0120132465
06-12-2015
Complainant v. John M. McHugh, Secretary, Department of the Army, Agency.
Complainant
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120132465
Hearing No. 560-2012-00156X
Agency Nos. ARCETULSA11FEB01008
ARCETULSA11APR01679
DECISION
Complainant filed an appeal from the Agency's May 3, 2013, 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly found that Complainant did not prove that he was subjected to reprisal because of his previous EEO activity when the Agency did not provide him with a proper safety harness and issued him a memorandum for the record that alleged that he took three safety t-shirts instead of one shirt.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a River and Harbor Maintenance Worker in the Tulsa District at Sallisaw, Oklahoma. Complainant worked in the Major Maintenance unit at Robert S. Kerr Marine Terminal.
In May 2011, Complainant filed formal EEO complaints in which he alleged that the Agency discriminated against him in reprisal for prior protected EEO activity when:
1. The Agency did not provide him with a "safe and proper" safety harness when he requested it on December 2, 2010; and
2. On March 7, 2011, the Agency issued him a memorandum for the record (MFR) that alleged that he took three safety t-shirts on December 1, 2010, instead of one shirt.
In an investigative statement, Complainant stated that he received a safety harness about 2006 when he was assigned to the Marine Terminal. He stated that during a fall protection class on December 1, 2010, two industrial hygienists advised him that his harness was unsafe, and one of the hygienists (H1) gave him a lineman's harness to use until his supervisors provided a new harness. Complainant stated that the harness H1 gave him was uncomfortable and unsafe because it was smaller than his original harness, had thinner straps, had no padding on the back and shoulders, and had no waist belt.
Complainant further stated that on December 2, 2010, he informed two Towboat Operators and the Crane Operator that he needed a new safety harness. He stated that he reiterated this request several times and asked H1 to assist him in obtaining a new harness, but he was told that funds would not be available to purchase the harness until 2011. Complainant stated that he eventually made his request to the Maintenance Manager of his unit (Manager) and received the safety harness on or about April 6, 2011, which was about a month after he contacted the Manager about the request. Complainant stated that three coworkers received safety harnesses within two weeks of their arrival at the Marine Terminal and after he requested a new harness. He stated that those coworkers were a Welder, Maintenance Mechanic, and River and Harbor Maintenance Worker.
Complainant further stated that in an MFR, H1 wrongly accused him of taking three t-shirts after a fall protection class on December 1, 2010. Complainant also stated that he has not seen the MFR in his personnel folder, and the management did not take any disciplinary action against him because of the t-shirt incident.
The Manager stated that he was aware of and involved in Complainant's previous EEO complaints. He stated that he received an email from the Safety Office on December 1, 2010, that said that Complainant's safety harness did not fit correctly, and Complainant was given a new harness that met all safety requirements. The Manager further stated that he did not believe that that Complainant's harness was unsafe. He stated that Complainant was not happy with the harness he received from the Safety Office and demanded that management replace it.
The Manager further stated that funds were very limited from October 1, 2010, through approximately May 2011 because of a Continuing Resolution Authority. He stated that although Complainant did not need a new harness, he authorized the purchase of a new harness for him in March 2011. The Manager stated that the harnesses Complainant received in December 2010 and 2011 were compliant with American National Standards Institute (ANSI) and Occupational Safety and Health Administration (OSHA) standards. He also stated that the three employees cited by Complainant received safety equipment when funds were available during the August 2010 timeframe, prior to Complainant' request for a new harness.
Regarding the MFR, the Manager stated that he provided Complainant with a copy of the MFR and advised him that no disciplinary actions would be taken. He stated that the MFR is not a reprimand or a disciplinary action, and H1 does not have any authority to discipline Complainant.
H1 stated that he inspected Complainants safety harness during fall protection training in December 2010 and determined that the harness was too big. H1 stated that he did not tell Complainant that the harness was unsafe, but he provided him with a new harness that fit properly and met standards.
H1 further stated that after Complainant and other employees completed the fall protection training, he told them to take a safety incentive t-shirt on their way out. H1 stated that Complainant took three shirts, and H1 was concerned that there would not be enough t-shirts for the other attendees. H1 stated that he shared his observation with the Safety and Occupation Health Manager, but he did not want to write an MFR or to have Complainant disciplined because of the incident.
The record contains a copy of an MFR dated February 28, 2011, signed by H1. In the MFR, H1 states that during fall protection training in December 2010, he observed Complainant "grab" a t-shirt from two different containers as he walked out, and about a minute later, return and take another t-shirt as he walked out. The MFR further states that another trainer also observed Complainant's actions, but H1 and the trainer decided not to contact Complainant's supervisor about the matter. The MFR concludes that H1 and the trainer discussed the matter with their supervisor, and the supervisor advised H1 to document the event in an MFR.
Final Agency Decision
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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In that decision, the Agency dismissed claim 2 on the basis that it failed to state a claim. However, the Agency also addressed the merits of this claim. The Agency found that Complainant had not established a prima facie case of reprisal. The Agency further found that Complainant did not show that the Agency's non-discriminatory explanations were pretext for unlawful discrimination.
CONTENTIONS ON APPEAL
Complainant does not present any arguments on appeal. The Agency requests that we affirm its final decision.
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 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (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").
ANALYSIS AND FINDINGS
Disparate Treatment
Generally, claims of disparate treatment are examined under the tripartite analysis first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). Hochstadt v. Worcester Foundation for Experimental Biology. Inc., 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976). For 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 Construction Corp. v. Waters, 438 U.S. 567 (1978).
Once 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 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 Center v. Hicks, 509 U.S. 502 (1993); U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 715-16 (1983).
In this case, for purposes of analysis, and without so finding, we assume that Complainant established a prima facie case of reprisal. Nonetheless, we find that the Agency provided legitimate, non-discriminatory reasons for its actions. Specifically, management stated that Complainant's safety harness was determined to be too big, but it was not considered unsafe. Management further stated that another harness could not be procured immediately because of funding limitations caused by the Continuing Resolution Authority from October 2010 until May 2011. Management also stated that the employees to whom Complainant compared himself received their safety equipment before Complainant made his request and when funds were still available.
Further, the Agency stated that Complainant was issued the MFR because, during training, H1 and a trainer observed Complainant take three shirts instead of one, and they were worried that there would not be enough shirts for other attendees because of Complainant's actions. The Agency stated that the MFR was not a disciplinary action but documented the event for the record.
We note that Complainant did not provide a rebuttal statement during the investigation nor make any arguments on appeal. We conclude that Complainant did not show that the Agency's non-discriminatory explanations are pretext for unlawful reprisal. Therefore, we find that the Agency properly found no discrimination.
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 finding that Complainant did not prove that he was subjected to reprisal because of his previous EEO activity.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 12, 2015
Date
2
0120132465
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132465