0120111384
06-12-2012
Ruben Molina, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Ruben Molina,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111384
Agency No. ARCCAD09MAY02163
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's December 2, 2010 final decision 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Production Machinery Mechanic, Wage Grade 5350-11, at the Agency's Corpus Christi Army Depot, Directorate of Engineering Services in Corpus Christi, Texas.
On July 10, 2009, Complainant filed the instant formal complaint. Therein, Complainant alleged that he was subjected to harassment and a hostile work environment on the bases of race (Hispanic), sex (male), age (over 40), and in reprisal for prior EEO activity when:
1. on November 1, 2008, his supervisor (S1) told him that he was taking too long to complete a job, and that he was not doing the job correctly;
2. on November 3, 2008, S1 removed him from the job referenced in incident 1, above, and did not reassign him to the second shift (Team Nights), as requested;
3. from November 25, 2008 to April 6, 2009, white co-workers harassed him on various occasions by requesting the union remove him from his Shop Steward position, and other union duties;
4. on April 15, 2009, S1 issued a Letter of Warning to him;
5. on April 29, 2009, he was questioned by Security regarding an allegation of assault that a named co-worker made against him;
6. on May 14, 2009, management officials met and decided to reassign him to another shop; and
7. on July 13, 2009, a named co-worker complained to management that Complainant was seen outside of his work center looking for a part.1
After the investigation, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an EEOC Administrative Judge or a final decision within thirty days of receipt of the correspondence. Complainant did not respond.
On December 2, 2010, the Agency issued the instant final decision, finding no discrimination. The Agency found that assuming, for the sake of argument only, Complainant established a prima facie case race, sex, age, and reprisal discrimination, the Agency articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
Regarding the harassment claim, the Agency found that the evidence of record did not establish that Complainant was subjected to harassment based on race, sex, age, and retaliation. Specifically, the Agency found that the alleged harassment was insufficiently severe or pervasive so as to create a hostile work environment.
Regarding claim 1, S1 stated that on November 1, 2008, he questioned Complainant about the manner in which he was performing his job because it was a primary job that was taking a long time to complete. Specifically, S1 stated that he had worked as a millwright in industrial facilities and "is well versed in mechanical alignment." S1 stated that when he walked into the test cell to find out how progress was going on the test stand, and Complainant told him that everything was fine. S1 stated, however, he noted that Complainant "was doing what they call a 'sweep.' In other words, you have to turn off the shaft with the laser and the prism on it, so the computer will register how many thousandth's of a inch you are off on the alignment. . .. So, when I saw [Complainant] do the sweep - - and he said he had just made a movement on the gear box and then he did the sweep. And I said: 'well, wait a minute. You did that sweep, but you did not torque down the bolts?' And that is when he said: 'hey, I have been doing this for seventeen years, you know. Are you trying to tell me I'm not doing it right or I'm not doing my job right?' And I said: 'I'm not saying that. I'm saying that this particular procedure here, you're not going to get a particular alignment reading.' And I'll give you an example. If you have four points here and you have two different people that are tightening the bolt, the amount of strength you apply and what you feel is tight and what [a named employee] feels is tight are going to be two different strength factors. When you use a torque wrench, you apply the same amount of force with a calibrated tool to each point so you can get an accurate footprint, an accurate alignment. That's what I was explaining to him. I said: 'you're going to get inaccurate readings."
S1 stated that he gave Complainant instructions but Complainant replied by asking him if he wanted to do the job himself. S1 stated that he told Complainant that he was asking him to do the job and "'the bolts need to be torque[d] on the gear box and you need to do an alignment sweep.' So somewhere in there - - I think [Complainant] mentioned something about going home right before that. He said: 'well, I'll just go ahead and pack up my tools and go home.'" S1 stated that Complainant came back to him saying that he and his crew were going home for the day. S1 stated that it was not Complainant's decision "to be taking people off the job. That is my decision."
S1 stated that at that point, a named engineer (E1) pleaded to him that they were approximately one month and a half behind on the job and needed to have the matter taken care of. S1 stated that he went to look for Complainant and asked him to speak with him but Complainant refused. S1 stated that he told Complainant "I, as your supervisor, am directing you to come outside and I need to speak with you so we can get this issued resolved." S1 stated that he and Complainant went outside and apologized to each other. S1 stated that from that point, Complainant and his crew returned to work tightening up the bolts.
