Stefan C.,1 Complainant,v.Wilbur L. Ross, Jr., Secretary, Department of Commerce (National Oceanic & Atmospheric Administration), Agency.

Equal Employment Opportunity Commission

Nov 30, 2018

0120171591 (E.E.O.C. Nov. 30, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Stefan C.,1
Complainant,

v.

Wilbur L. Ross, Jr.,
Secretary,
Department of Commerce
(National Oceanic & Atmospheric Administration),
Agency.

Appeal No. 0120171591

Agency No. 54-2016-00286

DECISION

On March 27, 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 13, 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. and the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission
AFFIRMS the Agency’s final decision.

ISSUE PRESENTED

Whether the Agency discriminated against Complainant based on his race, color, sex, national
origin, and age when it terminated his employment during his trial period.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Vessel
Assistant (GVA) in the Agency’s Office of Marine and Aviation Operations. On April 7, 2016,
Complainant accepted the Agency’s offer to work as part of the Relief Pool, and his home port
was Charleston, South Carolina. Report of Investigation (ROI) at pg. 153.

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.
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Employees in the Relief Pool are on-call, and have no permanent vessel assignments; they are
assigned to different vessels based on need. If there are no immediate assignments available, those
in the Relief Pool wait for their next assignment. Relief Pool employees are paid based on the
number of hours worked. ROI at pgs. 110,116,119.

On April 23, 2016, Complainant was assigned to the ship Bell M. Shimada (“Shimada”) for
approximately 36 days. ROI at pgs. 162-164. When the Shimada was docked, Complainant met
with his first line supervisor (S1) (Caucasian, White, male, American, age 64), to discuss his next
assignment. S1 informed Complainant that there were no current assignments, but asked if he was
okay remaining onboard the Shimada to wait to see if any requests came in, and Complainant
agreed. S1 stated that the Shimada Executive Officer (EO1) contacted him, asking how to code
Complainant’s time and attendance because he had not performed any work for approximately
three (3) days. When S1 asked Complainant why he had not worked or checked in with his
Shimada supervisor, Complainant responded that he “did not know that he was supposed to.” ROI
at pgs. 118-119.

On June 21, 2016, Complainant was instructed to report to the Ronald H. Brown (“Brown”). The
Brown was scheduled to depart on July 9, 2016, and Complainant’s assignment was approximately
18 days. ROI at pgs. 166-168. When Complainant arrived, the sewage system on the Brown
malfunctioned, and the Chief Engineer (CE) tasked Complainant with cleaning the mess. The next
morning, the Brown Executive Officer (EO2) informed Complainant that he needed to leave the
ship. ROI at pg. 85.

On June 28, 2016, Complainant’s second line supervisor (S2) (Caucasian, White, male, American,
age 42) issued a Notice of Termination During Trial Period. S2 stated that he determined that
Complainant’s termination was due to “his failure to demonstrate that [his] performance warrants
continued retention,” and was effective July 8, 2016. ROI at pg. 170.

On August 31, 2016, Complainant filed an EEO complaint alleging that the Agency discriminated
against him on the bases of race (Black), national origin (American), sex (male), religion (Baptist),
color (Black), and age (59) when his employment with the Agency was terminated on July 8, 2016.

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 EEOC Administrative Judge
(AJ). In accordance with Complainant’s request, 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.

As an initial matter, the Agency noted that Complainant stated that he no longer believed that he
was discriminated against based on his religion. Accordingly, the Agency considered
Complainant’s claim of religious discrimination as withdrawn.

The Agency determined that Complainant was a member of protected classes based on his race,
color, sex, national origin, and age; and that he suffered a harm when he was terminated.
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However, the Agency found that Complainant was not treated less favorably than similarly situated
employees because the record shows that other GVAs did not have the same negative feedback
regarding their performance or safety concerns. Additionally, the Agency noted that the record
does not suggest a causal connection between Complainant’s protected classes and his termination.
The Agency concluded Complainant had not established a prima facie case of discrimination based
on his race, color, sex, national origin, or age.

Nevertheless, the Agency found that management officials articulated legitimate,
nondiscriminatory reasons for their actions. S2 stated that he decided to remove Complainant
because he posed potential safety concerns; had a lack of maritime awareness; and had an inability
to learn, which was inconsistent with the demands of the position to learn a ship’s operations
quickly and to adapt to unfamiliar tasks.

S1 stated that EO1 informed him that Complainant did not perform, or offer to perform any work,
while the Shimada was docked. S1 also stated that the Shimada’s Chief Boatswain (CB) expressed
concerns about Complainant’s performance because he refused assistance when learning how to
perform new tasks. S1 stated that CB and the Shimada’s Boatswain Group Leader both asked that
Complainant not be assigned to the Shimada in the future.

