0120152181
10-22-2015
Sandy S.,1 Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sandy S.,1
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120152181
Agency No. ARRUCKER13SEP03366
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's April 14, 2015 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.
BACKGROUND
During the period at issue, Complainant worked as an Air Traffic Assistant at the Agency's 1st Battalion, 14th Aviation Regiment/110 Aviation Brigade facility in Fort Rucker, Alabama.
On September 25, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On November 8, 2013, Complainant filed the instant formal complaint, alleging that he was subjected to discrimination on the basis of race (African/Italian). Therein, Complainant alleged that he was suspended for fourteen days due to comments he made to his supervisor that were perceived as threats, although a similarly situated Caucasian employee was not disciplined in September 2012, following comments purportedly made at that time. Complainant stated that subsequently an Agency official stated that "the matter was closed and that the written counseling would be disposed of." However, Complainant stated that in May 2013, the incident was referenced in justification for a proposed suspension. As a remedy, Complainant requested, in part, payment of $300,000.00.
The record contains a copy of a suspension issued to Complainant dated August 19, 2013, but signed as received by Complainant on August 20, 2013. Therein, the Agency indicated that a May 2, 2013 incident where Complainant purportedly made a comment to a supervisor that was perceived as a threat. The suspension was effective August 21, 2013, for a fourteen-day period.
On November 26, 2013, the Agency issued a final decision dismissing the formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Without further elaboration, the Agency found that Complainant stated that his union was pursuing the suspension in another venue. The Agency dismissed the formal complaint on the alternative grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2).
The record reflects that on December 11, 2013, the Agency and Complainant's union entered into a settlement agreement in resolution of Complainant's pursuit of this matter through the grievance process, wherein the suspension was expunged and provided full payment to Complainant for backpay and interest for compensation received due to the suspension.
Complainant appealed. On appeal, the Commission reversed the Agency's final decision. While the Commission noted that the Agency dismissed the instant complaint for failure to state a claim, the Commission found that it was more properly analyzed in terms of mootness. Further, the Commission determined that the instant complaint was not rendered moot at a minimum because Complainant requested compensatory damages. The Agency was ordered to process the remanded claims. Bilal v. Department of the Army, EEOC Appeal No. 0120140838 (May 7, 2014). Following the Commission's decision, the Agency processed the remanded claim in accordance with 29 C.F.R. � 1614.108.
After the investigation of the instant formal complaint, 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 (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant requested a hearing. By an Order dated January 26, 2015 and entitled "Notice of Dismissal of Hearing Request," the AJ cancelled the hearing request because it was untimely. The AJ remanded the formal complaint to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. 1614.110(b) on April 14, 2015, which is now the subject of the instant appeal.
In its decision, the Agency dismissed the instant complaint, pursuant to 29 C.F.R. � 1614.107(a)(5), on the grounds of mootness. The Agency noted that as a result of a grievance settlement, the disciplinary action had been rescinded, all pay and benefits have been restored and Complainant was afforded an opportunity to provide evidence of entitlement to compensatory damages but did not provide any. The Agency therefore determined that there was no reasonable expectation that the alleged actions would recur.
The Agency then proceeded to address the instant complaint on the merits, assuming that the instant complaint was not moot. The Agency found that Complainant did not establish a prima facie case of reprisal discrimination. The Agency further found that assuming, for the sake of argument only, Complainant established a prima facie case of reprisal discrimination, Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant did not show were a pretext.
The instant appeal followed.
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).
The Agency articulated legitimate, nondiscriminatory reasons for its actions. Complainant's supervisor stated that during the first week of May 2013, a Labor Relations Specialist (Specialist) informed him that during a telephone conversation with Complainant, he began swearing and cursing at her. The supervisor stated that he then emailed Complainant informing him to speak in a professional manner and Complainant "basically came back with - that if I continued to press the issue that I was pressing at the time that I would do so at my own risk. I emailed him back and basically stated that when people talk to me like that, that I perceive that as a threat. And he came back with, you know, he was in his union capacity...but then he closed with that if I continued to do so - - or what he meant to say was if he - - if I continued to proceed that I would do so 'at my own demise.'" The supervisor stated that at that time he felt that Complainant's threats would possibly result in physical harm to himself or his family so he contacted the Specialist who then advised him to contact the legal office.
The supervisor stated that on May 23, 2013, he issued a memorandum for the record "because I felt threatened and something should be done about it." The memorandum served as background information to seek assistance from two named Agency attorneys concerning how to best address the threats made by Complainant.
Complainant's second level supervisor stated that he was the proposing official that Complainant be suspended because he "threatened his supervisor, and that warranted disciplinary action." Specifically, the second level supervisor stated that supervisor provided him the email correspondence between him and Complainant, and that Complainant's "exact wording was - - paraphrase earlier, but if you proceed with this course of action, and then I quote, you do so at your own risk. And then [supervisor] asked him to define 'risk,' because he said that kind of sounds like a threat, and [Complainant] clarified that. He said, 'you do so at your demise' And demise, to me, means death or peril, and so that, to me, is a clear threat to [supervisor]."
The second level supervisor noted in the table of penalties "for threatening your supervisor, conduct unbecoming a federal employee supports everything up to and including termination. I thought that was excessive, so a very small two-week suspension seemed appropriate." Furthermore, the second level supervisor stated that Complainant's race was not a factor in his proposal that Complainant be suspended for 14 days.
The Lieutenant Colonel stated that during the relevant period he was the Battalion Commander for the 1st Battalion, 14th Aviation Regiment. The Lieutenant Colonel stated that shortly after he assumed the command he was presented "a case for a recommended suspension for 14 days for [Complainant]. Shortly after command, I made an appointment in which [named Agency official] from legal and [Specialist] from CPAC [were] present. They briefed me, presented me the case...I think we had discussions on what to do about the case...so as I went through the process and reviewed that case and reviewed the email, I asked for [supervisor] to provide me some more information, because I was not presented just with the email, to better make my decision. His statement was presented to [Complainant] as well as part of the case. In that, it basically surmised that [supervisor's] supervisor had witnessed [Complainant] with some erratic behavior, specifics undefined; also witnessed a phone conversation with [Specialist] in a very heated conversation...so I was left to determine on my own based on the case or based on the information presented to me that that was a threat, and so my decision was to suspend [Complainant]."
Further, the Lieutenant Colonel stated that he takes threats "very, very seriously considering the operating environment that we find ourselves, in the news, in society; and erratic behavior with a threat on a piece of paper, to me, is enough grounds to impose the maximum punishment of 14 days."
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 race discrimination.
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.2
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 (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 Complainants 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 22, 2015
__________________
Date
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.
2 Because we affirm the Agency's finding of no discrimination for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. mootness).
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