Shane L.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionDec 19, 20180120171765 (E.E.O.C. Dec. 19, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shane L.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120171765 Agency No. 16-62381-00751 DECISION On April 4, 2017, 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 March 6, 2017, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Able Bodied Seaman (AB) Maintenance, GS-05, at the Military Sealift Command (MSC) Atlantic Command, Norfolk, Virginia. During the relevant time, Complainant was assigned to the United States Naval Ship (USNS) Wally Schirra. The 3rd Officer was Complainant’s first level supervisor and his second level supervisor was the 1st Officer. The Schirra’s Master (Captain) was Complainant’s fourth level supervisor. The Purser was not in Complainant’s chain of command. Complainant verbally requested Purser training from the Purser on December 11, 2015. He stated the Purser advised him in order to be trained he needed a Certificate of Registry (COR), which he told her he possessed. Complainant stated that the Purser told him she did not mind training him but that she would have to run it by the Captain for approval. 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. 0120171765 2 Complainant stated that he went back to the Purser on December 16, 2015, and she told him the Captain was busy with the budget. Complainant stated he then emailed the Captain. The record contains a December 17, 2015 email from Complainant to the Captain noting he approached the Purser the previous week about Purser training. Complainant noted he possessed a COR and had previous training. Complainant requested an answer on whether or not he could be trained. The record contains a December 17, 2015 response from the Captain telling Complainant that “Right now I want you on deck working as a A/B for I’m not losing a AB billet to have someone train with the Purser. If the Purser is willing to train you and if the office can send someone to fill you[r] billet, I would give it some consideration.” Complainant responded on December 17, 2015. He clarified that he was not looking to train with the Purser during his work hours. Rather, he wanted to train when he was not on watch and during the Purser’s normal working hours. In a December 18, 2015 email, the Captain Commended Complainant for wanting to learn but stated the Purser did not feel comfortable training anyone right now. The Captain stated he would check with her again after the holidays. Complainant contended that he should have received the training because he has over 20 years of military experience performing duties associated with the Purser position and he has obtained his COR. Complainant stated he did not receive a reason for the Purser being uncomfortable training him, but he alleged that it was due to his race and sex because the Purser surrounded herself with Filipinos when making mail runs. Complainant also maintained that a Yeoman Storekeeper received Purser training from the Purser. Complainant acknowledged he did not speak with the Purser or the Captain again after the December 18, 2015 email from the Captain. Complainant filed an EEO complaint dated March 25, 2016, alleging that the Agency discriminated against him on the bases of race (African-American) and sex (male) when: On December 18, 2015, the Purser did not feel comfortable providing him on-the-job Purser training. 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). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. § 1614.108(f), 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. 0120171765 3 Complainant filed an appeal brief dated May 23, 2017 (postmarked May 25, 2017), which was untimely filed. Thus, we will not consider his appeal brief. The Agency filed a brief dated June 1, 2017. The Agency requested the Commission uphold dismissal of Complainant’s complaint for failure to state a claim. The Agency also argued it properly concluded Complainant failed to establish that he was subjected to discrimination as alleged. 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”). Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Found, for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For Complainant to prevail, she must first establish a prima facie case 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. McDonnell Douglas, 411 U.S. at 802; Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576 (1978). Once a complainant has established a prima facie case, the burden of production then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't of Com. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the Agency is successful, the burden reverts back to Complainant to demonstrate by a preponderance of the evidence that the Agency's reason(s) for its action was a pretext for discrimination. At all times, Complainant retains the burden of persuasion, and it is her obligation to show by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 509 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983). 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); Complainant v. Department of Transportation, EEOC Request No. 05900159 (June 28, 1990). 0120171765 4 In the present case, the Agency articulated legitimate, nondiscriminatory reasons for its actions. The Captain stated he informed Complainant that the Purser did not feel comfortable training anyone due to the holidays and that she would prefer training after the holidays. The Captain noted that he would follow-up with the Purser after the first of the year, and he told Complainant to check with the Purser around January 4, 2016. The Captain also noted that when the ship pulls into port, there is a significant amount of mail the first day and he usually has a couple of Deck ABMs or a couple of Supply Personnel assist the Purser bringing mail back to the ship. The Captain said this was not associated with training but due to the amount of lifting required. The Purser stated she did not deny Complainant Purser training, and noted she spoke with the Captain and told the Captain that she would not mind giving Complainant training but preferred providing training after the holidays. The Purser explained that sometimes she was very busy preparing travel orders and other documents and that she asked the Yeoman Storekeeper to help her. The Purser stated the assistance was not considered formal training, and the Yeoman Storekeeper never expressed a desire to become a Purser. Upon review, we find Complainant failed to prove by a preponderance of evidence that the Agency’s articulated reasons for its actions were a pretext for discrimination based on his race or sex. CONCLUSION Accordingly, the Agency’s final decision finding no discrimination is AFFIRMED. 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. 0120171765 5 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. 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. 0120171765 6 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 December 19, 2018 Date Copy with citationCopy as parenthetical citation