Val L.,1 Complainant,v.Steven T. Mnuchin, Secretary, Department of the Treasury (U.S. Mint), Agency.

Equal Employment Opportunity Commission

Nov 6, 2018

0120172417 (E.E.O.C. Nov. 6, 2018)

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

Val L.,1
Complainant,

v.

Steven T. Mnuchin,
Secretary,
Department of the Treasury
(U.S. Mint),
Agency.

Appeal No. 0120172417

Agency No. MINT-16-0480-F

DECISION

The Equal Employment Opportunity Commission (EEOC or Commission) accepts
Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 23, 2017
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 a Production Maintenance Mechanic at the
Agency’s Production Maintenance Division in Philadelphia, Pennsylvania.

On June 10, 2016, Complainant filed a formal EEO complaint alleging the Agency discriminated
against him based on race (African-American), color (brown), and in reprisal for prior EEO
activity when:

1. on April 26, 2016, he received verbal counseling based on false accusations against
him;

2. on April 28 and 30, 2016, he was denied sick leave;

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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3. on May 4, 2016, he received verbal counseling and his performance evaluation was
lowered;

4. on June 1, 2016, a supervisor uttered a racial epithet under his breath in the presence
of Complainant, who was eating lunch in the break room; and

5. after that incident, Complainant was escorted out of the building by police and was
not allowed to return to work.

The Agency initially dismissed the complaint for untimely EEO counselor contact. On appeal,
the Commission reversed the Agency’s dismissal and remanded the matter to the Agency for
further processing. Complainant v. Department of Homeland Security, EEOC Appeal No.
0120172417 (October 28, 2016). Following the Commission’s decision, the Agency processed
the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq.

After the investigation of the claims, the Agency provided Complainant with a copy of the report
of investigation and notice of the right to request a hearing before an EEOC Administrative
Judge. In accordance with Complainant’s request, the Agency issued a final decision on June
23, 2017, pursuant to 29 C.F.R. § 1614.110(b), finding no discrimination.

The instant appeal followed. Complainant did not submit a brief on appeal.

ANALYSIS AND FINDINGS

A claim of disparate treatment is examined under the three-part analysis first enunciated in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). For complainant to prevail, she
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.
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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).

Here, we find that responsible management witnesses articulated legitimate, non-discriminatory
reasons for the disputed actions.

Regarding claim 1, Complainant asserted that on April 26, 2016, he received verbal counseling
based on false accusations against him. Complainant claimed that he was called to work on a
certain piece of equipment. Complainant stated while he took control of the inoperable
equipment, an employee in the Coining Division, who worked that piece of equipment, made a
false allegation to his supervisor that Complainant had accused the employee of breaking the
piece of equipment.

A Production Maintenance Supervisor (Caucasian, white) (“Supervisor 1”) stated that during the
relevant period, he was Complainant’s immediate supervisor. Supervisor 1 stated that April 28,
2016, he verbally counseled Complainant that the other division is its customer and that he
should not get into any confrontations with customers. Further, Supervisor 1 stated that he told
Complainant “we cannot treat our customers in that manner, and that I was giving him a ‘zero’
for teamwork element portion of the review for this month.” Supervisor 1 stated that
Complainant “yelled that this is only because [Coining division employee] is a white guy.”

Regarding claim 2, Complainant alleged that on April 28 and 30, 2016, he was denied sick leave.

Supervisor 1 stated that Complainant was granted sick leave for April 28, 2016 “for the
remainder of the shift. [Complainant] was not satisfied with his performance review and wanted
to leave. I was giving the next employee his review, when [Complainant] came in my office and
stated that he wanted to leave. I asked if he wanted annual or sick leave, he said ‘I don’t care.’ I
stopped and stated that he was to request either sick or annual leave, he said sick leave and it was
granted.”

Further, Supervisor 1 stated that Complainant called requesting emergency sick leave on April
30, 2016, which was granted. Supervisor 1 stated that he informed Complainant that he was
granted sick leave for April 28 and 30, 2016 “but that I denied his WEBTA request [form]
because I did not agree with his statement in which he wrote quote ‘Emotional distress
encountered from harassment and prejudice imposed by supervision.’”2

Regarding claim 3, Complainant alleged that on May 4, 2016, he received verbal counseling and
his performance evaluation was lowered.

