Myles W.,1 Complainant,v.John M. McHugh, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Jun 8, 2016

0120140371 (E.E.O.C. Jun. 8, 2016)

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

Myles W.,1
Complainant,

v.

John M. McHugh,
Secretary,
Department of the Army,
Agency.

Appeal No. 0120140371

Agency No. ARPINEB11JUL02962

DECISION

The Commission accepts Complainant’s appeal from the September 26, 2013 final Agency
decision (FAD) 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’s review is de novo.
For the following reasons, the Commission AFFIRMS the FAD.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Security Guard at
the Agency’s Pine Bluff Arsenal in Pine Bluff, Arkansas. In December 2010, the Agency
completed a chemical storage and demilitarization mission. As a result, a number of Security
Guards were expected to be displaced. On May 13, 2010, Complainant signed a Cross
Leveling Agreement, which reassigned permanent Security Guards to vacant permanent
Industrial Worker positions. The Agreement provided that the assignment was permanent and
that acceptance of the offer could entitle Complainant to grade and pay retention. The
Agreement further provided that if Complainant was entitled to retention, placement into
Priority Placement Program (PPP) was mandatory. Based on the Agreement, Complainant
was placed in an Industrial Worker position with grade retention effective June 6, 2010.
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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On June 29, 2010, Complainant completed a PPP Registration/Counseling Checklist and
signed the Registration Counseling Worksheet. On the checklist, Complainant initialed by a
paragraph noting that he was eligible for “one valid job offer” and that he was expected to
accept or decline any such offer within two business days.

In May 2011, Complainant was presented with a PPP Offer of Employment for a Security
Guard position. The offer contained a provision informing Complainant that “entitlement to
grade or pay retention would terminate if this reasonable offer is declined.” On May 17,
2011, Complainant indicated in the PPP Offer of Employment that he had declined the offer
and refused to sign the letter. As a result, effective June 19, 2011, Complainant’s grade
retention entitlement terminated and his hourly rate of pay was dropped from $17.00 to
$15.56. Complainant subsequently retired on December 29, 2012.

On August 11, 2011, Complainant filed a formal complaint alleging that the Agency
discriminated against him on the bases of race (African-American) and age (59) when on July
14, 2011 his pay retention under the Priority Placement Program (PPP) was terminated
because he declined an offer of placement.

The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to
state a claim. Complainant appealed and in, Complainant v. Dep’t of the Army, EEOC
Appeal No. 0120120906 (Dec. 13, 2012), the Commission reversed the Agency’s dismissal
and remanded the complaint for further processing. At the conclusion of the investigation,
Complainant was provided with a copy of the report of investigation (ROI) and notice of his
right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ). Complainant requested a FAD. In accordance with Complainant's
request, the Agency issued a FAD, pursuant to 29 C.F.R. § 1614.110(b).

In the FAD, the Agency assumed arguendo that Complainant established a prima facie case of
discrimination and determined that management articulated legitimate, nondiscriminatory
reasons for its actions. Specifically, HRS explained that the Agency had placed Complainant
and other Security Guards in positions as Production Workers to avoid removing them in a RIF
when Security Guard positions were eliminated. HRS stated that management also placed
Complainant and the other Security Guards on grade retention so that they would not lose pay.
Since Complainant received grade retention, he was required to be in the PPP. As the PPP
Offer of Employment Letter notified Complainant, refusal of the Security Guard job offer
would result in the termination of PPP participation and grade retention.

HRS affirmed that she explained to Complainant that he was being given a reasonable job offer
and that if he refused the offer, his grade retention would end and he would be removed from
Program R of the PPP. HRS stated that Complainant reacted belligerently when she explained
the PPP process and marked the box on the employment form declining the position, but
refused to sign the form. She said that she and a witness then signed the form and noted
Complainant’s refusal to sign. As a result, and in accordance with the Agency’s policies and
regulations, Complainant’s grade retention terminated.

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The Agency concluded that Complainant failed to show that management’s reasons for its
actions were pretextual. As a result, the Agency found that Complainant had not been
subjected to discrimination as alleged. The instant appeal followed.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he was discriminated against when his wages were
dropped. Complainant argues that the Agency failed to follow its policies and regulations and
that he has been fighting to get his wages back. Complainant claims that the evidence supports
his discrimination claims. Complainant contends that the Agency has made up lies to cover up
all the lies officials are constantly telling. Accordingly, Complainant requests that the
Commission reverse the FAD.

ANALYSIS AND FINDINGS

Disparate Treatment

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). Complainant must initially 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 Constr. Corp. 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. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that, assuming arguendo that Complainant established
a prima facie case of discrimination, Complainant failed to present evidence to rebut the
Agency's legitimate, nondiscriminatory reasons for its actions. Specifically, the Agency
placed Complainant into an Industrial Worker position under the Cross Leveling Agreement so
that he would not be displaced or lose any pay following the completion of the chemical
storage and demilitarization mission. Complainant was then required to be in the PPP to
receive grade retention. In May 2011, Complainant was presented with a PPP Offer of
Employment as a Security Guard. ROI, at 44. The PPP Offer of Employment informed
Complainant that if he declined this reasonable offer of employment, his entitlement to grade
retention would terminate. Id. at 44-45. Complainant declined the offer and refused to sign it.
Id. at 45. As a result of Complainant’s refusal to accept the PPP Offer of Employment,
Complainant’s grade retention terminated on June 19, 2011.

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The Commission finds no evidence that Complainant's protected classes were a factor in any of
the Agency's actions. At all times, the ultimate burden remains with Complainant to
demonstrate by a preponderance of the evidence that the Agency's reasons were not the real
reasons and that the Agency acted on the basis of discriminatory animus. Complainant failed
to carry this burden. As a result, the Commission finds that Complainant has not established
that he was subjected to discrimination as alleged.

CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency’s final decision because the preponderance of the evidence of record does not
establish that discrimination occurred.

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).

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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 (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

June 8, 2016
Date