Randolph A.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Mar 19, 2019

2019001469 (E.E.O.C. Mar. 19, 2019)

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

Randolph A.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 2019001469

Hearing No. 530-2016-00476X

Agency No. DLAN-16-0106

DECISION

On November 29, 2018, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from
the Agency’s October 23, 2018 final action concerning an equal employment opportunity (EEO)
complaint claiming 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.

BACKGROUND

During the period at issue, Complainant worked as an Information Technology Specialist, GS-
2210-12, at the Agency’s Defense Logistics Agency (DLA) Customer Support and Readiness,
facility in Honolulu, Hawaii.

On March 24, 2016, Complainant filed the instant formal complaint. Complainant claimed that
he was subjected to harassment/hostile work environment on the bases of race (African-
American) and in reprisal for prior EEO activity when:

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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from December 2014 to present he was denied work-related travel to conduct
Information Technology Asset Management (ITAM) training in the Pacific
Region, resulting in low performance ratings.

After an investigation, the Agency provided Complainant with a copy of the investigative file,
and Complainant requested a hearing before an EEOC Administrative Judge (AJ). Thereafter,
the Agency issued a Motion for Summary Judgment. On October 1, 2018, the AJ issued a
decision by summary judgment in favor of the Agency.

In finding no discrimination by summary judgment, the AJ found that the record developed
during the investigation established the following undisputed facts.

During the relevant period, Complainant had worked as an Information Technology (IT)
Specialist at the Agency’s J6 Pacific office in Hawaii. Complainant’s duties include being the J6
Pacific IT Accountable Property Officer, the J6 Pacific Lead for the ITAM program in the
region, and the J6 Pacific Accountable Hand Receipt Holder.

The Supervisory, Information Technology Specialist was Complainant’s first line supervisor and
the Director of Customer Support and Readiness-Pacific was Complainant’s second line
supervisor. The J6 Director of Customer Support and Readiness at the Agency’s Battle Creek,
Michigan facility was Complainant’s third line supervisor.

During the period of April 2014 through August 2014, Complainant was approved for and did
travel overseas to the Agency’s facilities in Alaska, Japan, Korea, Guam, Okinawa, Thailand,
and Singapore to perform ITAM-related and inventory duties.

Complainant’s first line and second line supervisors in J6 Pacific did not have authority to
approve Complainant’s travel requests. All of Complainant’s travel requests were submitted to
his third line supervisor for approval.

The AJ noted that on March 18, 2015, Complainant’s supervisor submitted the third line
supervisor a request for Complainant to travel to Alaska to perform ITAM-related duties. By
email dated March 19, 2015, the third line supervisor denied Complainant’s travel request as
“non-mission essential” given the budgeting constraints at that time.

On May 8, 2015, Agency management submitted Complainant’s travel request to Alaska to
perform ITAM-related duties was again submitted for approval. This request was initially
denied due to “limited remaining travel budget,” but then it was approved. However, the
supervisor postponed Complainant’s travel so that a determination could be made on how the
newly enacted changes to the Agency’s ITAM program and IT asset accountability would affect
his proposed travel plans.

On September 3, 2015, Complainant submitted a travel request to Okinawa and Korea to conduct
training at those sites on ITAM and to perform other ITAM related duties. On September 9,
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2014, Complainant was informed that the travel would be postponed due to insufficient staffing
at those locations to support the trip’s objectives.

On January 5, 2016, Complainant again submitted a travel request to Okinawa and Korea to
perform a physical inventory of accountable assets and conduct training on the ITAM program.
By email dated January 7, 2016, Complainant was informed that his travel request was denied by
the third line supervisor due to a freeze on travel funds.

On various dates in 2015 and 2016, Agency management approved the requests for four J6
Pacific Specialists to travel overseas to augment IT support when there were staffing shortages at
those sites to ensure the continuation of on-site technical and customer support and operation
sustainment.

Complainant asserted that from December 2014 to present he was denied work-related travel to
conduct ITAM training in the Pacific Region resulting in low performance ratings.

