Stan G.,1 Complainant,v.Richard V. Spencer, Secretary, Department of the Navy, Agency.Download PDFEqual Employment Opportunity CommissionSep 13, 20180120160811 (E.E.O.C. Sep. 13, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Stan G.,1 Complainant, v. Richard V. Spencer, Secretary, Department of the Navy, Agency. Appeal No. 0120160811 Agency No. 14-67100-02880 DECISION On December 23, 2015, 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 November 12, 2015, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. Our review is de novo. 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 a Heavy Mobile Equipment Mechanic, WG-5803-10, at the Agency’s work Marine Corps Logistics Base in Barstow, California. On July 29, 2014, Complainant filed an EEO complaint wherein he claimed that the Agency discriminated against him on the bases of his race (African-American), sex (male), color (black), age (55), and in reprisal for his prior protected EEO activity under Title VII and the ADEA when he did not receive an eight-hour time off award during the Fiscal Year 2013 award period. 2 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 The Agency initially dismissed this complaint pursuant to 29 C.F.R. § 1614.107(a)(9) on the grounds of misuse of the EEO process. Complainant subsequently filed an appeal with the 0120160811 2 At the conclusion of the investigation, the Agency stated that it provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). According to the Agency, 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 Agency determined that Complainant failed to prove that it subjected him to discrimination as alleged. The Agency stated that despite repeated requests by the EEO Investigator, Complainant failed to submit an affidavit in support of his complaint. The EEO Investigator stated that on March 11, April 2, April 7, and April 21, 2015, she attempted to obtain testimony from Complainant. The Agency noted that in addition to her affidavit, the EEO Investigator provided copies of emails sent to Complainant and his representative, email receipts, and United States Postal Service tracking information concerning requests sent. According to the EEO Investigator, on March 14, 2015, Complainant responded to her March 11, 2015 email and requested additional time to submit a declaration. The Agency stated that the EEO Investigator granted the request but Complainant never provided a declaration. The EEO Investigator explained that on April 21, 2015, she afforded Complainant an opportunity to review management testimony to develop his rebuttal, but Complainant did not submit any rebuttal information. The Agency stated that since Complainant failed to provide an affidavit, information concerning the claim at issue has been derived from the formal complaint and other relevant documents within the file. Complainant claimed that employees at the Marine Depot Maintenance Command in Albany, Georgia all received eight-hour time off awards but at his facility in Barstow, California, which is under the same Command, only a few employees received eight-hour time off awards. In support of his argument, Complainant stated that the Commander of the Maintenance Center commented in 2009 that experience is overrated, which Complainant interpreted to mean old employees are dead weight. The Agency determined that Complainant failed to establish a prima facie case of discrimination under each of the alleged bases. The Agency reasoned that Complainant’s failure to receive an eight-hour time off award did not constitute a significant change in employment status, as it did not deprive him of a term, condition, or privilege of employment to which he was otherwise entitled. The Supervisory Industrial Specialist asserted that guidance from Marine Corps Logistics Command Manpower on December 18, 2013, stated that both cash awards and time off awards were authorized. However, the Agency stated that all employees in Complainant’s position were not entitled as a matter of right to a time off award. According to the Agency, the number of time off awards was severely limited and therefore 900 of the 1,100 employees at the MDMC did not receive a time off award. Commission. In Complainant v. Department of the Navy, EEOC Appeal No. 0120150512 (December 30, 2014), we reversed the Agency’s dismissal of the complaint. We found that the Agency failed to meet its burden of proving misuse of the EEO process. 0120160811 3 The Agency further stated that Complainant did not identify any comparator employees by name and/or position, and stated in his complaint that only a few employees in Barstow received a time off award. As to the elements of a prima facie case of reprisal, the Agency noted that the management official who had the discretion to decide how to allocate FY 2013 time off awards stated that he was unaware of Complainant’s prior EEO activity when he made his allocation decisions. The Agency reiterated that not receiving a time off award does not constitute an adverse employment action. The Agency also determined that there was no causal link between Complainant’s prior EEO activity and him not receiving a time off award. The Agency noted that the official who made the allocation decisions had never met Complainant. Further, the Agency stated that there was too great a gap in time to support the inference of causation. The Agency asserted that Complainant’s prior EEO activity closed on May 29, 2013, and he was not denied a time off award until April 16, 2014. Assuming arguendo that Complainant had set forth a prima facie case under any of the alleged bases, the Agency stated that the Plant Manager explained that there was no specific Command guidance concerning who should receive time off awards, although it had been decided that all eligible MDMC employees would receive a cash award. The Plant Manager stated that he utilized a subjective determination of merit that involved speaking with subordinate managers and observing for himself employees whom management believed had distinguished themselves. According to the Plant Manager, a large portion of awards went to managers and personnel at the GS-11 level, who had worked many extra hours. The Plant Manager stated that this resulted in only about 130 of the remaining 1,000 employees receiving time off awards. The Plant Manager acknowledged that some high-performing employees might not have received a time off award. The Deputy Commander stated that he issued the final approvals of all time off awards