[Redacted], Ricky S., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 29, 2021

Appeal No. 2020003555 (E.E.O.C. Sep. 29, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ricky S.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003555 Hearing No. 480-2019-00123X Agency No. DON 18-67100-00477 DECISION On May 27, 2020, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s April 28, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUE PRESENTED The issue presented on appeal is whether Complainant established by preponderant evidence that he was subjected to discrimination based on race, sex, and/or color. BACKGROUND At the time of events giving rise to this complaint, Complainant worked for the Agency as a WG-5803-10 Heavy Mobile Equipment Mechanic in Cost Work Center 277 at the Marine Corps Base in Barstow, California. Complainant’s first-line supervisor was a Heavy Mobile Equipment Supervisor (S1). Complainant identified himself as African-American, Black, and male. 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. 2020003555 2 On September 20, 2017, one of Complainant’s female coworkers (C1) was removing mounting brackets from fire extinguishers in the MATV components shop. Complainant alleged that S1 asked him to remove the brackets instead because it was “too dangerous for the girls to do.” Complainant noted that there were about eight other employees S1 could have asked to remove the brackets, but S1 asked Complainant, the only African-American employee. According to Complainant, S1 did not ask anyone else to remove the brackets. Complainant stated that this type of work was not within his job description and required specialized training. Complainant averred that one of the fire extinguishers discharged chemicals in his face, causing shortness of breath. According to Complainant, as a result of the fire extinguisher discharge, he was diagnosed with an unspecified respiratory condition due to chemicals, gases, fumes, and vapors, as well as headaches and post-traumatic stress disorder. Complainant filed a workers’ compensation claim regarding the September 20, 2017, injury. S1 stated that he noticed C1 attempting to remove the brackets from fire extinguishers, which was not part of her job description as she was not a mechanic. S1 averred that C1, who was a materiel worker, needed the brackets removed from the fire extinguishers so she could place the extinguishers in a box for shipment. According to S1, Complainant was a journeyman mechanic who had experience performing the task, and the work fell within Complainant’s job description. S1 denied saying that the job was “too dangerous for the girls to do,” and he denied that Complainant’s race, sex, and/or color were factors in the assignment. According to S1, he told Complainant that C1 should not be performing the task because she was not a mechanic. S1 averred that there were two other coworkers available at the time, and S1 stated that these two coworkers (C2 and C3) assisted Complainant in removing the brackets. In a written statement dated October 2, 2017, C1 indicated that she was removing brackets from fire extinguishers on September 20, 2017, when S1 sent four “artesians” to help her, including Complainant. Report of Investigation (ROI) at 129. C1 stated that she instructed the four employees to be careful and showed them the black nozzle that, if turned, would discharge the contents. According to C1, Complainant already knew about the nozzle, as he had helped her process fire extinguishers in the past. The job description for the WG-5803-10 Heavy Mobile Equipment Mechanic states that the standard includes nonsupervisory work that is: involved in the maintenance, repair, and modification of heavy duty vehicles and mobile equipment which have utility systems or special hydraulic, pneumatic, mechanical, electrical, or electronic systems, features or controls designed for such purposes as construction, combat, earth moving, ship loading, firefighting, and comparable industrial or special applications. . . . The work requires knowledge of how heavy duty machinery, engines, parts, and systems work; ability to detect faulty items, determine causes of malfunction, and determine best repair methods; and skill to assemble, disassemble, repair, or modify components and systems. 2020003555 3 ROI at 150. On February 16, 2018, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), and color (Black) when, on September 20, 2017, S1 asked Complainant to remove the brackets from fire extinguishers and stated, “it’s too dangerous for the girls to do that kind of work,” which resulted in a fire extinguisher discharging in Complainant’s face, exposing him to chemicals. 