Regarding claim 2, S1 stated that he removed Complainant from the alignment project (referenced in claim 1) because of the amount of overtime that was being used in comparison to straight time, and that the job should have been completed in a shorter period of time. Specifically, S1 stated that Complainant and his crew worked on it "for a month, going on a month, and they had not made any more progress. It was basically like they had started - - almost started over gain. . . . So, that is why I questioned it and that is why I removed him and put someone else on the job." S1 stated that at that point Complainant and his crew had used up 225 hours of overtime and 67 hours of straight time. S1 further stated that the other person that he put on the job "completed it in like about a week, week-and-a-half, him and two other intermediates."
S1 stated that during the relevant time he did not assign Complainant to the night shift because there were no vacancies. Specifically, S1 stated that after Complainant asked him about being moved to the night shift, he check with S2 and learned that there were no vacancies on the night shift.
Complainant's second-level supervisor (S2) stated that S1 told him about his encounter with Complainant. S2 stated that the job Complainant was working on was a high priority and should have been received a dedicated effort. S2 further stated that Complainant was not moved to the night shift because there were no vacancies. Specifically, S2 stated that when vacancies occur, they are filled based on merit.
Regarding claim 3, S2 stated that he was aware that two named white co-workers (E1 and E2) had problems with Complainant regarding the disparity in distribution of overtime hours. Specifically, S2 stated that Complainant "had 700 hours overtime average more than anybody else in the shop and they felt that . . . there was a problem. . ." S2 stated that he looked into the discrepancy in the overtime hours. S2 stated that he learned that Complainant told the previous supervisor that he was the only person that could maintain those test cells and that he would take the keys to the tool boxes and not show anybody else how to do that, how to maintain the test cells."
S2 stated that following his inquiry, management "made changes on training other people in that area, that way we did have the ability to put anybody for overtime." S2 stated that he never made a request that Complainant be removed as a union steward. S2 stated it is the responsibility of the union to make decisions whether to remove employees as union stewards, and that "management does not have that right." Furthermore, S2 stated that Complainant was never removed as a union steward.
S1 stated that Complainant told him that the disparity in overtime was a result of his prior supervisor failing to accurately record when overtime was offered and declined by his co-workers. As a result, Complainant had approximately 700 hours of overtime while his co-workers had 60-70 hours of overtime. S1 stated that E1 and E2 were upset with the disparity in overtime among employees.
E1 stated that he was concerned about the lack of overtime he received because it limited his ability to obtain training necessary for promotion. E1 stated that he filed a grievance because Complainant, as a union steward, refused to represent him on the overtime matter. Specifically, E1 stated that he asked Complainant "to represent the shop on the overtime issue and he refused. I went behind - - I went by him and went to the Union Steward, Chief Steward, the Union President, the Union Vice President, and asked them to take care of the overtime issue and nothing was done. As a matter of fact, several things were done that were, in my estimation, unethical and illegal." E1 stated that his goal filing the grievance was to have Complainant removed as a union steward because he was not properly representing members of the union. E1 stated, however, Complainant was never removed as a union steward.
Regarding claim 4, S1 stated that on April 15, 2009, he issued Complainant a Letter of Warning placing him on notice that he needed to keep his contacts with E1 professional. Specifically, S1 stated that "there had been a lot of talk in the shop. Well, actually, I was getting people coming up to me - - not just [Complainant] or [E1], but other employees had been voicing their concerns that there was a lot of chatter going on, whether it was from [E1] or from [Complainant] and they were bad-mouthing each other." Based on these reports, S1 decided to issue a Letter of Warning to Complainant and E1, requiring that their interactions with each other only pertain to business and that personal issues be left outside of the work place. Furthermore, S1 stated that it was just a letter warning and "there was no disciplinary action. I just wanted [Complainant and E1] to keep business with business. And personal issues, leave that outside."