by concurring with the recommendations. The Deputy Commander disputed Complainant’s claim that all employees in Albany received time off awards. According to the Deputy Commander, Albany only received 26% of all available time off awards and Barstow received 74%. The Deputy Commander asserted that 77% of MDMC personnel did not receive a time off award. The Agency stated that at Barstow, nine percent of the employees were African-American and African-Americans received eight percent of the time off awards. The Agency noted that 72% of the Barstow employees were 40 years old or older and 76% of the employees who received time off awards were 40 years old or older. According to the Agency, 81% of the employees at Barstow were male and 80% of the employees who received time off awards were male. In terms of Complainant’s performance evaluation for FY 2013, the Agency stated that Complainant received an “Acceptable†rating. The Agency determined that it articulated legitimate, nondiscriminatory reasons for its decision not to award Complainant a time off award. With respect to Complainant’s attempt to establish pretext, the Agency noted that Complainant argued there was a bias against older employees in light of the Commander’s statement in 2009 that experience is overrated. 0120160811 4 The Agency, however, rejected this contention noting that Complainant did not link this five-year old comment to any current management officials who were involved in the allocation of time off awards for FY 2013. The Agency noted that 76% of the time off awards were given to employees who were 40 years of age or older. The Agency observed that the distribution of awards among employees of different races, ages, and genders closely matched the percentage in which they were represented in the workplace. The Agency stated that the Plant Manager explained there were a significantly reduced number of awards, and he made the determination who would receive them based on his own observations and supervisors’ observations of work performance during the year. The Agency determined that Complainant failed to establish that its explanation was pretext intended to hide discriminatory motivation. CONTENTIONS ON APPEAL On appeal, Complainant contends that he was denied access to the investigative report. Complainant states that he received a compact disc that was encrypted with a password for opening the investigative report, but that the Agency never sent him the password despite his repeated requests. Complainant also maintains that he requested a hearing. Complainant challenges the Agency’s assertion that 24 African-Americans at Barstow received time off awards. According to Complainant, he knows most of the African-American employees at the facility, and the ones he polled told him that they did not receive a time off award. As for his claim of age discrimination, Complainant maintains that the Commander’s aforementioned remark was reflected in his unofficial program of promoting younger employees and placing them in leadership positions. ANALYSIS AND FINDINGS To prevail in a disparate treatment claim such as this, 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). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 802 n. 13. To establish a prima facie case of reprisal, Complainant must show that: (1) he engaged in protected EEO activity; (2) the Agency was aware of the protected activity; (3) subsequently, he was subjected to adverse treatment by the Agency; and (4) a nexus exists between his protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency’s explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993). 0120160811 5 With regard to Complainant’s contention concerning the investigative record, we observe that Complainant has not submitted any evidence in support of his position that the Agency denied him the password. As for his claim that he requested a hearing, the hearing request form submitted by Complainant on appeal in support of this assertion is dated November 15, 2012, and it applies to a prior complaint filed by Complainant. Further, we observe that Complainant has not provided an explanation as to why he failed to submit an affidavit as requested by the EEO Investigator. First, we note that the Agency was incorrect in its assertion that the denial of a time off award fails to constitute an adverse employment action. Receiving a performance award is clearly a privilege of employment and therefore, the denial of such an award would be an adverse employment action. We shall assume arguendo that Complainant set forth a prima facie case of discrimination under the alleged bases. The Agency stated that the Plant Manager made the decision to recommend certain employees for time off awards based on his subjective determination of merit that involved speaking with subordinate managers and observing for himself employees whom management believed had distinguished themselves. The Plant Manager asserted that a large portion of awards went to managers and personnel at the GS-11 level, who had worked many extra hours. The Plant Manager stated that this resulted in only about 130 of the remaining 1,000 employees receiving time off awards. We find that the Agency articulated legitimate, nondiscriminatory reasons for its decision as to whom received a time off award. Complainant challenges on appeal the number of time off awards the Agency reported it issued to African-Americans. However, other than his own statement, Complainant has offered no evidence to support his contention. Complainant has not submitted corroborating statements from the African-American coworkers who he says that he polled. Complainant also argues that there has been a longstanding pattern of discrimination against older employees. However, this contention is negated by the fact that 76% of the employees who received time off awards were 40 years of age or older. We find that Complainant has not presented sufficient argument or evidence to establish that the Agency’s explanation for its time off decision was pretext designed to mask discriminatory intent. CONCLUSION After a review of the record in its entirety, including consideration of all statements submitted 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. 0120160811 6 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. 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. 0120160811 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 13, 2018 Date Copy with citationCopy as parenthetical citation