The supervisor (Caucasian) explained that travel is not essential for completing inventory
management training and can be handled remotely “however, I did support his request for
travel.” The supervisor stated that Complainant’s March 2015 request was supported locally but
denied when submitted to headquarters for higher level review due to being ‘non-mission
essential’ and for budgetary allocation being needed for other priorities.

The supervisor further stated that Complainant’s April 2015 request was supported locally and
initially denied at headquarters due to needing to “determine an alternative to conducting
inventory on site.” The supervisor explained that this request was subsequently approved on
May 12, 2015, but was locally deferred due to inventory management program changes related to
Complainant’s supporting roles.

Regarding Complainant’s September 2015 request, the supervisor explained that this request was
deferred due to not having sufficient staff to support the trip objectives in the Far East. The
supervisor stated that Complainant’s December 2015 request was denied at headquarters for
budgetary reasons.

The supervisor stated that Complainant’s performance evaluations were not affected as “he
received the highest rating of Fully Successful for 2014 and 2015.” Moreover, the supervisor
stated that he did not discriminate against Complainant based on his race and prior protected
activity.

The third line supervisor (Caucasian) stated that during the relevant period, he placed travel
restrictions “on the entire enterprise unless it was absolutely mission essential. When
[Complainant’s] supervisor requested it via him, I denied it because I believe it was something
that could be handled remotely or by individuals on ground there. This was for most of 2015.
We were under a travel cap and had to use our money for what I called ‘hard fixes’ – when
something was broken we would send someone to fix it. I was not sure what kind of training it
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was that he was trying to provide, but we have screen sharing, video conferencing and other
opportunities and avenues for him to provide training. DOD is downsizing and our budget is
shrinking.”

Furthermore, the third line supervisor stated that Complainant’s race and prior protected activity
were not factors in his decision denying his travel requests.

Based on this evidence, the AJ concluded no discrimination was established. The Agency issued
its final action, adopting the AJ’s decision.

The instant appeal followed.

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to grant summary judgment when he or she finds that
there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). 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 rendering this appellate decision, we must scrutinize the AJ’s legal and
factual conclusions, and the Agency’s final order adopting them, de novo. See 29 C.F.R. §
1614.405(a) (stating that a “decision on an appeal from an Agency’s final action shall be based
on a de novo review…”); see also Equal Employment Opportunity Management Directive for 29
C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.B. (as revised, August 5, 2015) (providing
that an administrative judge’s determination to issue a decision without a hearing, and the
decision itself, will both be reviewed de novo).

To successfully oppose a decision by summary judgment, a complainant must identify, with
specificity, facts in dispute either within the record or by producing further supporting evidence,
and must further establish that such facts are material under applicable law. Such a dispute would
indicate that a hearing is necessary to produce evidence to support a finding that the agency was
motivated by discriminatory animus.

Here, however, Complainant failed to establish such a dispute. Even construing any inferences
raised by the undisputed facts in favor of Complainant, a reasonable fact-finder could not find in
Complainant’s favor.

A claim of disparate treatment is examined under the three-party analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
must first establish a prima facie of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a
factor in the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; Furnco
Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its actions. See Texas Department of
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Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the agency has met its burden,
the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance
of the evidence that the agency acted on the basis of a prohibited reason. See St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993).

Here, the undisputed facts fully support the AJ’s determination that the responsible management
officials clearly articulated legitimate, non-discriminatory reasons for its actions. Complainant
did not prove, by a preponderance of the evidence, that these proffered reasons were a pretext
designed to mask discrimination or unlawful retaliation. We conclude that a case of
harassment/hostile work environment is precluded based on our finding that Complainant failed
to establish that any of the actions taken by the agency were motivated by his race or retaliatory
animus. See Oakley v. U.S. Postal Service, EEOC Appeal No. 01982923 (Sept. 21, 2000).

We AFFIRM the Agency’s final action, implementing the AJ’s decision without a hearing,
finding no discrimination.

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.
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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 (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

March 19, 2019
Date