The Agency then found that Complainant had not shown that the reasons were pretext for
discrimination. For example, Complainant stated that EO2 informed him that the Brown crew was
too tired to train him, which confirmed that the decision to remove Complainant was motivated by
his lack of experience, and not an unlawful motive. Additionally, while Complainant contends that
S1 and S2’s testimonies are “conflicting and flat out wrong,” he did not specify where their
testimonies conflict, or where they are wrong. The Agency acknowledged that Complainant’s
emails were consistent with his own testimony, but that they did not disprove the truth and
accuracy of S2’s testimony.

With regards to Complainant’s allegation that the management officials had an “ancient bigoted
mentality that perpetuates racial discrimination in the maritime industry,” the Agency determined
that Complainant did not provide any evidence to support his characterization of Agency personnel
or the culture aboard their ships. The Agency concluded that Complainant’s subjective belief that
management officials discriminated against him was insufficient to establish that the Agency’s
explanations for their decision was pretext for discrimination.

Complainant filed the instant appeal, and submitted a statement in support of his appeal. The
Agency did not respond to Complainant’s appeal.

CONTENTIONS ON APPEAL

On appeal, Complainant argues that when he arrived on the Brown, he found a myriad of safety
issues, and that CE targeted his frustration at Complainant, which led to his termination.
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Complainant asserts that his work was stellar, and that he did not commit an act “so egregious” to
warrant termination. Additionally, Complainant argues that the Agency relied on “unsubstantiated
hearsay” by S1 and S2, and their statements were “flat out wrong or in fact lies unto perjury.”

ANALYSIS AND FINDINGS

Standard of Review

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”).

Disparate Treatment

Generally, claims of disparate treatment are examined under the 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 a complainant to prevail, he 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 (1978). Once complainant
has established a prima facie case, the burden then shifts to the agency to articulate a legitimate,
nondiscriminatory reason for its actions. Texas Dept. of Community 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 his obligation
to show by a preponderance of the evidence that the agency acted on the basis of a prohibited
reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993); U.S. Postal Service v. Aikens, 460
U.S. 711, 715-716 (1983).

Assuming, arguendo, that Complainant established a prima facie case of discrimination based on
race, color, sex, national origin, and age, we find that the Agency proffered legitimate,
nondiscriminatory reasons for their decision to terminate his employment. S2 stated that he
decided to terminate Complainant based on concerns raised about potential safety issues,
Complainant’s lack of maritime awareness/familiarity, and his inability to learn quickly. ROI at
pg. 113.

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S2 stated that EO2 called to inform him that she would rather not have anyone than sail with
Complainant due to her concerns about Complainant’s performance, and potential safety-related
issues. S2 stated that EO2’s request was unusual, and when he informed her that he would not be
able to send a replacement, EO2 stated that her preference was to proceed without Complainant.
S1 added that when responding to the sewage incident, Complainant made a bigger mess when
trying to clean the sewage, and that CE informed EO2 that Complainant’s performance was
unacceptable. ROI at pgs. 112, 121.

S2 stated that when Complainant was assigned to the Shimada, he did not perform any work for
2-3 days, and did not communicate with the Shimada’s leadership. S2 explained that since that
was Complainant’s first assignment, they “let it go,” but were frustrated by Complainant’s actions.
S1 stated that CB expressed “serious concerns” about Complainant’s performance, and that
Complainant had shown little motivation with regard to learning or performing tasks. ROI at pgs.
113,119.

We find that Complainant has not shown that the reasons were pretext for discrimination.
Complainant can establish pretext in two ways: “(1) indirectly, by showing that the employer's
proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful discrimination more likely motivated the
employer.” Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)
(internal quotation marks omitted); see also, McDonnell Douglas, 411 U.S. at 804-05.
Complainant argues that his work was “stellar” because he was given overtime. However, he has
not shown any evidence showing stellar performance, and only made bare assertions. To the extent
that Complainant argues that CE’s “displaced rage” caused his termination, we find that the record
shows that there were multiple factors that led to his removal, not just CE’s frustration with
Complainant.

On appeal, Complainant alleges that S1 and S2 made statements that were “flat out wrong,” lies,
or perjury. Unfortunately, Complainant did not request for a hearing before an EEOC 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).
As such, we find that Complainant has not shown that his managers’ reasons were pretext for
discrimination.

The Commission has long held that an Agency has broad discretion to set policies and carry out
personnel decisions, and should not be second-guessed by the reviewing authority absent evidence
of unlawful motivation.
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Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 259; Vanek v. Dep't of the Treasury,
EEOC Request No. 05940906 (January 16, 1997). Accordingly, we find that Complainant has not
shown by a preponderance of the evidence that the Agency discriminated against him based on his
race, color, sex, national origin, or age, when it removed him.

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 that Complainant
was not discriminated against based on his race, color, sex, national origin, or age when it
terminated his employment during his trial period.

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).
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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 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

November 30, 2018
Date