Complainant filed his complaint alleging discrimination based on race
(African American) and disability (Post Traumatic Stress Disorder, lower back, wrists, knees,

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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legs, shoulders, and feet impairments) when he was subjected to disparate treatment and a hostile
work environment in that his supervisor (S1):

(1) Flicked a paper in his face in June 2012;

(2) Counseled him for missing a scheduled athletic event on June 18, 2014;

(3) Questioned his ability to manage the fitness center in July 2014; and

(4) Asked his coworker on July 8, 2014, whether he really had mental and physical
disabilities.

Upon completion of the investigation of the complaint, Complainant requested a hearing before
an EEOC Administrative Judge (AJ). On October 13, 2016, the Agency filed a Motion for a
Decision Without a Hearing and Complainant filed a response to the Agency’s motion opposing
a decision without a hearing. On March 12, 2018, the AJ issued a decision without holding a
hearing, finding no discrimination. The Agency’s final order implemented the AJ’s decision.
Complainant appeals the Agency’s final order.

ANALYSIS AND FINDINGS

The Commission’s regulations allow an AJ to issue a decision without a hearing when he or she
finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is
patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where
a court determines that, given the substantive legal and evidentiary standards that apply to the
case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). In ruling on a motion for summary judgment, a court’s function is not to weigh
the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The
evidence of the non-moving party must be believed at the summary judgment stage and all
justifiable inferences must be drawn in the non-moving party’s favor. Id. at 255. An issue of
fact is “genuine” if the evidence is such that a reasonable fact finder could find in favor of the
non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip.
Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is “material” if it has the potential to affect the
outcome of the case. In this case, we find that the AJ properly issued a decision without a
hearing because no genuine dispute of material fact exists.

In the instant case, the AJ accepted Complainant’s version of the disputed facts and incorporated
the remaining facts as set forth in the Agency’s Motion for Summary Judgment. The AJ also
incorporated the law set forth in the Agency’s Motion by reference into his decision. At the time
of events giving rise to this complaint, Complainant worked as a Fitness Faculty Manager at the
Agency’s Community Recreation Division. As a Fitness Faculty Manager, Complainant’s duties
included management and operation of the fitness facility.

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Management indicated that they did not know Complainant had mental or physical impairments
at the time of the incidents at issue. They became aware of such on July 16, 2014, when
Complainant submitted a Family and Medical Leave Act (FMLA) application concerning his
medical conditions and limitations. On August 20, 2014, Complainant resubmitted the FMLA
application and was subsequently placed on leave until he medically retired effective January 6,
2015. Complainant’s retirement is not at issue.

Regarding claim (1), in 2012, during the conversation between Complainant and S1, S1 was not
pleased with what Complainant said about the fitness center. In response, S1 told Complainant
the center was “all good” and picked up a piece of paper and “thumped” it into his face. Even if
we assume that S1’s action might have been rude, there is no evidence that S1’s action, an
isolated incident, was motivated by discrimination as alleged.

Regarding claim (2), on June 18, 2014, Complainant, without prior notice, failed to appear at an
Army-based 12K run race where he was scheduled to assist with timing the race. S1 counseled
him for his nonattendance. 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.

Regarding claim (3), S1 indicated that at that time, S1 told Complainant that his second level
supervisor was satisfied with the current layout of the facility and that he should not alter the
layout without prior approval. Even if this constituted S1’s questioning of Complainant’s
managerial skills, which was based on S1’s observation of his performance, there is no evidence
that it was motivated by discrimination as alleged.

Regarding claim (4), S1, after noticing that Complainant had been absent from work for several
days, asked Complainant’s assistant if he was okay or if anything was wrong with him. Even
presuming S1 did ask whether Complainant really had any disabilities, the AJ found and we
agree that there is no evidence that the mere inquiry was motivated by discrimination as alleged.

After a review of the record, we find that the record is adequately developed and there are no
material facts in dispute. We also find that the AJ properly found that the complaint was
properly decided without a hearing and that the AJ properly adopted the Agency’s statement of
undisputed facts. Upon review, the AJ found and we agree that there is no evidence that the
Agency’s articulated reasons were untrue or otherwise indicative of pretext. Regarding his
harassment claim, Complainant failed to establish the severity of the conduct in question or that
it was related to any protected basis of discrimination. On appeal, Complainant raises new
unrelated matters that are not at issue. Based on the foregoing, we find that Complainant failed
to show that the Agency’s action was motivated by discrimination as he alleged.

CONCLUSION

Accordingly, the Agency’s final order 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

October 18, 2018
Date