2 WEBTA is an abbreviation of the Agency’s web-based Time and Attendance system.
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Supervisor 1 stated that on May 5, 2016, the “verbal counseling” was actually a continuation of
the performance meeting with Complainant from April 28, 2016. The supervisor explained that
Complainant’s performance was not lowered, and that it was raised from the previous month.
Supervisor 1 stated that he informed Complainant that that he deserved an “Outstanding” for the
safety, personal responsibility, and craftsmanship elements “but that he will remain a ‘zero’ for
teamwork, and that we need to work on this so we can get him to full outstanding level by the
end of the year.” Supervisor 1 stated that Complainant responded stating, “this is ‘bullshit.’”

Regarding claim 4, Complainant asserted that on June 1, 2016,3 another Production Maintenance
Supervisor (Caucasian, white) (“Supervisor 2”) said, “fucking nigger” under his breath to
Complainant, who was eating lunch in the break room. Complainant stated the incident started
when Supervisor 2 gave him a work assignment while he was at lunch. Complainant stated he
responded that he would do it when he was done eating. When Supervisor 2 came back while
Complainant was still eating, he alleges Supervisor 2 called him a “fucking nigger” under his
breath. Complainant stated he stood up and called Supervisor 2 a “fucking red neck” and asked
his why the other employees in the break room (all white) were not being assigned work.

Supervisor 2 vehemently denied ever using this or any other racial epithet towards Complainant
or anyone else.

Regarding claim 5, Complainant alleged that, as a result of the incident in claim 4, he was
escorted out of the building by police and was not allowed to return to work.4

Supervisor 2 stated that on the day in question, Complainant “became very threatening as we
were trying to explain that it was his turn in rotation for the next job. [Complainant] acted in a
threatening manner toward his co-workers and finally threatened my family.” According to the
supervisor, Complainant stated, “this is bullshit, if my family don’t eat [then] your family is not
going to eat. You’ll see what I got for you.” The supervisor stated, “I attempted to diffuse the
situation and reply in a calm manner. At this point, [Complainant] turned to other employees and
raising his voice making loud threatening and racially charged statements.” The supervisor
stated that he contacted security and had them remove Complainant for the employees’ safety as
well as Complainant’s own well-being. Supervisor 2 stated that three of Complainant’s
coworkers and Supervisor 1 witnessed the incident.

Supervisor 1 confirmed Supervisor 2’s version of the incident and stated that Complainant was
escorted from the building for insubordination and acting in a threatening manner towards his

3 Management witnesses stated that this incident occurred on June 2, 2016.

4 In January 2017, when Complainant submitted his affidavit during the investigation into his
complaint, he was still on administrative leave. Complainant’s current work status is not evident
from the record.

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coworkers and supervisors (including threatening Supervisor 2’s family). Complainant was
placed on administrative leave pending the outcome of an investigation into the incident.

After careful review of the record, we conclude that Complainant failed to prove, by a
preponderance of the evidence, that management’s explanations for the disputed actions were a
pretext designed to mask discriminatory or retaliatory animus.

With regard to his claim that Supervisor 2 initiated the altercation by using a racial epithet,
Complainant has not presented evidence from any other witness to support his allegation that the
supervisor uttered a racial epithet towards Complainant on this occasion or at any other time, or
had ever used similar language towards anyone else. We note that during the investigation a
statement was taken from the only other African American employee in the maintenance division
where Complainant worked. That employee stated that he was not a witness to the incident at
issue, but had never observed any other events that he believed reflected discriminatory attitudes
on the part of the supervisors in question. In the face of the supervisor’s vehement denial, we do
not find that Complainant has established that this event occurred as alleged. As such, the
evidence of record fails to show that Complainant was subjected to racial harassment in violation
of Title VII.

CONCLUSION

We AFFIRM the Agency’s finding no discrimination because the preponderance of the evidence
of record does not establish that discrimination occurred.

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.
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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.

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.

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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 6, 2018
Date