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 Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing but subsequently requested to withdraw his hearing request without prejudice, with the right to reinstate his hearing request. The AJ assigned to the case dismissed Complainant’s hearing request without prejudice and gave Complainant the right to reinstate his complaint by October 11, 2019. Complainant did not reinstate his request for hearing by the specified date. Consequently, 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. CONTENTIONS ON APPEAL On appeal, Complainant contends that he established a prima facie case of discrimination because individuals outside of his protected groups were treated better than he was. According to Complainant, he has also established that the Agency’s legitimate, nondiscriminatory reason for assigning him to remove the brackets was pretextual. Complainant asserts that C1’s written statement shows that she had superior knowledge about how to safely remove the brackets compared to Complainant. Complainant also argues that removing brackets from a fire extinguisher was not part of his job description. Complainant requests that the Commission reverse the Agency’s final decision finding no discrimination. In response to Complainant’s appeal, the Agency reiterates that its legitimate, nondiscriminatory reason for asking Complainant to remove the brackets from the fire extinguishers, instead of C1, was that the task was part of Complainant’s job description as a mechanic and not part of C1’s job description. The Agency challenges Complainant’s arguments regarding pretext. According to the Agency, even if C1 had superior knowledge about working with the fire extinguisher, C1 was a materiel worker and Complainant was a mechanic. The Agency asked employees to perform the duties for which they were hired. The Agency also maintains that the task was one Complainant had performed in the past. The Agency asks that its final decision be affirmed. 2020003555 4 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. (Aug. 5, 2015) (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, 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 Constr. 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 U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep’t of Veterans Affairs, EEOC Request No. 05950842 (Nov. 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 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep’t of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). The Agency’s legitimate, nondiscriminatory reason for asking Complainant to remove the brackets from the fire extinguishers instead of C1 is that the task was within Complainant’s job description as a mechanic and was not within C1’s job description as a materiel worker. Accordingly, the burden shifts to Complainant to establish that the Agency’s proffered reason is a pretext designed to mask discrimination. Complainant contends that the task of removing brackets from fire extinguishers was not within his job description. However, the WG-5803-10 Heavy Mobile Equipment Mechanic position description specifically includes the maintenance, repair, and modification of heavy duty vehicles and mobile equipment designed for firefighting, and the position description also specifies that the work requires the skill to disassemble or modify components. We find that Complainant has not established by preponderant evidence that disassembling the brackets used to mount the fire extinguishers on vehicles is not within his job description. 2020003555 5 As further evidence of pretext, Complainant cites S1’s statement that the work was “too dangerous for the girls” and notes that S1 singled him out as the only African-American employee for the task. However, S1 denied stating that the task was “too dangerous for the girls to do,” and there is no corroborating evidence that S1 made the statement as alleged by Complainant. Moreover, S1 stated that he also assigned C2 and C3 to remove brackets from extinguishers, which is supported by C1’s written statement.2 Unfortunately, Complainant withdrew his request for a hearing before an AJ, and as a result we do not have the benefit of an AJ’s credibility determinations of the witnesses in this case. Complainant bears the burden to prove, by a preponderance of the evidence, that the alleged discriminatory acts occurred. When the evidence is at best equipoise, Complainant fails to meet that burden. See Lore v. Dep't of Homeland Security, EEOC Appeal No. 0120113283 (Sept. 13, 2013) (complainant failed to establish that witnesses made false statements where he withdrew his request for a hearing and credibility determinations were unable to be made); Brand v. Dep't of Agriculture, EEOC Appeal No. 0120102187 (Aug. 23, 2012) (complainant failed to establish that his coworker made offensive comments in a “he said, she said” situation where complainant requested a final decision and an Administrative Judge did not make credibility determinations). We find that Complainant has not established that S1 made the statement that removing brackets was “too dangerous for the girls to do,” and Complainant has not otherwise established pretext by a preponderance of the evidence. 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 decision finding no discrimination. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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. 2 Although S1 stated that he assigned two workers to remove brackets in addition to Complainant, while C1 stated that supervisors sent four “artesians” to remove brackets, C1’s statement corroborates S1’s testimony that Complainant was not the only mechanic assigned to remove the brackets. 2020003555 6 Requests for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020003555 7 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 September 29, 2021 Date