Warner K.,1 Complainant,v.James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency.

Equal Employment Opportunity Commission

Feb 6, 2018

0120160244 (E.E.O.C. Feb. 6, 2018)

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

Warner K.,1
Complainant,

v.

James N. Mattis,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.

Appeal No. 0120160244

Agency No. DLAN-14-0175

DECISION

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 September 9, 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. For the following reasons, the Commission AFFIRMS the Agency’s
final decision.

BACKGROUND

Complainant worked as a Facilities Manager at the Distribution Center in Norfolk, Virginia. On
August 29, 2014, Complainant filed an EEO complaint in which he alleged that the Commander
and the Deputy Commander discriminated against him on the bases of race (African-American)
and sex (male) by awarding higher year-end bonuses to female supervisors in May 2014. He
also alleged that the Commander and the Deputy Commander retaliated against him for having
initiated the instant EEO complaint by threatening to take away his job responsibilities.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
investigative report and notified him of his right to request a hearing before an EEOC
Administrative Judge (AJ). On June 2, 2015, Complainant requested a final decision from the

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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Agency. 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.

Complainant averred that on May 12, 2014, he became aware that at least one female manager
received a higher year-end cash bonus award than he did for Fiscal Year 2013, and that he had
been overlooked for awards and promotions for several years. IR 91-93. According to personnel
notification forms prepared for Complainant and a female Comparator, Complainant received a
year-end bonus of $450 while the Comparator received a bonus of $900. IR 234-26. The
Commander and the Deputy Commander responded that monetary awards were based strictly on
performance, and that their assessments of their subordinates’ entitlement to a bonus were
reviewed at the Agency’s headquarters. IR 103, 111-12.

Complainant averred that while he was on leave in early June 2014, the Deputy Commander told
his subordinates that he lacked the skills necessary to manage his department and warned them
that changes would be coming. He maintained that the Deputy had done so in retaliation for him
having initiated the instant EEO complaint, which was his first. IR 92, 93. The Deputy
responded that while Complainant was on leave in June 2014, she met with two individuals who
had been assigned details to Complainant’s department to work on a Cultural Council initiative
that Complainant was put in charge of. The details were coming to an end later that year. These
individuals had expressed concern about where they would be assigned once their details ended.
The Deputy averred that because Complainant’s Cultural Council team had not produced any
tangible results within the last year, decisions would have to be made on whether the program
should be continued. IR 112-13.

Finally, Complainant averred that on June 18, 2014, the Deputy Commander challenged his
ability to perform his job and told him that many of his key responsibilities might be turned over
to other departments. IR 92, 94-95. The Commander and the Deputy Commander both stated
that the Distribution Center in Norfolk was going to become responsible for monitoring several
government contracts, and that because the Cultural Council team managed by Complainant had
not been producing results, they had discussed the idea of disbanding that team and putting
Complainant in charge of monitoring the contracts. IR 103, 113.

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
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parties, and . . . issue its decision based on the Commission’s own assessment of the record and
its interpretation of the law”).

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). Normally, Complainant’s first step is to 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 Construction Co. v. Waters, 438 U.S. 567,
576 (1978).

The prima facie inquiry may be dispensed with in this case, however, since the Commander and
the Deputy Commander articulated legitimate and nondiscriminatory reasons for their actions.
See U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v.
Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). With regard to the
bonuses, the Commander and the Deputy Commander stated that the female Comparator
received a higher bonus based on their assessment of her performance during Fiscal Year 2013.
With regard to the question of the Deputy’s discussions with Complainant and his subordinates
concerning the future of the Cultural Council initiative that took place in June 2014, the Deputy
stated that the program’s failure to produce any tangible action items going forward made it
difficult to justify its continued existence in light of the Center’s new responsibilities to monitor
contracts.

To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the
explanations put forward by the Commander and the Deputy Commander are pretexts for
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community. Affairs v.
Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request
No. 05950351 (Dec. 14, 1995). Pretext can be demonstrated by showing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the Agency’s proffered
legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy
of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007),
request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008). Apart from
his own affidavits and appeal contentions, Complainant has not presented affidavits,
declarations, or unsworn statements from witnesses other than himself, or documents that
contradict the explanations provided by the Commander and the Deputy Commander, or which
call their veracity into question. We therefore agree with the Agency that Complainant has not
met his burden to prove the existence of a discriminatory or retaliatory motive on the part of the
Commander or the Deputy Commander in connection with the three incidents described in his
complaint.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, we AFFIRM the
Agency’s final decision finding that Complainant did not establish that he was discriminated
against as alleged.

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
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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

February 6, 2018
Date