Regarding claim 5, the record reflects that E1 claimed that on April 29, 2009, Complainant "shoved through" when going by him in the break room and caused him to be concerned about future encounters. The record further reflects that a member of the security office stopped by Complainant's worksite and took a statement from him after E1 filed an assault complaint. In his sworn statement, Complainant alleged that he inadvertently bumped E1 while going by him in the break room. Complainant stated that he was unable to avoid contact with E1 because there was a chair blocking the other way.
S2 stated that as a result of the security inquiry, "it was basically dropped because it was, from what I understood, it was a 'he said/he said' and there was no formal evidence or anything, no charges submitted."
Regarding claim 6, S2 stated that he made a decision to move Complainant and E1 to different shops because they were unable to get along with each other. Specifically, S2 stated he made his decision reassign Complainant and E1 based on "the escalation of the harassment. . . both of them claiming they're being harassed, both of them claiming that they felt threatened, and I could not . . . keep them in the same shop together, so I moved them to different - - similar shops, same series, same grade, and moved them at exactly the same time."
Regarding claim 7, Complainant alleged that a named employee (E3) complained to management that he was sent outside of his work center looking for a part. Complainant stated that while he assisted his co-workers find some parties in different section, E3 gave him a "dirty look" and reported that he was loitering in his work area. Complainant further alleged that he was instructed to stay out of the area and to let his co-workers find their own parts.
S1 stated that on July 13, 2008, he had returned to work after a two-week leave and a named employee (E3) informed him that Complainant "has been spending a lot of time at our shop those two weeks, don't know what he was doing, also that he was spending time in the transmission test cells, and that he saw him - - I don't know if he knew he was looking for parts." S1 stated that he asked E3 why he did not inform the Acting Supervisor during his absence and E3 acknowledged that he had not. S1 stated that he then told E3 that he should have brought it to the attention of the Acting Supervisor.
Further, S1 stated after Complainant was moved out of our work area, I did see him maybe two or three different times in the transmission area, whether it was the disassembly or the test cells, but it was pretty much, you know, he's passing through and I'm going the other way. I saw [Complainant], waved to him or shook his hand and just went on my way. I never called his buss. I never told him anything and said, 'hey, you are in the wrong area.' You are not supposed to be here,' nothing to that effect, because I didn't know what his reasons - - if he was just passing through...The only issue was apparently was when [named employee] contacted [agency official]. And to tell you the truth, I wasn't even aware of that." Moreover, S1 stated that no disciplinary action was taken with regard to Complainant being seen outside of his work area looking for parts.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency improperly found no discrimination. For instance, Complainant states he is subjected to ongoing harassment by his co-workers and management "took no action to resolve the harassment taking place, to the point things got out of hand and to include to when security picked me up for assault charges that somebody filed against me." Complainant argues that because of the harassment he's been subjected to, he had to use a large amount of annual and sick leave due to anxiety.
ANALYSIS AND FINDINGS
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, he 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 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).
This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether complainant has shown by a preponderance of the evidence that the agency's actions were motivated by discrimination. See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990); Peterson v. Department of Health and Human Services, EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of the Navy, EEOC Petition No. 03900056 (May 31, 1990).
In the instant case, we find that Agency management articulated legitimate, nondiscriminatory reasons for its actions, as detailed above. Neither during the investigation, nor on appeal, has Complainant proven, by a preponderance of the evidence, that these proffered reasons were a pretext for unlawful discrimination. Beyond his bare assertions, Complainant offered no evidence that management acted with a discriminatory animus.
Complainant, on appeal, has offered no persuasive arguments indicating any improprieties in the Agency's findings. Therefore, after a review of the record in its entirety, including consideration of all statements 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 (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
June 12, 2012
__________________
Date
1 On August 6, 2009, the Agency issued a final decision, dismissing the instant formal complaint for failure to state a claim and untimely EEO Counselor contact. On appeal, the Commission reversed the Agency's dismissal and remanded the matter to the Agency for further processing. Molina v. Department of the Army, EEOC Appeal No. 0120093742 (March 2, 2010). Following the Commission's decision, the Agency processed the remanded claims in accordance with 29 C.F.R. � 1614.108, which is now the subject of the instant appeal.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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